Rules are rules, and the law is the law.
Dr. Danny Westmoreland knew as much when he opted to sue his urologist over a botched procedure back in 2005. He knew that before he filed suit, he had to get another urologist to sign off that his claim was supportable, and not merely frivolous.
But he didn't. And his case, as legitimate as it may be, was dismissed.
That it could be resurrected by the West Virginia Supreme Court, in the process gutting one of the most common-sense and widely supported provisions of our state's Medical and Professional Liability Act (MPLA), makes this dispute one worth watching. And that's for more than just MDs.
At issue is what's known as the "certificate of merit" requirement. It holds that in medical malpractice lawsuits, lawyers must first get an independent medical specialist to "certify" their case has legitimacy before proceeding. The concept is to protect doctors and their insurance rates from inexperienced lawyers aiming to pot-shot their way to a quick-and-dirty settlement.
That was the problem back in 2001 when lawsuits had driven liability insurance rates so high that Wheeling was without neurosurgeons and ambulances were being re-routed to Pittsburgh. Beckley had no obstetricians, and specialists were hard to find even in places like Charleston or Huntington. One national magazine dubbed West Virginia "Tort Hell" -- or "Tort Heaven," depending upon where you sat. Doctors who weren't running for the border were staging mass rallies in white coats, begging the politicians for relief.
Certificates of merit were part of the package. Many respectable members of the plaintiff's bar supported the idea, as it keeps out the fly-by-night buffoons striving to give them a bad name. The concept caught on: liberal Democrats John Kerry and John Edwards (a medical malpractice lawyer himself) even made certificates of merit part of their campaign platform in 2004.
But in his appeal to the Supreme Court, Dr. Westmoreland holds they are unconstitutional. He argues that obtaining a certificate of merit is too expensive. Requiring one, he says, restricts citizen access to our courts.
Well, it's either that, or we're de facto restricting citizen access to our hospitals.
Seeing that we don't have an inalienable right to health care nor to filing a lawsuit (despite what lawyers claim), it's the people's prerogative to prioritize. It's up to us to pick and choose -- do we want more lawyers? Or more doctors?
In 2001 and 2003, West Virginia chose loudly and clearly. It would take some nerve for but a handful of judges to usurp that.