MacDonald v. City Hosp (Full Text)

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2011 Term

No. 35543

FILED
June 22, 2011

released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

JAMES D. MACDONALD AND DEBBIE MACDONALD, HIS WIFE,

Plaintiffs Below, Appellants

CITY HOSPITAL, INC., AND SAYEED AHMED, M.D.,

Defendants Below, Appellees

Appeal from the Circuit Court of Berkeley County

Honorable Gray Silver, III, Judge

Civil Action No. 07-C-150

AFFIRMED

Submitted: March 8, 2011

Filed: June 22, 2011

D. Michael Burke, Esq.

Burke, Schultz, Harman & Jenkinson

Martinsburg, West Virginia

and
Barry J. Nace, Esq.

Christopher T. Nace, Esq.

Paulson & Nace

Washington, D.C.

and
Robert S. Peck, Esq.

Center for Constitutional Litigation, P.C.

Washington, D.C.

Attorneys for Appellants,

James and Debbie MacDonald

Ancil G. Ramey, Esq.

Hannah B. Curry, Esq.

Steptoe & Johnson PLLC

Charleston, West Virginia

and

Stephen R. Brooks, Esq.

Flaherty, Sensabaugh Bonasso PLLC

Morgantown, West Virginia

Attorneys for Appellee,

Sayeed Ahmed, M.D.

Harry G. Deitzler, Esq.

Hill, Peterson, Carper, Bee & Deitzler, PLLC

Charleston, West Virginia

and
Troy N. Giatras, Esq.

Stacy A. Jacques, Esq.

The Giatras Law Firm, PLLC

Charleston, West Virginia

Attorneys for Amicus Curiae,

Public Justice, P.C.

Thomas J. Hurney, Jr., Esq.

Jennifer M. Mankins, Esq.

Jackson Kelly PLLC

Charleston, West Virginia

and
Christine S. Vaglienti, Esq.

Morgantown, West Virginia

Attorneys for Appellee,

City Hospital, Inc.

Paul T. Farrell, Jr., Esq.

Greene Ketchum

Huntington, West Virginia

Attorney for Amicus Curiae,

West Virginia Association

for Justice

Thomas P. Maroney, Esq.

Maroney, Williams, Weaver

& Pancake, PLLC

Charleston, West Virginia

Attorney for Amicus Curiae,

West Virginia Labor Federation,

AFL-CIO

Charles R. Bailey, Esq.

Brian D. Morrison, Esq.

James W. Marshall, III, Esq.

Bailey & Wyant, PLLC

Charleston, West Virginia

Attorneys for Amicus Curiae,

West Virginia Board of Risk

& Insurance Management

Brenda Nichols Harper, Esq.

Charleston, West Virginia

Attorney for Amicus Curiae,

West Virginia Chamber of

Commerce

Michael J. Farrell, Esq.

Tamela J. White, Esq.

David A. Stackpole, Esq.

Farrell, Farrell & Farrell, PLLC

Huntington, West Virginia

Attorneys for Amicus Curiae,

West Virginia Mutual Insurance Company

Mychal S. Schultz, Esq.

Jeffrey A. Foster, Esq.

Dinsmore & Shohl LLP

Charleston, West Virginia

Attorneys for Amicus Curiae,

Defense Trial Counsel of

West Virginia

Mark A. Behrens, Esq.

Cary Silverman, Esq.

Shook, Hardy & Bacon L.L.P.

Washington, D.C.

and

Evan H. Jenkins, Esq.

Charleston, West Virginia

Attorneys for Amici Curiae,

West Virginia State Medical Association,

Component Societies of the West Virginia State Medical Association,

West Virginia Academy of Family Physicians, West Virginia Hospital Association,

American Medical Association, West Virginia Orthopaedic Society,

West Virginia Chapter American Academy of Pediatrics,

West Virginia Academy of Otolaryngology –Head and Neck Surgery, Inc.,

West Virginia Podiatric Medical Association,

West Virginia Medical Group Management Association,

West Virginia Radiological Society,

West Virginia State Neurosurgical Society,

Health Coalition on Liability and Access,

Physicians Insurers Association of America,

American Insurance Association,

Property Casualty Insurers Association of America, and

NFIB Small Business Legal Center

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE KETCHUM and JUSTICE MCHUGH, deeming themselves disqualified, did not

participate in the decision in this case.

JUDGE WILSON and JUDGE EVANS, sitting by temporary assignment.

JUDGE WILSON dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

“In considering the constitutionality of a legislative enactment, courts

must exercise due restraint, in recognition of the principle of the separation of powers in

government among the judicial, legislative and executive branches. Every reasonable

construction must be resorted to by the courts in order to sustain constitutionality, and any

reasonable doubt must be resolved in favor of the constitutionality of the legislative

enactment in question. Courts are not concerned with questions relating to legislative policy.

The general powers of the legislature, within constitutional limits, are almost plenary. In

considering the constitutionality of an act of the legislature, the negation of legislative power

must appear beyond reasonable doubt.” Syllabus Point 1, State ex rel. Appalachian Power

Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).

“The language of the ‘reexamination ’ clause of the constitutional right

to a jury trial, W.Va. Const. art. III, § 13, does not apply to the legislature, fixing in advance

the amount of recoverable damages in all cases of the same type, but, instead, applies only

to the judiciary, acting ‘in any [particular] case[.] ’

” Syllabus Point 4, Robinson v. Charleston

Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991).

“Equal protection of the law is implicated when a classification treats

similarly situated persons in a disadvantageous manner. The claimed discrimination must

be a product of state action as distinguished from a purely private activity.” Syllabus Point

2, Israel by Israel v. West Virginia Secondary Schools Activity Comm ’n , 182 W. Va. 454,

388 S.E.2d 480 (1989).

“Where economic rights are concerned, we look to see whether the

classification is a rational one based on social, economic, historic or geographic factors,

whether it bears a reasonable relationship to a proper governmental purpose, and whether all

persons within the class are treated equally. Where such classification is rational and bears

the requisite reasonable relationship, the statute does not violate Section 10 of Article III of

the West Virginia Constitution, which is our equal protection clause.” Syllabus Point 7, [as

modified,] Atchinson v. Erwin, [172] W.Va. [8], 302 S.E.2d 78 (1983). ’ Syllabus Point 4,

as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., [174] W.Va.

[538], 328 S.E.2d 144 (1984).” Syllabus Point 4, Gibson v. West Virginia Dep ’t of

Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991).

“When legislation either substantially impairs vested rights or severely

limits existing procedural remedies permitting court adjudication, thereby implicating the

certain remedy provision of article III, section 17 of the Constitution of West Virginia, the

legislation will be upheld under that provision if, first, a reasonably effective alternative

remedy is provided by the legislation or, second, if no such alternative remedy is provided,

the purpose of the alteration or repeal of the existing cause of action or remedy is to eliminate

or curtail a clear social or economic problem, and the alteration or repeal of the existing

cause of action or remedy is a reasonable method of achieving such purpose.” Syllabus Point

5, Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634 (1991).

“
‘

6. West Virginia Code § 55-7B-8 (2003) (Repl. Vol. 2008), which

provides a $250,000 limit or “cap ” on the amount recoverable for a noneconomic loss in a

medical professional liability action and extends the limitation to $500,000 in cases where

the damages are for: (1) wrongful death; (2) permanent and substantial physical deformity,

loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental

functional injury that permanently prevents the injured person from being able to

independently care for himself or herself and perform life sustaining activities (both subject

to statutorily-mandated inflationary increases), is constitutional. It does not violate the state

constitutional right to a jury trial, separation of powers, equal protection, special legislation

or the “certain remedy ” provisions, W. Va. Const. art. III, § 13; W. Va. Const. art. V, § 1; W.

Va. Const. art. III, § 10; W. Va. Const. art. VI, § 39; and W. Va. Const. art. III, § 17,

respectively.

