Maak v. IHC Health Services, Inc

This opinion is subject to revision before
publication in the Pacific Reporter.

IN THE UTAH COURT OF APPEALS

—-ooOoo—-

OPINION
(For Official Publication)

Case No. 20060124-CA

F I L E D
(July 12, 2007)

2007 UT App 244

Ann V. Maak, an individual, on
behalf of herself and others
similarly situated,

Plaintiff and Appellant,

v.

IHC Health Services, Inc., a
Utah corporation ; and John
Does 1-20,

Defendants, Third-party
Plaintiffs, and Appellees,

v.

Regence Blue Cross Blue Shield
of Utah, a Utah corporation;
Healthwise, a Utah
corporation; and John Does 21-
40,

Third-party Defendants.

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Third District, Salt Lake Department, 030911869
The Honorable Timothy R. Hanson

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Attorneys: James L. Ahlstrom and Terry E. Welch, Salt Lake City,
for Appellant
Steven C. Bednar, Tyson B. Snow, Timothy C. Houpt,
and Marci B. Rechtenbach, Salt Lake City, for
Appellees

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Before Judges Bench, Greenwood, and Davis.

GREENWOOD, Associate Presiding Judge:

¶1
Plaintiff Ann V. Maak appeals the trial court’s grant of
summary judgment in favor of Defendant IHC Health Services, Inc.
We affirm in part, and reverse and remand in part.

BACKGROUND

¶2
Maak received emergency medical care at LDS Hospital, owned
by IHC Health Services, Inc. (IHC), from April 2 to April 5,
2002. When Maak arrived at the hospital, her husband signed, on
her behalf, a form titled Consent and Conditions of Admission
(the IHC contract). After her treatment, Maak received a
statement from LDS Hospital that itemized the services she had
received and the charges for each service. Utah Code section 26-
21-20 requires hospitals to send this statement of itemized
charges to patients. See Utah Code Ann. § 26-21-20 (2000). The
total charges for Maak’s medical care at LDS Hospital were
$11,396.11.

¶3
At the time Maak was treated at LDS Hospital, she and her
husband were insured through Regence Blue Cross Blue Shield
(Regence). Regence contracts with participating health care
providers, such as LDS Hospital, to provide health services to
its insureds. Pursuant to a contract between IHC and Regence,
all medical procedures performed at LDS Hospital are classified
in a Diagnostic Related Group (DRG), which Regence agrees to
reimburse, at a predetermined fixed rate, without regard to the
actual costs LDS Hospital incurs for the services. In Maak’s
case, this meant that although LDS Hospital’s charges for
services rendered to Maak were $11,396.11, Regence reimbursed IHC
$12,310.36. That reimbursement was determined by the applicable
DRG. As a result, IHC received $914.25 more from Regence than it
actually charged for the services rendered. IHC asserts that in
the vast majority of cases, the DRG reimbursement amount is less
than the actual charges, and that only in a minority of cases,
including Maak’s, is the reimbursement amount greater than the
itemized charges. According to IHC, the DRG reimbursement amount
is calculated to approximate average total costs for each medical
procedure.

¶4
In addition to the $12,310.36 that IHC collected from
Regence, IHC billed Maak $986.63. This bill was based on Maak’s
twenty percent coinsurance obligation under her Regence plan. 1
Maak disputed the IHC bill, arguing that IHC already had been
more than fully compensated by Regence for the hospital charges
incurred on her behalf. Maak did not dispute the DRG
reimbursement approach as used between IHC and Regence, but
protested IHC’s ability to bill her for additional monies after
LDS Hospital’s entire bill had been satisfied by her insurance
company. After paying the bill under protest, Maak sued IHC,
alleging breach of contract, breach of the implied covenant of

1Because Maak’s coinsurance obligation was capped annually,
and she had previously applied a coinsurance payment, the amount
she is appealing is less than twenty percent of the hospital
bill.

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good faith and fair dealing, violation of the Utah Insurance
Fraud Act, common law fraud and misrepresentation, and deceptive
trade practices. She also sought punitive damages and class
action status. IHC filed a third party claim against Regence.

¶5
IHC filed a motion for summary judgment on all of Maak’s
claims, which the trial court granted. The trial court’s minute
entry stated, “While it is surely unusual for [LDS] hospital to
be seeking payment above and beyond the amount that it billed, it
is entitled to bill for the co-insurance amounts for which the
plaintiff is responsible, even where that will result in an
excess payment to the hospital.” Further, the trial court
advised that any problems Maak had with her coinsurance
requirement should be addressed to her insurance carrier,
Regence, and not IHC. Maak appeals. 2

ISSUE AND STANDARDS OF REVIEW

¶6
Maak argues that the trial court erred by granting summary
judgment in favor of IHC. “In the context of a summary judgment
motion, we . . . employ a correctness standard and ‘view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the non-moving party.'” R.A. McKell
Excavating, Inc. v. Wells Fargo Bank , 2004 UT 48,¶7, 100 P.3d
1159 (quoting Hermansen v. Tasulis , 2002 UT 52,¶10, 48 P.3d 235).
“We review questions of statutory interpretation for correctness,
affording no deference to the district court’s legal
conclusions.” Id. “[Q]uestions of contract interpretation not
requiring resort to extrinsic evidence are matters of law, which
we review for correctness.” Fairbourn Commercial, Inc. v.
American Hous. Partners, Inc. , 2004 UT 54,¶6, 94 P.3d 292
(quotations omitted).

ANALYSIS

I. Breach of Contract

¶7
Maak argues that the trial court improperly granted summary
judgment because the trial court erred in determining that Maak
was bound by IHC’s billing procedures by virtue of the contracts
she signed with IHC and Regence. “[U]nless the language of an
insurance contract is ambiguous or unclear, the court must
construe it according to its plain and ordinary meaning.” First
Am. Title Ins. Co. v. J.B. Ranch, Inc. , 966 P.2d 834, 836 (Utah
1998). “A contract is ambiguous if it is unclear, omits terms,
has multiple meanings, or is not plain to a person of ordinary
intelligence and understanding. Ambiguities are construed

2Regence is not a party to this appeal.

