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The fight is on! Mel-Mal caps challenge heads to WV supreme court.

We've been expecting this for several years now since the passage of our comprehensive medical liability reform legislation (HB 2122) in 2003. A case challenging the non-economic damages cap was accepted to be heard by the WV Supreme Court of Appeals. Justice Ketchum was the one dissenting vote. Justice McHugh recused himself because he is on the Board of Trustees of Thomas Hospital, and Chief Justice Davis replaced him with Circuit Judge Ronald Wilson. The briefing and oral argument schedule is yet to be set.

On April 15, the WV Supreme Court voted 4-1 to accept the petition for appeal in McDonald v. City Hospital, Inc. The case involves a Medical Professional Liability Act (MPLA) jury verdict for the plaintiffs, awarding $1,129,000 to the plaintiff and $500,000 to his wife for loss of consortium, splitting liability between the doctor (70%) and the hospital (30%). The award to the plaintiff included $1M in noneconomic damages for past and future pain and suffering. On post trial motion, Circuit Judge Silver reduced the award to $500,000, applying the MPLA cap per WV Code [section] 55-7B-8b which caps noneconomic damages at $250,000 or $500,000 if there is death or substantial permanent injury. Judge Silver's ruling meant the wife's award was reduced to "0" and the plaintiff's to $500,000. The plaintiffs challenged the constitutionality at the circuit court level and pursued the issue on appeal.

The WVSMA is taking this challenge very seriously and we will be gearing up to engage in this battle to support the position that the noneconomic damages caps are constitutional and an appropriate exercise of legislative power. The noneconomic damages "caps" are a critical piece of the 2003 legislation, and maintaining them is essential to the state's ability to attract and maintain new doctors.

Now is the time for physicians to stand together.
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Title Annotation:SPECIAL NEWS
Publication:West Virginia Medical Journal
Article Type:Brief article
Geographic Code:1U5WV
Date:May 1, 2010
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