“Questions of negligence, due care, proximate cause and concurrent

negligence present issues of fact for jury determination when the evidence pertaining to such

issues is conflicting or where the facts, even though undisputed, are such that reasonable men

may draw different conclusions from them.” Syllabus Point 5, Hatten v. Mason Realty Co.,

148 W. Va. 380, 135 S.E.2d 236 (1964).

iii

WORKMAN, Chief Justice:

Once again, this Court is asked to consider the constitutionality, vel non, of

W. Va. Code § 55-7B-8 which places a limit or “cap ” on compensatory damages for

noneconomic loss awarded in a medical professional liability action. On two prior occasions,

in the cases of Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414

S.E.2d 877 (1991) and Verba v. Ghaphery, 210 W. Va. 30, 552 S.E.2d 406 (2001), this Court

upheld the constitutionality of the cap which was set at $1,000,000. Since Robinson and

Verba were decided, the Legislature amended W. Va. Code § 55-7B-8 and lowered the cap.

The statute now provides, in pertinent part:

(a) In any professional liability action brought against a

health care provider pursuant to this article, the maximum

amount recoverable as compensatory damages for noneconomic

loss shall not exceed two hundred fifty thousand dollars per

occurrence, regardless of the number of plaintiffs or the number

of defendants or, in the case of wrongful death, regardless of the

number of distributees, except as provided in subsection (b) of

this section.

(b) The plaintiff may recover compensatory damages for

noneconomic loss in excess of the limitation described in

subsection (a) of this section, but not in excess of five hundred

thousand dollars for each occurrence, regardless of the number

of plaintiffs or the number of defendants or, in the case of

wrongful death, regardless of the number of distributees, where

the damages for noneconomic losses suffered by the plaintiff

were for: (1) Wrongful death; (2) permanent and substantial

physical deformity, loss of use of a limb or loss of a bodily

organ system; or (3) permanent physical or mental functional

injury that permanently prevents the injured person from being

able to independently care for himself or herself and perform

life sustaining activities.

W. Va. Code § 55-7B-8 (2003) (Repl. Vol. 2008).1

In this case, the jury returned a verdict in favor of the appellants and plaintiffs

below, James D. MacDonald and Debbie MacDonald, which included an award of

$1,500,000 for noneconomic loss.2 In accordance with W. Va. Code § 55-7B-8, the circuit

court reduced the noneconomic damages award to $500,000, finding that Mr. MacDonald

suffered a permanent and substantial physical deformity warranting application of the higher

cap amount. The MacDonalds contend in this appeal that the cap contained in W. Va. Code

§ 55-7B-8 is unconstitutional, and therefore, the circuit court erred in reducing the jury ’s

verdict. The appellees and defendants below, Sayeed Ahmed, M.D., and City Hospital, Inc.,

assert a cross-assignment of error, arguing that the $250,000 cap should have been applied

in this case. City Hospital also cross assigns as error the circuit court ’s denial of its motion

for summary judgment, motion for judgment as a matter of law, and motion for a new trial.

1It is noted at this juncture that W. Va. Code § 55-7B-8(c) provides for the caps to be

increased each year beginning on January 1, 2004, by an amount equal to the consumer price

index published by the United States Department of Labor. According to the appellants, the

caps increased to $288,527 and $577,054 in 2010. For simplicity of discussion, however,

the statutory amounts of $250,000 and $500,000 will be referenced in this opinion.

2W. Va. Code § 55-7B-2(k) (2003) (Repl. Vol. 2008) defines “noneconomic loss ” as

“losses, including, but not limited to, pain, suffering, mental anguish and grief. ” This statute

was amended in 2006, but the definition of noneconomic loss remained the same.

Upon consideration of the briefs3 and oral argument, the record submitted, and

the pertinent authorities, this Court concludes that W. Va. Code § 55-7B-8 as amended in

2003 is constitutional. We further conclude that the circuit court did not err in applying the

$500,000 cap pursuant to W. Va. Code § 55-7B-8(b) or in denying the motions for summary

judgment, judgment as a matter of law, and a new trial filed by City Hospital. Accordingly,

for the reasons set forth below, the final order is affirmed.

FACTS

This case arises out of medical treatment provided to Mr. MacDonald by Dr.

Ahmed while he was a patient at City Hospital. Mr. MacDonald was suffering from

3This Court wishes to acknowledge and express appreciation for the contributions of

the amici curiae. Separate briefs supporting the appellants were filed by Public Justice, P.C.;

the West Virginia Association for Justice; and the West Virginia Labor Federation, AFL

CIO. In support of the appellees, separate briefs were submitted by the West Virginia Board

of Risk & Insurance Management; West Virginia Chamber of Commerce; West Virginia

Mutual Insurance Company; and Defense Trial Counsel of West Virginia; and a joint brief

was filed by the West Virginia State Medical Association; Component Societies of the West

Virginia State Medical Association; West Virginia Academy of Family Physicians; West

Virginia Hospital Association; American Medical Association; West Virginia Orthopaedic

Society; West Virginia Chapter American Academy of Pediatrics; West Virginia Academy

of Otolaryngology –Head and Neck Surgery, Inc.; West Virginia Podiatric Medical

Association; West Virginia Medical Group Management Association; West Virginia

Radiological Society; West Virginia State Neurosurgical Society; Health Coalition on

Liability and Access; Physicians Insurers Association of America; American Insurance

Association; Property Casualty Insurers Association of America; and NFIB Small Business

Legal Center.

symptoms consistent with pneumonia when he was admitted to City Hospital on October 29,

2004. Mr. MacDonald had a significant medical history as childhood diabetes had led to

organ damage requiring him to undergo a kidney transplant in 1988. According to Mr.

MacDonald, he developed rhabdomyolysis, a severe form of muscle damage, as a result of

being given the combination of Lipitor, Diflucan, and Cyclosporin during his stay at City

Hospital in 2004.

On February 16, 2007, Mr. MacDonald, and his wife, Debbie MacDonald, filed

this medical professional liability action in the Circuit Court of Berkeley County contending

that Dr. Ahmed should not have administered certain drugs given Mr. MacDonald ’s medical

history or that some of the medications should have been discontinued based upon blood

testing during his stay at City Hospital. With respect to City Hospital, the MacDonalds

asserted that the hospital pharmacy should have alerted Dr. Ahmed of the possible negative

interactions of the medications he was prescribing for Mr. MacDonald. The MacDonalds

alleged that as a result of the negligence of Dr. Ahmed and City Hospital, Mr. MacDonald

suffered serious and permanent injuries. Mrs. MacDonald asserted a claim for loss of

consortium.

At trial, both liability and damages were contested. The appellees presented

evidence that there are causes of rhabdomyolysis other than drug interaction. Dr. Ahmed

also testified that he had used the same drugs to successfully treat Mr. MacDonald for the

same condition in 2003.4 Dr. Ahmed stated that he was well aware of Mr. MacDonald ’s

medical history and that he knew that adding antifungal drugs to Mr. MacDonald ’s regimen

created a slightly elevated risk of rhabdomyolysis but the only way to treat his fungal lung

infection was with an antifungal drug, particularly after Mr. MacDonald ’s lung problems

became so grave on his second day of hospitalization that he had to be moved to intensive

care and placed on a ventilator. City Hospital asserted that its pharmacists ran each of the

changes in Mr. MacDonald ’s medications through a computer program to make certain there

would be no negative interactions. City Hospital also claimed that the side effects of the

medication Mr. MacDonald was taking had been explained to him.

According to Mr. MacDonald, he suffered damage to the muscles in his legs

which required a period of rehabilitation and physical therapy after he was discharged from

the hospital5 in order to regain the ability to walk. Mr. MacDonald testified at trial that he

still suffers from severe muscle weakness and has “balance ” issues with his lower body.

During cross-examination, however, Mr. MacDonald testified that he could paint his house,

operate a vacuum, prepare meals, and engage in other household activities. He also

acknowledged that he could walk on a treadmill and operate a motor vehicle. Following his

4Mr. MacDonald was admitted to City Hospital in May 2003 with the same symptoms

as he presented with in 2004. During his 2003 hospital stay, Mr. MacDonald required

treatment with multiple antibiotics, admission into the intensive care unit, and intubation.

5At some point during his course of treatment, Mr. MacDonald ’s wife had him

transferred from City Hospital to another hospital located in Winchester, Virginia, where the

diagnosis of rhabdomyolysis was made.

2004 hospitalization, Mr. MacDonald returned to substitute teaching and worked as a bagger

at a local grocery store.6

The case was tried before a jury in the Circuit Court of Berkeley County from

November 17, 2008, to November 25, 2008. The jury returned a verdict finding that both

appellees breached the standard of care and proximately caused Mr. MacDonald ’s injuries,

apportioning seventy percent fault to Dr. Ahmed and thirty percent fault to City Hospital.

