Opinion
No. 27464
Submitted: September 6, 2000
Filed: December 13, 2000
Appeal from the Circuit Court of Ohio County, Honorable Arthur M. Recht, Judge, Civil Action No. 97-C-466.
Robert P. Fitzsimmons, Esquire, Wheeling, West Virginia, Attorney for Appellant.
William E. Galeota, Esquire, Morgantown, West Virginia, Ancil G. Ramey, Esquire, R. Christopher Anderson, Esquire, Charleston, West Virginia, Steptoe Johnson, Attorneys for Appellee.
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MAYNARD concurs in part and dissents in part and reserves the right to file a concurring/dissenting Opinion.
JUSTICE DAVIS concurs in part and dissents in part and reserves the right to file a concurring/dissenting Opinion.
JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting Opinion.
Appellant, the estate of Marjorie I. Verba, asks this Court to revisit its previous decision in Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991), in which we, acting unanimously, upheld the constitutionality of the $1,000,000 cap imposed by West Virginia Code § 55-7B-8 (2000) on noneconomic damages that are awarded in medical malpractice cases. Asserting that the cap violates multiple constitutional provisions, Appellant seeks a reversal of the June 24, 1999, order of the Circuit Court of Ohio County, granting Appellee David A. Ghaphery's motion to alter or amend the judgment, through which the jury's award of noneconomic damages was reduced to $1,000,000. After thoroughly considering the arguments raised, we find no basis for altering our prior ruling in Robinson, and accordingly, we affirm the decision of the lower court.
I. Factual Background
Dr. Ghaphery performed anti-reflux surgery on sixty-eight-year-old Marjorie Verba on February 21, 1996. Ms. Verba remained in the hospital for four days following surgery. The parties dispute whether Ms. Verba was continuing to have medical problems at the time of her release on February 25, 1996. Within ten to twelve hours of discharge, Ms. Verba had died. The results of an autopsy indicated that a surgical nick resulted in a laceration to the stomach, which in turn caused Ms. Verba to contract peritonitis and to die as a result.
Appellant initiated a medical malpractice action against Dr. Ghaphery and after hearing the evidence and arguments regarding the issue of whether Dr. Ghaphery deviated from the accepted standards of care, the jury found for Appellant. The jury awarded $300,000 for physical pain, mental pain, and loss of enjoyment of life; $21,000 for medical and funeral bills; and $2,500,000 to the beneficiaries of Ms. Verba's estate under the wrongful death statute. See W. Va. Code § 55-7-6 (2000). By order entered on July 24, 1999, the trial court reduced the judgment to $1,020,510.51, as required by the medical malpractice cap set forth in West Virginia Code § 55-7B-8. Based upon its position that the statutory cap at issue is unconstitutional, Appellant seeks a ruling from this Court that the reduction of the jury verdict was improper.
Appellant contends that the medical malpractice cap on noneconomic damages violates the equal protection clause, the separation of powers clause, the right to a trial by jury, the open court and certain remedy clauses, the due process clause, and the special act clause.
II. Discussion
In addressing this same issue in Robinson, we first articulated the relevant principles which undergird this Court's consideration of legislative acts:
"`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. [W. Va. Const. art. V, § 1.] 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.' Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965)." Syl. pt. 2, West Virginia Public Employees Retirement System v. Dodd, 183 W. Va. 544, 396 S.E.2d 725 (1990).
Syl. Pt. 1, Robinson, 186 W. Va. at 722, 414 S.E.2d at 879.
We then identified the level of constitutional scrutiny which is applied to issues affecting economic rights:
"'"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)." Syl. pt. 4, Gibson v. West Virginia Department of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991).
Syl. Pt. 2, Robinson, 186 W. Va. at 722-23, 414 S.E.2d at 879-80.
