Cap challenge concerns medical group leader

By Jessica M. Karmasek | Sep 7, 2010

Jenkins CHARLESTON -- The executive director of the West Virginia State Medical Association says he is concerned about the implications of a case, set to be heard by the state Supreme Court early next year, challenging the state's medical malpractice reforms.


CHARLESTON -- The executive director of the West Virginia State Medical Association says he is concerned about the implications of a case, set to be heard by the state Supreme Court early next year, challenging the state's medical malpractice reforms.

An Eastern Panhandle couple is challenging the Legislature's $500,000 cap on damages for pain and suffering in malpractice suits.

The appeal, which the state's high court is supposed to hear arguments for early next year, is the most serious challenge of the West Virginia Medical Professional Liability Act.

The challenge has Evan Jenkins, executive director of the medical association and a state senator, somewhat worried.

"Memories fade quickly. We need to remind ourselves of the flight of doctors out of West Virginia and the physician retirements that were occurring because of the liability crisis," he said.

Jenkins recalled the access-to-care crisis the state experienced in 2000 and 2001.

"Back then, people were being life-flighted out of the capital city because the trauma unit at (Charleston Area Medical Center) had to be downgraded because they didn't have enough qualified physicians, because they were being driven out of the state because of the liability environment," he said.

"And these examples just repeated themselves. We had expectant mothers not having access to an (obstetrician) because all of the (obstetricians) had gotten out of delivering babies and focused just on gynecology. People in need of health care were running into access-to-care problems all across the state."

In the mid-1980s, Jenkins said the law was passed setting the cap for pain and suffering awards at $1 million. The law was challenged in 1991, but in the end was ruled constitutional. In 2000, it was looked at again.

"That was very troubling to us," Jenkins recalled. "They had already ruled it constitutional, but we had a new makeup of the court and they decided it needed to be reevaluated."

The court upheld the law. Then, in 2003, the Legislature reduced the cap on pain and suffering, or non-economic, awards to $250,000 or for the most serious malpractice injuries, $500,000. That is regardless of the number of defendants.

The Legislature believed it was necessary to reduce the cap to deal with what insurance companies said were the increasing number of medical malpractice judgments and more and more doctors leaving the state.

"The Legislature acted, and it acted boldly," Jenkins said.

West Virginia wasn't the first state to cap non-economic damages. Jenkins said similar reforms had already been passed in California.

And unlike other states, West Virginia didn't make it a "hard cap," he said. "We had his extra $250,000, making it $500,000 in certain serious circumstances where severe injury occurred, and we also included an inflation factor."

The reforms, he believes, have worked.

The Cabell County senator points to the state insurance commissioner's annual reports, which show the reforms have caused the number of suits filed every year to drop by 50 percent. Jenkins calls it "a stunning number."

"Does medical negligence occur? Yes. Do people deserve fair and just payment? Yes. But meritless suits need to be weeded out, and they are. Our reforms are working," he said.

And though concerned, Jenkins said he isn't surprised by the recent lawsuit.

"The personal injury attorneys opposed the reforms as they were moving through the Legislature," he said. "They vowed to fight them in the courts once they were signed into law and that's what they're doing."

In fall 2004, James MacDonald, 56, was admitted to City Hospital in the Eastern Panhandle for pneumonia. MacDonald was taking other medications because of a kidney transplant and other chronic conditions. The combination of those medications and new ones caused a condition called rhabdomyolysis that caused MacDonald's muscles to waste away.

The couple's attorneys say the treatment MacDonald received lessened his and his wife Debbie's enjoyment of their life together.

Jurors agreed and found the hospital and the doctor liable for MacDonald's condition. They awarded him $129,000 for medical expenses and lost wages and $1 million for pain and suffering. The jury also awarded his wife $500,000 for pain and suffering.

But a circuit court judge, citing the caps in state law, reduced the $1.5 million jury award for pain and suffering to just $500,000 for James MacDonald.

In their petition for appeal to the Supreme Court, the couple's lawyers said the caps are "arbitrary" and violate the right of injured patients to a fair trial by forcing courts to discard pain and suffering judgments higher than the cap set by the Legislature.

In responses filed with the court, City Hospital and lawyers for the doctor, Sayeed Ahmed, both say state law clearly allows caps on medical malpractice claims, and they cite cases from the Supreme Court in 1991 and 2001.

The filings argue the Legislature has the duty and responsibility to "balance the rights of our individual citizens to adequate and reasonable compensation" in lawsuits with the "broad public interest" in allowing doctors to obtain insurance and be able to practice medicine in the state.

Jenkins said, "We knew this day would come when a case would make its way to the Supreme Court. I am hopeful that the court will allow these reforms to stand."

Jenkins noted that all of the couple's economic losses -- medical bills, lost wages and any other items they can put a dollar figure on -- will be paid in full, with no limitation.

"I would hope that the Court would uphold the current 250/500 cap," he said. "I think it has served the state and its people well. Most importantly, it's been a critical element of preserving access to care."

Richie Heath, executive director of West Virginia Citizens Against Lawsuit Abuse, agreed.

He said in a statement, "The medical liability reforms have helped curb frivolous lawsuit filings and keep West Virginia's doctors in state. The 2003 reforms are regarded as a model of reform for other states, and are one of the reasons Medical Economics recently ranked West Virginia as one of the 10 best places to practice medicine.

"If the West Virginia Supreme Court overturns these important reforms, it would be a devastating blow which could plunge West Virginia back into a health care crisis. Hopefully, the Supreme Court will refrain from substituting its own judgment for that of the West Virginia Legislature, which overwhelming passed these much-needed legal reforms," Heath said.

However, the makeup of the state Supreme Court has changed significantly since the court last dealt with a challenge of medical malpractice caps, a recent article in the Charleston Daily Mail points out.

In the 2001 case permitting caps, Chief Justice Robin Davis concurred with the court's opinion allowing them. Likewise, in a 2006 injury suit against a coal company, Davis agreed with a ruling that found that the Legislature could put limitations on damage claims.

Justice Menis Ketchum, who voted against taking the MacDonald case, previously indicated where he stands on the issue of caps.

In 2008, when Ketchum was running for Supreme Court, he and the other candidates attended a forum hosted by the state medical association.

The candidates were asked to not only introduce themselves, and credentials, but also discuss their position on medical liability and tort reform.

Ketchum emphatically said the Medical Professional Liability Act is constitutional.

"I will not vote to overturn it," he said of challenges to the law. "I will not vote to change it. I will not vote to modify it."

Justice Thomas McHugh, who wrote the 1991 opinion allowing the $1 million cap, recused himself from the MacDonald case because he sits on a board at Thomas Memorial Hospital. Brooke County Circuit Judge Ron Wilson will hear the case instead.

An oral argument is expected in January and a verdict later in 2011.

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