The damages awarded were as follows: $92,000 for past reasonable and necessary medical

expenses; $37,000 for past lost wages; $250,000 for Mr. MacDonald ’s past pain and

suffering; $750,000 for Mr. MacDonald ’s future pain and suffering; and $500,000 for Mrs.

MacDonald for loss of consortium.

Following the verdict, the trial court reduced the non-economic damages award

to $500,000 in accordance with W. Va. Code § 55-7B-8(b), finding that Mr. MacDonald

satisfied the criteria for application of the $500,000 cap. Post-trial motions were filed by all

parties. The appellants challenged the constitutionality of W. Va. Code § 55-7B-8 while the

appellees sought a new trial. The motions were denied, and this appeal followed.

6Mr. MacDonald retired from his position as a school teacher prior to his

hospitalization in 2004. At the time of trial, he was sixty-eight years old.

II.

STANDARD OF REVIEW

“Where the issue on an appeal from the circuit court is clearly a question of law

or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus

Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Likewise,

“[c]onstitutional challenges relating to a statute are reviewed pursuant to a de novo standard

of review.” Morris v. Crown Equip. Corp., 219 W. Va. 347, 352, 633 S.E.2d 292, 297

(2006).

In considering the constitutionality of a legislative

enactment, courts must exercise due restraint, in recognition of

the principle of the separation of powers in government among

the judicial, legislative and executive branches. Every

reasonable construction must be resorted to by the courts in

order to sustain constitutionality, and any reasonable doubt must

be resolved in favor of the constitutionality of the legislative

enactment in question. Courts are not concerned with questions

relating to legislative policy. The general powers of the

legislature, within constitutional limits, are almost plenary. In

considering the constitutionality of an act of the legislature, the

negation of legislative power must appear beyond reasonable

doubt.

Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d

351 (1965). See also Syllabus Point 3, Willis v. O ’Brien , 151 W. Va. 628, 153 S.E.2d 178,

(1967) ( “When the constitutionality of a statute is questioned every reasonable construction

of the statute must be resorted to by a court in order to sustain constitutionality, and any

doubt must be resolved in favor of the constitutionality of the legislative enactment. ”).

The de novo standard of review also applies to a circuit court’s ruling on a

motion for summary judgment. Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451

S.E.2d 755 (1994). “A motion for summary judgment should be granted only when it is clear

that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law. ” Syllabus Point 3, Aetna Cas. & Sur. Co. v.

Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). With respect to a

motion for judgment as a matter of law, Syllabus Point 2 of Fredeking v. Tyler, 224 W. Va.

1, 680 S.E.2d 16 (2009), holds,

When this Court reviews a trial court ’s order granting or

denying a renewed motion for judgment as a matter of law after

trial under Rule 50(b) of the West Virginia Rules of Civil

Procedure [1998], it is not the task of this Court to review the

facts to determine how it would have ruled on the evidence

presented. Instead, its task is to determine whether the evidence

was such that a reasonable trier of fact might have reached the

decision below. Thus, when considering a ruling on a renewed

motion for judgment as a matter of law after trial, the evidence

must be viewed in the light most favorable to the nonmoving

party.

Finally, it is well-established that “

‘[a]lthough the ruling of a trial court in granting or

denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling

will be reversed on appeal when it is clear that the trial court has acted under some

misapprehension of the law or the evidence. ’ Syllabus point 4, Sanders v. Georgia-Pacific

Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).” Syllabus Point 3, Carpenter v. Luke, 225

W. Va. 35, 689 S.E.2d 247 (2009). In other words, our standard of review for a trial court ’s

decision regarding a motion for a new trial is abuse of discretion. Marsch v. American Elec.

Power Co., 207 W. Va. 174, 180, 530 S.E.2d 173, 179 (1999). With these standards in mind,

the assignments of error presented in this case will now be considered.

III.

DISCUSSION

As set forth above, there are three issues presented in this appeal: the

constitutionality of W. Va. Code § 55-7B-8; the application of the $500,000 cap; and the

circuit court’s denial of motions made by City Hospital for summary judgment, for judgment

as a matter of law, and for a new trial. Each assignment of error will be discussed, in turn,

below.

A. Constitutionality of W. Va. Code § 55-7B-8

As noted above, this Court first considered the constitutionality of W. Va. Code

§ 55-7B-8 in Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d

877 (1991), and then was asked to reconsider the same in Verba v. Ghaphery, 210 W. Va.

30, 552 S.E.2d 406 (2001). In Syllabus Point 5 of Robinson, this Court held:

W.Va.Code, 55-7B-8, as amended, which provides a $1,000,000

limit or “cap ” on the amount recoverable for a noneconomic loss

in a medical professional liability action is constitutional. It

does not violate the state constitutional equal protection, special

legislation, state constitutional substantive due process, “certain

remedy,” or right to jury trial provisions. W.Va. Const. art. III,

§ 10; W.Va. Const. art. VI, § 39; W.Va. Const. art. III, § 10;

W.Va. Const. art. III, § 17; and W.Va. Const. art. III, § 13,

respectively.

In Verba, this Court, “[f]inding no palpable mistake or error in Robinson, ” refused to revisit

the constitutional issues previously considered based upon

the judicial doctrine of stare decisis which rests on the

principle[] that law by which men are governed should be fixed,

definite, and known, and that, when the law is declared by court

of competent jurisdiction authorized to construe it, such

declaration, in absence of palpable mistake or error, is itself

evidence of the law until changed by competent authority.

210 W. Va. at 34, 552 S.E.2d at 410 (citation omitted). This Court, however, did consider

in Verba whether the cap violated the “separation of powers ” doctrine, as that claim had not

been specifically addressed in Robinson. Id. at 35, 552 S.E.2d at 411. It was ultimately

concluded in Verba that there was no violation of separation of powers because Article VIII,

Section 13 of the Constitution of West Virginia7 authorizes the Legislature to enact statutes

that abrogate the common law which includes the power to “set reasonable limits on

7Article VIII, Section 13 of the Constitution of West Virginia states:

Except as otherwise provided in this article, such parts of the

common law, and of the laws of this State as are in force on the

effective date of this article and are not repugnant thereto, shall

be and continue the law of this state until altered or repealed by
the legislature.

recoverable damages in civil causes of action.” Id. See also Syllabus, Perry v. Twentieth St.

Bank, 157 W. Va. 963, 206 S.E.2d 421 (1974).

In this appeal, the MacDonalds assert the same constitutional challenges

previously considered in Robinson and Verba; in particular, they contend that the statute

violates the equal protection,8 prohibition on special legislation,9 right to trial by jury,10

separation of powers,11 and “certain remedy ”

12 provisions of the Constitution of West

8 “West Virginia ’s constitutional equal protection principle is a part of the Due Process

Clause found in Article III, Section 10 of the West Virginia Constitution. ” Syllabus Point

4, Israel by Israel v. West Virginia Secondary Schools Activity Comm ’n , 182 W. Va. 454,

388 S.E.2d 480 (1989). It states: “No person shall be deprived of life, liberty, or property,

without due process of law, and the judgment of his peers.” W. Va. Const. art. III, § 10.

9Article VI, Section 39 of the Constitution of West Virginia prohibits the Legislature

inter alia, and
from enacting special laws “[r]egulating the practice in courts of justice, ”

further states that “[t]he legislature shall provide, by general laws, for the foregoing and all

other cases for which provision can be so made; and in no case shall a special act be passed,

where a general law would be proper, and can be made applicable to the case, nor in any

other case in which the courts have jurisdiction, and are competent to give the relief asked

for.”

10Article III, Section 13 of the Constitution of West Virginia provides, in pertinent

part:

In suits at common law, . . . the right of trial by jury, if required

by either party, shall be preserved. . . . No fact tried by a jury

shall be otherwise reexamined in any case than according to the

rule of court or law.

11Article V, Section 1 of the West Virginia Constitution states:

The legislative, executive and judicial departments shall be

separate and distinct, so that neither shall exercise the powers
(continued…)

Virginia. The MacDonalds argue that because the cap has now been lowered to $250,000

or $500,000, depending on the severity of the injury, this Court ’s decisions in Robinson and

Verba must be revisited. In making this argument, the MacDonalds rely upon dicta from

Robinson which suggested,

“[A]ny modification the legislature [would] make[ ] is subject

to being stricken as unconstitutional. A reduction of

non[economic] damages to a lesser cap at some point would be

manifestly so insufficient as to become a denial of justice[,] ”

under, for example, the state constitutional equal protection or

“certain remedy ” provisions.
Lucas v. United States, 757

S.W.2d 687, 700 (Tex.1988) (Gonzales, J., dissenting).

