Dissent attacks med mal damage cap

CHARLESTON – West Virginia's limits on non-economic damages for victims of medical malpractice violate the state Constitution, Circuit Judge Ronald Wilson argues against a Supreme Court majority that reached the opposite conclusion.

In a July 21 dissent, Wilson asked, "How can a damage cap that blatantly favors a special class of medical professional by limiting or taking away the damages an injured person may recover from a medical professional be constitutional?"

He wrote, "No other person who negligently injures another person is given that unconstitutional protection."

Wilson joined the court on a temporary basis to hear a challenge to state law capping non economic damages at $250,000, or $500,000 in the most serious cases.

Plaintiff James MacDonald argued that legislators improperly reduced a $1 million cap in 2003, but the majority upheld the reduction.

Chief Justice Margaret Workman wrote that it wasn't their prerogative to substitute their judgment for that of the Legislature.

She wrote that they could have rationally believed that decreasing the cap would reduce malpractice premiums and prevent physicians from leaving the state.

She wrote that if legislators can establish presumptions, set statutes of limitation, and create and abolish causes of action, they can limit non economic damages.

She wrote that to receive the benefit of the cap, a doctor or hospital must carry at least $1 million in liability insurance.

Justices Robin Davis and Brent Benjamin concurred. So did Circuit Judge Thomas Evans, who joined Wilson on temporary duty after Justices Menis Ketchum and Thomas McHugh disqualified themselves.

Wilson's dissent lamented that legislators went beyond their limits in 2003, "when the political climate in West Virginia was changing and the state was becoming more conservative."

"It was at about the time of the 2003 change in the medical malpractice cap that we started to hear about West Virginia being a 'judicial hellhole,'" he wrote. "It is now clear that this anti-business and judicial hellhole public relations attacks on West Virginia and West Virginia Courts has become an unwelcome influence on our Legislature.

"Third party bad faith claims against insurance companies have been eliminated. There are also limits on joint and several liability and restrictions on lawsuits by out of state residents.

"And still the hellhole label remains."

He wrote that the majority gave legislators a green light to favor corporations, insurance companies and special interest groups over the needs and interests of people.

"Malpractice victims' damages may be primarily non economic with permanent disfigurement, maiming and even death caused by a medical professional's negligence," he wrote. "An unknown number of medical negligence victims can no longer use the court system because of the cap and the fact that lawyers are no longer willing to risk huge litigation expenses for a low net return for their clients and themselves."

He wrote that lives of parents are drastically changed by permanent injuries to their children.

"Spend a day in their shoes if you think mental pain and loss of enjoyment are frivolous damages," he wrote.