After considering essentially the same constitutional challenges as Appellant raises in this case, we held that:
Appellant argues that inRobinsonthis Court did not consider the constitutionality of the statute on separation of powers grounds. In refutation of this assertion, Appellee cites to the language of syllabus point one ofRobinson. See186 W. Va. at 722, 414 S.E.2d at 879. Appellee also observes that other courts have rejected a "separation of powers" argument when assessing the constitutional validity of statutory damage caps. SeeEtheridge v. Medical Ctr. Hosps. , 376 S.E.2d 525, 531-32 (Va. 1989);accordPulliam v. Coastal Emergency Servs. , 509 S.E.2d 307, 319 (Va. 1999);seealsoVictor E. Schwartz, Mark A. Behrens Mark D. Taylor, Illinois Tort Law: A Rich History of Cooperation and RespectBetween the Courts and the Legislature, 28 Loy. U. Chi. L.J. 745, 761 (1997) (recognizing legislature's "historic right and public responsibility to formulate tort or liability legislation");butseeBestv. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997) (finding separation of powers violation with Illinois medical malpractice cap on noneconomic damages).
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.
Syl. Pt. 5, Robinson, 186 W. Va. at 723, 414 S.E.2d at 880.
Appellant urges this Court to reverse its prior determination inRobinson that the medical malpractice cap is constitutional. See id. The only new arguments, which were not considered by this Court whenRobinson was issued, concern the effects of inflation on the $1,000,000 cap, the lack of evidence indicating that medical malpractice reform has lessened either health care costs or malpractice premiums, and an alleged "separation of powers" problem. We address these new arguments in turn.
Appellant looks to dicta in Robinson which suggested that, if the legislature decided to lower the $1,000,000 cap, the Court might reconsider its position on the reasonableness of the cap. See id. at 730, 414 S.E.2d at 887. In making her argument that inflation has sufficiently affected the reasonableness of the cap, Appellant overlooks a critical aspect of this Court's language in Robinson. We did not invite a reconsideration of the reasonableness of the cap based on inflationary effects; what we did was to state that if the legislature were to modify (i.e. reduce) the cap, we might find the reduced amount not to be reasonable. Id. Our analysis of the statutory cap in Robinson was founded on whether the act of the legislature was constitutional. Just as it was within the legislature's proper exercise of its authority in initially setting the cap, it is similarly up to the legislature to make any amendments to that legislation. As we observed in Robinson, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." Id. at 726, 414 S.E.2d at 883 (quoting Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 692, 408 S.E.2d 634, 642 (1991)); see Pulliam v. Coastal Emergency Servs., 509 S.E.2d 307, 318 (Va. 1999) (upholding statutory medical malpractice cap and finding that "no fundamental right or suspect class is affected by application of the medical malpractice cap").
Appellant asserts that $1,000,000, as contrasted to its worth in 1986 when the cap was first established, is only worth $648,147 today. Appellee asserts that no other courts have relied upon this inflationary argument as a basis for finding their statutory caps unconstitutional.
For essentially the same reasons that this Court cannot decide to effectively raise the amount of the cap, we similarly are not the body that should examine whether medical malpractice reform is meeting the objectives cited by the legislature in enacting the West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 to — 11 (2000). Appellant relies on a seemingly outdated 1987 GAO study to support its position that this type of reform does not have a major effect on the cost of malpractice insurance. Conversely, Appellee cites to a more recent law review article which suggests that there is empirical evidence demonstrating that such reform does have an effect on malpractice costs. See W. Kip Viscusi and Patricia Born, Medical Malpractice Insurance in the Wake of Liability Reform, 24 J.Legal Stud. 463 (1995). Notwithstanding the apparent conflict of positions on this issue of whether the objectives sought to be achieved through the enactment of the Medical Professional Liability Act can be met, it is up to the Legislature, and not this Court, to consider and resolve these arguments which concern the wisdom of medical malpractice reform. As we stated in Robinson, "W. Va. Code, 55-7B-8, as amended, . . . is an integral part of the comprehensive resolution of the clear social and economic problem reasonably perceived by the legislature in enacting the Act." 186 W. Va. at 729, 414 S.E.2d at 886.
We note that West Virginia's medical malpractice cap, at $1,000,000, is one of the most liberal caps in the country. No state has a cap set at a higher amount.
The Legislature set forth an extensive listing of its purposes in enacting the legislation at issue:
The Legislature hereby finds and declares that the 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 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.
