HUNTINGTON – A Wayne couple is seeking for a provision in the Medical Professional Liability Act to be declared unconstitutional.

In a suit filed January 17 in Cabell Circuit Court, Cullie and Dina Queen claim the limit placed on damages rewarded from a medical malpractice lawsuit by the Medical Professional Liability Act is in violation of the state constitution.

The 2003 legislation restricted non-economic damages to $500,000.

In March 2004, the couple brought their 8-day-old daughter Tessa to the Cabell Huntington Hospital emergency room with complaints of seizure-like symptoms, restlessness, crying and jaundice.

The suit alleges the hospital staff failed to appropriately diagnose and treat the newborn's condition.

As a result, Tessa Queen suffered irreversible brain damage.

Although the child will be 2 years old next month, she never has crawled, has delayed speech and suffers visual impairment, according to the suit.

The couple claims her medical bills are approaching $400,000 and they continue to incur significant charges.

The 2003 Medical Professional Liability Act, which took effect July 1, 2003, made far-reaching changes which affect compensable damages to injured people, including caps on non-economic damages of $500,000.

The suit claims the legislation is unconstitutional because it "caps the damages available to injured persons seeking redress through the courts."

The suit claims the Medical Professional Liability Act violates Article 3, Section 17 of the West Virginia Constitution that states that "every person…shall have a remedy by due course of law."

The 2003 medical liability reform law eliminated joint and several liability in medical cases, capped noneconomic damages at $250,000 (or $500,000 for catastrophic loss) and changed the collateral source rule relative to medical liability cases.

The Queens are seeking for Section 55-7B-9c of the legislation to be declared unconstitutional.

The case has been assigned to Circuit Judge John L. Cummings.

Cabell Circuit Court case number: 06-C-35




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