186 W. Va. at 730, 414 S.E.2d at 887 (emphasis added). Nothing in that dicta or the

substance of the opinion, however, specified exactly what that point is, nor did it establish

any criteria for making that determination. Also, as previously noted, the statute, as amended

in 2003, does not provide a blanket limitation of $250,000/$500,000; rather, W. Va. Code

§ 55-7B-8(c) provides that the cap amounts “shall increase [each year] to account for

inflation by an amount equal to the consumer price index published by the United States

11(…continued)
properly belonging to either of the others; nor shall any person

exercise the powers of more than one of them at the same time,

except that justices of the peace shall be eligible to the

legislature.

12Article III, Section 17 of the Constitution of West Virginia requires:

The courts of this state shall be open, and every person, for an

injury done to him, in his person, property or reputation, shall

have remedy by due course of law; and justice shall be

administered without sale, denial or delay.

Department of Labor, up to fifty percent of the amounts specified . . . as a limitation of

compensatory noneconomic damages.” In addition, unlike the 1986 statute, W. Va. Code

§ 55-7B-8(d) now requires that in order for a health care provider to receive the benefit of

the cap, such provider must have medical professional liability insurance in the amount of

at least $1,000,000 per occurrence covering the medical injury which is the subject of the

action.

Upon careful consideration and review, we find no basis to conclude that the

amendments to W. Va. Code § 55-7B-8 enacted by the Legislature in 2003 have rendered the

statute unconstitutional, and therefore, for the reasons set forth below, affirm the circuit

court’s decision on this issue.

1. Right to trial by jury. First, the fact that the cap has been lowered has no

impact on our previous analysis as it pertains to the constitutional right to trial by jury. In

Robinson, this Court explained that

[a] legislature adopting a prospective rule of law that limits all

claims for pain and suffering in all cases is not acting as a fact

finder in a legal controversy. It is acting permissibly within its

legislative powers that entitle it to create and repeal causes of

action. The right of jury trials in cases at law is not impacted.

Juries always find facts on a matrix of laws given to them by the

legislature and by precedent, and it can hardly be argued that

limitations imposed by law are a usurpation of the jury

function[.]

186 W. Va. at 731, 414 S.E.2d at 888 (quoting Franklin v. Mazda Motor Corp., 704 F.Supp.

1325, 1331-32 (D. Md.1989)). Nonetheless, the MacDonalds maintain in this appeal that the

jury ’s determination of damages was “rendered advisory ” as a result of the statutory cap, and

therefore, their right to trial by jury was violated. In support of their argument, the

MacDonalds rely upon a recent decision issued by the Georgia Supreme Court. In Atlanta

Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010), the Court invalidated

a $350,000 cap on noneconomic damages in medical malpractice cases concluding that

“while we have held that the Legislature generally has the authority to define, limit, and

modify available legal remedies . . . the exercise of such authority simply cannot stand when

the resulting legislation violates the constitutional right to jury trial.” 691 S.E.2d at 224.

Upon review, it is clear that the MacDonalds ’ reliance on the Nestlehutt

decision is misplaced. “[T]he Georgia Constitution states plainly that ‘the right to trial by

jury shall remain inviolate.’

”

Id. at 221 (quoting Ga. Const. of 1983, Art. 1, Sec. 1, Par.

XI(a)). Our state constitutional provision regarding the right to trial by jury differs

substantially,13 and accordingly, the Georgia court’s analysis is not persuasive.14

Robinson, this Court concluded “the predetermined, legislative limit on the recoverable

amount of a noneconomic loss in a medical professional liability action does not violate the

13See note 10, supra.

14Even the Georgia Supreme Court recognized that other jurisdictions with less

comprehensive right to jury trial provisions have reached the opposite conclusion regarding

the constitutionality of damage caps. Nestlehutt, 691 S.E.2d at 224-25 n.8.

‘reexamination ’ clause of such jury trial provision. ” 186 W. Va. at 731, 414 S.E.2d at 888.

Consequently, Syllabus Point 4 of Robinson states:

The language of the “reexamination ” clause of the constitutional

right to a jury trial, W.Va. Const. art. III, § 13, does not apply to

the legislature, fixing in advance the amount of recoverable

damages in all cases of the same type, but, instead, applies only

to the judiciary, acting “in any [particular] case[.] ”

Accordingly, we find no merit to the MacDonalds ’ argument.

2. Separation of powers. We likewise find no merit to the MacDonalds ’

contention that the cap violates the principle of separation of powers. Again, the

Legislature ’s decision to reduce the cap has no impact on our prior analysis of this issue. As

this Court concluded in Verba, establishing the amount of damages recoverable in a civil

action is within the Legislature ’s authority to abrogate the common law. We reasoned “
‘that

if the legislature can, without violating separation of powers principles, establish statutes of

limitation, establish statutes of repose, create presumptions, create new causes of action and

abolish old ones, then it also can limit noneconomic damages without violating the

separations of powers doctrine[.] ’

” 210 W. Va. at 35, 552 S.E.2d at 411 (quoting Edmonds

v. Murphy, 83 Md.App. 133, 149, 573 A.2d 853, 861 (1990)).

3. Equal protection and special legislation. We now turn to the

MacDonalds ’ equal protection and special legislation argument. “Equal protection of the law

is implicated when a classification treats similarly situated persons in a disadvantageous

manner. The claimed discrimination must be a product of state action as distinguished from

a purely private activity. ” Syllabus Point 2, Israel by Israel v. West Virginia Secondary

Schools Activity Comm ’n , 182 W. Va. 454, 388 S.E.2d 480 (1989). With respect to an equal

protection challenge, this Court has held:

‘Where economic rights are concerned, we look to see

whether the classification is a rational one based on social,

economic, historic or geographic factors, whether it bears a

reasonable relationship to a proper governmental purpose, and

whether all persons within the class are treated equally. Where

such classification is rational and bears the requisite reasonable

relationship, the statute does not violate Section 10 of Article III

of the West Virginia Constitution, which is our equal protection

clause.’ Syllabus Point 7, [as modified,] Atchinson v. Erwin,

[172] W.Va. [8], 302 S.E.2d 78 (1983). ” Syllabus Point 4, as

modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale

Grocery Co., [174] W.Va. [538], 328 S.E.2d 144 (1984).

Syllabus Point 4, Gibson v. West Virginia Dep ’t of Highways , 185 W. Va. 214, 406 S.E.2d

440 (1991).

The MacDonalds argue that the statute, as amended, is not a rational response

to “social, economic, historic or geographic factors, ” as they assert that West Virginia was

not suffering from a “loss ” of physicians to other states and that West Virginia was not

suffering from a growing malpractice litigation problem when the amendments to W. Va.

Code § 55-7B-8 were enacted. The MacDonalds also contend that malpractice claims and

awards were actually declining at that time and were not the reason why the cost of liability

insurance coverage “continued to rise dramatically. ” In other words, the MacDonalds

“
maintain that the statute, as amended, fails the rational basis test because there was no factual

basis for the Legislature to conclude that lowering the cap from $1,000,000 to $250,000, or

$500,000 in certain cases, would accomplish the legislative goals of attracting and keeping

physicians in West Virginia and reducing medical malpractice premiums.15

In support of their argument, the MacDonalds and the amici curiae supporting

them have presented this Court with several charts and graphs which they say illustrate that

the Legislature ’s reasoning for reducing the cap on noneconomic damages was flawed.