W. Va. Code § 55-7B-1.
Finally, Appellant suggests that the medical malpractice cap violates the "separation of powers" doctrine. See W. Va. Const. art. V, § 1. With little discussion, Appellant argues that the cap effectively constitutes a legislative remittitur for any verdict that exceeds $1,000,000 in noneconomic damages. As in Robinson, this Court has on many occasions acknowledged the constitutional basis for legislative alteration of the common law. 186 W. Va. at 727, 414 S.E.2d at 884 (stating "that the general authority of the legislature to alter or repeal the common law is expressly conferred by article VIII, section 13 of the Constitution of West Virginia") (quoting Lewis, 185 W. Va. at 694, 408 S.E.2d at 644); accord Gilman v. Choi, 185 W. Va. 177, 185-86, 406 S.E.2d 200, 208-09 (1990) (stating "[c]ertainly the Legislature can change the common law" and "the indisputable fact [is] that the legislature has the power to change the common law of this State"),overruled on other grounds as stated in Mayhorn v. Logan Med. Found., 193 W. Va. 42, 454 S.E.2d 87 (1994); Wallace v. Wallace, 155 W. Va. 569, 580, 184 S.E.2d 327, 333-34 (1971) (recognizing that "Article VIII, Section 21 . . . provides in part that `Such parts of the common law . . . shall be and continue the law of the State until altered or repealed by the legislature'"), overruled on other grounds as stated in Belcher v. Goins, 184 W. Va. 395, 406 S.E.2d 830 (1990). This power to alter the common law has been recognized to "`necessarily include[] the power to set reasonable limits on recoverable damages in causes of action the legislature chooses to recognize.'" Edmonds v. Murphy, 573 A.2d 853, 861 (Md.Ct.Spec.App. 1990) (quoting Franklin v. Mazda Motor Corp., 704 F. Supp. 1325, 1336 (D.Md. 1989)), aff'd, 601 A.2d 102 (Md. 1992). The Maryland court reasoned, and we agree, "`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. . . .'" 573 A.2d at 861 (quoting Franklin, 704 F. Supp. at 1336).
Having addressed those issues which were not raised at the time ofRobinson, and finding no basis for holding the cap unconstitutional on those novel grounds, we must determine whether there is any merit to reconsidering the constitutional arguments previously discussed inRobinson. Rather than offering any basis for declaring this Court's decision in Robinson to be in error, Appellant simply urges this Court to adopt the conclusion reached by other courts that caps, such as those at issue here, violate particular constitutional provisions. See, e.g. Smith v. Schulte, 671 So.2d 1334 (Ala. 1995), cert. denied, 517 U.S. 1220 (1996); Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997); Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999); State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999). Critically, however, each of those cases cited by Appellant involved constitutional challenges raised in the first instance. Because this Court has previously ruled on the multiple constitutional challenges raised here by Appellant, and found no constitutional impediment to enforcement of the provisions of the medical malpractice cap, this Court's prior ruling is subject to the judicial doctrine of stare decisis. In Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167 (1995), we discussed this doctrine:
"The doctrine of stare decisis rests upon 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."
Id. at 350 n. 14, 456 S.E.2d at 194 n. 14 (Miller, J., dissenting and concurring) (quoting In re Proposal to Incorporate Town of Chesapeake, 130 W. Va. 527, 536, 45 S.E.2d 113, 118 (1947)). Like the Virginia Supreme Court in Pulliam, we find that the doctrine of stare decisis prevents this Court from overturning our initial decision in Robinson upholding West Virginia Code § 55-7B-8 on constitutional grounds. 186 W. Va. at 723, 414 S.E.2d at 880, syl. pt. 5; Pulliam, 509 S.E.2d at 321 (refusing to find statutory cap on medical malpractice damages unconstitutional under doctrine of stare decisis).
Based on the foregoing, the decision of the Circuit Court of Ohio County is hereby affirmed.
Affirmed.
