Medical Malpractice Damage-Award Still Generates Debate

Medical malpractice lawyer Paul T. Farrell Jr., recalled a recent case he handled in West Virginia in which a doctor accidentally removed a boy\’s colon instead of his spleen.

The boy had a genetic disorder that was causing the spleen to limit his body\’s red blood cell production, Farrell said. After his colon was mistakenly removed, surgeons had to attach the boy\’s large intestine to his rectal stub.

The surgeon who made the mistake was never sued, Farrell said. Instead, an insurance company simply handed the family $500,000. That\’s the maximum — thanks to a 2003 state law that caps non-economic damage awards for medical malpractice cases — that the family would have been able to win if the case would have went to court.

\”Here\’s me explaining to the family that eight years ago, the insurance companies were in a crisis and decided to limit the amount of damages that your son was able to recover,\” said Farrell, who is also the president of the West Virginia Association for Justice.

The surgeon has since moved to Oklahoma, Farrell said. His insurance company paid the full $500,000 award and increased his medical malpractice premium, he said.

Two weeks ago, state Supreme Court justices upheld the controversial cap on medical malpractice lawsuits by ruling that a Berkeley County Circuit Court judge\’s decision to knock $1 million off of a jury\’s damage award to a Martinsburg man, who received the wrong medications while under treatment for pneumonia, was constitutional.

Critics of the cap, like Farrell, say that the 2003 law has only succeeded in giving bad doctors slaps on the wrists for committing malpractice, while also increasing insurance company profits by limiting their damage awards to victims of those same bad doctors.

Proponents like Sen. Evan Jenkins, D-Cabell, say that the new laws have drastically reduced medical malpractice insurance premiums and stemmed a mass exodus of doctors that plagued the state at the beginning of the decade.

The 2003 caps supplemented another tort reform law that state legislators passed two years before.

The new law (HB 601) required plaintiff lawyers in medical malpractice cases to seek a \”certificate of merit\” for experts testifying against doctors alleged to have committed malpractice before the case went to trial.

The certificate required the expert to be qualified in the same field of medicine as the doctor who had committed the alleged malpractice. The rule also forced the experts to provide their opinions on how the accused doctors breached the standard of care.

As early as 2004, state officials began attributing an increase in malpractice lawsuit dismissals to the prescreening rule. According to a 2004 report from state Insurance Commissioner Jane Cline, roughly 39 percent of medical malpractice claims in 2002 were dismissed. That rate increased to 43 percent of claims in 2003, suggesting that the \”\’certificate of merit\’ … may be having an impact, \” the report states.

The state averages 273 medical malpractice claims per year, according to a 2010 insurance commissioner report, down from 280 in 2008 and from a high of 327 in 2001.

But the decline of medical malpractice lawsuits does not mean that instances of medical malpractice are on the downswing, Farrell said. Instead, the prescreening rule has prevented general practitioners from taking on medical malpractice cases, leaving them for lawyers who specialize in those cases, he said

The side effect, according to advocates, is that the prescreen has eliminated frivolous lawsuits. But there is little evidence that that is the case, Farrell said.

\”There\’s no such thing as a frivolous lawsuit in medical malpractice,\” Farrell said. \”Because they cost about $100,000 to prosecute. What idiot is going to invest $100,000 in a frivolous lawsuit?\”

Farrell said that there is no history of frivolous medical malpractice lawsuit abuse in West Virginia. The prohibitive cost of prosecuting such a case alone is enough to dissuade a lawyer from following through on a claim he knows to be frivolous, he said.

Two years after lawmakers passed the 2001 prescreening rule, the state implemented caps on non-economic damages that a jury could award a victim of medical malpractice. The legislature set the caps at $250,000 per case and $500,000 for more egregious acts of malpractice.

Jenkins, who is also the executive director of the State Medical Association, argued at the time that the caps were necessary to hem skyrocketing medical malpractice premiums caused by frivolous lawsuits.

The high premiums sent West Virginia doctors, seeking more reasonable insurance prices, on a Diaspora to surrounding states.

So far, the reforms have been a success, Jenkins said. The lowered frequency of medical malpractice filings have enhanced the profits of the insurance carriers who were struggling to make ends meet in the beginning of the decade, he said. Those insurance companies have since lowered their yearly premiums and attracted more doctors.

In 2005, the West Virginia Mutual Insurance Company reported that the average mature premium for OBGYN\’s hovered around $113,678. That premium dropped to $67,655 in 2009.

Ear, nose and throat doctors paid $42,011 in medical malpractice insurance premiums in 2005. In 2009, they paid just over $28,000.

\”We were so out of sync back in 2001,\” Jenkins said. \”We were so much higher than other states.\”

\”What I do know is that at a minimum we have closed the gap significantly, he added. \”We were way out of tilt a decade ago. I think we\’re closer to being in line.\”

There is also evidence that the reforms have achieved success at bringing in more doctors.

Glen Crotty, CAMC chief operating officer, said that the hospital has recruited about 40 new doctors per year since the law passed in 2003. That number is in addition to the 50 resident physicians the hospital receives every year who are recruited out of medical school.

\”Before the law,\” Crotty said, \”it was unusual for us to keep more than ten. We were at a great disadvantage.\”


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