August 19, 2004

Group may seek lawsuit caps in state constitution

By Chris Wetterich
Staff writer

Firing a warning shot across the bow of trial lawyers and the state Supreme Court, the West Virginia State Medical Association is considering whether to push an amendment to the state constitution that would forever enshrine caps on non-economic damage awards in medical malpractice lawsuits.

In the May/June 2004 issue of the association’s newsletter, one of the state’s delegates to the American Medical Association writes about the state of Texas passing such an amendment.

“[T]he Texas Medical Association ... has managed to change the constitution so it states unequivocally that caps on non-economic damages are legal when passed by the state legislature. This is an action which must take place in West Virginia,” said Dr. Constantino Y. Amores, a clinical director at Charleston Area Medical Center Health System.

Generally, a jury awards a person non-economic damages based on whether the individual has suffered a significant amount of pain and suffering. Economic losses are paid when someone cannot work or incurs further medical expenses because of a doctor’s malpractice.

Evan Jenkins, executive director of the state medical association and a state senator from Huntington, said the association is waiting to see what the state Supreme Court decides in an upcoming case challenging the legality of a $250,000 cap enacted by the Legislature in 2003.

Jenkins said he hopes the court sticks by earlier decisions that ruled the caps are legal.

“Should the court take an activist position ... clearly there needs to be consideration of putting in the constitution, through an amendment, that limitation on damages,” Jenkins said.

Asked whether the association would push an amendment before the court rules, Jenkins said, “It’s too early to tell. Clearly, an amendment would be the next natural step if the court should strike [the caps] down.”

The court upheld caps in 1991 and 1999, but the association is concerned that having different justices on the court than in those years could yield a different result, Jenkins said.

The association was encouraged by the court’s recent decision in a major workers’ compensation case, he said. An adverse decision in the comp case would have cost the state more than $1 billion.

Bill Richardson, president of the West Virginia Trial Lawyer’s Association, criticized the idea of an amendment.

“That’s the craziest idea I’ve ever heard,” he said. “The constitution should stand for all time. To put special items in the constitution that would apply to one group of people is just wrong.”

The trial lawyers have opposed caps on non-economic damages because “they don’t allow juries to fully consider the nature and extent of a person’s injury,” Richardson said.

For example, a housewife is worth less under the caps because she can only be compensated for her economic damages, which are low because she is not technically employed, plus up to the $250,000 cap, Richardson said.

An executive who is harmed by a doctor and unable to work could be compensated for his salary, which would be many times what the housewife receives, Richardson said.

Doctors argue that the caps are needed to blunt the harm of frivolous lawsuits that drive their insurance premiums up.

A constitutional amendment would have be approved by two-thirds of the members of the Legislature and then approved by a majority of voters.

Talk of the amendment comes during a heated state Supreme Court race where the medical association wants to defeat incumbent Justice Warren McGraw and replace him with Republican lawyer Brent Benjamin.

Business groups say the court makes too many decisions that drive businesses and doctors out of state. Jenkins said he believes McGraw would vote to strike down the caps.

The idea of an amendment and criticism of the court shows the medical association and other business groups don’t really want a level legal playing field, Richardson said. He pointed to the same workers’ compensation decision as proof the court is independent.

“The court applied workers’ compensation law in a different manner than it had done previously,” Richardson said.

“[The medical association] wants to call the shots instead of the court. They want their brand of justice. It’s like an 8-year-old saying, ‘I’m going to take my bat and ball and go home if you don’t play by my rules,’” Richardson said.

To contact staff writer Chris Wetterich, use e-mail or call 348-3023.