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against the drafter–the insurance company.” Utah Farm Bureau
Ins. Co. v. Crook , 1999 UT 47,¶6, 980 P.2d 685 (citations
omitted).

¶8
With this in mind, we consider the contract language of the
three contracts at issue here: (1) Maak’s contract with IHC,
signed by her husband when she entered LDS Hospital; (2) the
insurance contract between Maak and Regence; and (3) the contract
between IHC and Regence.

A. Maak’s Contract with IHC

¶9
Maak’s contract with IHC, signed as part of her admission
process to LDS Hospital, states, inter alia:

Patient and the undersigned, if other than
the Patient, each jointly and severally agree
to pay for all the health care services
rendered to Patient in the Facility including
but not limited to any amounts not paid by
any insurance company or other third party
payor. Patient and the undersigned, if other
than the Patient, remains responsible for all
co-payments, deductibles, co-insurance,
and/or non-covered services regardless of
amount paid by insurance or third party
payor.

(Emphasis added.)

¶10 Maak argues that her agreement to pay for “all the health
care services rendered” obligates her to pay for the services she
received, as established by the hospital’s statement of charges.
She claims that when IHC received full payment, from any source,
of the cost of her medical services, Maak had no further
financial obligation to IHC under the IHC contract. Maak’s claim
relies in part on the Utah statute requiring hospitals to
disclose to patients a comprehensive list of itemized charges
incurred during each hospital stay. See Utah Code Ann. § 26-21-
20.3 This statute requires that hospitals “shall itemize each of
the charges actually provided by the hospital to the patient.”
Id. § 26-21-20(3). Further, the statute states: “A statement of
charges to be paid by a third party and related information
provided to a patient pursuant to this section shall be marked in
bold: ‘DUPLICATE: DO NOT PAY’ or other appropriate language.”
Id. § 26-21-20(6).

3This requirement does not apply to patients qualifying for
title XIX of the Social Security Act. See Utah Code Ann. § 26-
21-20(5).

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¶11 Maak claims that the statute aims to require hospitals to
inform patients such as herself of the maximum amount the
hospital is entitled to receive for “services rendered.” Maak
further contends that it would create an absurd result to require
hospitals to provide an itemized list of charges to patients, but
then allow hospitals to avoid adhering to the amount in those
itemized statements by contracting around the rates in
undisclosed negotiations with insurers.

¶12 Maak further argues that the clause in her contract with IHC
requiring patients to pay coinsurance “regardless of amount paid
by insurance” means she is required to pay coinsurance only up to
the hospital’s total bill, regardless of the amount reimbursed by
her insurance carrier. In other words, Maak contends that IHC is
entitled to receive $11,396.11 from some payor, whether it be
from her, the insurance company, a third party, or some
combination thereof. The fact that her insurance company
satisfied her obligation to pay for “all the health care services
rendered” obliterated any further obligation by her to IHC.
Reading the IHC contract together with Utah Code section 26-21-20
makes it clear, she argues, that IHC is entitled to receive
$11,396.11 through some combination of insurance and patient
payments.

¶13 In contrast, IHC argues that the language “regardless of
amount paid by insurance” means that no matter how much the
insurer pays, the patient is nevertheless obligated to pay the
coinsurance amount as determined by her insurance plan with
Regence. However, Maak’s contract with IHC does not define
Maak’s coinsurance obligation, nor does it specifically refer to
its own contract with Regence or to Maak’s insurance plan.

¶14 We agree with Maak that the IHC contract language is
ambiguous because of the conflict between its provisions. On one
hand, Maak is required to pay for “all the health care services
rendered,” reasonably meaning only the amount LDS Hospital
charged for its services. On the other hand, Maak is required to
pay coinsurance, unspecified in the IHC contract and with no
explicit agreement to pay more than the total charges incurred by
IHC. Because precedent dictates that “ambiguities are construed
against the drafter,” Utah Farm Bureau Ins. Co. v. Crook , 1999
UT 47,¶6, 980 P.2d 685, we conclude that the IHC contract, by
itself, does not obligate Maak to pay IHC more than the actual
charges incurred.

B. Maak’s Contract with Regence

¶15 IHC claims that Maak’s contract with Regence also required
her to pay the coinsurance amount to IHC. Maak’s health
insurance policy with Regence states:

20060124-CA

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[Regence] will pay the Participating Provider
directly for Covered Services. . . .
Participating Hospitals, Participating
Skilled Nursing Facilities, and other
facilities that are Participating Providers
have agreed to accept [Regence’s] payment in
accordance with contractual payment
schedules. Contractual payment schedules can
be greater than or less than the facility’s
actual charges for Covered Services. The
Member’s obligation for payment to a
Participating Provider is the Deductible
and/or Copayment and the Coinsurance as
applied to charges for Covered Services in
excess of Deductible and/or Copayment .

(Emphasis added.) Another section of Maak’s health plan states
that the “Member pays only Deductible and Coinsurance for Covered
Services.” In addition, “After Deductible, [Regence] pays 80%
and Member pays 20% of Eligible Medical Expenses.”

¶16 Coinsurance is defined in the contract as “an amount,
expressed as a percentage, that the Member must pay for Covered
Services.” Covered services are defined as “the services,
supplies, or accommodations listed below in Part III for which
[Regence] makes payments.” In Part III, there are four pages of
covered services, including items such as hospital
accommodations, surgical services, and transplants. The contract
does not mention DRGs but refers only to contractual payment
schedules between Regence and health care providers. Like the
IHC contract, the relationship between Maak’s payment obligation
and the contractual payment schedule is not clear. While the
contractual payment schedule can be greater or less than actual
hospital charges, the contract does not address the impact, if
any, on the patient’s payment of coinsurance.

¶17 Maak’s argument about the Regence contract is similar to the
one she made regarding the IHC contract. Maak contends that her
payment obligation “as applied to charges for covered services”
is based on IHC’s actual charges for covered services, not on
contractual schedules negotiated between IHC and Regence to which
she was not a party. Maak does not contest the ability of IHC
and Regence to set reimbursement schedules between themselves.
What she does contest, however, is the ability of IHC and Regence
to determine and collect her coinsurance payment obligation
through contracts to which she was not a party.

