Health Law

Medical Malpractice -- West Virginia Justice Dissents

Recently in in West Virginia a justice said that the West Virginia Medical Professional Liability Act was creating "pointless procedural hoops"  that were taking away from the courts being able to actually answer the factual questions.

Here is a portion of the article itself really describes the problem that was presented to the court: The full article link is at the end of this post.

The article by Justin D. Anderson is titled..

Justice says medical malpractice reforms fueling absurd cases

...

The plaintiffs sued Charleston Area Medical Center and Thomas Memorial Hospital as well as the makers and distributors of the sutures.

The Kanawha Circuit Court dismissed the lawsuit last year because of the way the plaintiffs sued.

The plaintiffs brought the suit against the hospitals as a straight products liability issue, not a medical malpractice issue.

The lower court found - and justices agreed - that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care.

The state Supreme Court reinstated the lawsuit, but still ordered the plaintiffs to comply with the act.

The act has been tweaked in recent years as legislators have tried to limit malpractice lawsuits in the state. Critics said a high number of unfounded complaints were causing malpractice insurance to skyrocket and wreaking havoc on the state's legal system.

Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and a qualified expert has to say the suit is valid.

Also, under the act, the plaintiffs' non-economic damages will be capped at $250,000 and $500,000 for other damages.

Starcher called the pre-lawsuit requirements "pointless procedural hoops" because a jury could determine whether or not the sutures were safe.

Starcher said the act itself wouldn't affect a jury's finding as to whether or not the sutures were contaminated.

"To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles," Starcher wrote.

He continued, "The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence."

In harmony with Starcher's dissent, Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without "sale, denial or delay."

(emphasis added.)

The last bolded quote is the biggest problem with caps on damages.  They are arbitrary.  The nice thing about the court system is that it allows the individual to show what they are all about.  Each person is different and that is a major point behind the legal system. 

California has had this problem for years.  An arbitrary cap was set on damages and all that has done is save insurance companies money and keep seriously injured people from recovering fully.

Read the Full article at The Charleston Daily Mail

Full post as published by Cerebral Palsy Law Blog on January 03, 2008 (boomark / email).