Court to decide $90.5 million question - Beckley, Bluefield & Lewisburg News, Weather, Sports

Court to decide $90.5 million question

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After a $90.5 million verdict was appealed to the state Supreme Court in a case where a family alleged a nursing home's neglect caused the death of a resident, debate surrounds whether this verdict will be subject to the West Virginia Medical Professional Liability Act and thus, whether those caps apply.

In the Kanawha County Circuit Court case, the jury awarded in favor of Tom Douglas, who filed the suit in 2010 against Manor Care Inc., HCR Manor Care Services Inc., Healthcare and Retirement Corp. of America LLC and Heartland Employment Services LLC. Douglas alleged his 87-year-old mother, Dorothy Douglas, died as a result of severe dehydration and neglect from the nursing home.

Noting Douglas' death certificate, nursing home officials argued Douglas died from dementia, not dehydration. Officials also say Douglas was transferred to Hospice and died 18 days after she was released from Heartland.

A Kanawha County jury awarded $91.5 million to Douglas and held Heartland responsible for ordinary and medical negligence, violation of fiduciary duties and violations of the Nursing Home Act.

Approximately $11 million was awarded for the death and $80 million was awarded to punish the nursing home for misconduct.

The Kanawha County circuit judge later determined that caps did apply but only to one part, reducing the verdict to $90.5 million.

One of the main questions presented to the Supreme Court is whether the Medical Professional Liability Act applies to nursing homes and whether it will apply to the whole verdict, not just part of it.  

In order to fully comprehend this question, it's important to understand the West Virginia Medical Professional Liability Act, said Thomas Hurney Jr., a member in Jackson Kelly's Charleston office.

Hurney explained that the West Virginia Legislature passed the original MPLA in 1986 and amended it in 2001 and 2003. This act covers all "medical professional liability actions, which are broadly defined to include any actions in tort or contract against health care providers by patients arising from health care."

In the 1986 act, Hurney said, requirements to prove a case against a health care provider was put into statutory language.

"It applied to doctors and hospitals, established a $1 million cap on non-economic damages, limited joint and several liability and defined a bunch of different terms like health care providers, who are licensed in the state to practice health care," Hurney explained, adding that the act applied to injuries occurring after June 6, 1986.

The second MPLA, passed in 2001, applied to actions, not injuries, after March 1, 2002. Hurney said this amendment required a notice of claim and certificate of merit before filing the suit.

It also called for "mandatory mediation, exchange of medical records, management and scheduling directives designed to expedite actions, voluntary summary jury trials, an increase in jurors from six to 12, with nine required to prevail and the elimination of third party claims under the Unfair Trade Practices Act," Hurney said.

Expert qualifications later were struck as unconstitutional as was the 12-person jury, Hurney said.

The last MPLA applied to actions filed after July 1, 2003, and provisions were added to speed up resolution, eliminate joint and several liability as established under the first MPLA, limit third-party actions against health care providers and reduce the $1 million limitation on non-economic damages to $250,000 and $500,000 for more serious cases, Hurney further explained.

It also reduced the overall $500,000 cap on both economic and non-economic damages in trauma cases, Hurney said.  

Both the 2001 and 2003 amendments were driven by a similar cause, Hurney said.

"It centered on the availability of insurance," he said, noting hospitals and physicians had difficulty obtaining coverage. "They charged a lot to doctors in West Virginia. Doctors and hospitals got behind the need to fix our system. … The plaintiffs' bar said you shouldn't change the justice system because it was an insurance industry and a problem with the industries. The two statutes ended up changing the act but a large measure of it was still compromises."

Hurney said one of the compromises the MPLA came to was requesting mediation. Hurney said if a defendant received a notice of claim or certificate of merit, he or she could ask for immediate mediation, hire an independent third party and discuss whether a case could be resolved, stopping court proceedings in their tracks.

He said there also was concern raised by the plaintiff's bar that mediation could be requested in every case and defendants could get as much information as they could.

The compromise, Hurney said, is the plaintiff is entitled to take health care providers' depositions and the sworn testimony of the doctor.

"It's designed so that mediation wouldn't be requested in every case," he said.

Hurney said most of the time, really bad medical malpractice cases get settled and the weak cases get weeded out.

However, there have been cases that wind their way to the state Supreme Court, such as the Douglas case.

Hurney said the state Supreme Court's decision on the Douglas case will be very important, especially with how the MPLA applies to these types of cases. However, he thinks the MPLA does apply.

"If this case is upheld, it's going to create, in my judgment, the way MPLA actions are pursued because cases then turn on those things that you could argue aren't covered by the act," he said. "For hospitals, doctors and health care providers who have a statute that this applies to all actions contracted, this is a whole new area of liability where there is no protection of the act. The question is are they insured or can they be insured?"