Friday, March 4, 2011

Briefs push both sides of med mal cap debate

Post in The West Virginia Record by Steve Korris  -Statehouse Bureau

"MORGANTOWN - Caps on awards for pain and suffering in medical malpractice trials prevent runaway jury verdicts, the West Virginia State Medical Association pleads in a case the Supreme Court of Appeals will hear on Tuesday, March 8.

The association, as friend of the court, urges the Justices to reject a constitutional challenge to limits the Legislature imposed on non economic damages in 2003.

"Some plaintiffs' attorneys and their allies may champion extraordinarily high verdicts, but they go beyond the plaintiff's needs, distort the civil justice system, and place undue strain on the accessibility of health care and on the economy," wrote Mark Behrens of Washington, D.C.

Societies of specialists in the association joined the brief, along with three groups of insurers and the National Federation of Independent Businesses.

In another friendly brief, the state Bureau of Risk Insurance and Management warns that taxpayers will bear the cost if the Justices remove the caps.

In another, the insurer who covers most West Virginia doctors asserts that even after reforms, doctors pay nearly twice as much for insurance as those in bordering states

Friends of the court on the other side argue that legislators discriminated against vulnerable citizens and substituted their judgment for that of jurors.

Public Justice Foundation president Harry Deitzler of Charleston wrote, "Such limitations on the right to recovery have created a system in West Virginia where attorneys are unwilling to take medical malpractice cases where the victim does not have significant economic damages."

In the case at hand, James and Debbie MacDonald sued physician Sayeed Ahmed and City Hospital, a subsidiary of West Virginia University Hospitals, in Berkeley County.

They claimed James suffered a leg injury through improper administration of drugs.

At trial before Judge Gray Silver in 2008, jurors awarded James $750,000 for future pain and suffering, $250,000 for past pain and suffering, $92,000 in past medical expenses, and $37,000 in past lost wages, for a total of $1,129,000.

They awarded wife Debbie MacDonald $500,000 for sorrow, anguish and solace.

They assigned 70 percent of liability to Ahmed and 30 percent to City Hospital.

Silver ruled that $1,500,000 for non economic damages exceeded a $500,000 limit that legislators set in 2003, and he reduced the verdict by $1 million.

The MacDonalds posed a constitutional challenge, and Silver rejected it.

Ahmed and City Hospital moved to apply a $250,000 cap rather than a $500,000 cap that legislators imposed for more serious injuries, and Silver denied the motion.

He also denied the hospital's motion to set aside the verdict due to insufficient evidence.

The MacDonalds appealed, and Ahmed and the hospital filed cross appeals.

A cascade of friendly briefs followed.

For the state medical association and its allies, Behrens wrote, "Non economic damages awards are highly subjective and inherently unpredictable.

"There is no market for pain and suffering. ... Historically, pain and suffering damages were modest in amount and often had a close relationship to a plaintiff's actual pecuniary loss, such as medical expenses. ... That is not true today."

He wrote that from the 1960s to the 1980s, pain and suffering awards in wrongful death cases grew 300 percent.

"Pain and suffering awards became the most substantial part of tort costs," he wrote.

He wrote that in 2002, three neurosurgeons in Charleston faced a premium near $800,000, more than their combined pay.

"Such high costs led to the absence of neurosurgeons in Wheeling, Logan, and Beckley and those remaining in other areas of the state steadily departed," he wrote.. . . ."  More.

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