Estate of Verba Ex Rel. Nolan v. Ghaphery

(“Failure (1999) (a in 214 to a dissent S.E.2d observe 520 S.E.2d joined): right constitutional which I constitutes reversible er- ror it can shown that unless be the error was contrast to the In clear view doubt.”). Court, beyond a I a harmless reasonable majority of this view defendant’s majori- Contrary position jury a of twelve as a fundamental taken Indeed, ty, actively privilege. the fact that the alternate did not the ex- constitutional participate in deliberations is far from dis- press contained directive Constitution, positive, prejudice may Virginia as § 14 of West arise “either be- actually participated that all criminal cause the alternates which commands trials twelve,” deliberations, by jury verbally through ‘body a leaves room the “shall be Thus, any language’; pres- conclusion. devia- or because for no other the alternates’ requirement ‘chilling’ regular tion from this constitutional ence exerted effect on the jurors.” Olano, accomplished through knowing v. must be United States U.S. intelligent waiver. 113 S.Ct. 123 L.Ed.2d and (1993) (citations omitted). I would Since improperly excusing addition reverse and remand for a trial new on this violation of aforesaid clear the West issue, respectfully I dissent. appellant’s Constitution that underlies the conviction, majority opinion criminal re-

sponds appellant’s each other as-

signments including the denial of a error — continuance, jury specialist, the denial of a of a

and the denial view—with a rote judicial

repetition of the doctrines of discre- majori-

tion and harmless error. Unlike the ty, only in this close case where 552 S.E.2d testimo- ny self-serving implicated of a criminal Marjorie VERBA, The Estate of I. defendant, multiple I would hold that by Sally Nolan, Executrix, Jo rulings judge trial adverse toward the Appellant, appellant constituted cumulative error that requires appellant’s also reversal con- GHAPHERY, M.D., viction. Appellee. David A. would reverse remand for a new No. 27464. trial, I think ready this Court is now Supreme Appeals Court Lightner. revisit Virginia. West

MCGRAW, Justice, dissenting. Chief 9,May Submitted 2001. (Filed 2001) July Decided June 2001. I would reverse Brown’s conviction for the Dissenting Opinion of Justice expressed my same reasons dissent July Starcher 2001. Lightner, 205 State v. “any in that deviation from th[e] Dissenting Opinion of Justice requirement jurors] [of constitutional twelve July McGraw accomplished through knowing must be intelligent waiver.” Id. at (McGraw, J., dissenting). Re- analysis plain sort to error is therefore mis- context,

placed in this violation of the twelve-person jury

constitutional to a presumed prejudicial

must be absent af- showing

firmative that the error was harm- beyond

less syl. pt. reasonable doubt. See Blair, State ex rel. Grob Brumfield, Persinger,

G. David Howard M. Watson, Charleston, & Brumfield Tonya Chapman, Johnny Chap- Amici Curiae man, Chapman, John Cameron Amanda Gail Lucas and David Lucas. Scott PER CURIAM: Marjorie appellant, I. the estate Verba, appealed from a decision the Cir- County cuit Court of which reduced her Ohio judgment from $2,821,000 $1,020,510.51 required by as malpractice cap forth in set W.Va. (1986). appeal, § Code 55-7B-8 On we were Robinson v. Area asked revisit Charleston Center, Inc., Medical 186 W.Va. unanimously in S.E.2d 877 which we $1,000,000 upheld constitutionality of the in cap on noneconomic awarded By opinion cases. dated Fitzsimmons, Esq., Jay Robert P. Russell December this Court affirmed the Offices, Guthrie, Esq., Fitzsimmons Law judgment again circuit court and once Wheeling, Virginia, Attorneys Ap- West for malpractice cap to con- found the medical be pellant. appellant subsequently peti- stitutional. The Galeota, Ramey, Esq., Ancil E. G. William rehearing, petition for a tioned Anderson, Esq., Christopher Esq., Step- R. reconsideration, granted. affirm On we Charleston, Johnson, Virginia, toe & West judgment uphold circuit court and of the Attorneys Appellee. constitutionality cap. Baron, Esq., Jeffrey M. R. Frederick

White, Esq., Attorneys for Amicus Curiae I. Lawyers Association of Trial of America.

The FACTS Pleska, Esq., Attorney for Ami- P. Michael Ghaphery performed Dr. anti-reflux sur- Virginia cus Curiae The West Chamber Marjorie gery sixty-eight-year-old on Verba Commerce. February 1996. Ms. remained Verba Fan-ell, White, Esq., Michael J. Tamela J. days following hospital in for four sur- Esq., Attorneys for Amici Curiae West parties dispute Ms. gery. The whether Ver- Virginia Hospital Association and The West continuing problems ba was have medical Virginia Association. February Health Care at the time of her release of dis- ten to twelve hours 1996. Within Molleur, Bailey, Esq., T. R. John Charles of an charge, Ms. Verba died. The results Attorneys Esq., for Amicus Curiae The West autopsy surgical that a nick result- indicated Virginia Providers As- Behavioral Healthcare stomach, which in in a to the ed laceration sociation. peritonitis to contract turn caused Ms. Verba Jr., Hurney, Esq., R. Thomas J. Kenneth and to die as result. (Pro Vice), Landis, Jr., Esq. Kyle Hac G. brought malprac- The.appellant a medical (Pro Vice), French, Esq. Attorneys for Hac against Ghaphery Dr. and a tice action Association of Amicus Curiae The National awarding appellant, found for the Independent Insurers. pain, pain, and loss physical mental life; $21,000 Benjamin enjoyment of for medical Grinberg, Esq., Michele C. Sa- bills; $2,500,000to the beneficia- Attorneys funeral lango, Esq., for Amicus Curiae wrongful Virginia of Ms. Verba’s estate under State Medical Association. ries West § Syllabus Erwin, statute. See death W.Va.Code 55-7-6 Point Atchinson v. (1992). above, (1983) (as As noted trial court re- W.Va. 302 S.E.2d 78 in modified Syllabus duced the award to conform to the medical Point Gibson West Department Highways, W.Va.Code 55-7B-8 (1991)). S.E.2d 440 spe- We now discuss the cific issues before us.