¶18 IHC argues that pursuant to the Regence contract, Maak
agreed to an allocation of health care costs, split between Maak
and Regence, according to Regence’s arrangement with Maak’s
health care providers. IHC further states that the hospital’s
billing for actual services is relevant only for those who pay

20060124-CA

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the entire bill themselves. In those instances, there is no
application of DRG schedules and the maximum patient payment is
the actual charge. However, for those insured under the Regence
plan, the contract discloses that Regence may pay more or less
than the actual costs of service, pursuant to agreements with the
insured’s health care providers. IHC also asserts that the
Regence contract further requires the insured to pay the
coinsurance amount notwithstanding the possibility that the
health care provider has already been fully reimbursed by
Regence.

¶19 We conclude that the coinsurance liability is based on the
“charges for covered services.” In this instance, the
coinsurance was calculated based on IHC’s actual charges, not the
higher DRG reimbursement amount. Therefore, Maak was not
overcharged on that basis. The remaining question is whether IHC
could bill and collect the coinsurance amount from Maak.

¶20 IHC asserts that Maak should have sued Regence, not IHC,
because Regence determined Maak’s coinsurance obligation. IHC
emphasizes that Maak’s coinsurance obligation is established in
the Regence contract. This is corroborated, in part, because
Regence sent Maak a statement indicating that her twenty percent
coinsurance amount was based on the lesser amount of LDS
Hospital’s itemized costs, not the higher DRG reimbursement
amount. Therefore, IHC claims that it cannot be held responsible
for pursuing collection efforts.

¶21 This argument is not persuasive. Nothing in the Regence
contract obligates IHC to pursue collection efforts against Maak
after IHC has been fully compensated for its hospital bill. We
agree with Maak that “IHC has not, and cannot, show evidence from
the Record that it would be in breach of contract with Regence by
failing to collect the amounts it sought to collect, and
ultimately did forcibly collect, from Maak.” IHC conceded this
point in oral argument. The claim that Maak sued the wrong party
is similarly unavailing. IHC, not Regence, billed Maak and
threatened collection efforts based on her hospital bill. Maak
eventually paid IHC, not Regence, and IHC received the benefit of
the payment. Therefore IHC is the correct party in this lawsuit.

C. IHC’s Contract with Regence

¶22 The contract between IHC and Regence, as relevant to this
case, establishes the method by which Regence provides insurance
reimbursement for its insureds who receive medical services from
IHC. As stated earlier, the contract refers to DRG schedules,
setting reimbursements for specified medical procedures. The
Regence-IHC contract is subject to a protective order pursuant to
a confidentiality agreement among the parties.

D. Discussion

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7

¶23 IHC claims that the payment arrangement it established with
Regence, which utilizes DRGs, should be ratified in this case
because it conforms to what has become a national standard in the
healthcare system. For example, federal legislation governing
Medicare mandates a “Prospective Payment System” to encourage an
efficient use of resources and cost maintenance. See Sisters of
Charity Hosp. v. Riley , 661 N.Y.S.2d 352, 355 (N.Y. App. Div.
1997). In conformance with Medicare,

every medical diagnosis is categorized in a
“diagnostic related group” (DRG) established
by the Secretary of Health and Human Services
(Secretary). The Secretary also has
established a fixed reimbursement rate for
each DRG based upon the average length of
stay of patients with that DRG . . .
irrespective of the actual length of the
hospital stay or its cost.

Id.

¶24 Under Medicare’s DRG reimbursement approach, if a hospital’s
actual costs are higher than the reimbursement rate, the hospital
absorbs the excess cost. See id. at 355. However, if the
hospital’s actual costs are less than the DRG amount, the
hospital retains the Medicare overpayment. See id.

¶25 In Utah, the DRG reimbursement approach has been
legislatively authorized explicitly in the context of state
administration of Medicaid. See Utah Admin. Code R414-2A-9(1).

DRG weights are established to recognize the
relative amount of resources consumed to
treat a particular type of patient. The DRG
classification scheme assigns each hospital
patient to one of over 500 categories or DRGs
based on the patient’s diagnosis, age and
sex, surgical procedures performed,
complicating conditions, and discharge
status. . . . A preset reimbursement is
assigned to each DRG.

Id.; see also Utah Code Ann. § 26-18-3 (1998). 4

¶26 Although no Utah cases discuss DRGs, a New Jersey court
addressed a situation with similar facts; however, that case
provides only minimal guidance because of the court’s reliance on

4IHC states that Utah Children’s Health Insurance Act also
incorporates similar cost-sharing methods. See Utah Code Ann.
§§ 26-40-102 to -110 (Supp. 2006).

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state legislation in reaching its decision. In Russell v.
Rutgers Casualty Insurance Co. , 560 A.2d 708 (N.J. 1989), a
hospital’s actual charges for the plaintiff’s medical services
amounted to almost $2000, while the applicable DRG was about
$5500. See id. at 709. The insurance company paid the
plaintiff’s actual charges, not the DRG amount, arguing that the
term “hospital expenses” in the controlling legislation meant the
actual cost of the services, not the DRG amount. Id. The court
disagreed, stating that the insurance company’s argument “cannot
withstand scrutiny in the face of the legislative enactments and
the administrative regulations.” Id. at 710. Notably, New
Jersey had enacted comprehensive health care legislation, The
Health Care Facilities Planning Act, and other administrative
rules pertaining to DRGs. See id. at 709. The court ruled that
this legislation was determinative. See id. There is no claim
by IHC that Utah has enacted any legislation affecting the
resolution of the issues in this case.

¶27 It is undisputed that the IHC-Regence contract incorporates
DRG schedules; however, neither the IHC-Regence contract nor the
DRG schedules were provided to Maak when she signed her contracts
with Regence and IHC, and they were not specifically referred to
or incorporated by reference in those contracts.

