Justice says medical malpractice reforms fueling absurd cases

by Justin D. Anderson
Daily Mail Capitol Reporter

Lawmakers have created absurd courtroom situations by passing medical malpractice lawsuit reform, state Supreme Court Justice Larry Starcher said.

“I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform) in its entirety,” Starcher wrote in a dissenting opinion last week.

Starcher’s comments arose from the appeal in a class action lawsuit over the use of contaminated surgical sutures.

The plaintiffs sued Charleston Area Medical Center and Thomas Memorial Hospital as well as the makers and distributors of the sutures.

The Kanawha Circuit Court dismissed the lawsuit last year because of the way the plaintiffs sued.

The plaintiffs brought the suit against the hospitals as a straight products liability issue, not a medical malpractice issue.

The lower court found – and justices agreed – that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care.

The state Supreme Court reinstated the lawsuit, but still ordered the plaintiffs to comply with the act.

The act has been tweaked in recent years as legislators have tried to limit malpractice lawsuits in the state. Critics said a high number of unfounded complaints were causing malpractice insurance to skyrocket and wreaking havoc on the state’s legal system.

Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and a qualified expert has to say the suit is valid.

Also, under the act, the plaintiffs’ non-economic damages will be capped at $250,000 and $500,000 for other damages.

Starcher called the pre-lawsuit requirements “pointless procedural hoops” because a jury could determine whether or not the sutures were safe.

Starcher said the act itself wouldn’t affect a jury’s finding as to whether or not the sutures were contaminated.

“To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles,” Starcher wrote.

He continued, “The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence.”

In harmony with Starcher’s dissent, Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without “sale, denial or delay.”

Lawmakers passed the act in 1986 as a way to stem what was a perceived explosion in health insurance costs and what, even back then, many in the community said was a drastic rise in frivolous medical malpractice lawsuits.

Controversy arose again earlier this decade as surgeons went on strike and insurance companies complained. Lawmakers spent a couple of years mired in debate over the issue, before voting on a series of reforms intended to lower damage caps and institute the pre-lawsuit requirements.

Starcher called the act “cookie-cutter” legislation that has created “absurd conundrums.” He said the courts are more responsible and adept at making meaningful changes than the Legislature.

“Courts amend the common law narrowly and incrementally, on a case-by-case basis and usually over many years,” Starcher wrote.

“But the Legislature, when changing the common law, often makes drastic statutory changes in response to real or perceived crises, and often without a clear understanding of the impact those changes might have on individual cases.”
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