Medical, insurer groups support damages cap

By Jessica M. Karmasek | Oct 14, 2010

CHARLESTON -- Various medical associations and insurer groups say they support the constitutionality of West Virginia's non-economic damages cap in medical liability cases.

The West Virginia State Medical Association, its component societies, the American Medical Association, the Physicians Insurers Association of America and the American Insurance Association -- among others -- filed a 47-page amici curiae brief on Friday in support of City Hospital, Inc., and Dr. Sayeed Ahmed.

In fall 2004, James MacDonald, 56, was admitted to City Hospital in the state's 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 state 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 West Virginia Legislature.

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

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 medical associations and insurer groups, in its friend-of-the-court brief, say the West Virginia Legislature "drew a careful balance" when it enacted the law capping damages for pain and suffering in malpractice suits at $500,000.

"Such limits have contributed to reduced medical malpractice premiums and increased the number of doctors in the state," they argue.

In 1986, 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 and upheld once more.

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.

Evan Jenkins, the current executive director of the West Virginia State Medical Association and a state senator, 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," Jenkins told the West Virgina Record last month.

"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 their brief, the medical associations and insurer groups also point out that the non-economic damage limit does not take away from an injured patient's recovery of medical bills, lost wages, lost domestic services or other expenses.

Jenkins has noted that in the MacDonald case, 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.

"Some plaintiffs' attorneys and their allies may champion extraordinarily high verdicts, but they go beyond the plaintiff's needs, distort the civil justice system, and place undue strain on the accessibility of health care and on the economy," the groups concluded, urging the Court to uphold the law.

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

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