II. III. STANDARD OF REVIEW DISCUSSION outset, At the we set forth the rele Syllabus This Court held Point 5 principles guide determining vant which us in of Robinson v. Charleston Area Medical constitutionality legislative acts. Center, Inc., S.E.2d 877 considering constitutionality of a (1991): enactment, legislative courts must exercise W.Va.Code, 55-7B-8, amended, as which restraint, recognition princi- due $1,000,000 provides “cap” limit or on the ple separation powers govern- amount for a recoverable noneconomic loss among judicial, legislative ment professional liability a medical action is Every executive branches. reasonable constitutional. It does not violate the state by construction must be resorted to the equal protection, constitutional special leg- in constitutionality, courts order to sustain islation, state constitutional substantive any reasonable doubt must be resolved pi’ocess, remedy,” due “certain or constitutionality in favor of legis- the of the provisions. Const., trial W.Va. art. question. lative enactment in Courts ai'e Const, Ill, 10; VI, 39; § § W.Va. art. questions not relating concerned Const, Ill, 10; § W.Va. art. W.Va. Const. legislative policy. general powers The of Const, Ill, 17; § Ill, art. and W.Va. art. legislature, limits, the within constitutional § respectively. plenary. considering are almost In the Accordingly, we find no reason to revisit the constitutionality of an act legisla- previously constitutional issues in raised Rob- ture, negation legislative power the of Rather, inson.1 prior we believe that our appear beyond must reasonable doubt. ruling subject judicial to the doctrine of Syllabus Point Appalachian State ex rel. stare decisis which principle, rests on the Gainer, Power Co. v. 149 W.Va. 143 that law governed which men are (1965). Concerning S.E.2d 351 the level of fixed, definite, known, should be scrutiny applied to be affecting issues that, when the law is declared court of rights, economic we have held: jurisdiction competent authorized to con- rights concerned, Where economic are it, declaration, strue such in of absence we look to see whether the classification is palpable error, mistake or is itself evidence social, economic, a rational one based on of changed by the law until competent factors, geographic historic or it whether authority. bears a relationship reasonable to a proper Sims, Booth v. 350 n. 456 governmental purpose, and whether all (1995) (citation S.E.2d 194 n. 14 omit- persons within equal- the class are treated ted). Finding palpable no mistake error ly. Where such classification is rational Robinson, we affirm that decision. requisite and bears the reasonable rela- tionship, the addition, statute does not violate Sec- In parties we note that the tion 10 of III of the West as presented copious well as amici statistics Constitution, equal protection which is our to this Court to either defend or refute the clause. legislature’s findings in support of the medi- case, appellant 1. In the by jury, instant the open contends remedy that the court and certain claus- es, the medical clause, on noneconomic process the special due and the act clause, damages equal protection violates the the clause. clause, separation powers of to a trial