Unsurprisingly, Dr. Ahmed and City Hospital, as well as the amici curiae participating on

their behalf, have responded with their own copious statistics. While we appreciate the

efforts of all parties involved, “courts ordinarily will not reexamine independently the factual

basis for the legislative justification for a statute. ” Robinson, 186 W. Va. at 730, 414 S.E.2d

at 887. Moreover, “the judiciary may not sit as a superlegislature to judge the wisdom or

15At the outset of their equal protection argument, the MacDonalds urge this Court to

employ a strict scrutiny analysis or, at least, an intermediate level of protection. However,

strict scrutiny is only utilized when the classification involves a fundamental, constitutional

right, and the intermediate level of protection is accorded classifications such as those which

are gender-based. Marcus v. Holley, 217 W. Va. 508, 523, 618 S.E.2d 517, 532 (2005). In

Robinson, this Court explained that “the right to bring a tort action for damages, even though

there is court involvement, is economically based and is not a ‘fundamental right’ for ‘certain

remedy ’ or state constitutional equal protection purposes.” 186 W. Va. at 728-29, 414 S.E.2d

at 885-86. Therefore, we concluded that “the ‘rational basis ’ test for state constitutional equal
protection purposes is applicable in this jurisdiction to statutory abrogation of certain

common-law causes of action or to statutory limitation on remedies in certain common-law

causes of action, such as statutory ‘caps ’ on the recoverable amount of damages.”
Id. at 729,

414 S.E.2d at 886.

desirability of legislative policy determinations made in areas that neither affect fundamental

rights nor proceed along suspect lines.” Lewis v. Canaan Valley Resorts, Inc., 185 W. Va.

684, 692, 408 S.E.2d 634, 642 (1991). Consequently, “the inquiry is whether the legislature

reasonably could conceive to be true the facts on which the challenged statute was based.”

Robinson, 186 W. Va. at 730, 414 S.E.2d at 887.

The previous $1,000,000 cap on noneconomic damages was part of the West

Virginia Medical Professional Liability Act of 1986, W. Va. Code §§ 55-7B-1 to -11

(hereinafter “the Act”). As explained in Robinson,

The legislature found that in recent years the cost of professional

insurance for health care providers has risen

liability

dramatically and that the nature and extent of coverage

concomitantly has diminished, to the detriment of the injured

and health care providers. Therefore, to provide for a

comprehensive, integrated resolution, the legislature determined
that reforms in three areas must be enacted together: in (1) the

common-law and statutory rights of the citizens to compensation

for injury or death in medical professional liability cases; in (2)

the regulation of rate making and other health care liability

insurance industry practices; and in (3) the authority of medical

licensing boards to regulate effectively and to discipline health

care providers.

186 W. Va. at 724, 414 S.E.2d at 881 (citations omitted). The legislature set forth a detailed

explanation of its findings and the purpose of the Act in W. Va. Code § 55-7B-1 (1986).16

16W. Va. Code § 55-7B-1 (1986) provided in its entirety:

The Legislature hereby finds and declares that the

(continued…)

16(…continued)
citizens of this state are entitled to the best medical care and

facilities available and that health care providers offer an

essential and basic service which requires that the public policy

of this state encourage and facilitate the provision of such

service to our citizens:

That as in every human endeavor the possibility of injury

or death from negligent conduct commands that protection of

the public served by health care providers be recognized as an

important state interest;

That our system of litigation is an essential component of

this state ’s interest in providing adequate and reasonable

compensation to those persons who suffer from injury or death

as a result of professional negligence;

That liability insurance is a key part of our system of

litigation, affording compensation to the injured while fulfilling

the need and fairness of spreading the cost of the risks of injury;

That a further important component of these protections

is the capacity and willingness of health care providers to

monitor and effectively control their professional competency,

so as to protect the public and ensure to the extent possible the

highest quality of care;

That it is the duty and responsibility of the Legislature to

balance the rights of our individual citizens to adequate and

reasonable compensation with the broad public interest in the

provision of services by qualified health care providers who can

themselves obtain the protection of reasonably priced and

extensive liability coverage;

That in recent years, the cost of insurance coverage has

risen dramatically while the nature and extent of coverage has

diminished, leaving the health care providers and the injured

without the full benefit of professional liability insurance

coverage;
That many of the factors and reasons contributing to the

increased cost and diminished availability of professional

liability insurance arise from the historic inability of this state to

effectively and fairly regulate the insurance industry so as to

guarantee our citizens that rates are appropriate, that purchasers

(continued…)

In enacting the amendments to the Act in 2003, the Legislature added the following to the

legislative findings and declaration of purpose:

That the unpredictable nature of traumatic injury health

care services often result in a greater likelihood of unsatisfactory

patient outcomes, a higher degree of patient and patient family

dissatisfaction and frequent malpractice claims, creating a

financial strain on the trauma care system of our state,

increasing costs for all users of the trauma care system and

impacting the availability of these services, requires appropriate

and balanced limitations on the rights of persons asserting

claims against trauma care health care providers, this balance

must guarantee availability of trauma care services while
mandating that these services meet all national standards of care,

to assure that our health care resources are being directed

towards providing the best trauma care available; and

That the cost of liability insurance coverage has

continued to rise dramatically, resulting in the state ’s loss and

threatened loss of physicians, which, together with other costs

and taxation incurred by health care providers in this state, have

created a competitive disadvantage in attracting and retaining

qualified physicians and other health care providers.

16(…continued)
of insurance coverage are not treated arbitrarily, and that rates

reflect the competency and experience of the insured health care

providers.

Therefore, the purpose of this enactment is to provide for

a comprehensive resolution of the matters and factors which the

Legislature finds must be addressed to accomplish the goals set

forth above. In so doing, the Legislature has determined that

reforms in the common law and statutory rights of our citizens

to compensation for injury and death, in the regulation of rate

making and other practices by the liability insurance industry,

and in the authority of medical licensing boards to effectively

regulate and discipline the health care providers under such

board must be enacted together as necessary and mutual

ingredients of the appropriate legislative response.

The Legislature further finds that medical liability issues

have reached critical proportions for the state ’s long-term health

care facilities, as: (1) Medical liability insurance premiums for

nursing homes in West Virginia continue to increase and the
number of claims per bed has increased significantly; (2) the

cost to the state Medicaid program as a result of such higher

premiums has grown considerably in this period; (3) current

medical liability premium costs for some nursing homes

constitute a significant percentage of the amount of coverage;

(4) these high costs are leading some facilities to consider

dropping medical liability insurance coverage altogether; and (5)

the medical liability insurance crisis for nursing homes may

soon result in a reduction of the number of beds available to

citizens in need of long-term care.

W. Va. Code § 55-7B-1 (2003) (Repl. Vol. 2008).17

17In amending this statute, the Legislature also revised the final paragraph of W. Va.

Code § 55-7B-1 to read as follows:

Therefore, the purpose of this article is to provide for a

comprehensive resolution of the matters and factors which the

Legislature finds must be addressed to accomplish the goals set

forth in this section. In so doing, the Legislature has determined

that reforms in the common law and statutory rights of our
citizens must be enacted together as necessary and mutual

ingredients of the appropriate legislative response relating to:

(1) Compensation for injury and death;

(2) The regulation of rate making and other practices by

the liability insurance industry, including the formation of a

physicians ’ mutual insurance company and establishment of a

fund to assure adequate compensation to victims of malpractice;
and

(3) The authority of medical licensing boards to

effectively regulate and discipline the health care providers

under such board.

Upon review, we find that the Legislature could have reasonablely conceived

to be true the facts on which the amendments to the Act, including the cap on noneconomic

damages in W. Va. Code § 55-7B-8, were based. The Legislature could have rationally

believed that decreasing the cap on noneconomic damages would reduce rising medical

malpractice premiums and, in turn, prevent physicians from leaving the state thereby

increasing the quality of, and access to, healthcare for West Virginia residents. While one

or more members of the majority may differ with the legislative reasoning, it is not our

perogative to substitute our judgment for that of the Legislature, so long as the classification

is rational and bears a reasonable relationship to a proper governmental purpose. Further,

even though the cap now contained in W. Va. Code § 55-7B-8 is significantly less than the

original $1,000,000 amount, we cannot say that it is on its face arbitrary or capricious.

Several other jurisdictions have also concluded that controlling malpractice

insurances costs, and in turn healthcare costs, through the enactment of a cap on

noneconomic damages is a legislative policy choice that cannot be second-guessed by courts,

but rather, must be upheld as rationally-related to a legitimate government purpose. For

example, the Supreme Court of Alaska, upholding a cap on the amount of noneconomic

damages that could be awarded in tort actions for personal injury and wrongful death, stated:

We decline the plaintiffs ’ invitation to second-guess the

legislature ’s factual findings. After examining various evidence

and testimony, the legislature found that there were problems

with tort litigation that needed to be solved, including frivolous

litigation, excessive damages awards, and increased costs for

malpractice and other liability insurance. The plaintiffs,

pointing to other contrary evidence, ask us to independently

review this conclusion and find that the evidence instead showed

that these problems did not really exist. The plaintiffs ask us to
delve into questions of policy formulation that are best left to the

legislature. As we have noted previously, “[i]t is not a court’s

role to decide whether a particular statute or ordinance is a wise

one; the choice between competing notions of public policy is

to be made by elected representatives of the people. ”

. . . .

