Briefs push both sides of med mal cap debate

MORGANTOWN – Caps on awards for pain and suffering in medical malpractice trials prevent runaway jury verdicts, the West Virginia State Medical Association pleads in a case the Supreme Court of Appeals will hear on Tuesday, March 8.

The association, as friend of the court, urges the Justices to reject a constitutional challenge to limits the Legislature imposed on non economic damages in 2003.

"Some plaintiffs' attorneys and their allies may champion extraordinarily high verdicts, but they go beyond the plaintiff's needs, distort the civil justice system, and place undue strain on the accessibility of health care and on the economy," wrote Mark Behrens of Washington, D.C.

Societies of specialists in the association joined the brief, along with three groups of insurers and the National Federation of Independent Businesses.

In another friendly brief, the state Bureau of Risk Insurance and Management warns that taxpayers will bear the cost if the Justices remove the caps.

In another, the insurer who covers most West Virginia doctors asserts that even after reforms, doctors pay nearly twice as much for insurance as those in bordering states

Friends of the court on the other side argue that legislators discriminated against vulnerable citizens and substituted their judgment for that of jurors.

Public Justice Foundation president Harry Deitzler of Charleston wrote, "Such limitations on the right to recovery have created a system in West Virginia where attorneys are unwilling to take medical malpractice cases where the victim does not have significant economic damages."

In the case at hand, James and Debbie MacDonald sued physician Sayeed Ahmed and City Hospital, a subsidiary of West Virginia University Hospitals, in Berkeley County.

They claimed James suffered a leg injury through improper administration of drugs.

At trial before Judge Gray Silver in 2008, jurors awarded James $750,000 for future pain and suffering, $250,000 for past pain and suffering, $92,000 in past medical expenses, and $37,000 in past lost wages, for a total of $1,129,000.

They awarded wife Debbie MacDonald $500,000 for sorrow, anguish and solace.

They assigned 70 percent of liability to Ahmed and 30 percent to City Hospital.

Silver ruled that $1,500,000 for non economic damages exceeded a $500,000 limit that legislators set in 2003, and he reduced the verdict by $1 million.

The MacDonalds posed a constitutional challenge, and Silver rejected it.

Ahmed and City Hospital moved to apply a $250,000 cap rather than a $500,000 cap that legislators imposed for more serious injuries, and Silver denied the motion.

He also denied the hospital's motion to set aside the verdict due to insufficient evidence.

The MacDonalds appealed, and Ahmed and the hospital filed cross appeals.

A cascade of friendly briefs followed.

For the state medical association and its allies, Behrens wrote, "Non economic damages awards are highly subjective and inherently unpredictable.

"There is no market for pain and suffering. ... Historically, pain and suffering damages were modest in amount and often had a close relationship to a plaintiff's actual pecuniary loss, such as medical expenses. ... That is not true today."

He wrote that from the 1960s to the 1980s, pain and suffering awards in wrongful death cases grew 300 percent.

"Pain and suffering awards became the most substantial part of tort costs," he wrote.

He wrote that in 2002, three neurosurgeons in Charleston faced a premium near $800,000, more than their combined pay.

"Such high costs led to the absence of neurosurgeons in Wheeling, Logan, and Beckley and those remaining in other areas of the state steadily departed," he wrote.

He wrote that state health officials downgraded Charleston Area Medical Center trauma center from first level to third and that 2003 began with a work stoppage by surgeons. He wrote that the health care environment has improved since the Legislature acted.

"Certainly, no amount of money can eliminate the suffering of a person who will experience difficulty walking for the rest of his life," he wrote. "This understandable sympathy, however, cannot and should not provide a basis for overturning the rational judgment of the Legislature to protect the availability of health care for all West Virginias residents."

He cited jury awards of $10 million and $5 million that the law has reduced.

He wrote that awards for pain and suffering have grown because the U.S. Supreme Court sharply restricted punitive awards in 1991.

"Juries may be influenced to award non economic damages based on a defendant's wrongful conduct or perceived wealth, leading to an award for pain and suffering that is inflated based on a desire to punish the defendant," he wrote, listing examples of $15 million, $50 million and $105 million. "There are numerous instances around the country in which this has occurred."

State medical association counsel Evan Jenkins of Charleston and Cary Silverman of Washington attached their names to the brief.

For West Virginia Mutual, an insurer that sprang from the same law as the caps, Michael Farrell of Huntington wrote that legislators could have granted immunity from non economic damages altogether.

"The cap is a legislative policy decision which does not infringe on a person's constitutional rights any more than does a statute of limitations," he wrote. "West Virginians are unhealthy and require more health care than similarly situated citizens in our region and our nation.

"If our state is ever to turn the corner from illness and disease management to health promotion and prevention of disease, we need our physicians to stay in the state. ... Even with the dramatic reduction in premiums effectuated to date by the Mutual, its insureds still pay nearly twice the premium paid by similarly situated physicians who practice in states that border West Virginia."

