By RICHIE HEATH

CHARLESTON -- As West Virginia has one of the nation's oldest populations, we Mountaineers are typically alert to issues that have an impact on our elderly citizens. For this reason, it will be extremely important that our state residents and our leaders closely follow the legal aftermath of a recent $91.5 million nursing home lawsuit verdict — a decision which could significantly affect the availability and affordability of future long-term care in West Virginia.

While lawyers on both sides of the nearly $100 million legal dispute are gearing up for an appeal to the West Virginia Supreme Court, local residents and policymakers are left to ponder the potential impact of such a staggering damages award. Those prospects are unpleasant, to say the least.

The verdict serves as an unwelcome reminder of our state's battered reputation as a "Judicial Hellhole." But the case could do far more damage than adding to our already damaged reputation. Justices of the West Virginia Supreme Court will ultimately be asked to determine whether or not nursing care providers are covered under the state's recent medical liability reforms, and their response could very well determine the future of long-term care for our state residents.

Nearly a decade ago, our state found itself in the middle of a health care crisis. Frivolous lawsuit filings contributed to skyrocketing liability premiums, forcing many of our doctors to leave the state. Doctors also threatened to strike and trauma units were on the verge of closing.

In an effort to strike an appropriate balance between our state's need for an affordable health care system and the need to rightly compensate those persons injured as a result of medical negligence, the Legislature passed the Medical Professional Liability Act.

At the time, the West Virginia Legislature included nursing care providers in the medical liability reforms, noting that "medical liability... premiums for nursing homes in West Virginia continue to increase and the number of claims per bed has increased significantly." The Legislature further found that "the medical liability insurance crisis for nursing homes may soon result in a reduction of the number of beds available to citizens in need of long-term care."

And yet West Virginia's prospects for long-term care are arguably worse now than when the Legislature attempted to address the problem almost a decade ago. That's because personal injury lawyers have convinced some state circuit courts not to apply the language of the law to nursing care providers, effectively using legal loopholes to evade the medical liability reforms.

Long-term care providers in West Virginia continue to face a barrage of lawsuit filings as a consequence. Analysis shows that West Virginia currently has the highest frequency of claims per bed of any state examined in the United States. These figures, when coupled with the recent $91.5 million verdict, paint a rather gloomy picture for our state's future elder care. A recent study published in the New England Journal of Medicine shows that increased lawsuit filings don't actually improve the quality of patient care. And as our state's liability risks continue to increase, the liability costs associated with long-term care in West Virginia have become three times more costly than the national average.

Health care experts have already opined that the nearly $100 million verdict could soon affect long-term care providers. Sky-rocketing costs could force providers out of business or out of state — a scenario that would likely result in a shortage of available beds in West Virginia for those in need of care. Taxpayers will ultimately be on the hook for the additional Medicaid funding that will pay for most of the increased costs, while individuals who are paying for a relative to live in a long-term care facility will likely be paying more as well. All so that out-of-state personal injury lawyers can continue to take advantage of our state courts.

The proper application of the medical liability reforms will not deprive injured individuals from adequately recovering damages in state court. Rather it will help prevent future instances of "jackpot justice," and help bring much-needed stability to our nursing care system. If the West Virginia Supreme Court refuses to put into effect the Legislature's original intent with regard to the medical liability reforms, our state could very well find itself in the midst of an elderly care crisis that state lawmakers tried to prevent not so long ago.

Heath is executive director of West Virginia Citizens Against Lawsuit Abuse.

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