Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Trend of State Supreme Court Review of Damage Caps Continues in West Virginia

The West Virginia Supreme Court is the latest to grant review of its state's malpractice claims cap on noneconomic loss. The state legislature enacted the law in 2003 after insurance companies complained of increasing insurance rates and claims payouts. The West Virginia cap places a $250,000 cap on pain and suffering on all cases except those involving death, loss of limb or permanent injury, which are capped at $500,000. The cap applies no matter how many plaintiffs and how many defendants are involved provided the claims arise from the same nucleus of operative facts.

The West Virginia case arises from a challenge brought by James and Debbie MacDonald against City Hospital in the Eastern Panhandle and certain physicians at the facility. The suit alleges that physicians mistakenly gave James a medication to treat pneumonia which was contraindicated by his use of other medications he was required to take due to a prior kidney transplant and other chronic conditions. As a result of a reaction between the drugs, James suffered a muscle wasting disorder known as "rhabdomyolysis," which causes severe and debilitating deterioration of muscle mass and impairs most aspects of his daily living activities.

A jury awarded James $129,000 for medical expenses and lost wages (economic loss), $1 million for past, present and future pain and suffering, and awarded Mrs. MacDonald individually $500,000 for loss of consortium for loss of enjoyment of the marital relationship. The trial judge, however, following the cap statute, reduced the noneconomic loss awards of $1 million and $500,000 to a single amount of $500,000, all of which went to James. Mrs. MacDonald's claim was effectively eviscerated by the application of the cap.

Based upon the impact of the cap on their claims, the MacDonalds engaged counsel from Washington, D.C. who have been involved in multiple challenges to state damage caps, including those in Maryland, Georgia and Illinois. The West Virginia challenge is seen as the most significant threat to the state's legislation since it was enacted, according to representatives of the West Virginia State Medical Association.

The West Virginia Supreme Court, although previously upholding a similar cap in a 1991 and 2001, has indicated within at least one opinion that any reduction of the malpractice cap below $1 million "would be so insufficient as to become a denial of justice."

The MacDonalds are challenging the law on equal protection grounds, arguing that the complete elimination of Mrs. MacDonald's consortium claim represents unequal and disparate impact up her rights to a fair trial. As mentioned in other blogs published by our firm, several courts have overturned state damage caps on the grounds that they violate the separation of powers doctrine by allowing the legislature to interfere with the judicial branch's absolute right to conduct jury trials and render verdicts. Other due process challenges are premised on a denial of equal access to the courts by those who are most severely injured and most adversely affected by the caps.

Belsky, Weinberg & Horowitz remains committed to the cause of plaintiffs and will continue to report on all developments on damages caps across the country.

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