35 However, cap. “ordinari 327 cal we S.E.2d overruled on other independently Goins, fac ly grounds will reexamine not as stated in Belcher v. justification legislative for a tual basis W.Va. S.E.2d 830 Instead, inquiry is whether the statute. Murphy, Md.App. Edmonds legislature reasonably to be could conceive (1990), aff'd, A.2d 325 Md. challenged on which stat true the facts (Md.1992), A.2d Court Robinson, at ute was based.” W.Va. Special Appeals Maryland recognized that (citation omitted). Our power to alter the common law includes legislature’s findings decla review of power “the set reasonable limits on recov purpose § 55-7B-1 ration of W.Va.Code damages legis erable causes of action the legisla us to leads conclude recognize.” (Quoting lature chooses reasonably could true the ture conceive to be Corp., F.Supp. Franklin v. Motor Mazda which Lia facts on the Medical Professional (1989)). 1325, 1336 The court reasoned “that Act, bility including the medical can, legislature sepa if violating without Further, cap, any is based. we resolve rea powers principles, ration of establish statutes question doubts on this in favor of sonable limitation, repose, establish statutes cre constitutionality cap. presumptions, ate ac create new causes of cap vio- appellant also avers that the ones, tion and old can abolish then it also doctrine, “separation powers” lates the see damages violating limit noneconomic without Const, V, 1, claim, according art. powers separations Id. doctrine[.]” specifically not appellant, to the addressed reasoning We concur with this and acknowl appellant argues Robinson. The edge legislature power rea set effectively legislative constitutes a remittitur sonable limits on recoverable in civil any $1,000,000 verdict exceeds causes action. damages. noneconomic We find no merit in urges appellant The next to hold the Court appellant’s argument. the in cap provide the invalid order to legisla- the beyond leg It is dispute that the opportunity cap ture with to the increase the alter, amend, power has islature the years based on fifteen inflation.3 The repudiate, change, abrogate or common the appellant says that inflation has decreased recognized “[b]y law. This Court has that cap passage its the since to a value 8, authority virtue of the Section Article dollars, in which is a 1999 decrease of the Constitution [13]2 of West percent. says Accordingly, than more 35 Code, 1931, and of 2-1-1 it is within the appellant, cap longer is no legislature province statutes enact $1,000,000 in- legislature which the amount abrogate Syllabus, which the common law.” passage. upon tended its Bank, 963, Perry v. Twentieth 157 St. W.Va. added). (1974) (footnote 421 206 do not mere S.E.2d We believe indisputable legisla fact passage “[T]he that the of time has rendered [is] the medical power change ture has the common unconstitutional or invalid. Choi, legislature “Presumably law of this State.” Gilman v. 185 aware (1990), 200, opted W.Va. 406 S.E.2d 209 effects of inflation and could have leg grounds cap in to inflation. overruled other as stated some indexed That the Found., Mayhorn Logan v. but cap Med. 193 W.Va. did not index the to inflation islature (1994). Robinson, 42, 87 not 454 S.E.2d See also set forth an absolute dollar amount does Resorts, supra; v. Valley Lewis v. Canaan render unconstitutional.” Griffin Inc., (1991); Pennsylvania Transp. W.Va. 408 185 S.E.2d 634 Southeastern Author Wallace, (Pa.Commw.Ct.2000), ity, v. 184 453 and Wallace 155 W.Va. 757 A.2d syllabus point originally, appellant response 3. notes that in infla- This referenced The erosion, VIII, tionary some have states included built- 21 of the state was the constitution which mechanisms in their medical mal- inflation prior relevant section to the 1974 Judicial Reor- Colorado, practice statutes. These states include ganization Amendment. Missouri, Idaho, Maryland, Virginia. Cas., 177 W.Va. Hayseeds v. Farm & State rel. Estate ex appeal denied Griffin (1986); and where Pennsylvania 352 S.E.2d v. Southeastern Griffin promptly unfairly WL failed to settle Authority, 775 A.2d insurer Transp. 2001). (Pa. claim, Penney Feb.21, up It is to the see v. J.C. legitimate Jenkins Co., to decide 167 W.Va. Casualty not this Court legislature and Insurance to meet the on other legislation continues overruled whether its S.E.2d originally enacted. Farm which it was ex rel. State purposes grounds as stated State not, Madden, it it is finds that does legislature If Fire & Cas. Co. (1994). as it legislation power to amend

