The West Virginia Legislature in 2003, passed legislation which set out a $250,000.00 cap on an amount recoverable for non-economic loss in a medical malpractice liability cases and limitation of $500,000.00 in damages in cases where the damages were for 1) wrongful death, 2) permanent and substantial physical deformity, loss of use of limb or loss of bodily organ system, or 3) permanent physical or mental functioning injury that permanently prevents the injured person from being able to care for himself.
June 22, 2011, the West Virginia Supreme Court upheld these caps on non-economic damages as being constitutional under the West Virginia State Constitution. The West Virginia Supreme Court in its opinion held that the caps did not violate the State of West Virginia’s right to a trial by jury and the separation of powers or equal protection rights under the West Virginia Constitution..
In the MacDonald’s case, the jury returned a verdict in favor of the Plaintiff, James D. MacDonald and Debbie MacDonald, and awarded them 1.5 million dollars for non-economic loss. The Circuit Court in the MacDonald case pursuant to WV Code 55-7B-8 reduced the non-economic damage award to $500,000.00. The MacDonald’s appealed the decision of the Circuit Court arguing that the WV Code 55-7B-8 was unconstitutional, and therefore, the Circuit Court could not reduce the jury’s award. The West Virginia Supreme Court in finding that the caps were constitutional, upheld the 2003 legislation of the WVMPLA law. Back in 2003, insurance companies representing doctors on medical malpractice cases were successful in getting this law passed.
How is an insurance company able to go to legislature and change the law to favor them? The insurance industry in West Virginia was successful in doing this because they have the funds for propaganda and advertising. They created a fear in the public back in 2003, that unless this law was passed, the doctors would leave the state and we would not have any doctors. This fear was unfounded and the data supported the opposite conclusions.
According to the West Virginia Insurance Commissioner’s data report filed in 2009, there has not been an increase in jury awards during the past 15 years. In fact, the amount a jury awards on average in West Virginia verdict rarely exceeded the cap. The West Virginia Insurance Commissioner’s Medical Malpractice report said that after limiting large awards to reduce volatility, there is no clear pattern of either an increased number of judgments or a consistent increase in total judgments.
In the 10 years prior to the medical malpractice caps being placed in West Virginia, there was not a decrease in the number of licensed physicians in West Virginia. In fact, the amount of licensed physicians in West Virginia has consistently been between 3,317 and 3,837. It is interesting to note that from 1997 to 2008, according to the Insurance Commissioner’s 2009 Medical Malpractice report, there has been a steady increase in the number of physicians in West Virginia who are actively licensed practicing physicians.
The medical malpractice caps in West Virginia were passed due to pressure being placed on the legislature by the insurance industry through advertisement and lobbying so they could increased their profits. In 2008, insurance companies made 44 million dollars in direct premiums. Of that 44 million dollars, only 21 cents of every dollar in premiums paid was used to compensate the victims of medical malpractice. Across the United States as a whole, in that same year in other jurisdictions, 34 cents of every dollar was used to pay persons who were the victims suffering from medical malpractice. So according to the data of West Virginia, is paying out less per dollar of premium in the country as a whole on average.
In the MacDonald’s case, there was strong interest by both the plaintiff bar and the insurance industry. Amici curiae briefs, which are known as “Friends of the Court Briefs,” were filed by the West Virginia Chamber of Commerce, the Defense Trial Counsel of West Virginia, West Virginia Mutual Insurance Company and a host of other medical associations. In the opinion, Justice Ketchum and Justice Mchugh did not participate in the decision. Judge Wilson and Judge Evans were sitting in on the case by temporary assignment. Judge Wilson descended and reserved the right to file an opinion. Chief Justice Workman delivered the opinion of the West Virginia Supreme Court.
The sad fact is that the victims of the medical malpractice caps in the MacDonald case are those people who are seriously injured through no fault of their own. They were unable to recover an amount that a jury determined to be reasonable and necessary to compensate them for the pain and suffering that resulted from the negligent actions of a doctor. West Virginia is no different from any state in this country in that there is a concerted effort in this country to eliminate or diminish a person’s right for a trial by jury.
At the Wolfe Law Firm, we believe firmly in a citizen’s right to a trial by jury. Our founding fathers, upheld this right in the United States Constitution and the West Virginia Constitution, which provides that a civil redresses should be determined by a trial by jury.
The civil and criminal justice system depend on having checks and balances of the people in our communities by allowing citizens in a jury to decide issues. What better way to ensure that the court system is operating properly than to have everyday people sit on a jury and apply the law to the facts of a particular case. The one way that we ensure that our government and our courts are working properly to protected is to allow its people to participate. The MacDonald case is just another step in the direction of eliminating the people ability to have input into our Court system and the slow erosion of the jury system.