¶28 We determine that the contract between IHC and Maak is
ambiguous and therefore cannot provide a basis for IHC to collect
coinsurance from Maak that will result in it receiving more than
the actual costs of “the health care services rendered.” The
contract between Regence and Maak requires Maak to pay her
coinsurance amount notwithstanding the possibility that Regence
has fully reimbursed IHC for services rendered. This contract
refers to “contractual payment schedules” agreed to by Regence
and “Participating Providers” but does not incorporate those
schedules nor describe how those schedules are determined. This
contract also does not purport to authorize a health provider or
anyone other than Regence to enforce payment of the coinsurance.
Of course, when a health provider has not been fully paid for its
services, it can collect the difference from a patient pursuant
to its contract with the patient. However, absent such a
shortfall, the contract between Regence and Maak does not provide
IHC a basis to collect from Maak a sum in excess of that already
received on her behalf from Regence. IHC’s arguments rely on
linking the two contracts in which Maak was a party. The problem
is that IHC cannot use Regence’s contract with Maak to create a
right to collect under its contract with Maak.

¶29 Federal and state legislation has established medical
payment systems utilizing DRGs for programs such as Medicare,
Medicaid, and the Utah Children’s Health Insurance Program.
These programs are administered by the government and utilize
public funds. The legislation furthers public policy concerns
about the cost and efficiency of those systems. No cases have

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validated a similar program in the private sector absent
legislative authorization. Public policy is the province of the
legislative branch of government, not the judicial branch.
Consequently, we hold that as a matter of contract law, IHC could
not bill Maak for medical services after it had collected the
full amount chargeable for those services from Maak’s insurer.
Therefore, we reverse the grant of summary judgment on Maak’s
breach of contract claim.

II. Other Issues on Summary Judgment

¶30 In addition to granting summary judgment on Maak’s contract
claim, the trial court granted summary judgment on Maak’s causes
of action for common law fraud and misrepresentation, and
deceptive trade practices. In her opening brief on appeal, Maak
addresses these claims in a footnote, stating:

The deceptive nature of this entry [in the
billing statement] is at the core of Maak’s
final three claims asserted in her case.
Each of these claims contains as a core
element such deception, and the cryptic,
inexplicable upward increase in the overall
bill under an entry description of “Regence
Blue Cross” satisfies the elements of these
claims.

These issues are not mentioned in the opening sections of Maak’s
brief setting forth the issues presented. See Utah R. App. P.
24(a)(5) (stating that an appellant’s brief shall contain a
“statement of the issues presented for review, including for each
issue: the standard of appellate review with supporting
authority”). Not surprisingly, IHC asserts in its brief that
Maak has waived these issues, as well as her claim for class
certification, by not arguing them in her opening brief. IHC
cites Brown v. Glover, 2000 UT 89, 16 P.3d 540, for the
proposition that failure to argue issues in the opening brief
constitutes waiver. See id. at ¶23. As stated in Brown, “[t]his
is to prevent the resulting unfairness to the respondent if an
argument or issue was first raised in the reply brief and the
respondent had no opportunity to respond.” Id. Maak counters in
her reply brief by arguing that the footnote in her opening brief
was sufficient to preserve the issues on appeal and proceeds to
set forth more fully arguments about the deceptive nature of
IHC’s billing statement. 5

5Maak does not address the trial court’s dismissal of her
claims for violation of the Utah Insurance Fraud Act or deceptive
trade practices. We therefore affirm summary judgment on those
claims.

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¶31 The footnote in Maak’s opening brief is inadequate to
preserve these issues. There is no meaningful analysis or
citation to authority. See Utah R. App. P. 24(a)(5), (9).
Development in the reply brief is not sufficient because IHC had
“no opportunity to respond.” Brown, 2000 UT 89 at ¶23. We
therefore affirm summary judgment on Maak’s claims other than
breach of contract. Also, because the trial court did not
address class certification that issue should be dealt with on
remand.

CONCLUSION

¶32 In sum, we reverse the grant of summary judgment on Maak’s
breach of contract claim and remand for further proceedings. We
affirm the trial court’s grant of summary judgment on Maak’s
other claims. We remand the issue of class certification.

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

—–

¶33 I CONCUR:

______________________________
James Z. Davis, Judge

¶34 I CONCUR IN THE RESULT:

—–

______________________________
Russell W. Bench,
Presiding Judge

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Maduka v. Sunrise Hosp.

EMPLOYMENT DISCRIMINATION

Maduka v. Sunrise Hosp., No. 03-15332 (9th Cir. July 15, 2004)

A
physician appealed a district court’s judgment dismissing his complaint with
prejudice. The physician was involved in two incidents that prompted the revocation
of his staff privileges. He subsequently filed a federal civil rights action
against the hospital and several related entities, alleging discrimination
(that the hospital’s actions were motivated by his race). The hospital moved
to dismiss the complaint based on a failure to state a claim upon which relief
can be granted. The motion was granted and the physician appealed.

The Ninth Circuit reversed and remanded, finding that the district court erred
in “not applying the ordinary rules for assessing the sufficiency of a
complaint.” The Ninth Circuit held that, in order to survive a 12(b)(6)
motion to dismiss, a complaint asserting a claim for employment discrimination
pursuant to 42 U.S.C. §1981 “must contain only ‘a short and plaint
statement of the claim showing that the pleader is entitled to relief.'” Because
the district court had assessed the sufficiency of the physician’s complaint
based on a heightened pleading standard, the Ninth Circuit reversed and remanded
back to the district court for further consideration.

