CCL asked the Fourth Circuit to take supervisory authority over a case challenging the constitutionality of the Virginia cap on medical malpractice damages because the federal trial court has postponed ruling on the cap's validity and insisted on moving forward with a trial in which it cannot award any damages. The petition for a writ of mandamus and prohibition invokes the higher court's authority to confine the lower court to its legitimate jurisdiction.

     In the petition filed March 26, CCL explains that J.S., a minor, filed this declaratory judgment action and medical malpractice case against the defendant to seek compensation for debilitating injuries that were caused by a failure to diagnose the injury following an automobile collision. A joint tortfeasor settled the case against it for $2 million before the current suit was filed. Virginia law limits damages in medical malpractice actions to a total of $2 million, even though, in this case, J.S.'s medical expenses are estimated to be $3.3 million. CCL had argued that because the federal district court cannot award any damages, the liability claims fail the test for standing under Article III of the Constitution, which require the court to be able to provide a remedy, among other things. However, CCL pointed out the court can provide a remedy in the constitutional challenge because it could find the statute unconstitutional and enjoin its operation. Doing so, then, would open the door to trying the underlying malpractice action.

    However, in early March, the district court determined that reaching the constitutional question would constitute an improper advisory opinion because there is no entitlement to additional damages until there is a jury verdict above the $2 million damage cap. It set the case for trial. The petition to the U.S. Court of Appeals for the Fourth Circuit, however, argues that the trial court got it backwards. A trial of a case in which it can award no damages would be the advisory opinion that the Constitution forbids, because Virginia does not authorize medical malpractice cases to be brought when $2 million in damages have already been paid. The CCL petition directs the court to a 2021 U.S. Supreme Court ruling, where the issue was whether nominal damages of $1 were sufficient to find Article III standing and held that it was because even nominal damages provide concrete vindication to a plaintiff. Yet, in J.S.'s case, CCL points out, not even one penny of damages could be awarded, so the parties would be invoking federal judicial resources for a case that cannot vindicate the plaintiff's complaint.

     Under the procedure for petitions for mandamus, the parties must await a decision from the Fourth Circuit that invites the other parties and possibly the lower court to file a brief in opposition. If no such invitation issues, the petition is denied. CCL is cocounsel in the case with the MichieHamlett law firm in Charlottesville, Virginia.