The plaintiffs allege that much of the evidence presented

to the legislature was false or misleading and they invite us to

examine contrasting evidence and impeachment evidence,

arguing that the legislature should not be allowed “to do

whatever it wishes regardless of the factual basis for legislative

action.” However, that weighing of the evidence is a task that

is properly left to the legislature. The “substantial relationship ”

requirement was met in this case.

Evans ex. rel Kutch v. State, 56 P.3d 1046, 1053, 1055 (Alaska 2002) (footnote and citation

omitted).18

Similarly, the Supreme Court of Utah advised in Judd v. Drezga, 103 P.3d 135,

140 (Utah 2004):

Our job as this state ’s court of last resort is to determine

whether
the
legislature overstepped
the bounds of
its

18The cap at issue in Evans limited noneconomic damages in tort actions for personal

injury or death to $400,000 or $8,000 multiplied by the injured person ’s life expectancy in

years, whichever is greater, for each single injury or death. When the damages were awarded

‘severe permanent physical impairment or severe disfigurement, ’ the cap extended to

for “
$1,000,000 or, in the alternative, $25,000 multiplied by the injured person ’s life expectancy

in years, whichever is greater.” 56 P.2d at 1049-50 (citation omitted).

constitutional authority in enacting the cap on quality of life

damages, not whether it made wise policy in doing so.

Although there are indications that overall health care costs may

only be minimally affected by large damage awards, there is

also data that indicates otherwise. See, e.g., Lee v. Gaufin, 867

P.2d 572, 585-89 (Utah 1993) (noting pricing and investment

decisions by insurers, inflation, etc., as factors contributing to

increased health care costs). But see Office of Tech. Assessment

OTA-BP-H-1 19, Impact of Legal Reforms on Medical

Malpractice Costs 64 (1993) [hereinafter Impact of Legal

Reforms] (recognizing that “caps on damage awards were the

only type of State tort reform that consistently showed

significant results in reducing the malpractice cost indicators ”).

When an issue is fairly debatable, we cannot say that the

legislature overstepped its constitutional bounds when it

determined that there was a crisis needing a remedy. . . .

. . . .

We cannot conclude that the cap on quality of life

damages is arbitrary or unreasonable. The legislature ’s

determination that it needed to respond to the perceived medical

malpractice crisis was logically followed by action designed to

control costs. Although malpractice insurance rates may not be

entirely controlled by such matters, they are undoubtedly subject

to some measure of fluctuation based on paid claims. Impact of

Legal Reforms, supra, at 73 (noting that “caps on damages . . .

lead to lower insurance premiums ”). Thus, one nonarbitrary

manner of controlling such costs is to limit amounts paid out.

Intuitively, the greater the amount paid on claims, the greater the

increase in premiums. Limiting recovery of quality of life

damages to a certain amount gives insurers some idea of their

potential liability. Id. at 64 ( “Minimizing these large awards

may allow insurers to better match premiums to risk. ”). While

we recognize that such a cap heavily punishes those most

severely injured, it is not unconstitutionally arbitrary merely

because it does so. Rather, it is targeted to control costs in one

area where costs might be controllable.

Based upon this reasoning, the Supreme Court of Utah found that the $250,000 cap on

noneconomic damages in medical malpractice cases established by the Utah Legislature is

constitutional. See also Estate of McCall v. United States, No. 09-16375, 2011 WL 2084069,

at *5 (11thCir. May 27, 2011) ( “The legislature identified a legitimate governmental purpose

in passing the statutory cap, namely to reduce the cost of medical malpractice premiums and

health care. The means that Florida chose, a per incident cap on noneconomic damages,

bears a rational relationship to that end.” (citation omitted.)); Zdrojewski v. Murphy, 657

N.W.2d 721, 739 (Mich.App. 2002) ( “The purpose of the damages limitation was to control

increases in health care costs by reducing the liability of medical care providers, thereby

reducing malpractice insurance premiums, a large component of health care costs.

Controlling health care costs is a legitimate governmental purpose. By limiting at least one

component of health care costs, the noneconomic damages limitation is rationally related to

its intended purpose.” (citation omitted)).

Clearly, “it is the province of the legislature to determine socially and

economically desirable policy and to determine whether a medical malpractice crisis exists.”

Adams v. Children ’s Mercy Hospital, 832 S.W.2d 898, 904 (Mo.banc 1992).

“[E]qual

protection is not a license for courts to judge the wisdom, fairness, or logic of legislative

choices.” Federal Communications Comm ’n v. Beach Communications, Inc., 508 U.S. 307,

313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211, 221 (1993). While we may not agree with the

Legislature ’s decision to limit noneconomic damages in medical professional liability cases

to $250,000 or $500,000, depending on the nature of the case, we cannot say the cap bears

no reasonable relationship to the purpose of the statute. Accordingly, we find no merit to the

MacDonalds ’ equal protection argument.

We also find no merit to the MacDonald ’s argument that the cap constitutes

special legislation expressly prohibited by our state constitution.19 In that regard, this Court

has held

[t]o the extent that the “special legislation ” prohibition found in

Article VI, Section 39 of the West Virginia Constitution mirrors

equal protection precepts, it is subsumed in the equal protection

principles contained in Article III, Section 10 of our

constitution. Consequently, arguments relating to this aspect of

the special legislation prohibition will not be separately

addressed where we have applied an equal protection analysis

to the claim.

Syllabus Point 5, O ’Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992).

4. Certain remedy. Finally, we address the MacDonalds ’ contention that the

statutory cap violates the certain remedy provision of our state constitution. “Resolution of

the ‘certain remedy ’ question is fairly simple once the equal protection question is resolved.”

O ’Dell, 188 W. Va. at 605, 425 S.E.2d at 560. This Court has held:

When legislation either substantially impairs vested

rights or severely limits existing procedural remedies permitting

court adjudication, thereby implicating the certain remedy

19See note 9, supra.

provision of article III, section 17 of the Constitution of West

Virginia, the legislation will be upheld under that provision if,

first, a reasonably effective alternative remedy is provided by

the legislation or, second, if no such alternative remedy is

provided, the purpose of the alteration or repeal of the existing

cause of action or remedy is to eliminate or curtail a clear social

or economic problem, and the alteration or repeal of the existing

cause of action or remedy is a reasonable method of achieving

such purpose.

Syllabus Point 5, Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634

(1991). In O ’Dell, this Court explained that

[i]nherent in our approach is the consideration of the

reasonableness of the method chosen to alter or repeal existing

rights. In our “certain remedy ” analysis as opposed to our

examination of equal protection principles, we consider the total

impact of the legislation. Where its impact is limited rather than

absolute, there is less interference with the “certain remedy ”

principle, and the legislation will be upheld.

188 W. Va. at 606, 425 S.E.2d at 561. Here, the impact of the statute at issue is limited to

a narrow class –those with noneconomic damages exceeding $250,000. Furthermore, the

Legislature has not imposed an absolute bar to recovery of noneconomic damages. Instead,

the Legislature has merely placed a limitation on the amount of recovery in order to

effectuate the purpose of the Act as set forth in W. Va. Code § 55-7B-1. Because the

legislative reasons for the amendments to the Act are valid, there is no violation of the certain

remedy provision and, thus, no merit to the MacDonalds ’ argument.

5. Our holding. Having found no merit to any of the constitutional challenges

advanced by the MacDonalds, we now hold that W. Va. Code § 55-7B-8 (2003) (Repl. Vol.