Magrinat v. Trinity

IN THE SUPREME COURT STATE OF NORTH DAKOTA Gaston Magrinat, M.D., Plaintiff and Appellee v. Trinity Hospital, a/k/a Trinity Medical Center, Defendant and Appellant Civil No. 950266 Appeal from the District Court for Ward County, Northwest Judicial District, the Honorable Robert W. Holte, Judge. REVERSED. Opinion of the Court by Levine, Justice. Richard H. McGee II, of McGee, Hankla, Backes & Wheeler, Ltd., P.O. Box 998, Minot, ND 58702-0998, for plaintiff and appellee. Appearance by Jon W. Backes. Daniel S. Kuntz, of Zuger Kirmis & Smith, P.O. Box 1695, Bismarck, ND 58502-1695, for defendant and appellant. [540 N.W.2d 626] Magrinat v. Trinity Hospital Civil No. 950266 Levine, Justice. Trinity Hospital (Trinity) appeals from a judgment enjoining Trinity from suspending Dr. Gaston Magrinat’s privileges to practice medicine at the hospital pending completion of Trinity’s investigation of alleged misconduct by Magrinat. We hold the trial court abused its discretion in granting injunctive relief, because the interim suspension was reasonably authorized by Trinity’s bylaws, and we reverse the judgment. The suspension occurred following an incident on June 17, 1995. At about 10:00 p.m. that night, a fifty-six year old man arrived at the hospital complaining of chest pains. A coronary angiogram indicated the patient had partial blockage in several coronary blood vessels and was suffering a heart attack. The patient’s doctor, Dr. Philip Perona, [540 N.W.2d 627] requested a consultation with Dr. Magrinat, a cardiologist, who arrived at the hospital around midnight. Both doctors agreed coronary bypass heart surgery was ultimately the best medical treatment for the patient, but that conducting an immediate balloon angioplasty procedure to relieve the patient’s symptoms was warranted. Trinity policy requires a surgical backup team for balloon angioplasty unless it is performed as an emergency procedure. No backup team was available, and Dr. Magrinat, who is qualified to perform the procedure, determined an emergency angioplasty was warranted. For reasons not fully explained in this record, the patient’s family signed consent documents for the angioplasty procedure requiring the backup surgery team instead of the emergency procedure without surgical backup. When Dr. Magrinat attempted to obtain the necessary equipment to perform the procedure, a hospital lab technician refused to unlock the cabinet which contained the supplies, because the signed consent documents did not authorize the emergency angioplasty without surgical backup. Magrinat acknowledges he “became very upset.” Staff members alleged that Dr. Magrinat then, in anger, grabbed a telephone receiver from a technician, “striking her in the eye or the face,” bruising her face in the process. He also allegedly told the patient who was suffering the heart attack that “they are going to kill you,” and “they are going to let you die,” referring to the hospital employees. The patient responded by telling Magrinat he was fired and requesting another cardiologist. By letter, dated June 23, 1995, Trinity’s Chief of Staff, Dr. Michael T. Vandall advised Magrinat he was being summarily suspended for fourteen days because of the incident and that the Executive Committee of the hospital would conduct an investigation to determine the necessity of further discipline or corrective action. Dr. Vandall sent Magrinat a second letter, dated June 28, 1995, advising him the Executive Committee had met and decided an interim suspension of Magrinat’s practice privileges “is in the best interests of patient care at Trinity Hospital by preventing potential harm to patients.” The letter advised Magrinat the interim suspension would continue “in full force and effect pending the results of a full investigation of your conduct at Trinity Hospital and the final effectiveness of recommendations, if any, regarding further disciplinary or corrective action with respect to you in accordance with the Medical Staff Bylaws of the Medical Staff of Trinity Hospital.” Dr. Magrinat filed a complaint in district court seeking injunctive relief, under Section 32-05-04(1), N.D.C.C., enjoining Trinity from suspending his practice privileges during the investigation. The trial court initially issued a temporary restraining order against Trinity and, following a hearing, entered an order for judgment and final judgment granting Dr. Magrinat the injunctive relief requested. Trinity appealed from the judgment. Although neither party has raised the issue of appealability, we may consider that issue upon our own motion. Fargo Women’s Health v. Lambs of Christ, 488 N.W.2d 401 (N.D. l992). Ordinarily, a temporary injunction before trial is not reviewable by an interlocutory appeal. Sargent County Bank v. Wentworth, 434 N.W.2d 562 (N.D. 1989). A final judgment, or the equivalent under Rule 54(b), N.D.R.Civ.P., is necessary for appealability. Barth v. Schmidt, 472 N.W.2d 473 (N.D. 1991). The only relief requested by Dr. Magrinat in his complaint was a temporary injunction to enjoin Trinity from suspending his practice privileges during the Executive Committee’s investigation. The trial court granted Magrinat the relief he sought and entered judgment. No matter remains pending in the district court, and the judgment was intended to be final, disposing of all issues raised. We conclude the judgment is appealable, the notice of appeal was timely, and this appeal is properly before us. Dr. Magrinat requested injunctive relief under Section 32-05-04(1), N.D.C.C.: “When final injunction granted.–Except when otherwise provided by this chapter, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: “1. When pecuniary compensation would not afford adequate relief . . . .” [540 N.W.2d 628] In support of his request, Dr. Magrinat informed the court that if his interim suspension exceeded thirty days, federal law would require Trinity to report Magrinat’s suspension to the national practitioner data bank.(1) That information is available to the public, including potential employers, and Dr. Magrinat asserted the placement of his name in the data bank could, therefore, cause harm to his professional reputation which could not adequately be compensated by monetary damages. Trinity responded that monetary damages would be an adequate remedy for someone whose name is found to have been wrongfully placed in the data bank. Trinity also responded that if the investigation were to clear Dr. Magrinat of any wrongdoing, these results would also be reported to the federal data bank and, thereby, eliminate the possibility of irrevocable harm to Dr. Magrinat. The trial court agreed with Dr. Magrinat that the suspension, which was likely to exceed thirty days pending the investigation, could result in irrevocable harm to his professional reputation, and the court granted the injunctive relief enjoining the interim suspension of Dr. Magrinat’s practice privileges. Section 32-05-04(1), N.D.C.C., authorizes an injunction to prevent the breach of an obligation when damages are insufficient to afford adequate relief. Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d 167 (N.D. 1992). Granting or denying injunctive relief, which is equitable in nature, rests within the sound discretion of the trial court, and the court’s ruling will not be reversed on appeal unless there has been an abuse of discretion. State v. Jensen, 331 N.W.2d 42 (N.D. 1983). Trinity asserts the trial court abused its discretion in granting injunctive relief to Dr. Magrinat. We agree. The physicians and surgeons practicing at Trinity are organized as the Medical Staff of Trinity Hospital, and in that capacity they have adopted written bylaws.