Tamela White and David Stackpole attached their names.

West Virginia Board of Risk and Insurance Management warned in its brief that without caps, it would require bigger appropriations from the Legislature.

Charles Bailey of Charleston wrote for the board that West Virginia taxpayers cover physicians at West Virginia University and Marshall University.

He warned that without caps, West Virginia Mutual would likely fail and the board would have to cover physicians as it did ten years ago.

"There can be no doubt that the state does not wish to be in the business of providing insurance coverage to private physicians," he wrote.

He wrote that West Virginia Mutual has provided substantial relief to the board.

"Without limitations, predictions as to exposure of potential losses, especially in high risk practices, are impossible," he wrote.

Brian Morrison and James Marshall, both of Bailey's firm, attached their names.

For Defense Trial Counsel of West Virginia, Mychal Schultz and Jeffrey Foster of Charleston urged the Justices to follow earlier decisions affirming caps.

"If we, as counsel, are unable to reasonably predict the application of statutory laws such as the damages cap, we will be unable to effectively counsel our clients on these issues," they wrote.

A brief from plaintiff lawyers at West Virginia Association for Justice claimed caps violate the right to a jury trial.

Paul Ferrell of Huntington wrote, "A tidal wave of public opinion, fueled by special interest groups, is not a sufficient rational basis to infringe upon the rights of those citizens most in need of justice."

He wrote that in 2006, insurance commissioner Jane Cline declared the end of the medical malpractice crisis and that her summary of 2008 found overall stabilization of rates.

He wrote that medical malpractice insurance produced an operating profit from 2004 to 2006, and again in 2008. He noted that West Virginia Mutual repaid a $24 million state loan 26 years early.

"The facts depict a reality much different than the media reported in 2003," he wrote.

He blamed the crisis on unusually high defense costs.

Christopher Regan of Wheeling attached his name.

For Public Justice, Deitzler wrote that providers "have no incentive to provide quality, error free care to those patients who frequently are at the highest risk of harm, such as young children, the elderly, and people with disabilities."

He wrote that these individuals can only recover limited economic damages plus the capped amount of non economic damages.

He wrote that women tend to earn less than men.

"Therefore, a larger percentage of any medical malpractice award a woman might receive would be composed of non economic damages," he wrote.

He wrote that types of injuries suffered by women don't affect them primarily in economic terms.

"For example, a woman who is the victim of a sexual assault by a health care provider or a woman who is rendered infertile due to the negligence of a health care provider probably will not be unable to work due to such injuries, but the emotional distress associated with these injuries is great," he wrote.

He wrote that "non economic awards often become the only way juries have to signal to society that these injuries are important and to provide women plaintiffs with adequate compensation."

He wrote that without recovery of non economic damages, most elderly persons would be awarded damages only for medical costs.

Troy Giatras and Stacy Jacques, both of Charleston, added their names.

For West Virginia Labor Federation, AFL-CIO, Thomas Maroney of Charleston wrote that caps punish hourly wage earners more than white collar workers.

"In times of economic downturn, layoffs are rampant," he wrote. "Most layoffs occur to those in less skilled positions.

"A person injured by medical malpractice while out of work due to an economic downturn has limited or non existent economic damages."

He wrote that many permanent injuries affect hourly wage earners more profoundly.

"A construction worker, nurse, driver, or other labor intensive worker who has suffered a severe disability may face struggles far exceeding that of a worker who has a desk related occupation," he wrote.

Likewise, he wrote, a younger worker is more disadvantaged than an older worker.

He wrote, "A plaintiff should not get less than full recovery because he or she was injured by a physician."

"A defendant should be accountable for all the injuries and damages he or she causes a plaintiff by his or her negligence," he wrote.

In the last friendly brief, for West Virginia Chamber of Commerce, Brenda Harper of Charleston countered the claims of those challenging the caps.

"The non economic damages of a woman, child, elderly person, disabled person, hourly worker, or the underemployed and unemployed are the same as for a man, adult, young person, able bodied person, management employee, or fully employed person," she wrote. "The former are not entitled to more non economic damages because they are entitled to less economic damages than the latter.

"Frankly, this argument appears to be more about the claimants' legal fees as a percentage of total recovery on a contingency basis than about claimants. ... Moreover, the idea that health care providers are consciously more careless with women, children, elderly persons, or disabled persons, which is advocated by Public Justice, is not only unsupported by any empirical evidence, but is offensive and repugnant."

The Justices will hear arguments at West Virginia University law school, in an annual visit that provides a living lesson for students.

Justices Menis Ketchum and Thomas McHugh have disqualified themselves. Circuit judges Thomas Evans and Ronald Wilson will replace them.