By JAN VINEYARD

CHARLESTON -- George Santayana, the early-20th-century philosopher, famously observed, "Those who cannot remember the past are condemned to repeat it." His profound remark might easily apply to West Virginia.

In 2002 and 2003, West Virginians were subjected to a tragic and destructive health-care meltdown. Many will remember that the crisis was so severe that medical liability insurers withdrew from the West Virginia market and the large Cleveland-based insurer PIE declared insolvency and ceased underwriting.

Insurers and health-care providers alike traced much of the crisis to the million-dollar cap on noneconomic damages which providers contended was far too high and put West Virginia outside the national mainstream.

Accompanying the insurance collapse was the threat of an exodus of many doctors. Still others simply retired. Recruitment of new physicians slowed to a trickle. A major trauma center closed in Beckley. In a number of cities there were critical shortages of specialists such as neurosurgeons and obstetricians. Tens of thousands of West Virginians lost their doctors while others were forced to travel long distances for care.

Responding to this great crisis, in the spring of 2003, the West Virginia Legislature passed the West Virginia Medical Professional Liability Act. Among other beneficial reforms, the Legislature lowered the total cap on noneconomic damages to $250,000 and $500,000 in severe cases.

Very importantly, the Medical Professional Liability Act also created and loaned the starting costs for the formation of the West Virginia Mutual Insurance Co. Over the intervening eight years, this West Virginia-based company has brought stability to what had been a very volatile market. It has also totally repaid the initial costs to West Virginia taxpayers.

As a result of the substantial reform in 2003, West Virginia has been on the right track and frontline health-care providers have been able to focus entirely on what they do best: care for their patients.

Unfortunately, in 2008, a jury in a Berkeley County case awarded noneconomic damages of over $1 million, far in excess of the $250,000 limit set by the Medical Professional Liability Act. Citing the 2003 statutory cap, the trial judge in the case reduced the award to $250,000.

Currently, the issue is on appeal to the West Virginia Supreme Court, and the case will likely be heard early this year.

Twice previously, the court has affirmed the constitutionality of a cap on noneconomic damages, albeit at $1 million.

The Legislature, the elected voice of the people, has spoken on this issue by enacting the comprehensive reform of 2003. Moreover, West Virginia has benefited greatly from these reforms. Physician recruitment has grown and quality care for the people of West Virginia is being provided.

I hope that the advice of Santayana is heeded. Hopefully, the Supreme Court will uphold the cap and continue the splendid progress in health care that has served the people of West Virginia for nearly a decade.

Vineyard is president of the West Virginia Business & Industry Council.

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West Virginia Mutual Insurance
500 Virginia Street East
Charleston, WV - 25301

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