Glasser

Heath

CHARLESTON -- Observers of West Virginia's legal system say a case of alleged neglect by nursing home workers could mean another hurdle for the state's medical malpractice reforms.

Earlier this month, a Kanawha County jury awarded an elderly woman's family $91.5 million in damages from Heartland of Charleston, after finding that the nursing home's workers indirectly caused the woman's death.

The jury, which found that Heartland failed to feed and care for Dorothy Douglas during her three-week stay in 2009, awarded $80 million in punitive damages and $11.5 in compensatory damages.

Lawyers for Heartland are likely to appeal to the state Supreme Court.

Brian Glasser, of Charleston law firm Bailey & Glasser LLP, has been hired by Heartland to organize post-trial motions and to prepare for a possible appeal.

Glasser said Monday a trial court must first consider the extent to which the law requires modifications of the jury's verdict. Each party has filed or will file proposed judgment orders and the court will likely hold a hearing on the issues presented.

"Even plaintiffs' counsel concedes that some reduction of the verdict will be required," he said.

Any decision about an appeal will be taken after the trial court has entered a judgment order and has considered and ruled on any post-judgment motions, such as motions to alter or reduce the award or for a new trial, he said.

"It is premature to assume that there will be an appeal because we don't know what the trial court will rule," Glasser said.

However, he believes the trial court will reduce the award to the non-economic damages cap established by the state's Medical Professional Liability Act, or MPLA.

In 2003, the state Legislature -- after much public debate -- amended the MPLA to place a strict limit of $500,000, plus inflationary adjustments, on non-economic damages for medical negligence.

"The jury in this case found medical negligence, and therefore this MPLA damages cap should apply," Glasser said.

Another issue for the trial court to take up: the $80 million in punitive damages awarded.

Glasser says it is "an astounding figure" considering the facts of the case and the ratio of the figure to the amount of legal compensatory damages.

"The U.S. and West Virginia Supreme Courts have both issued guidance limiting punitive damages to certain levels based on the amount of actual harm caused to the plaintiff, and the jury's $80 million award in punitive damages alone in this case exceeds those standards," he said.

He said once the trial court has considered and ruled on the two issues both sides will have to decide what to do, in terms of an appeal.

If headed for an appeal, Glasser points to the state high court's past rulings regarding the cap.

"The West Virginia Legislature spoke with great clarity in capping damages in medical negligence cases, and the West Virginia Supreme Court has ruled in the past to apply those caps broadly to cover medical professionals and facilities engaged in the rendering of health care services, which is all the nursing home was doing for the plaintiff in this case," he said.

"So, in short, in our view the law strongly foreshadows a cap."

But the bigger issue in this case, some legal observers say, is whether nursing homes even fall under the state's medical liability reforms.

Richie Heath, executive director of the West Virginia Citizens Against Lawsuit Abuse, says they do.

He said lawmakers, when they passed the MPLA, mentioned nursing homes in its Legislative Findings and Declaration of Purpose:

"That the cost of liability insurance coverage has continued to rise dramatically, resulting in the state's loss and threatened loss of physicians, which, together with other costs and taxation incurred by health care providers in this state, have created a competitive disadvantage in attracting and retaining qualified physicians and other health care providers," according to the act.

"The Legislature further finds that medical liability issues have reached critical proportions for the state's long-term health care facilities, as: (1) Medical liability insurance premiums for nursing homes in West Virginia continue to increase and the number of claims per bed has increased significantly; (2) the cost to the state medicaid program as a result of such higher premiums has grown considerably in this period; (3) current medical liability premium costs for some nursing homes constitute a significant percentage of the amount of coverage; (4) these high costs are leading some facilities to consider dropping medical liability insurance coverage altogether; and (5) the medical liability insurance crisis for nursing homes may soon result in a reduction of the number of beds available to citizens in need of long-term care."

"That's one of the first things the Legislature is talking about in their findings of fact," Heath said.

"If that's one of the things they're addressing with the legislation, then if you have a judge say we're not including them, that's just eviscerating part of that legislation."

Heath also points to the act's definition of a "health care provider."

"'Health care provider' means a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, emergency medical services authority or agency, or an officer, employee or agent thereof acting in the course and scope of such officer's, employee's or agent's employment."

"Nursing homes are covered within that definition of a health care provider," Heath said. "That's where you get the headscratching."

Heath said the plaintiffs' lawyers, in this case, are clearly looking for a loophole.

"We've had direct challenges on the caps, and those, in large part, have played out and been upheld," he said.

In June, the state Supreme Court ruled the state limit on compensatory damages for medical malpractice to be constitutional.

"So now what you're seeing is the next wave -- not direct challenges to the act's constitutionality, but finding areas, loopholes or ways you can get around it," Heath said.

Heath fears what might happen if an appeal by the plaintiffs' lawyers in this case and others like it are successful.

"It just sends us back to where we were in 2001," he said.

At the time, rising medical liability damage awards had contributed to a spike in medical liability insurance costs, causing physicians to leave the state or limit their medical practices to avoid high-risk procedures.

The key, Heath said, is to find a balance.

"We need to have an affordable, functional health care system in West Virginia but also fairly compensate those who have been injured or died due to medical error," he said.

"And these reforms were an attempt to strike that balance."

Lawyer for the plaintiffs, Michael Fuller of the McHugh Fuller Law Group, could not immediately be reached for comment.

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