2008), which provides a $250,000 limit or “cap ” on the amount recoverable for a

noneconomic loss in a medical professional liability action and extends the limitation to

$500,000 in cases where the damages are for: (1) wrongful death; (2) permanent and

substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3)

permanent physical or mental functional injury that permanently prevents the injured person

from being able to independently care for himself or herself and perform life sustaining

activities (both subject to statutorily-mandated inflationary increases), is constitutional. It

does not violate the state constitutional right to a jury trial, separation of powers, equal

protection, special legislation, or the “certain remedy ” provisions, W. Va. Const. art. III, §

13; W. Va. Const. art. V, § 1; W. Va. Const. art. III, § 10; W. Va. Const. art. VI, § 39; and

W. Va. Const. art. III, § 17, respectively.

We note that our decision today is consistent with the majority of jurisdictions

that have considered the constitutionality of caps on noneconomic damages in medical

malpractice actions or in any personal injury action. See Davis v. Omitowoju, 883 F.2d 1155,

1158-65 (3dCir. 1989) ($250,000 limit in medical malpractice actions by Virgin Islands

statute; right to jury trial, substantive due process, and equal protection); Estate of McCall

v. United States, No. 09-16375, 2011 WL 2084069 (11thCir. May 27, 2011) ($1,000,000 in

aggregate regardless of number of defendants for medical malpractice wrongful death by

Florida statute; equal protection and takings clause); Federal Express Corp. v. United States,

228 F.Supp.2d 1267 (D.N.M. 2002) ($600,000 on damages except punitives and medical care

and related expenses by New Mexico statute; equal protection); Evans ex. rel v. State, 56

P.3d 1046 (Alaska 2002) ($400,00020 in personal injury or wrongful death actions; right to

trial by jury, equal protection, substantive due process, separation of powers, right of access

to courts, and special legislation); Fein v. Permanente Medical Group, 695 P.2d 665 (Cal.

1985) ($250,000 in medical malpractice actions; due process and equal protection); Garhart

ex rel. Tinsman v. Columbia/Healthtone, L.L.C., 95 P.3d 571 (Colo. 2004) ($250,000 in

medical malpractice actions; right to trial by jury, separation of powers, and equal

protection); Kirkland v. Blaine County Medical Center, 4 P.3d 1115 (Idaho 2000) ($400,000

in personal injury cases; right to trial by jury, special legislation, and separation of powers);

Samsel v. Wheeler Transport Services, Inc., 789 P.2d 541 (Kan. 1990) ($250,000 in any

personal injury action; right to jury trial, certain remedy, and equal protection), overruled on

other grounds, Bair v. Peck, 811 P.2d 1176 (Kan. 1991); Murphy v. Edmonds, 601 A.2d 102

(Md. 1992) ($350,000 in personal injury actions; equal protection and right to trial by jury);

Zdrojewski v. Murphy, 657 N.W.2d 721 (Mich.App. 2003) ($280,000 in medical malpractice

cases extended to $500,000 for certain severe injuries as specified in statute; right to trial by

jury and equal protection); Schweich v. Ziegler, 463 N.W.2d 722 (Minn. 1990) ($400,000 in

all civil actions; certain remedy); Adams v. Children ’s Mercy Hospital; 832 S.W.2d 898

(Mo.banc 1992) ($350,000 per defendant in medical malpractice cases; equal protection,

open courts and certain remedy, and right to trial by jury); Gourley ex rel. Gourley v.

20See note 18, supra.

Nebraska Methodist Health System, Inc., 663 N.W.2d 43 (Neb. 2003) ($1,250,000 on all

damages in medical malpractice actions; special legislation, equal protection, open courts and

right to remedy, trial by jury, taking of property, and separation of powers); Arbino v.

Johnson, 880 N.E.2d 420 (Ohio 2007) (greater of $250,000 or three times the economic

damages up to maximum of $350,000 in certain tort actions; right to trial by jury, open courts

and certain remedy, due process, equal protection, and separation of powers); Judd v.

Drezga, 103 P.3d 135 (Utah 2004) ($250,000 in medical malpractice cases; open courts,

uniform operation of laws, due process, trial by jury, and separation of powers); Pulliam v.

Coastal Emergency Services of Richmond, Inc., 509 S.E.2d 307 (Va. 1999) ($1,000,000 on

all damages in medical malpractice cases; trial by jury, special legislation, taking of property,

due process, equal protection, and separation of powers).

While there was a fairly even split among jurisdictions that had considered the

constitutionality of caps on noneconomic damages at the time Robinson was decided, now

only a few states have declared such caps unconstitutional. Moreover, most of those

jurisdictions that have done so have based their decision on a constitutional provision

providing that “the right to trial by jury shall remain inviolate.”

See Moore v. Mobile

Infirmary Assoc., 592 So.2d 156 (Ala. 1991); Atlanta Oculoplastic Surgery v. Nestlehutt, 691

S.E.2d 218 (Ga. 2010); Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999); Knowles v.

United States, 544 N.W.2d 183 (S.D. 1996), superceded by statute as stated in Peterson ex

rel. Peterson v. Burns, 635 N.W.2d 556 (S.D. 2001); Sophie v. Fibreboard Corp., 771 P.2d

711 (Wash. 1989). As discussed above, such analysis is not persuasive in this jurisdiction.

Only in rare instances have courts found that such caps violate equal protection provisions.

See Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991) (invalidating $875,000 cap in personal

injury actions utilizing intermediate scrutiny analysis); Arneson v. Olson, 270 N.W.2d 125

(N.D. 1978) (invalidating $300,000 cap for all claims in medical malpractice actions utilizing

intermediate scrutiny analysis); Ferdon v. Wisconsin Patients Compensation Fund, 701

N.W.2d 440 (Wis. 2005) (invalidating $350,000 cap in medical malpractice actions utilizing

rational basis test). Our decision today places West Virginia squarely with the majority of

jurisdictions in holding that caps on noneconomic damages in medical malpractice cases are

constitutional.

B. Cross-Assignments of Error

As noted above, two cross-assignments of error have been made in this case.

First, both Dr. Ahmed and City Hospital challenge the circuit court’s application of the

$500,000 cap. Secondly, City Hospital asserts that the circuit court erred in denying its

motion for summary judgment, motion for judgment as a matter of law, and motion for a new

trial. Each of these assignments of error will now be discussed.

1. Application of W. Va. Code § 55-7B-8(b) –The $500,000 cap. Both Dr.

Ahmed and City Hospital cross-assign as error the circuit court’s finding that the $500,000

cap on noneconomic damages was applicable in this case. As indicated above, when the

Legislature amended W. Va. Code § 55-7B-8 in 2003, it created a two-tiered system for

noneconomic loss. Accordingly, W. Va. Code § 55-7B-8(a) provides for a $250,000 cap on

noneconomic loss in any medical professional liability action. The cap is extended to

$500,000 by subsection (b) of W. Va. Code § 55-7B-8 if the damages for noneconomic loss

suffered by the plaintiff are for: “(1) Wrongful death; (2) permanent and substantial physical

deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical

or mental functional injury that permanently prevents the injured person from being able to

independently care for himself or herself and perform life sustaining activities.” The

appellees maintain that the evidence did not support the findings of the circuit court and

therefore, Mr. MacDonald ’s noneconomic loss should have been capped at $250,000

pursuant to W. Va. Code § 55-7B-8(a).21

It is well established that “factual findings made by the trial [court] are given

great deference by this Court and will not be overturned unless they are clearly erroneous.”

CMC Enterprise, Inc. v. Ken Lowe Management Co., 206 W. Va. 414, 418, 525 S.E.2d 295,

21A review of the record in this case shows that interrogatories were not submitted to

the jury on this issue. Although the MacDonalds initially requested that the circuit court

include questions on the verdict form that would have required the jury to determine whether

Mr. MacDonald suffered a permanent substantial deformity, loss of use of a limb or loss of
bodily organ system as specified in the statute, they subsequently withdrew the request.

Apparently, the parties then agreed to allow the circuit court to decide the issue during post

trial motions. While this Court has cautioned against the overuse of interrogatories, this is

a factual determination that clearly should have been made by the jury.

299 (1999). In this case, the circuit court ’s May 14, 2009, order sets forth detailed and

lengthy factual findings justifying its decision to apply the $500,000 cap. The circuit court,

having heard all the evidence during the course of the two-week trial, determined that Mr.

