West Virginia’s high court upholds damage cap

Posted on behalf of Stewart Bell, PLLC on Jun 24, 2011 in Wrongful Death

West Virginia is one of the many states that impose a cap -- an upper limit -- on non-economic damages in medical malpractice lawsuit s. The limit is tiered: $500,000 in wrongful death and other severe, permanent injury cases, and $250,000 for all other cases. The state's Supreme Court of Appeals handed down a decision this week that upholds those limits and, according to some, puts an end to debate about the caps' constitutionality.

Juries and judges award non-economic damages to compensate for pain and suffering and other "intangible" harms. Economic damages compensate for actual costs of medical care, hospice or in-home nursing services, rehabilitative care -- the tangible harms suffered by the plaintiff.

There are two plaintiffs, a married couple, in the case decided this week. They claim that the care the husband received at a Berkeley County hospital left him with "severe muscle damage." His physician allegedly gave him a combination of drugs that were inappropriate for someone with his medical history.

The trial court jury found for the plaintiffs, and awarded $1.5 million in non-economic damages. The jurors determined that the husband had suffered a "permanent and substantial" physical deformity as the result of the defendants' negligence. Again, West Virginia Code allows the jury to exceed the $250,000 cap if the victim has suffered "permanent and substantial" physical deformity -- those exact terms appear in W. Va. Code, - 55-7B-8 -- but the award can be no higher than $500,000.

The judge reduced the award to $500,000. The couple appealed to the Supreme Court, asking the justices to determine if the cap itself is constitutional and to determine if the reduction of the award was allowable.

The Court agreed with the defendants. The statute was clear, and they had ruled on the issue before. The previous decisions were handed down before the higher cap was lowered from $1,000,000. The new cap had not been tested in front of the court until this case.

Plaintiffs have unsuccessfully challenged damage caps in other states, as well.

Health care professionals credit the cap with allowing medical malpractice insurance companies lower their premiums as well as with helping to cut the number of medical malpractice lawsuits by half. According to the state's medical association, the improved environment has helped to attract more doctors to the state. And that, said a representative, means better health care for West Virginians.

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