Starcher

CHARLESTON – West Virginia's medical malpractice law fixed a non-existent problem, according to Justice Larry Starcher of the Supreme Court of Appeals.

In a Dec. 26 opinion, Starcher branded the Medical Professional Liability Act as "a monstrous, unconstitutional procedural mess."

Legislatures, he wrote, often make drastic changes in response to perceived crises without clearly understanding the impact of the changes on individuals.

"When the crises pass or are proven illusory, the Legislature is rarely impelled to repeal the statutes," he wrote, "and so statutes sometimes exist that address a non-existent problem."

He believes the law's $1 million cap on non-economic damages violates the West Virginia Constitution.

Starcher's opinion grudgingly concurred with a majority opinion applying the law to a suit against a suture manufacturer, but at the end he dissented from the law itself.

"I dissent," he wrote, "to express my hope that, in the future, the Court or the Legislature will recognize the absurd and unconstitutional effects of the MPLA and either strike down or repeal the Act in its entirety."

In a separate case, Starcher disparaged his colleagues for applying the law to trim a $10 million jury verdict to $1 million.

"I've looked at the record; clearly, the majority opinion didn't," he wrote in a Dec. 26 dissent. "That happens from time to time."

In that case Jack Riggs sued West Virginia University Hospitals and the employer of physician William Post, in Monongalia County circuit court.

Riggs claimed damages for unsuccessful knee surgery on his daughter Allison.

Riggs, a physician, happened to work at the university hospital.

He settled with Post's employer and continued to pursue a claim against the hospital.

Allison Riggs continued to undergo operations, as surgeons vainly searched for the cause of her suffering.

Surgeons discovered in 2005 that serratia bacteria had infected Allison's joint during her first surgery.

Riggs prevailed at trial. The verdict included $10 million in non-economic damages, ten times the amount the malpractice law allows.

His attorneys argued that the law did not apply because the suit concerned the hospital's failure to maintain a clean environment, rather than medical negligence.

Although the jury accepted the logic, Circuit Judge Robert Stone did not. He reduced non-economic damages to $1 million.

Riggs appealed, and his appeal failed. A majority of the Justices held on Nov. 20 that Stone correctly reduced the verdict.

The Court invoked the doctrine of estoppel, which prevents an attorney from advancing a legal theory to succeed on one point of a case and then adopting an opposite theory to succeed on a different point.

"The result," Starcher declared in dissent, "is a complete perversion of justice."

He wrote, "A jury heard the evidence, found that WVUH had been careless, and awarded Ms. Riggs $10,000,000 in damages for her pain, her suffering, her fears, her anguish, her lost opportunities to have a normal teenage experience."

In 2002, he wrote, WVUH knew the suit concerned the environment, not the treatment.

"WVUH is certainly entitled to argue its view of the record, within ethical limits," he wrote. "But the fact that the majority opinion chose to virtually cut-and-paste from the factual discussion in the defendant's brief, and follow the hospital down into its rabbit hole, is – in my humble opinion – horrifying."

He wrote, "The plaintiff's attorneys conceded that this case involved medical malpractice – but the medical malpractice component of this case was eliminated when Dr. Post's employer settled before trial."

He argued that a rule of West Virginia civil procedure "specifically allows competing legal positions."

He wrote, "So long as a jury's verdict is supported by the evidence, it doesn't matter what legal theory is eventually relied upon by the parties."

He wrote, "A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds or on both."

Riggs "did not assert conflicting facts with an intent to mislead the Court," he wrote.

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