We knew our Legislature's caps on medical malpractice awards were going to be challenged, and who the challengers would be: personal injury attorneys and their clients.
"The personal injury attorneys opposed the reforms as they were moving through the Legislature," said State Senator Evan Jenkins, who also serves as executive director of the West Virginia State Medical Association. "They vowed to fight them in the courts once they were signed into law and that's what they're doing."
Among the first to challenge caps were Washington attorney Robert Peck and his clients, James and Debbie MacDonald.
The MacDonalds sued Dr. Sayeed Ahmed and City Hospital in Berkeley County in 2007, claiming that James's leg was injured when drugs were improperly administered to him. In 2008, a jury awarded the MacDonalds $129,000 for James's medical expenses and lost wages, plus $1 million for his pain and suffering, and $500,000 for Debbie's sorrow, anguish, and solace.
Concluding that $1,500,000 for non-economic damages exceeded the $500,000 cap set by legislators in 2003, presiding Judge Gray Silver reduced the verdict by $1 million.
Robert Peck and his clients have appealed Judge Silver's decision to the State Supreme Court, arguing that the Legislature's cap on non-economic damages violates the state constitution.
In his appeal, Peck offers an imaginative, revisionist view of our recent past. "There is simply no truth," he said, "to the Legislature's assumption that West Virginia was suffering from a loss of physicians in the years before the cap was enacted."
So, we just imagined the whole thing? It seemed so real at the time.
"Memories fade quickly," laments Sen. Jenkins. "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."
Let's hope our Supreme Court remembers what it was like before the caps were established. We don't want to go through that again – and you can bank on that truth.