within its 451 S.E.2d “may super- sit as a not fit. This Court sees difficulty appellant’s The or desirabili- legislature judge the wisdom wrongful con position that intentional made policy determinations ty legislative above, duct, is not neces that mentioned like fundamental that neither affect in areas every prevail sarily present in case where along suspect lines.” proceed rights nor malpractice plaintiff is awarded ing medical Resorts, Inc., 185 Valley Lewis Canaan statu damages in excess noneconomic W.Va. result, many losing tory defen limit. As omitted). (citation Accordingly, we decline malpractice cases could be in medical dants on inflation. cap invalid based to find the fees, attorney of inten not because assessed Finally, appellant asserts they simply but because wrongdoing, tional be awarded attorney and costs should fees a claim and lost the end. to defend chose the ver malpractice actions where We have held: cap. appellant reasons dict exceeds pro- defending an action to Bringing or malpractice plaintiff can that a successful property protect one’s economic or mote or statutory limit on noneco never achieve the per bad does not se constitute interests million dollars because damages of one nomic vexatious, faith, oppressive con- wanton or attorney subject fees award is exceptional meaning of within the duct costs. authorizing an award to the equity rule gen recognizes “[a]s law Our litigant prevailing of his or her reasonable litigant his or her own bears eral rule each action. attorney’s fees as “costs” of the contrary attorney’s rule fees absent Syllabus Sally-Mike Properties v. Point statutory contractual au express court or Yokum, except the thority when for reimbursement holding principal on the This is based faith, party has acted in bad vexatious losing dispute “[ejveryone good who has a faith Syl ly, wantonly oppressive reasons.” or for by impartial requiring a an arbiter decision 9, Edison Helmick v. Potomac labus Point day in v. Fuscal to his comb.” Yost entitled 269, Co., 700 185 W.Va. 406 S.E.2d 500, 72, do, 79 408 S.E.2d 185 W.Va. permitted an award of attor has This Court (1991) Employees (quoting Nelson v. Public deliberately officials ney public where fees Board, 171 300 W.Va. Insurance statutory provisions, mandatory disregarded (1982)). attorney Permitting 95 S.E.2d Kimball, 176 v. Town see Richardson by appellant runs urged the awards as fee (1986); in a 582 tres 340 S.E.2d W.Va. contrary principle. this losing party intention pass action where the addition, legislature was aware In the personally removed ally encroached cap damages award- when it enacted Lambert, markers, v. boundary see Miller malprac- plaintiffs in prevailing ed (1995); where 467 S.E.2d W.Va. attorney by their tice cases would be reduced shown, Bowling v. Ansted see fraud was Nevertheless, legislature fees and costs. Chrysler-Plymouth-Dodge, provision a did not enact (1992); against a in an action S.E.2d permitting and costs malpractice act fees Nat’l fiduciary mismanagement, see Old for prevailing plaintiffs. Hendricks, Martinsburg Bank of that a rule (1989); Finally, not convinced we are W.Va. contract, attorney and costs is needed. permitting fees see an insurance action to enforce arbitrarily similarly that this medi- Our research indicates state’s statute treats situated $1,000,000, persons differently cal unfairly, is one of and often fact, country. deprives severely injured caps plaintiffs the most liberal a reme- cap higher dy by no plaintiff state has set at a amount. due course of law. A who is injured Accepting cap only by negligence anyone the fact that the now has other $648,147, present approximately provider” than a value of “health care can collect his or greater many damages by jury— this amount is still than her full as awarded plaintiff injured negli- states which limit medical but a who is Accordingly, gence awards.4 permit provider” we decline to of a “health care cannot. attorney malprac- Why providers get fees and costs in medical should health care more simply protection prevailing plain- tice cases because a for their than carelessness others driver, homeowner, statutory tiffs cap. pro- award exceeded the do as a vehicle professional vider of other services? III. I again constitutionality would revisit the W.Va.Code, 55-7B-8, and invalidate the CONCLUSION statute. foregoing, Based on affirm we our Marjorie was, accounts, I. Verba all holding in Robinson Charleston Area Med- generally good 68-year-old health for a Center, Inc., ical However, woman. occasionally she had (1991) upholding constitutionality “reflux,” problems with where the stomach $1,000,000 cap imposed by W.Va.Code up flow esopha- contents backwards into the § 55-7B-8 noneconomic gus. everyone experienced Most has awarded in medical cases. Fur- lifetime; during “heartburn” their it awas ther, reject appellant’s we claims that the problem more routine for Ms. Verba. inflationary is invalid because erosion attorney and that fees and costs should be Ms. Verba consulted defendant David awarded cases where noneconomic dam- Ghaphery, A. surgery and was told that ages statutory cap. Accordingly, exceed the might help problem. her She was admitted the decision of the Circuit Court of Ohio hospital laproscopic surgery to a to cor- County is affirmed. problem. During surgery, rect the reflux stomach, wrap the doctor would lift her Affirmed. portion esophagus around the create stop natural that would valve the stomach’s Justice DAVIS concurs and reserves the back-flowing