Earlier this month a West Virginia medical malpractice jury returned its verdict in the amount of $5,788,977.36 in favor of the 41-year-old plaintiff who suffered vocal cord paralysis following a thyroidectomy that the plaintiff alleged was due to the defendant surgeon negligently failing to protect her laryngeal nerve during the surgery.
The six-person West Virginia medical malpractice jury determined that the woman was entitled to $5 million in noneconomic damages, which will be reduced to $650,000 or less pursuant to West Virginia’s cap on noneconomic damages in medical malpractice cases enacted in 2003, in addition to $50,000 awarded for loss of household services, almost $540,000 for her loss of income, and nearly $200,000 for her medical expenses.
The woman was 38-years-old when she underwent a thyroidectomy on February 25, 2014 in Charlestown, West Virginia. The defendant surgeon allegedly failed to protect her laryngeal nerve while performing the surgery. As a result, the woman suffered permanent and debilitating injury to her laryngeal nerve that resulted in her suffering permanent vocal card paralysis. She required a permanent tracheotomy nine months later.
The plaintiff testified during her West Virginia medical malpractice trial that she is seriously inconvenience by the permanent tracheotomy: she must clean her tracheotomy site three times every day and is required to have her breathing machine and a suction machine with her wherever she goes so that she can maintain her airway. She also told the West Virginia medical malpractice jury that she lost a job opportunity because the prospective employer considered her tracheotomy a liability.
The medical malpractice defense attorney stated after the West Virginia medical malpractice jury rendered its verdict against his client, “We plan to review the record and are strongly considering filing an appeal.”
West Virginia Cap On Noneconomic Damages In Medical Malpractice Cases
§55-7B-8. Limit on liability for noneconomic loss.
(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 may not exceed $250,000 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, 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 $500,000 for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, where the damages for noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities.
(c) On January 1, 2004, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the Consumer Price Index published by the United States Department of Labor, not to exceed one hundred fifty percent of the amounts specified in said subsections.
(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the aggregate amount of at least $1 million for each occurrence covering the medical injury which is the subject of the action.
(e) If subsection (a) or (b) of this section, as enacted during the 2003 regular session of the Legislature, or the application thereof to any person or circumstance, is found by a court of law to be unconstitutional or otherwise invalid, the maximum amount recoverable as damages for noneconomic loss in a professional liability action brought against a health care provider under this article shall thereafter not exceed $1 million.
The West Virginia Legislature justified its imposition of caps on noneconomic damages that victims of medical negligence in West Virginia may recover from negligent medical providers by stating, in part:
“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 and health care facilities who can themselves obtain the protection of reasonably priced and extensive liability coverage;
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, the health care facilities and the injured without the full benefit of professional liability insurance coverage;
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;
The modernization and structure of the health care delivery system necessitate an update of provisions of this article in order to facilitate and continue the objectives of this article which are to control the increase in the cost of liability insurance and to maintain access to affordable health care services for our citizens.
Therefore, the purpose of this article is to provide 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:” …
If you or a loved one suffered serious injury in West Virginia or in another U.S. state that may be due to medical malpractice, you should promptly find a West Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
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