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This article originally appeared in the Saturday Gazette-Mail.
December 04, 2004
Lawyers to cancel lawsuit on med-mal damage cap
By John Heys
Two lawyers who contested the state’s $500,000 cap on malpractice damages in trauma cases plan to withdraw their legal challenge next week.
The challenge involves an alleged case of negligence at Thomas Memorial Hospital. But the South Charleston facility doesn’t qualify for the trauma cap, which applies only to hospitals classified as trauma centers by the state.
Thomas isn’t one of these centers, at least not yet.
“We are not a trauma center,” Cindy Barnette, the hospital’s general counsel, said Friday. “We have the application and are working on it, but have not yet submitted it.”
Lawyers Bill Druckman and Richard Lindsay filed their complaint in Kanawha County Circuit Court on Wednesday, arguing that the trauma cap is unconstitutional. They wanted an answer to the constitutional question before pursuing a lawsuit against Thomas.
“We were led to believe, by people who we thought would know, the status of Thomas being a designated trauma center,” Lindsay said. He said they also checked the hospital’s status with the state.
Although Thomas does not appear on the list of trauma centers kept by the state’s Office of Emergency Medical Services, Lindsay said he and Druckman thought the hospital still qualified for the trauma cap under a provisional basis.
But until the state office receives, reviews and approves a hospital’s application, the facility does not qualify for the trauma cap included in the medical liability reforms passed in 2003, according to Paige Jordan, a trauma designation coordinator with the Office of Emergency Medical Services.
Eighteen hospitals have gone through this process so far, including Charleston Area Medical Center. Thomas asked for a trauma center application in December of 2003 but has not completed it.
There is no deadline for returning the application materials.
Lindsay said he and Druckman will withdraw their complaint once they receive a letter from Thomas about the hospital’s status, which they expect to receive next week.
Although the lawyers’ constitutional challenge of the trauma cap appears dead, they plan to go forward with a lawsuit against the hospital, which has not yet been filed.
They allege that hospital staff members negligently failed to diagnose and treat 29-year-old Brandi Westfall in May 2004 when she came to Thomas complaining of abdominal pain and weakness in her lower right extremities. She later became paralyzed from the chest down.
The trauma cap was one of several reforms lawmakers passed in 2003, including a separate $250,000 cap on noneconomic damages, such as pain and suffering. Another measure created a doctor-run mutual insurance company.
To contact staff writer John Heys, use e-mail or call 348-1254.