The cap on damages is supposed to apply to nursing homes

Does the $500,000 cap on non-economic damages in medical malpractice cases apply to nursing homes, or doesn’t it?

Evan Jenkins says it does, and he should know.

Jenkins is executive director of the West Virginia State Medical Association. He’s also a state senator who was serving in the state Legislature when the cap was enacted a decade ago.

Jenkins says the Medical Professional Liability Act was intended to cover nursing homes, and so it did – until August 2011, when a Kanawha County jury held the Heartland of Charleston nursing home liable for the death of a former resident and assessed more than $90 million in damages.

Since previous courts had held that the $500,000 cap applied to nursing homes, that verdict came as a surprise, says Benjamin Bailey, the attorney whose appeal of the decision was denied this past April by Kanawha Circuit Judge Paul Zakaib Jr.

Also in April, the Legislature passed Senate Bill 101, affirming that the cap applies to nursing homes as originally intended (at least from this point forward).

Jenkins worries that the verdict, unless overturned by the state Supreme Court, will exacerbate West Virginia’s image as a bad place to do business. He cites three factors that serve as bellwethers of a state’s legal climate: the frequency of lawsuits, average settlement amounts, and shock losses (jury verdicts in excess of $1 million).

Jenkins describes the Heartland case, with its $11.5 million in compensatory and $80 million in punitive damages, as “a big shock.” He believes the verdict “can be a deterrent for a business that wants to grow and expand in our state, and tragically, even continue to do business in our state.”

It is now up to the state Supreme Court to decide if the $500,000 cap does apply to nursing homes. We hope the court affirms the original intent of the Medical Professional Liability Act. West Virginia doesn’t need more deterrents to business.