Two lawyers have challenged the constitutionality of West Virginia's $500,000 cap on medical liability damages for trauma cases.
Charleston, W.Va., attorneys Bill Druckman and Richard Lindsay filed their complaint Wednesday, asking a Kanawha County judge to rule the cap unconstitutional. They want to address that issue before deciding whether to pursue a lawsuit against Thomas Memorial Hospital on behalf of Brandi Westfall, who is now paralyzed from the chest down.
The complaint alleges that hospital staff "negligently failed to diagnose and appropriately treat" the 29-year-old woman's condition after she came to the South Charleston hospital in May complaining of abdominal pain and weakness in her right lower extremities.
Hospital administrators said Thursday afternoon they had not seen the complaint.
State lawmakers voted in 2003 to limit medical malpractice jury awards to $500,000 if the case involves trauma care. Druckman and Lindsay argue the trauma cap discriminates against patients.
If the cap is upheld, the maximum amount the woman could recover "would be negligible in light of her injuries, after attorneys' fees, litigation expense and subrogation claims," the complaint said.
Liability had not yet been established in their case against the hospital, said state Sen. Evan Jenkins, who is executive director of the state medical association. Jenkins said he was not passing judgment on the merits of the woman's case.
"This case should work its way through the system," he said. "They are trying to short-circuit the process to get the court to rule to toss out these reforms."
Jenkins added that the damage cap is a protection, recognizing that emergency care providers must quickly make decisions often subject to "Monday morning quarterbacking" from attorneys.