esopha- contents from into concurring opinion. to file a gus. STARCHER, Justice, dissenting: Surgery performed February (Filed 2001) July hospital Ms. Verba remained $1,000,000.00 “cap” days believe that im- to recover. Ms. Verba had nausea posed by W.Va.Code, 55-7B-8 ^[1986] is a and vomiting, a low grade fever, and would patent equal protection discharge, violation of the and not eat. Prior to her one of her remedy provisions daughters Ghaphery by certain Dr. spoke West Vir- with ginia discriminatory phone This Constitution. to tell the doctor she and her sister ana, example, cap 4. For on noneconomic dam- the total amount recoverable for all mal- practice injuries $250,000, for to or death of a claims ages in California is see Cal. Civil Code patient, medical and exclusive of future care $250,000, 3333.2(b) (1975); § see Kan. Kansas — $500,000 benefits, plus related is interest and 60-19a02(b) (1988); § Stat. Ann. Missouri— costs, § see La.Rev.Stat. Ann. 40 1299.42B $350,000, (1986); § see Mo. Ann. Stat. 538.210 (1991). Maryland, cap In on noneconomic $400,000 inflation), (adjusted and see Idaho — actions, damages personal injury just in all not 1603(1)(1987); Virginia, § Idaho Code In 6— actions, $500,000 malpractice medical was on cap any injury on the total amount recoverablefor $15,000 October 1994 to increase on Octo- to, dollars, of, patient or death a is 1.5 million to 1, 1995, year following 1 of ber Md.Code § each October see 1, 2000, year July Ann., increase a after see Proceedings! and Judicial [Courts (1999). (2000). Va.Code Ann. 8.01-581.15 In Louisi- 11-108 ready go to medical their mother was The defendants contend did not feel home, holding malpractice cap necessary keep mainly she was not to because Ghapheiy liability at Dr. screamed costs of medical insurance reason- food down. her her, okay purports mitigate to told her that her mother was able. When statute certain, perceived problem Ghapheiy Dr. did not return to unreason- go home. —like Verba, ably high pre- insurance hospital to check on Ms. she medical discharged p.m. legislature at is not rational for was 6:00 miums —it impose fixing problem the burden of discharge, days 10 hours her Within class, particular many fac- on when other surgery, was dead. An her Ms. Verba after problem. tors contribute “The State in autopsy found an 8-millimeter laceration may rely not classification whose rela- by surgical instrument stomach caused tionship goal to an asserted is so attenuated during surgery. The stomach’s contents arbitrary as to render the distinction or irra- peritoneum causing peritoni- seeped into the City Living tional.” Cleburne Cleburne septic tis and shock which killed Ms. Verba. Center, 432, 446, U.S. S.Ct. (1985). happened during surgery; a A mistake 87 L.Ed.2d It is there- jury impose upon people concluded that the mistake constituted Irrational to fore severe- malpractice, ly injured by and that Ms. Verba medical died one doctor’s mistake the burden amount, reducing, as a result. some immeasurable all doctors’ medical insurance $300,000.00 physical awarded premiums. particularly This is so when —as pain, pain, enjoyment and loss of mental many detailed factors contrib- other below— life; bills; $21,000.00for medical funeral significantly higher premium ute more $2,500,000 to the beneficiaries of the costs. wrong- in for those items set forth estate statute, W.Va.Code, ful death 55-7-6. The Robinson Court concluded that the trial court reduced verdict did not violate the $1,020,510.51, because of the medical mal- Equal Virgi- Protection Clause the West W.Va.Code, practice cap contained 55-7B- Constitution, nia 10. In section conclusion, reaching this 8. we cited proposition regulations that economic are en- economist, plaintiff- An on behalf of the judicial titled “wide deference.” recently appellants, calculated that disagree at $1,000,000.00 cap established 1986 has a case, proposition this use of the in the instant present day year only value 2000 of personal and believe that the to recover $624,898.00, eroding due to the effects injury damages significant is a substantive inflation. right requiring application high- of some er, intermediate, See, perhaps scrutiny. e.g., This Court ruled Robinson v. Charles- Ctr., Lincoln, 188, 192, Spilker City ton Area Med. 238 Neb. (1991); malprac- S.E.2d 877 that the medical 469 N.W.2d Hanson v. (N.D. tice County, constitutional. Williams 389 N.W.2d However, 1986); Sears, Co., the recent trend has been to find Heath v. Roebuck & malpractice caps, tort reform N.H. 464 A.2d 294-95 and/or legislation general, scrutiny to be unconstitutional.1 The intermediate test is utilized join legislation substantially This should Court trend and find when related to the W.Va.Code, important governmental 55-7B-8 to be unconstitutional. achievement of Olson, (N.D. 1995); States, 1. See Arneson v. 270 N.W.2d 125 Knowles v. United 544 N.W.2d 183 1978); Works, Ins., (S.D.1996); Department Taylor v. v. Smith 507 So.2d Best Machine 179 of U.S., (Fla. 1987); 636, 1080 v. Ill.2d Lucas 757 S.W.2d 687 228 Ill.Dec. 689 N.E.2d 1057 (Tex.1988); (1997); (Ind. Corp., Richey, v. Fibreboard 112 Martin v. 711 N.E.2d 1273 Sofie Prod., Inc., (1989); 1999); Wash.2d 771 P.2d 711 Condemarin Lakin v. Senco 329 Or. 987 (Utah 1989); (1999); Hosp., Academy v. Univ. P.2d 463 ex 775 348 Bran P.2d State rel. Ohio of Usitalo, Sheward, nigan Lawyers v. 134 N.H. 587 A.2d 1232 Trial v. 86 Ohio St.3d 715 (1991); Schulte, (Ala. (1999). Smith v. 671 So.2d 1334 N.E.2d 1062