Three basic issues were presented to the Court in this case. First, we were asked to find that the State's medical malpractice damage cap statute, W. Va. Code § 55-7B-8 (1986) (Repl. Vol. 2000), was per se unconstitutional. As to this issue, I understand the per curiam opinion of the Court as simply reaffirming the unanimous decision by the then sitting Court in Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991), which held that the statute is per se constitutional. I concur with this conclusion. Second, we were asked to find the medical malpractice statute unconstitutional on the basis that the present-day value of the one million dollar cap is actually less than it was when the cap was originally imposed. The per curiam opinion has determined that the statute is valid and constitutional notwithstanding the inflationary erosion of the present-day value of one million dollars. For the reasons that are forthcoming, I dissent from the Court's decision in this regard. Third, we were asked to permit plaintiffs to recover attorney's fees and costs in medical malpractice cases. The per curiam opinion, however, has resolutely failed to address this issue. Despite this conspicuous omission, I nevertheless feel that the merits of awarding attorney's fees and costs in such cases should have been addressed. Therefore, I also dissent also from the Court's effective dismissal of this matter.
This argument was premised on several alternative constitutional grounds, which are listed in note 1 of the per curiam opinion.
At the time of the Robinson decision, the members of the Court were Chief Justice Miller, and Justices Neely, McHugh, Brotherton, and Workman.
I also concur with the majority's determination that the question of whether or not the damage cap statute is meeting its objectives is a matter for legislative determination.
I. LEGISLATIVE AUTHORITY TO IMPOSE MEDICAL MALPRACTICE DAMAGE CAP
This case presents the second occasion that the Court has been asked to determine whether the State's constitution permits the Legislature to impose a cap on noneconomic damages in medical malpractice cases. In Robinson, we held that there was no constitutional impediment to the Legislature's authority to impose a limit on a plaintiff's recovery from a jury for noneconomic damages in medical malpractice cases. In the instant case, a majority of the Court has reaffirmed Robinson.
I believe the majority correctly found that the Legislature did not offend our constitution by exercising its authority to impose a one million dollar cap on noneconomic damages in medical malpractice cases. Furthermore, I adhere to the principle that it is the Legislature's "right and public responsibility to formulate tort or liability legislation." Victor E. Schwartz et al., Illinois Tort Law: A Rich History of Cooperation and Respect Between the Courts and the Legislature, 28 Loy. U. Chi. L.J. 745, 761 (1997). I do not believe that it is within the province of this Court to engage in judicial nullification to achieve a result that clearly lacks a basis in constitutional law. Nor is it the role of this Court to find the damage cap statute "unconstitutional merely because we `consider it born of unwise, undesirable, or ineffectual policies.'" Ledbetter v. Hunter, 652 N.E.2d 543, 545 (Ind.Ct.App. 1995) (quoting Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 382, 404 N.E.2d 585, 591 (1980) (citations omitted)).
It should be noted, though, that the Legislature's creation of a damage cap statute began long before it enacted the medical malpractice statute. In 1957, the Legislature imposed a cap on the amount of recovery that could be obtained against a parent for the willful, malicious, or criminal act of the parent's child. See W. Va. Code § 55-7A-2 (1995) (Repl. Vol. 2000). For other examples of limits imposed on liability for conduct of a tortuous nature see W. Va. Code § 16-5G-6 (1999) (Supp. 2000) (limiting liability for violation of open hospital proceedings); W. Va. Code § 21-9-12 (1996) (Supp. 2000) (imposing limit on liability for violating housing construction standards); W. Va. Code § 22-10-9 (1994) (Repl. Vol. 1998) (limiting liability for failing to plug an abandoned well); W. Va. Code § 22-17-16 (1999) (Supp. 2000) (imposing limit on liability for violation of underground tank laws); W. Va. Code § 46-4A-205 (1990) (Repl. Vol. 1993) (limiting liability for sending erroneous payment order); W. Va. Code § 55-7-15 (1985) (Repl. Vol. 2000) (imposing limit on liability for injury caused in helping another); W. Va. Code § 55-7-18 (1996) (Repl. Vol. 2000) (limiting liability of home care providers); W. Va. Code § 55-7-20 (2000) (Repl. Vol. 2000) (imposing limit on liability of certain nonprofit organizations); W. Va. Code § 55-7C-3 (1988) (Repl. Vol. 2000) (limiting liability of officers of nonprofit organizations); W. Va. Code § 55-7D-3 (1998) (Repl. Vol. 2000) (imposing limit on liability for persons who donate food); W. Va. Code § 55-7D-4 (1998) (Repl. Vol. 2000) (limiting liability of landowners who allow certain charitable work on their property).
