Opinion
Case No. 1:01CV00035
May 16, 2001
Carl E. McAfee, McAfee Law Firm, P.C., Norton, Virginia, for Plaintiff.
Wm. W. Eskridge, Penn, Stuart Eskridge, Abingdon, Virginia, for Defendants.
OPINION AND ORDER
In this medical malpractice case, the defendants have moved to dismiss the Complaint to the extent it seeks damages in excess of the state statutory medical malpractice cap and punitive damages. The motion will be granted.
I will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
In her Complaint the plaintiff contends that the defendants, both osteopathic physicians, were negligent in "excessively prescribing numerous medications" and "did not use the degree of skill and diligence in the care and treatment of [the plaintiff] that a reasonably prudent doctor in the same field of practice or speciality in the Commonwealth of Virginia would have used under the circumstances of this case." (Compl. ¶ 6.) She seeks compensatory damages in the amount of $1,750,000 and punitive damages in the amount of $500,000.
Virginia substantive law, which I must follow in this case, limits recovery in any malpractice action against a health care provider to $1,500,000 for acts occurring on or after August 1, 1999. See Va. Code Ann. § 8.01-581.15 (Michie 2000). While an argument can be made that the statute only requires the court to reduce any excessive verdict and does not preclude an action that seeks a greater amount, the better course is to strike any claim for an amount above the cap as immaterial under Federal Rule of Civil Procedure 12(f). See Paul v. Gomez, 190 F.RD. 402, 403 (W.D.Va. 2000).
Jurisdiction of this court exists pursuant to diversity of citizenship and amount in controversy. See 28 U.S.C.A. § 1332(a) (West 1993 Supp. 2000).
As to the claim for punitive damages, while such damages are theoretically available in this action, the Complaint here charges only that the defendants were negligent and violated the standard of care of a reasonably prudent doctor. Under Virginia law, proof of ordinary negligence does not entitle a plaintiff to recover punitive damages. See Owens-Corning Fiberglas Corp. v. Watson, 413 S.E.2d 630, 640 (Va. 1992) (holding that evidence proving negligence or even gross negligence did not constitute willful and wanton negligence justifying punitive damages).
While under the federal rules the liberal principles of notice pleading apply, where the pleader has specifically pleaded matters that disqualify her from recovery, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ought to be granted. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998).
For the foregoing reasons, it is ORDERED that the Motion to Dismiss (Doc. No. 2) is granted and the claims set forth in the Complaint for compensatory damages in excess of $1,500,000 and for punitive damages are stricken.
The dismissal of the claim for punitive damages is without prejudice and the plaintiff is not precluded from moving to amend her Complaint to seek punitive damages if the facts justify such a claim and the request does not come so late in the case as to prejudice the defense.