Damage Caps to Begin, but Issues Remain

From the Charleston Daily Mail June 30, 2003, Monday
Copyright 2003 Charleston Newspapers

West Virginia’s answer to medical malpractice goes into effect on Tuesday and observers say the new law won’t end the debate over liability issues and how much compensation should be expected to right a wrong.

The law is one of six effective this week and it caps the amount of damages a person can receive. It also establishes new burden of proof for plaintiffs and makes changes involving liability and the calculation of damages.

The other new laws allow part-time students to apply for higher education grants, increase a surviving spouse’s benefits to equal 90 percent of a state trooper’s salary, bring the state into compliance with federal child safety seats, and deal with the financing of the state fire marshal and criminal and special audit investigations.

Under the medical malpractice law, there is a $ 250,000 cap on non-economic damages, or $ 500,000 in cases of death, loss of limb or permanent disability. The cap was $ 1 million.

There is also a $ 500,000 cap on all damages arising from trauma care.

Insurance officials said last week that they’ve noticed an upswing in the number of malpractice lawsuits being filed before the caps go into effect.

“That’s a normal thing,” said Frank O’Neil, a spokesman for medical malpractice insurer Medical Assurance. “We have seen it in other states just prior to tort reform.”

O’Neil declined to comment on the number filed against company-insured doctors.

The state Board of Risk and Insurance Management, which covers about 1,200 doctors and hospitals under its BRIM II program, reported that 10 cases were filed in June. Since January, there have been 46 cases filed. No cases were filed in May, said Tamara Lively, the board’s medical liability manager.

Another insurer, Common Wealth Medical Liability Insurance Co., also noted “a lot more activity,” but declined to comment on numbers.

Dr. Douglas McKinney said doctors suspected a spike as July 1 drew nearer.

“They (lawyers) are going to lose the changes they built up over the last 30 years because the doctors have won the battle for public opinion,” said McKinney, president of the West Virginia Medical Association.

This year’s legislation was motivated by health care industry worries that high medical malpractice insurance rates were forcing doctors to limit medical procedures and leave the state. Although lawmakers created BRIM II last year to cover doctors and hospitals who couldn’t afford or lost their private insurance, the industry argued that capping damage awards was vital to correcting the situation.

To force the issue, Northern Panhandle doctors walked off the job, delaying operations and forcing some patients to be transferred to other hospitals. Doctors across the state threatened similar actions if lawmakers didn’t act.

McKinney said doctors are pleased with the change, but medical malpractice is just the beginning. He expects lobbying campaigns by others to address increasing home, automobile and business liability insurance.

“The public is not going to stand for it any longer,” he said “They see what a well organized effort can achieve in the Legislature.”

Limiting damage awards is not the key to ending high health costs, said Marvin Masters, president-elect of the West Virginia Trial Lawyers Association.