It has been stated:
Judicial nullification takes place when state courts use
state constitutional provisions to overturn legislative decisions about civil justice reform in situations where there was a clear, rational public policy basis for the legislation. This practice hampers past tort reform efforts by undoing the good that legislators have worked to accomplish[.]
Victor E. Schwartz et al., Tort Reform Past, Present and Future: Solving Old Problems and Dealing With "New Style" Litigation, 27 Wm. Mitchell L. Rev. 237, 246 (2000).
In the final analysis, this Court is restricted to a determination of whether there is a rational basis for the damage cap statute and whether the statute bears a reasonable relationship to a proper governmental purpose. See Syl. pt. 4, Carvey v. West Virginia State Bd. of Educ., 206 W. Va. 720, 527 S.E.2d 831 (1999). Other courts have observed that "[r]ational basis review is minimal in nature." Adams ex rel. Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 902 (Mo. 1992). Therefore, it is our duty to uphold W. Va. Code § 55-7B-8 "if the purpose of the act is not beyond legislative power in whole or in part, and there is no language in it expressive of specific intent to violate the organic law." Syl. pt. 29, in part, Coal Coke Ry. Co. v. Conley, 67 W. Va. 129, 67 S.E. 613 (1910). In the instant case, the per curiam opinion has correctly applied these principles in finding that creation of the damage cap statute did not offend our constitution.
A slim majority of courts considering the issue have similarly affirmed the authority of legislatures to create damage cap statutes. See Davis v. Omitowoju, 883 F.2d 1155 (3d Cir. 1989); Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989); Fein v. Permanente Med. Group, 38 Cal.3d 137, 695 P.2d 665, 211 Cal.Rptr. 368 (1985); Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo.Ct.App. 1997); Kirkland v. Blaine County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000); Bova v. Roig, 604 N.E.2d 1 (Ind.Ct.App. 1992); Samsel v. Wheeler Transp. Servs., Inc., 246 Kan. 336, 789 P.2d 541 (1990), overruled on other grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991); Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So.2d 517 (La. 1992); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Adams ex rel. Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. 1992); Etheridge v. Medical Ctr. Hosps., 237 Va. 87, 376 S.E.2d 525 (1989); Martin ex rel. Scoptur v. Richards, 192 Wis.2d 156, 531 N.W.2d 70 (1995). By contrast, a minority of courts have invalidated damage cap statutes. See Smith v. Schulte, 671 So.2d 1334 (Ala. 1995); Smith v. Department of Ins., 507 So.2d 1080 (Fla. 1987); Best v. Taylor Mach. Works, 179 Ill.2d 367, 689 N.E.2d 1057, 288 Ill. Dec. 636 (1997); Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991); Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978); State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999); Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463 (1999); In re Certification of Questions of Law from United States Court of Appeals for Eighth Circuit (Knowles v. United States), 544 N.W.2d 183 (S.D. 1996); Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, amended on other grounds by 780 P.2d 260 (Wash. 1989).
II. INFLATIONARY EROSION OF LEGISLATIVE INTENT
The plaintiff in this case attacked the damage cap statute on the grounds that the present-day value of one million dollars is less than it was in 1986 when the Legislature imposed the one million dollar cap on noneconomic damages. Specifically, the plaintiff argued that the actual present-day value of one million dollars is only $648,147. The per curiam opinion found that the damage cap statute was constitutional despite the inflationary erosion of the actual value of one million dollars. While I agree with the per curiam opinion's conclusion as to the question of the constitutionality of the amount of the cap, I firmly disagree with the ultimate disposition of this issue. As I explain below, the cap of one million dollars is nevertheless invalid because it does not fulfill the legislative intent that plaintiffs receive one million dollars as it was valued in 1986.