(2) Under Article 13.2(a) of those bylaws, the Chief of Staff is authorized to summarily suspend a practitioner’s privileges, without prior hearing, for up to fourteen days, “when there are clear and convincing indications that there is a danger to the interests of patient care and that such danger is due to the practices or activities of the practitioner in question.” Under Article 13.2(b) of the bylaws, the Executive Committee is authorized to impose “an interim suspension” of the physician’s clinical privileges during an investigation of the physician’s conduct, if it is “reasonably found to be in the best interests of patient care by preventing potential harm to patients.” Article 14 of the bylaws grants various procedural rights including notice, right to hearing, and appeal rights. Dr. Magrinat has not alleged any violation by Trinity of his procedural rights under the bylaws. Prior to imposing the interim suspension of Dr. Magrinat’s privileges, the Executive Committee found that the suspension was in the best interests of patient care at the hospital to prevent potential harm to patients. In making that determination, the Executive Committee had information before it that Dr. Magrinat acted out of anger in an inappropriate and abusive manner during the June 17, 1995 incident. The Executive Committee also had information from which it could have concluded Dr. Magrinat caused some physical injury to a female staff employee when he brusquely grabbed a telephone receiver she was using and that he caused substantial emotional upset and potential physical endangerment to the heart attack patient when he angrily exclaimed the hospital was going to let the patient die or cause him to die because the angioplasty procedure was being delayed. It does not require a medical expert to understand that those types of statements, if made to a patient in cardiac distress, are entirely inappropriate and impose a substantial threat of potential harm to the patient. The trial court made its decision after considering the four factors used to [540 N.W.2d 629] determine whether a court should issue a preliminary injunction pending a final decision by the court on the merits of the case. Those factors are: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. See, e.g., F-M Asphalt, Inc. v. North Dakota State Hwy. Dept., 384 N.W.2d 663 (N.D. 1986). However, application of those factors here is inappropriate, because they apply to preliminary injunctive relief under Section 32-06-02, N.D.C.C., but Dr. Magrinat requested final injunctive relief under Section 32-05-04, N.D.C.C. Relief under Section 32-06-02, N.D.C.C., is to preserve the status quo during the court process of rendering a final decision on the merits. See, e.g., Vorachek v. Citizens State Bank of Lankin, 461 N.W.2d 580 (N.D. 1990). However, the issue for the court when a party requests final injunctive relief under Section 32-05-04, N.D.C.C., is whether the injunctive relief is necessary “to prevent the breach of an obligation existing in favor of the applicant.” Dr. Magrinat could not demonstrate the need to prevent such a breach, because Trinity clearly had the right to impose the interim suspension under its bylaws, which have not been attacked by Dr. Magrinat as being unreasonable. Hospitals have a duty to the public to provide competent physicians and, for that purpose, to make proper investigation of complaints about a physician. See Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73 (N.D. 1991). A prehearing suspension of a doctor’s privileges to practice, though drastic and harsh, nonetheless, is appropriate when patient safety requires it and the bylaws provide adequate standards for summary suspension and a post-suspension hearing process. See Everett v. Franciscan Sisters Healthcare, Inc., [540 N.W.2d 630] 882 F.2d 1383, 1387 (8th Cir. 1989). The Alaska Supreme Court’s analysis in McMillan v. Anchorage Community Hospital, 646 P.2d 857, 865-866 (Alaska 1982), is sound and persuasive: “Where a physician’s competence has been called into question, the risk to patient safety is obvious and immediate. In such situations, courts have uniformly held that the hospital’s interest outweighs the physician’s, and that summary suspension is justified. “Where the physician is simply charged with disruptiveness or an inability to work with others, the risk to patients is not so obvious or immediate. But if it appears that a physician’s conduct is of a type which poses a realistic or recognizable threat to patient care, then immediate removal or summary suspension of the physician’s hospital privileges would be justified. The fact that the physician’s conduct has not yet produced any harm to a patient may be relevant in ascertaining whether his actions pose any such threat. But this is not an absolute prerequisite to the summary suspension of the physician’s hospital privileges. A hospital is not required to wait until the physician’s conduct has resulted in harm to a patient before summary action may be taken. “In light of these considerations, we hold that when suspension of a physician’s staff privileges is based on a charge of disruptiveness or inability to work with others, and there is no related charge concerning medical competence, summary suspension of the privileges is justified only where there is evidence that a physician’s conduct poses a realistic or recognizable threat to patient care which would require immediate action by the hospital.” The Alaska court concluded the hospital board had wrongfully imposed a summary suspension of the doctor’s privileges, under the circumstances, because there was no showing that the doctor’s inability to get along with other staff members had adversely affected patient care. The facts here are clearly distinguishable. Trinity’s Executive Committee had information from which it could conclude Dr. Magrinat’s conduct did endanger a patient’s health. The Executive Committee’s conclusion is entitled to deference and should not be second-guessed by the courts. Everett v. Franciscan Sisters Healthcare, Inc., 882 F.2d at 1386 (“questions regarding medical treatment . . . and kindred matters, are not suitable for determination by juristic science”); see also Straube v. Emanuel Lutheran Charity Board, 287 Or. 375, 600 P.2d 381, 386 (1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1980). The trial court’s concern about the potential harm to Dr. Magrinat’s professional reputation, because Trinity is required to report the interim suspension to the federal data bank, is well intended, but misplaced. Trinity followed its bylaws, which authorized an interim suspension of Dr. Magrinat’s privileges during the investigation, upon the Executive Committee finding it necessary to prevent potential harm to patients. That finding was made by the Executive Committee, and we conclude the trial court abused its discretion when it effectively nullified that finding by enjoining the suspension. The court’s injunction wrongly interfered with the hospital’s right under the bylaws to suspend Dr. Magrinat’s privileges during the investigation to prevent potential harm to hospital patients. In accordance with this opinion, the judgment is reversed and the injunction is vacated. Beryl J. Levine William A. Neumann Herbert L. Meschke Ronald L. Hilden, D. J. Dale V. Sandstrom, Acting C. J. Ronald L. Hilden, D.J., sitting in place of VandeWalle, C.J., disqualified. Footnotes: 1. This data bank was established through Title IV of Public Law 99-660, the Health Care Quality Improvement Act of 1986. 2. The applicability of the bylaws to this matter has not been challenged by either party.

