Suit challenges cap on pain and suffering

Aug. 31–CHARLESTON, W.Va. — The state Supreme Court will hear a case challenging a key portion of the state’s painstakingly crafted medical malpractice reforms.

An Eastern Panhandle couple is challenging the Legislature’s $500,000 cap on damages for pain and suffering in malpractice suits.

The Legislature set the cap in 2003 to deal with what insurance companies said were the ballooning size of medical malpractice judgments and the fear of doctor flight.

The appeal, which the Supreme Court is supposed to hear arguments for early next year, is the most serious challenge of the West Virginia Medical Professional Liability Act. The case is set to draw the attention of a host of interest groups, including the American Medical Association, the Chamber of Commerce, AARP and trial lawyers.

In fall 2004, James MacDonald, 56, was admitted to City Hospital in the Eastern Panhandle for pneumonia. MacDonald was taking other medications because of a kidney transplant and other chronic conditions. The combination of those medications and new ones caused a condition called rhabdomyolysis that caused MacDonald’s muscles to waste away.

“He’s literally a shadow of his former self,” said Michael Burke, one of MacDonald’s attorneys.

The couple’s attorneys say the treatment MacDonald received substantially lessened his and his wife Debbie’s enjoyment of their life together.

Jurors agreed and found the hospital and the doctor liable for MacDonald’s condition. They awarded him $129,000 for medical expenses and lost wages and $1 million for pain and suffering. The jury also awarded his wife $500,000 for pain and suffering.

But a circuit court judge, citing the caps in state law, reduced the $1.5 million jury award for pain and suffering to just $500,000 for James MacDonald. The law caps pain and suffering awards at $500,000 for the most serious malpractice injuries, regardless of the number of the defendants.

In their petition for appeal to the Supreme Court, the couple’s lawyers said the caps are “arbitrary” and violate the right of injured patients to a fair trial by forcing courts to discard pain and suffering judgments higher than the cap set by the Legislature.

“What the cap does is discriminate against the most seriously injured plaintiffs, which makes very little sense,” said Bob Peck, an attorney for the MacDonalds.

Peck, a lawyer with a Washington-based law firm, has already gotten state courts in Georgia and Illinois to declare similar malpractice liability caps unconstitutional.

Texas, which also placed caps on malpractice payouts, changed its state constitution to allow the caps. But that state’s law is now being challenged in federal court.

The MacDonalds’ attorneys claim West Virginia’s caps “completely eviscerated” Debbie MacDonald’s right to collect damages for her own pain and suffering, a wholly separate claim from her husband’s that they say she has a right to by law.

In responses filed with the court, City Hospital and lawyers for the doctor, Sayeed Ahmed, both say state law clearly allows caps on medical malpractice claims, and they cite cases from the Supreme Court in 1991 and 2001.

The filings argue the Legislature has the duty and responsibility to “balance the rights of our individual citizens to adequate and reasonable compensation” in lawsuits with the “broad public interest” in allowing doctors to obtain insurance and be able to practice medicine in the state.

Evan Jenkins, the executive director of West Virginia State Medical Association, said the MacDonald case is most serious challenge of the state’s reforms to date.

“We have known this day would come from the moment that the legislation was signed into law,” said Jenkins, who is also a state senator.

“The effort is to try to undo what the Legislature did in 2003,” he said. “The opponents of the reforms are saying the Legislature went too far. And, from our perspective, the Legislature was responding to a very serious access-to-care crisis.”

Jenkins said the reforms have worked well and claims have been cut in half thanks to 2003 reforms and an earlier set of reforms passed in 2001.

At the time, malpractice insurance was becoming so expensive, there was grave concern that doctors, especially specialists, would not set up shop and veteran doctors would leave.

The reforms included a number of other measures, including the requirement that people suing hospitals and doctors for malpractice obtain an expert medical opinion certifying the legitimacy of their claim.

Jenkins said that so-called pre-certification certainly helped weed out meritless lawsuits but that the damage caps also have a significant effect on the ability of the reforms to hold down costs, especially “shock losses” from large jury verdicts.

The Legislature actually set two caps in 2003. One sets the maximum award for most non-economic (commonly known as “pain and suffering”) damages at $250,000.

In cases involving death, loss of limb or permanent injury, damages are capped at $500,000. It’s an either/or arrangement, meaning the most anyone can receive is $500,000, although that figure is to be inflation-adjusted.

Because the cap is in place regardless of the number of defendants, a wife is not allowed to collect on a separate claim if the injured husband’s jury award is $500,000. Debbie MacDonald could, presumably, have collected up to $100,000 if, for instance, the jury had awarded James MacDonald $400,000.

The caps do not apply to economic damages, like lost wages or like medical expenses.

Judges don’t tell jurors about the caps out of concerns that such knowledge could prejudice them. The fear is jurors would feel compelled to grant higher lost wage or medical expense awards to make up for the capped pain and suffering damages.

Lawyers for City Hospital and Ahmed say the Supreme Court upheld a previous $1 million medical malpractice cap in a 1991 case and took action in 2001 that continued to support that ruling. They also note that judges are routinely allowed to modify jury rulings and that state lawmakers have limited legal liability in a range of other fields besides medical malpractice.

But the MacDonalds’ attorneys argue the Supreme Court also has recognized that a reduction in the medical malpractice cap to below $1 million “at some point would be manifestly so insufficient as to become a denial of justice.”

“The court had indicated that if you lowered the damage limit much more, they thought there would be serious equal protection problems with it,” Peck said. “And here the equal protection problems are even more stark because the cap has wiped out entirely Mrs. MacDonald’s separate and independent claim.”

In some ways, the MacDonald case is the perfect test case of the law because not only was James MacDonald’s award reduced but Debbie MacDonald’s separate claim was discarded by the cap, meaning a jury found she deserved $500,000 for her pain and suffering but was forced by law to give her essentially nothing.

The makeup of the state Supreme Court has changed significantly since the court last dealt with a challenge of medical malpractice caps, as has the law itself.

In the 2001 case permitting caps, Chief Justice Robin Davis concurred with the court’s opinion allowing them. Likewise, in a 2006 injury suit against a coal company, Davis agreed with a ruling that found that the Legislature could put limitations on damage claims.

Justice Menis Ketchum, who voted against taking the MacDonald case, has plainly — and somewhat controversially — already indicated clearly where he stands on the issue of caps.

Asked about it during the 2008 Supreme Court campaign, Ketchum said, “I will not vote to overturn it. I will not vote to change it. I will not vote to modify it,” according to the West Virginia Record newspaper.

Justice Thomas McHugh, who wrote the 1991 opinion allowing a $1 million cap, recused himself from the MacDonald case because he sits on a board at Thomas Hospital. Brooke County Circuit Judge Ron Wilson will hear the case in his stead. An oral argument is expected next January and a verdict later in 2011.

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