39 Assn., (Ala.1991). challenged. Payne has interest been See v. 592 So.2d 156 New Hamp- (1996). shire, Gundy, 196 468 S.E.2d 336 using W.Va. an of scrutiny, intermediate level also found its statute unconstitutional. See opinion In the recent ex rel. State Ohio Maurer, Carson v. N.H. A.2d Sheward, Academy Lawyers Trial v. (1980); Usitalo, Brannigan and v. St.3d 715 N.E.2d 1062 Ohio N.H. A.2d Supreme group struck Ohio Court down limiting damages, finding Ohio statutes that I balancing believe that the direct and equal protection it violated the state’s and palpable placed upon catastrophically burden process due clauses. The Court stated: injured malpractice victims medical any find ... We are unable to evidence against speculative the indirect and benefit proposition buttress the that there is a W.Va.Code, may that on society, be conferred rational connection between awards over 55-7B-8 is an unreasonable exercise cap] malpractice [the insurance rates. power. state’s Moore v. Mobile See Infirma- converse, There is evidence howev- Assn., ry 592 So.2d at I 157. therefore Supreme er. The Court of found Texas no believe that the violates our relationship between insurance rates and equal protection guarantees of the West cap, independent citing study an that Virginia Constitution. than showed that less .6 of all claims malpractice also that cap believe $100,000. brought were for more than Lu- remedy” provisions violates the “certain States, (Tex.1988), cas United 17 of Section the West According S.W.2d 691. to three amici Constitution, that states: arguing against the statute’s constitution- ality, study by a 1987 the Insurance Ser- open, The courts of shall be state Organization, rate-setting vice arm of every him, person, for injury done industry, insurance found the sav- person, property reputation, his or shall ings reforms, from including various tort remedy by have due of law. course $250,000 cap damages, on non-economic The test announced in Robinson deter- “marginal were to nonexistent.” mining legislation whether violates the “cer- 86 Ohio St.3d at at N.E.2d remedy” two-step process. tain is a clause (citations omitted). Relying finding, on this First, proponent of the statute must applied higher degree Ohio Court demonstrate existence of a “clear social analysis damages on and found requires problem” or economic which arbitrary that it was “irrational and to im- alteration of some common or law rem- pose the cost of the intended benefit Second, edy. legislative change general public solely upon consisting a class remedy common or “must law be a severely injured by of those most medical eliminating or curtail- reasonable method malpractice,” any cap damages and that ” ing problemf.]’ or ‘clear social economic was “unconstitutional because it does not Robinson, at 414 S.E.2d at public bear real and substantial relation to 885. health welfare further it is because arbitrary.” unreasonable and 86 Ohio St.3d now, been, There is not nor has there ever 486, 715 at N.E.2d problem” arising a clear “social or economic only is malpractice Virginia. Ohio not the state find that it from in West equal protection guarantees company’s violated cry losing to im- An it is insurance pose “cap” damages. money likely poor Alabama an admission of more Supreme capping Court ruled its statute practices, business not a social or clear eco- Hill, problem. Barry unconstitution- nomic An article al, citing study by Story,” to a “Ponzi Again: the United States Rides The PIE Mutual (Fall Accounting 1998), General Office that details concluded WVTLA Advocate how personal injury company that the connection between one medical insurance folded, damage caps money, subsequently and the total cost of health lost for rea- care Infirmary nothing premi- is remote. Moore Mobile low sons had do with publican Headquarters. PIE high lawsuit executives un- um rates or $35,000.00 of derwrote cost Southern verdicts. Legislative Conference Charleston June malprac- Mutual sold In PIE $13,000.00 Virgi- to gave five West 15,000 policyholders in nine to tice insurance legislative in 1996. nia candidates It is un- Virginia. states, including West Decem- spent luxury PIE clear how much its judge placed company an ber Ohio Cleveland, Skybox at Field in home Jacob’s declaring company to receivership, be Indians, a contingent of the but Cleveland exceeding with claims hopelessly insolvent politicians from West were hosted Depart- million. The by Ohio assets $275 the box as as 1997. late found, during liqui- PIE’s ment of Insurance dation, payroll had an that PIE million $11.6 Department In June the Ohio average an more than employees, for 150 many auctioned off PIE’s assets Insurance $77,000.00 employee. per Salaries consumed pay to At PIE’s Cleveland its claims. head- paid by premiums PIE’s insured 25% of all quarters, crystal off china it auctioned physicians, 4.5 national salaries times the a services for as well as rare Frederick expenses mil- average. Travel were $2.6 Remington lithograph collection. The Board average premiums lion —4.7% of of Director’s conference table sold for alone —an $17,000.00per employee. $30,000.00. “TidePoint,” It also auctioned off an exclusive 63-acre Hilton Head retirement liquidated, PIE months before was Five PIE, complex, by for mil- 80% owned $23.7 company gave million to three of its $11.8 facility, lion. The with condominiums and top million executives. Of received $6.1 $166,000.00 ranging price villas from CEO, $92,000.00 pur- went a cattle $606,000.00, coincidentally was home of family, a of the chase from member CEO’s parents. the CEO’s $95,000.00 paid Gaming, was MGM $30,000.00 to RIO Casino. And the went now, been, There is not nor has there ever stop didn’t there. bonuses malpractice” premi- a “medical crisis. The ums for malpractice high insurance are son, president was who the vice The CEO’s —but demonstrates, as the PIE situation often for $8,000.00 marketing, got salary an advance wholly reasons unrelated to ver- from PIE —an advance was never re- Still, physicians expect dicts. should mal- secretary got $48,000.00 paid. The CEO’s practice premiums high to be because of the bonus; president got salary one vice Ghaphery performed risk —Dr. “routine” bonus, $264,000.00 another a bonus. Verba, surgery days and 5 on Ms. later she $132,000.00, got An an extra accountant while slip was dead of an unnoticed because $67,000.00. got controller assistant scalpel. high, the risk is Where Meanwhile, president the vice of claims had a high, price insuring costs of error $350,000.00 forgiven. loan against high that risk should be cer- —and money pockets went into Not all the tainly qualify as a does not “social or eco- employees. paid From 1992 until PIE problem” nomic such that access to the million to a board member for “consult- $1.4 courtroom should be restricted. ing.” company gave money also to the nearly $300,000.00 Republican Party, every It be- violates the citizen $50,000.00 It paid arbitrarily and 1996. also citizen’s tween 1994 eliminate the to a remodeling remedy full and complete wrongdoer.2 toward cost of Re- from Ohio remedy example wrongdoer, open plain- of a not within miles For an from a an office Eye Huntington need look no further than years. one tiff's office The defendant doctor said LoCascio, Associates v. plaintiff routinely committing was Medicare curiam). case, (per In that the Court unnecessary performing surgery, fraud and so worth, jury's plaintiff returned to a verdict employ open plaintiff's left an office less interest, nearly plain- a million dollars—and the away. than 2 We held that miles on these dis- suing tiff of agreement another was a doctor doctor for breach puted positions, equipped best plaintiff contract. The doctor he had said right, decide in the which doctor was and which the defendant would ei- doctor remedy compensate the would best offended doc- alternative, him, or in the would ther work for

