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Schwartz v. Brownlee2/28/1997
ensed as a health care provider in this Commonwealth, whether principal or agent, is not entitled to the protection of the medical malpractice cap. MMC was not licensed as a health care provider in this Commonwealth. Hence, it is not entitled to the protection of the cap.
The defendants argue, however, that "the only theory on which MMC could conceivably have been held liable for any injury to Brownlee is upon the derivative liability arising from the respondeat superior doctrine." Under the common law, the defendants continue, the amount of a judgment against a principal cannot be greater than the amount of the judgment against the agent tortfeasor. Hence, the defendants conclude, the trial court erred in refusing to order a remittitur of the verdict against MMC to $1 million. We have no quarrel with the defendants' argument that, at common law, the liabilities of principals and agents are coterminous. That view has been recognized in Virginia. In Monumental Motor Tours v. Eaton, 184 Va. 311, 35 S.E.2d 105 (1945), we said that when a master and servant are sued together and the master's liability rests solely upon the servant's negligence, "a verdict which in terms finds for the servant and against the master or is silent as to the servant and finds against the master, is . . . predicated upon a misapprehension of the law." Id. at 314-15, 35 S.E.2d at 106 (quoting Barnes v. Ashworth, 154 Va. 218, 229, 153 S.E. 711, 713 (1930)).
The common law continues in full force in Virginia except as altered by the General Assembly. Code § 1-10. The General Assembly may abrogate the common law, but its intent to do so must be plainly manifested. Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864 (1992). "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Blake Construction Co. v. Alley, 233 Va. 31, 34, 353 S.E.2d 724, 726 (1987) (quoting C. & O. Railway Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965)).
We are of opinion that in the enactment of Code § 8.01-581.15, the General Assembly has abrogated the common law and that its intent to do so is plainly manifested. By making the medical malpractice cap applicable only to licensed health care providers and denying the protection of the cap to non-health care providers, the General Assembly has provided in medical malpractice cases an exception to the rule that the liabilities of principals and agents are coterminous.
In the medical malpractice context, the exception is a rule of reason. The General Assembly enacted the medical malpractice cap for the purpose of enabling licensed health care providers to secure medical malpractice insurance at affordable rates. See Etheridge v. Medical Center Hospitals, 237 Va. 87, 93-94, 376 S.E.2d 525, 527-28 (1989). It would not serve that purpose to extend the protection of the cap to non-health care providers, and we will not ascribe to the General Assembly an intent to make such an extension. Rather, as indicated supra, we think it was the legislative intent, clearly manifested, to except such non-health care providers from the protection of the cap.
For the reasons assigned, we will affirm the judgment of the trial court.
Affirmed.
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