Mahmud v. Bon Secours Charity Health Sys.

PEER REVIEW

Mahmud v. Bon Secours Charity Health Sys.,
No.
03 CIV. 1074 (WCC) (S.D.N.Y. Oct. 31, 2003)

The District Court for the Southern District of New York dismissed a physician’s
claims against a hospital and several medical staff leaders because the physician
failed to first file a complaint with New York’s Public Health Council ("PHC").
The physician claimed that the hospital conspired in restraint of trade, discriminated
against her based on her ethnic background, and committed slander when it failed
to reappoint her to the medical staff. Under New York law, physician complaints
against hospitals that call into question the quality of the medical care provided
by the physician must first be filed with the PHC. The court noted that the
purpose of this requirement is to take advantage of the PHC’s "peculiar
expertise to assess whether a hospital had a sound medical reason for terminating
a physician’s
privileges." The court found that the physician’s allegations of discrimination
and antitrust violations depended on the quality of care she provided. Thus,
they should have been filed initially with the PHC. The court also found that
the physician’s slander claims did not have to be filed initially with the
PHC, but that the physician had failed to allege the elements necessary to
state a
claim for relief.

 

 

 

MacArthur v. San Juan County

Antitrust, HIPAA, Medicare – Freedom of Choice, Civil Rights

MacArthur v. San Juan County, No. 2:00-CV-584J
(D.C. Utah June 13, 2005)

A physician, the P.A. he supervised, and a patient sued
a hospital, individual physicians, hospital board members, and various
personnel representing the county. All of the plaintiffs’ claims were dismissed
in a lengthy and complex opinion.

Dr. MacArthur, an OB/GYN, applied for clinical privileges at the hospital
and its birthing clinics. Provisional privileges were granted and the privileges
extended twice. After the second extension, the hospital notified the doctor
that required documentation consisting of a copy of his medical license and
his DEA license was missing from his application packet. Dr. MacArthur did
not pursue his request for clinical privileges and moved his practice to a
neighboring state.

Dr. MacArthur sued the hospital and other named defendants, alleging that
his requests for privileges were deferred in violation of his constitutional
rights and other federal laws. The District Court of Utah found that (1) a
physician’s "liberty" interest in pursuing his or her professional
practices does not per se entitle the physician to exercise clinical privileges
at public hospitals; (2) Dr. MacArthur could not pursue a procedural due process
claim against the hospital because it had not granted nor denied him privileges
before the commencement of the lawsuit; and (3) the doctor’s federal antitrust
claim, that the hospital denied him privileges in order to protect the obstetric
practices of other doctors employed by the hospital, was barred by the Local
Government Antitrust Act and moreover failed on its face because the hospital
never denied privileges to Dr. MacArthur.

A licensed Physician’s Assistant ("PA") requested renewal of her
privileges under the supervision of Dr. MacArthur, but the request was delayed
because of "missing" documentation and because there was no supervising
physician for her privileges. She sued the hospital and other defendants claiming
that the hospital personnel and other physicians deliberately interfered with
her practice privileges in order to inhibit competition.

The district court held that (1) the PA failed to establish a violation of
a constitutional right to practice privileges because her license did not bestow
the same degree of independent judgment that a physician’s license holds and
therefore she was not under the same constitutional protection to pursue her
profession; (2) her federal antitrust claims were moot because no controversy
regarding her entitlement to privileges existed between the hospital and her
as the hospital never denied her privileges; and (3), her HIPAA claims failed
because she failed to point to specific factual allegations or specific instances
in which a breach of confidentiality had occurred.

A patient went to the hospital’s emergency department ("ED") complaining
of flu-like symptoms. Eventually, she was diagnosed with acute diverticulitis.
After filling out the admittance form, Ms. Valdez went to the lavatory because
she felt sick. As she came out of the lavatory, Ms. Valdez observed a nurse
tell the admitting clerk that two patients in the ED could be "set up" in
the emergency room for the physician. Again, she went to the lavatory and during
this visit her sister overheard the nurse tell the admitting clerk to "tell
[the patient] to go to the doctor’s office." When she returned, her sister
related the conversation she had overheard and the two sisters left the emergency
room without speaking to anyone else.

The patient sued the hospital alleging that she was unable to see the provider
of her choice in violation of the Medicare "freedom of choice" statute.
The district court held that this statute did not apply because the complaint
did not allege that any Medicare program officials attempted to interfere with
her choice of health care providers. Further, she did not claim that any provider
was not reimbursed for care provided to her as a Medicare recipient. She also
claimed that she was discriminated against based on national origin because
after she left the ED, the other patient in the waiting room (a white male)
was seen by a physician. The court disagreed because she left on her own without
confirming or denying the conversation her sister claimed to have overheard.
Therefore, she was not "turned away" and/or denied medical services.

 

 

Magee v. United States (Summary)

Magee v. United States, C.A. No. 98-073-T (D. R.I., March 10, 2000)

Plaintiffs, two attorneys, brought an action asserting that §4730 of the Balanced Budget Act of 1997 is unconstitutional and seeking to enjoin its enforcement. § 4730 criminalizes counseling an individual to dispose of assets to establish eligibility for Medicaid benefits. The plaintiffs moved for summary judgment and the United States District Court denied the motion. The court reasoned that, because the Attorney General agreed that the statute is unconstitutional and that she would not prosecute alleged violations under it, the action did not present a case or controversy upon which the court could grant relief.

Magriz v. St. Barnabas Hosp.

Magriz v St. Barnabas Hosp.

2007 NY Slip Op 06444

Decided on August 16, 2007

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law ? 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 16, 2007

Andrias, J.P., Saxe, Nardelli, Williams, Catterson, JJ.