41 right injury significant is a substantive re who is jury equipped to determine A is best scrutiny quiring application intermediate wrong, to in and right in and who is See, e.g., Spilker equivalent approaches. or by of law.” “remedy due course decide 188, Lincoln, 469 City 238 Neb. N.W.2d v. Virginia guarantees Constitution The West (1991); County, v. 548 Hanson Williams majority opinion gives it short right; the (N.D.1986); 325 Heath v. 389 N.W.2d shrift. Co., Sears, 123 N.H. Roebuck & that, measure, by any the medical I believe (1983). 288, 295 I would have this A.2d W.Va.Code, in 55- malpractice cap contained point Robinson on this Court overrule unfair, arbitrary, unconstitution- is 7B-8 join jurisdictions apply height that those respectfully dissent. al. therefore scrutiny equal-protection to level of ened injured statutory right of limitations on the MeGRAW, Justice, dissenting: Chief damages from other persons to recover tort (Filed 25, 2001) July parties. Specifically, wise liable the Court closely scrutiny, apply should more re-evaluate it This Court should intermediate where challenged legislation in v. its decision Robinson Charleston must be shown that the earlier Center, Inc., substantially 186 W.Va. to Area Medical is related the achievement my important governmental which view interest. See 414 S.E.2d an infir- Payne Gundy, to discern obvious constitutional 196 W.Va. 468 S.E.2d failed v. (1996) cap imposed by scrutiny W. (applying mities million intermediate $1 case); by § dam- gender 55-7B-S non-economic discrimination Israel Israel Va.Code Secondary ages awarded medical cases. v. Schools Activities W. Va. Comm’n, pass constitutional mus- The statute fails 182 W.Va. 388 S.E.2d (1989) L.H., (same); grounds.1 Shelby George v. on at least two J.S. ter (1989) (apply 181 W.Va. 381 S.E.2d First, the limitation on non-economic dam- scrutiny to case ing intermediate level of by ages equal protection discriminat- denies involving illegitimacy). way ing among tort victims in such as to analysis, it is such inconceivable Under recovery egregiously in- deny to the most pass § would constitutional 55-7B-8 jured. prefaced its The Robinson Court observed, stat- As other courts have muster. equal protection challenge to analysis of the “ imposing a limitation utes “one-size-fits-all” by stating § ‘[a] 55-7B-8 W. Va.Code non-economic) (economic damages cre- statutory [a limitation on common-law mea- upon severity of in- based ate classifications recovery simply regu- economic of] sure penalize those who jury, proceed to and then lation, judicial defer- which is entitled wide ” injured denying seriously by them are more at at 414 S.E.2d ence.’ 186 W.Va. statutory limit: compensation beyond the Hosp., (quoting Etheridge v. Medical Center (1989)). imposed by limit- [a statute [T]he burden 237 Va. have, however, damages in medical mal- recog- ing non-economic state courts Several rights of individuals practice on the right personal cases] nized that the recover damages away upon interference with plain- based had taken economic tor. The circuit court verdict; jury); right So v. gave to trial we the verdict back. constitutional tiffs fie Corp., 771 P.2d 711 112 Wash.2d Fibreboard unsettling hold that two It is to see this Court statutory compensa (finding that limit on of dol- can sue one another for millions doctors tory state consti noneconomic violated damages yet speculative lars contractual — But, by jury). appellee right trial as tutional time, injured plaintiff hold that an can the same constitutionally out, present rightly points case involves suing a doctor be restricted from death, wrongful statutory action for cause of for the same amounts. constitution the ambit of this which falls outside Dillon, provision. 119 W.Va. al 284, See Simms Appellant, as well as amicus curiae Associ- III, (1937) (holding America, that Article 193 S.E. 331 Lawyers present a of Trial also ation by jury guarantee § to trial 13 does not argument persuasive 55-7B-8 runs afoul any exist at where it did not circumstance provided Article to a trial law), See, grounds, State overruled on other e.g., common § 13 of the West Constitution. Milam, Prod., Inc., Road Comm'n 987 P.2d v. Senco 329 Or. Lakin (1999) (invalidating on non- compensation inju- injured slightly severely plaintiffs, serious receive hardship direct and concrete. The also ries is between tortfeasors who cause severe heavily injuries”); on falls most those who are most or minor moderate Smith v. and, thus, Schulte, (Ala.1995) severely most maltreated de- 671 So.2d 1336-44 severely serving (finding limiting of relief. the less that Unlike statute amount re- just injured, compen- full wrongful against who receive coverable in a death action sation, catastrophically injured $1,000,000 provider victim a health care violated any expec- equal protection guarantee is denied Ala- Constitution). compensation beyond statuto- tation of bama Moreover, ry operates limit. the statute agree fully with Chief Justice Bird’s dis- advantage only negligent not health Group, sent Fein v. Permanente Medical tortfeasors, providers care over other but Cal.Rptr. 38 Cal.3d 695 P.2d providers of those health care who are (en banc), where she stated: irresponsible. most logically supportable There is no reason Ass’n, Infirmary v. Mobile Moore 592 So.2d why severely injured malpractice the most (Ala.1991) (emphasis original). singled victims should be pay out to Supreme Hampshire Court of New ech- social relief tortfeasors reasoning, noting oed this preserving their insurers. The in- idea by imposing huge damage is clear that surance on a [i]t recov- sacrifices ery distinguishes only logically perverse. few victims is not between mal- Insur- practice spreading victims and victims of ance is a other torts device risks and among large costs people but also “between victims with numbers of so $250,000 person non-economie losses that that no one is exceed crushed misfor- egregious strange with .... In a prin- and those less non-econom- tune reversal of this ciple, agree ic ... the statute losses.” We with the North concentrates the costs of Supreme injuries Dakota Court that the worst on a few individuals. recovery pro- “the limitation of not does 393-94, Cal.Rptr. at Cal.3d adequate compensation patients vide (Bird, C.J., dissenting). P.2d at 689-90 Ac- claims; with meritorious on the con- cordingly, given the obvious existence of al- trary, just it opposite does for the § impose ternatives to 55-7B-8 that far less seriously injured most claimants. It hardship egregiously injured the most nothing does toward the elimination of malpractice, victims of medical I would find nonmeritorious claims. Restrictions on that equal protection the statute violates the recovery may encourage physicians to III, guarantees § contained practice into prac- enter and remain in Constitution, the West as well as the tice, only but do expense so at the of prohibition against special legislation set claimants meritorious claims.” IV, § forth in Article Olson, [125,] Arneson v. 270 N.W.2d 135- reasons, For similar the statute also runs (N.D.1978) simply 36 [ ]. It is unfair and remedy” provision afoul of “certain con- impose unreasonable to sup the burden of III, § Virgi- tained Article 17 of the West porting industry solely the medical care Robinson, nia Constitution. the Court upon persons severely those who are most rejected reasoning, finding § 55- injured and therefore most in need com 7B-8 was previ- constitutional under the test pensation. ously syllabus point formulated 5 of Lewis Resorts, Valley Inc., v. Canaan Maurer, Carson 120 N.H. 424 A.2d (1991): (1980) (citation omitted); S.E.2d 634 836-37 see also Works, Taylor Best v. Mach. legislation Ill.2d substantially “When either impairs Ill.Dec. 689 N.E.2d rights 1069-78 or severely vested limits (holding that limit on existing procedural noneco- permitting remedies nomic prohi adjudication, violated constitutional thereby court implicating the against special because, bition legislation, remedy provision in certain of article sec- alia, ter “the statute discriminates between Virgi- tion 17 of the Constitution of West nia, legislation upheld will be under found that implicat- trial were if, first, provision ed). reasonably effec- I would pre- overrule Robinson and its remedy provided by is tive alternative issue, and, least, cursors on this very at the or, second, legislation if no such alternative present remand development case for the remedy provided, purpose of a factual pertinent record determining repeal existing alteration or cause of passes scrutiny whether 55-7B-8 under remedy action or is to eliminate or curtail this revised standard. problem, a clear social or economic and the The Court in this ignore case has chosen to repeal existing alteration of the cause deficiency Robinson, these and instead remedy action or is a reasonable method of retreat behind the doctrine stare decisis. achieving purpose.” such obviously While this Court has an institution- Lewis). Syl. pt. Robinson, supra (quoting al responsibility to be consistent in its enun- As correctly perceived, one commentator has law, ciation of the it should never be deterred approach does no more Lewrs!Robinson rectifying previous from implicate errors that “impose ‘rationality than a minimal require- significant personal rights: legislature ment’ on justify the state legal principle “No is ever settled until it is remedy.” diminishment of common law right.... settled vital impor- ‘Where Friesen, Jennifer State Law Constitutional public tant private rights con- (2d ed.1996). are 3(c)(1), at 358 6— cerned, regarding and the decisions them estimation, my present standard permanent are have a direct and influ- give proper does not important heed to the time, upon ence all future it becomes the constitutional interests at stake when ex duty right as well as the court to isting remedy substantially is altered carefully, permit consider them and to no Instead, Legislature. proper standard continue, previous error to if it can be employed that should be this circumstance ” corrected.’ requires legislation that such restrictive must provide quid pro quo either or reasonable Compensation Sizemore v. State Workman’s remedy, alternative itor must be shown that Com’r, 100, 108, 219 S.E.2d abolishment or modification of the substan (1975) (citation omitted). Moreover, required tive in order to achieve an pertinent question where the involves a de objective, important public and the means scope termination protections Legislature chosen must be substan set forth in our state constitution’s Bill of tially achieving related to purpose. See Rights, the Court should never be deterred Ins., Department Smith v. 507 So.2d ultimately reaching from the correct result. (Fla.1987) curiam) (per 1088-89 (invalidating States, 542, 559, Fry v. See United 421 U.S. $450,000 cap on noneconomic recov S.Ct. L.Ed.2d 363 upon in tort erable based Florida’s constitu (Marshall, J., dissenting) (“important deci guarantee tional of access to court for re subject sions of constitutional law are not injury, “overpowei'ing public dress where the same command of stare decisis as are demonstrated); necessity” not Kansas Mal (citations statutory questions”) decisions of Bell, practice Victims v. 243 Kan. 757 omitted). (1988) P.2d (finding 262-64 that mil $1 reasons, foregoing respectfully For malpractice recovery, lion limit on medical dissent.2 $250,000 cap damages, on noneconomic “remedy by offended constitutional law,” quid pro

