Tort reform alive and well in West Virginia

The question of whether West Virginia's recently passed tort reform that includes a $250,000 cap on noneconomic damages is constitutional will remain unanswered for now.

Doctors worried that the West Virginia Supreme Court of Appeals would use a case dealing with a narrow issue to rule on the overall constitutionality of the state's new statute, but it didn't.

In Boggs v. Camden-Clarke Memorial Hospital, the alleged incident occurred and the initial lawsuit was filed before tort reform was in place. But the lawsuit had to be refiled, and the refiling occurred after the change in the law. Boggs argued that the new law shouldn't apply to his case.

The court agreed. But physicians and others were concerned about a bigger issue: Boggs' appeal also asked the court to address the overall constitutionality of the tort reform.

Physicians were relieved by the December ruling, which found that there was no need to decide whether the law was constitutional.

"Such an analysis is not necessary to reach a decision in this case," the court stated in its opinion.

The West Virginia State Medical Assn., the American Medical Association/State Medical Societies Litigation Center and nine others weighed in on the case through a friend-of-the-court brief. They argued that this was not an appropriate case for the court to rule on the constitutionality of the West Virginia Medical Professional Liability Act.

Evan Jenkins, WVSMA's executive director, said association members were relieved that a future court would decide whether the state's tort reform is legal. That's because during the 2004 election, voters did not re-elect a justice who earlier had voted against laws that included economic damage caps. "Our concern was this case would be the last opportunity for the current court to impact our reform," Jenkins said. "We know the day is coming, but it is not right now, and we're happy about that."