Illustrative of my point on the impact of inflation is the legislative history attending W. Va. Code § 55-7A-2 (1995) (Repl. Vol. 2000), which imposes a damage cap on a plaintiff's recovery against a parent for his or her child's tortuous conduct. By Chapter 1 of the 1957 Acts of the Legislature, the Legislature imposed a cap of $300 in civil actions brought against a parent for tortuous conduct by the parent's child. See 1957 Acts of the Legislature of West Virginia, Regular Session, Ch. 1, at 2. This legislation remained dormant until 1981. At that time, the Legislature increased the liability cap on parents for tortuous conduct of their children to $2,500. See 1981 Acts of the Legislature of West Virginia, Regular Session, Ch. 3, at 4. The new cap was left undisturbed until 1995. Then, by Chapter 56 of the 1995 Acts of the Legislature, the Legislature again raised the cap on the recovery from a parent for tortuous conduct of the parent's child to the presently recoverable amount of $5,000. See 1995 Acts of the Legislature of West Virginia, Regular Session, Ch. 56, at 326.
Thus, the legislative history of W. Va. Code § 55-7A-2 suggests that the Legislature has been alerted on several occasions that inflation has eroded its intent to provide a meaningful maximum recovery under the statute. When so reminded, the Legislature has responded by increasing the cap to compensate for the effects of inflationary pressures.
To date, this Court has not had an opportunity to address W. Va. Code § 55-7A-2. But see State v. M. D. J., 169 W. Va. 568, 573, 289 S.E.2d 191, 194 (1982) (alluding to § 55-7A-2 in passing).
With respect to the present case, the Legislature created the medical malpractice damage cap statute in question in 1986. W. Va. Code § 55-7B-8 provides that "[i]n any medical professional liability action brought against a health care provider, the maximum amount recoverable as damages for noneconomic loss shall not exceed one million dollars and the jury may be so instructed." "In order to safeguard the expressed legislative intention, it is imperative to view the precise language and terms employed in the statute at issue." Webster County Comm'n v. Clayton, 206 W. Va. 107, 112, 522 S.E.2d 201, 206 (1999). The precise language of W. Va. Code § 55-7B-8 provides that noneconomic damages "shall not exceed one million dollars." There is no ambiguity in this statute. Therefore, we must apply, rather than construe its terms. See Syl. pt. 1, VanKirk v. Young, 180 W. Va. 18, 375 S.E.2d 196 (1988).
A strict application of W. Va. Code § 55-7B-8 in the year 2000 is problematic, though, because the legislative intent of allowing a maximum recovery of one million dollars cannot be achieved. Applying the statute's one million dollar damages limit in conjunction with the present-day value of one million dollars means that a plaintiff may only receive a maximum noneconomic award of $648,147. As I view the matter, the per curiam opinion's holding on this issue serves as a de facto legislative reduction in the maximum amount recoverable under the statute. Because the reduction is de facto and not de jure, I believe this Court should have invalidated the statute on the grounds that it no longer fulfills the legislative intent of allowing a maximum recovery of one million dollars in real value. Had the Court invalidated this statute, because of the de facto reduction in the maximum amount recoverable thereunder, I do not feel that any crisis would have resulted. This is so because the Legislature could easily respond to such a decision by making an upward adjustment of the statute to compensate for the erosion caused by inflation as other state legislatures have done.
I agree with the per curiam opinion's interpretation of Robinson as requiring a significant de jure reduction in the cap before constitutional implications may be invoked.
The problem imposed by inflation on damage cap statutes has been addressed by several states through the imposition of built-in inflation mechanisms. See Colo. Rev. Stat. § 13-21-102.5(c) (I) (1997) (Main Vol. 1998) ("The limitations on damages . . . shall be adjusted for inflation as of January 1, 1998. . . ."); Idaho Code § 6-1603(1) (1987) (Main Vol. 1988) ("[B]eginning on July 1, 1988, and each July 1 thereafter, the cap on noneconomic damages established in this section shall increase or decrease in accordance with the percentage amount of increase or decrease by which the Idaho industrial commission adjusts the average annual wage as computed pursuant to [law]."); Md. Code Ann., Cts. Jud. Proc. § 11-108(b) (2) (ii) (2000) (Supp. 2000) ("The limitation on noneconomic damages provided . . . shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. . . ."); Mo. Ann. Stat. § 538.210(4) (1986)
(West Main Vol. 2000) ("The limitation on awards for noneconomic damages provided for in this section shall be increased or decreased on an annual basis effective January first of each year in accordance with the Implicit Price Deflator for Personal Consumption Expenditures as published by the Bureau of Economic Analysis of the United States Department of Commerce. . . ."); Va. Code Ann. § 8.01-581.15 (1999) (Michie Repl. Vol. 2000) ("The maximum recovery limit of $1.5 million shall increase on July 1, 2000, and each July 1 thereafter by $50,000 per year; however, the annual increase on July 1, 2007, and the annual increase on July 1, 2008, shall be $75,000 per year. . . .").