848
Index 13187/02







Garbarini & Scher, P.C., New York
(William D. Buckley of
counsel), for St. Barnabas Hospital and Dr. Zambito
appellants.
Dwyer & Taglia, New York (Gary J. Dwyer of counsel), for

Peter Homer, M.D. and Keischa Glenn, M.D. appellants.
The Pagan Law
Firm, P.C., New York (Tania M. Pagan of
counsel), for respondent.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered April 12,
2006, which denied motions for summary judgment dismissing the complaint as
against St. Barnabas Hospital and Drs. Homer, Glenn and Zambito, unanimously
reversed, on the law, without costs, the motions granted and the complaint
dismissed as to the individual movants and as to defendant hospital to the
extent that its liability is premised upon the acts of the individual movants.
The Clerk is directed to enter judgment accordingly.

It is undisputed that, on August 21, 1999, plaintiff presented to St.
Barnabas’s emergency room, complaining of lower back pain and was treated and
discharged by Dr. Homer, an attending physician. She returned to the emergency
room by ambulance on August 25, 1999 and was treated and discharged by Dr.
Glenn, another attending physician. The following day, August 26, 1999,
plaintiff again returned by ambulance to the emergency room where she was
evaluated by Dr. Zambito. Later that day, plaintiff was admitted to the hospital
by Dr. Fredo, a staff neurologist, who properly diagnosed the patient’s
condition as cauda equine syndrome and contacted a neurosurgeon at
Columbia-Presbyterian Hospital to which she was transferred three days later,
and where she underwent surgery to correct her condition.

Plaintiff concedes that her action should have been dismissed as against Drs.
Homer and Glenn as barred by the statute of limitations, the action having been
commenced by the filing of the summons and complaint on February 28, 2002. She
also does not dispute Dr. Zambito’s claim that her action against him is also
time-barred. Nevertheless, relying upon the doctrine of ostensible agency (see Welch v Scheinfeld, 21 AD3d 802, 808-809 [2005]),
she argues that it is irrelevant that her action against Drs. Homer, Glenn and
Zambito is untimely because St. Barnabas is vicariously liable for their conduct
whether they are in or out of the case as [*2]individually named defendants. However, while a
hospital may be vicariously liable for acts of independent physicians where a
patient enters the hospital through the emergency room, and seeks treatment from
the hospital rather than a particular physician (see Shafran v St. Vincent’s
Hosp. & Med. Ctr., 264 AD2d 553, 558 [1999]), such rationale presupposes
that the patient has a viable cause of action against the physicians who treated
her. Here, since plaintiff concedes that her claims against the individual
doctors who treated her in St. Barnabas’s emergency room must be dismissed as
untimely, it necessarily follows that any cause of action against St. Barnabas
based on the theory of respondent superior and premised upon the alleged
malpractice of those doctors must also be dismissed (see DeFilippi v
Huntington Hospital, 203 AD2d 321 [1994]; Walsh v Faxton-Children’s
Hospital, 192 AD2d 1106, 1107 [1993]). All claims based on acts or omissions
prior to April 28, 1999 are thus time barred.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 16, 2007

CLERK

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

v.

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

1.

“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).

2.

“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).

3.

“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

i

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

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

4.

“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).

5.

“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).

ii

“
‘

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.

7.

“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

1

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.

2

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.

I.

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.

3

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

4

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.

5

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.

6

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

7

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

8

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:

9

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.

10

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…)

11

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.

12

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[.]

13

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

In

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.

14

‘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

15

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

16

“
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.

17

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…)

18

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…)

19

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.

20

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.

21

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

22

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).

23

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.

24

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

25

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.

26

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.

27

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

28

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.

29

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

30

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

31

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.

32

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

33

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.

34

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

35

‘

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.

36

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.

37

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,

38

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.

39

MacArthur v. Univ. of Virginia Health Services Found.

CHARITABLE IMMUNITY/MALPRACTICE

MacArthur v. Univ.
of Virginia Health Services Found., No. CL04-154 (Vir. Cir. Ct. Dec. 8, 2006)

The
Circuit Court of Virginia held that the foundation that employed physicians
who provided services at a university-affiliated hospital was entitled to charitable
immunity in a malpractice lawsuit brought by a patient. The court noted that
the foundation’s articles of incorporation clearly stated a charitable
purpose and contained a not-for-profit limitation. In reaching its decision,
the court also applied a ten-factor test that examined, for example, the foundation’s
purpose, which was to break even, rather than earn a profit, the foundation’s
tax-exempt status, and the fact that the foundation rendered medical care regardless
of a patient’s ability to pay.

 

 

Mahan v. Avera St. Luke’s

Mahan v. Avera St. Luke’s,

2001 SD 9 (January 10, 2001)

The governing board of St. Luke’s, a private, nonprofit hospital, closed its medical
staff to physicians requesting privileges to perform procedures concerning spinal
fusions, closed fractures of the spine, and laminectomies. The governing board’s
decision was made in order to facilitate the hospital’s attempt to recruit two
neurosurgeons or orthopedic spine surgeons to replace a neurosurgeon who had
left the staff. The hospital’s previous attempts to recruit neurosurgeons and
orthopedic spine surgeons had been hampered because the surgeons were unwilling
to relocate to Aberdeen, an area with a small population, for fear that there
would not be enough patients to support their practices. Several physicians
at Orthopedic Surgery Specialists (OSS) filed suit against the hospital after
one of their recruited physicians was unable to obtain an application for privileges
at St. Luke’s. The circuit court granted summary judgment for OSS, finding that
the hospital’s bylaws granted the right to make medical staffing decisions to
the medical staff itself and, therefore, the governing board’s decision to close
the medical staff in one area was a breach of the hospital’s contract with the
current medical staff.

The South Dakota Supreme Court overturned the
circuit court. The court found that the hospital had not breached its contract
with the medical staff. The court concluded that the corporate bylaws give the
governing board the power to make business decisions concerning the hospital.
The corporate bylaws delineate the powers granted to the medical staff and, in
this specific case, the bylaws granted the medical staff only the right to
evaluate the competence, training, qualifications and ethics of applicants for
privileges in areas in which the medical staff has particular expertise. The
governing board retained power over all other aspects of medical staffing,
including making business decisions about what staffing measures would be
beneficial to the interests of the hospital and the community.