MacDonald suffered a permanent and substantial physical deformity satisfying the criteria

of W. Va. Code § 55-7B-8(b). Specifically, the court concluded that the evidence

demonstrated that Mr. MacDonald ’s injuries constituted a “permanent and substantial

deformity ” because “the rhabdomyolysis has essentially caused the complete deterioration

of his leg muscles.” The court also concluded that Mr. MacDonald had suffered permanent

and substantial loss of use of his legs and the loss of a bodily organ system, namely his

muscle system, thereby, further satisfying the criteria set forth in W. Va. Code § 55-7B-8(b)

and warranting application of the $500,000 cap. While this Court might have reached a

different conclusion based on the evidence and record before us, it is not the role of an

appellate court to second-guess the finder of fact. Having carefully reviewed the entire

record, we find no clear error. Accordingly, we affirm the circuit court’s decision on this

issue.

2. Denial of City Hospital ’s motion for summary judgment, motion for

judgment as matter of law, and motion for a new trial. Finally, City Hospital contends

that the MacDonalds failed to present sufficient evidence to establish a prima facie case of

negligence. City Hospital’s argument on this issue is two-fold. First, City Hospital asserts

that the MacDonalds failed to show that it breached the standard of care. Second, assuming

there was a breach of the standard of care, City Hospital maintains that the MacDonalds were

unable to produce any evidence establishing that such breach proximately caused Mr.

MacDonald ’s injuries. City Hospital presented these arguments below, first at the summary

judgment stage and then during trial, moving for judgment as a matter of law after the

MacDonalds presented their case in chief. City Hospital renewed its motion for judgment

as a matter of law at the conclusion of the trial and also made a motion for a new trial. City

Hospital now cross-assigns as error the circuit court’s denial of these motions.

“It is axiomatic that in a medical malpractice lawsuit such as the instant case,

a plaintiff must establish that the defendant [health care provider] deviated from some

standard of care, and that the deviation was ‘a proximate cause ’ of the plaintiff ’s injury.”

Mays v. Chang, 213 W. Va. 220, 224, 579 S.E.2d 561, 565 (2003).22 In other words, “a

plaintiff ’s burden of proof is to show that a defendant’s breach of a particular duty of care

was a proximate cause of the plaintiff’s injury, not the sole proximate cause. ” Id. (emphasis

22W. Va. Code § 55-7B-3 (1986) (Repl. Vol. 2008) provides, in pertinent part:

(a) The following are necessary elements of proof that an injury

or death resulted from the failure of a health care provider to

follow the accepted standard of care:

(1) The health care provider failed to exercise that degree

of care, skill and learning required or expected of a reasonable,

prudent health care provider in the profession or class to which

the health care provider belongs acting in the same or similar

circumstances; and

(2) Such failure was a proximate cause of the injury or

death.

in original). See also Syllabus Point 2, Everly v. Columbia Gas of West Virginia, Inc., 171

W. Va. 534, 301 S.E.2d 165 (1982) ( “A party in a tort action is not required to prove that the

negligence of one sought to be charged with an injury was the sole proximate cause of the

injury. ”). Also, “

“[i]t is the general rule that in medical malpractice cases negligence or

want of professional skill can be proved only by expert witnesses. ” Syl. Pt. 2, Roberts v.

Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964). ’ Syl. pt. 1, Farley v. Meadows, 185 W.Va.

48, 404 S.E.2d 537 (1991).” Syllabus Point 3, Farley v. Shook, 218 W. Va. 680, 629 S.E.2d

739 (2006). West Virginia Code § 55-7B-7(a) (2003) (Repl. Vol. 2008) states: “The

applicable standard of care and a defendant’s failure to meet the standard of care, if at issue,

shall be established in medical professional liability cases by the plaintiff by testimony of one

or more knowledgeable, competent expert witnesses if required by the court.”

In this case, the only allegation of a breach of the standard of care asserted by

the appellants at trial against City Hospital concerned the failure of the hospital pharmacy

to alert Dr. Ahmed of the risks associated with prescribing the medication Lipitor in

combination with the other medications that Mr. MacDonald was taking during his

hospitalization. City Hospital argues that the MacDonalds’ evidence actually established that

the risk-benefit analysis that is performed when prescribing multiple medications is the

responsibility of the physician, not the hospital pharmacy. Therefore, City Hospital asserts

that the evidence of a breach of the standard of care by the hospital pharmacy was “murky

‘

at best” because it is the physician who ultimately makes the decision regarding which

medications will be administered to the patient.

City Hospital’s argument is based upon testimony elicited on cross-

examination of the MacDonalds ’ expert in the field of pharmacy, James M. Backes,

Pharm.D.

In response to questioning from counsel for City Hospital, Dr. Backes

acknowledged that pharmacists cannot prescribe medication nor can they discontinue

medication that has been prescribed to a patient. Dr. Backes further testified, however, that

the standard of care requires the hospital pharmacy to inform the attending physician, in this

case, Dr. Ahmed, of possible drug interactions and that the hospital pharmacy ’s failure to do

so in this case constituted a breach of the standard of care.23 A review of the record shows

that in addition to Dr. Backes ’s testimony, the appellants also introduced into evidence City ’s

Hospital’s policy and procedures manual which requires the pharmacy to bring potential drug

interactions to the attention of the attending physician. In addition, it is noted that City

Hospital’s own pharmacy expert, Rodney Richmond, and City Hospital’s corporate designee,

Christian Miller, each acknowledged that the hospital pharmacy had a duty to alert the

physician of potential drug interactions.

23There is no dispute in the record that the hospital pharmacy did not contact Dr.

Ahmed regarding the possible drug interaction.

This Court has explained that “[q]uestions of negligence, due care, proximate

cause and concurrent negligence present issues of fact for jury determination when the

evidence pertaining to such issues is conflicting or where the facts, even though undisputed,

are such that reasonable men may draw different conclusions from them. ” Syllabus Point

5, Hatten v. Mason Realty Co., 148 W. Va. 380, 135 S.E.2d 236 (1964). In light of Dr.

Backes ’s testimony and the other evidence discussed above, we believe that a reasonable jury

could have concluded that the City Hospital pharmacy had a duty of care that required it to

inform the attending physician of the potential drug interaction among the medications that

had been prescribed for Mr. MacDonald and that the hospital pharmacy ’s failure to do so

resulted in a breach of the standard of care.24

We, likewise, believe that the jury could have further concluded that the

hospital pharmacy ’s failure to notify Dr. Ahmed of the potential drug interaction was a

proximate cause of Mr. MacDonald ’s injuries. City Hospital maintains otherwise in this

appeal because Dr. Ahmed testified at trial that he was aware of the risks associated with the

drug therapy that he was prescribing for Mr. MacDonald including the risk of

rhamdomyolisis and that even if he had received a warning from the hospital pharmacy, he

would have proceeded with the same course of treatment as he assessed the risk of Mr.

24A review of the trial transcript shows that the focus of the expert testimony at trial

was whether or not the potential drug interaction among Lipitor and the other drugs

prescribed to Mr. MacDonald, namely Cyclosporine and Diflucan, was known in 2004.

MacDonald developing rhamdomyolisis to be less than the risk of him developing other,

more life-threatening complications if the drug regimen had been changed. Having carefully

reviewed the record, we find no merit to City Hospital’s argument. As noted above, the

question of proximate cause is ordinarily for the jury to determine. Syllabus Point 5, Hatten,

supra. Having listened to and observed Dr. Ahmed ’s testimony, a reasonable jury could

have concluded that Dr. Ahmed did not in fact know of the possible drug interactions or, at

least, did not appreciate the severity of the drug interactions and that he might have actually

taken a different course of action had he been alerted of the possible drug interaction by the

hospital pharmacy. If that were the case, then the jury could have found that City Hospital’s

negligence was a proximate cause of Mr. MacDonald ’s injuries. Such a conclusion is well

within the province of the jury as “

‘[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions[.] ’

”

Williams v. Precision Coil, 194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202,

216 (1986)).

In summary, we find that the circuit court did not err in denying City Hospital’s

motion for summary judgment, motion for judgment as a matter of law, and motion for a new

trial. Not only did the MacDonalds present a genuine issue of fact for trial, but when the

evidence is considered in the light most favorable to the MacDonalds, the non-moving party,

there is sufficient evidence to sustain the circuit court ’s decision denying City Hospital’s

motions for judgment as a matter of law and a new trial.

IV.

CONCLUSION

For the reasons set forth above, the final order of the Circuit Court of Berkeley

County entered on August 20, 2009, is affirmed.

Affirmed.