due course of quo where no

provided); see also State ex rel. Oatl v. She

ward, 86 Ohio 715 N.E.2d St.3d (suggesting heightened

1092 n.

scrutiny would applied be to claim that provision

violated due course of law if it were majority attorney's may 2. The has chosen to address the issue whether fees and costs be recov- Commissioner,

Shelby LEARY, State B. Labor, Virginia Division of

of West Below, Appellant

Plaintiff COUNTY NATIONAL

McDOWELL Below,

BANK, Defendant

Appellee

No. 29001.

Supreme Appeals Court Virginia.

West 6, 2001.

Submitted June 29, 2001.

Decided June jury's cap. presented fre- verdict exceeds the never to the court below. As has ered where the "[tjhis quently emphasized, been Court will not While I believe that the on noneconomic pass nonjurisdictional question damages gives in- which has defendants an incentive to be transigent up litigation in the and drive not been decided the trial court first costs of Co., Syl. Security pt. plaintiffs pursuing Sands v. Trust an effort to dissuade from instance.” claims, legitimate permit Conse- and would therefore attorney's quently, ad- plaintiffs such issue should not have been to recover reasonable fees Court, present and its treatment when a awards the maximum dressed costs nothing cap, permissible more than dictum. amount under the this issue

Case Details

Case Name: Estate of Verba Ex Rel. Nolan v. Ghaphery

Court Name: West Virginia Supreme Court

Date Published: Jul 25, 2001

Citation: 552 S.E.2d 406

Docket Number: 27464

Court Abbreviation: W. Va.