III. ATTORNEY'S FEES AND COSTS IN MEDICAL MALPRACTICE CASES
The final issue I must address concerns the request made of this Court that we permit plaintiffs in medical malpractice actions to be awarded "their attorneys fees and costs reasonably expended in pursuing recovery against `healthcare providers,' should they ultimately prevail at trial, in recognition of the fact that in certain situations, W. Va. Code § 55-7B-8 otherwise deprives them of a reasonable remedy in relation to the severity of the injuries they suffer." The per curiam opinion has rejected this request through silence. For the reasons discussed below, I believe, under certain circumstances, attorney's fees and costs should be awarded in medical malpractice cases.
This Court has long held that "as a general rule each litigant bears his or her own attorney's fees[.]" Syl. pt. 2, in part, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 50, 365 S.E.2d 246, 248 (1986). "This rule, however, known as the `American rule,' is subject to a number of judicially created exceptions." Daily Gazette Co., Inc. v. Canady, 175 W. Va. 249, 250, 332 S.E.2d 262, 263 (1985). Consequently, this issue should be addressed in the context of the limitations imposed by the American rule in authorizing the award of attorney's fees.
"With certain exceptions, West Virginia has adopted the American rule[.]" State ex rel. Division of Human Servs. v. Benjamin P.B., 190 W. Va. 81, 84, 436 S.E.2d 627, 630 (1993). "The general rule denying awards of attorney fees has developed primarily in the context of civil litigation dealing with controversies between private parties." Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 450, 300 S.E.2d 86, 91 (1982). More specifically, the rationale behind the American rule has been stated as follows:
The American Rule, which has been law since the eighteenth century, has four traditional policy justifications: first, that shifting fees would have a "penalizing" effect on losing participants in litigation, which is, after all, inherently uncertain; second, that awarding prevailing parties their attorney's fees would tend to discourage litigants of small means from "seeking to vindicate their rights in court"; third, that it would overburden the judicial system to have to determine reasonable attorney's fees in each case; and fourth, that lawyers might subordinate client interests to avoid irritating judges who later would be determining the lawyers' fees.
John S. Beckerman, Confronting Civil Discovery's Fatal Flaws, 84 Minn. L. Rev. 505, 549 (2000).
The general pronouncement on awarding costs is set out in Rule 54(d) of the West Virginia Rules of Civil Procedure as follows:
(d) Cost. — Except when express provision therefor is made either in a statute of this State or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the State, its officers, and agencies shall be imposed only to the extent permitted by law. The clerk shall tax the costs within 10 days after judgment is entered, and shall send a copy of the bill of costs to each party affected thereby. On motion by any party served within 10 days after receipt of the bill of costs, the action of the clerk may be reviewed by the court.
We have interpreted the costs provision of this rule to require that, "[w]hen a trial court assesses costs by relying on the provisions of West Virginia Rules of Civil Procedure 54(d), the record must contain specific predicate findings for that decision when the costs are assessed against a prevailing party." Syl. pt. 1, Perdomo v. Stevens, 197 W. Va. 552, 476 S.E.2d 223 (1996). It is also noteworthy that "costs never make the successful party whole because they do not include counsel fees[.]" 3 Stein on Personal Injury Damages § 17:49, at 17-63 (3d ed. 1997).
This Court succinctly stated the contours of the American rule in Syllabus point 9 of Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d 700 (1991), as follows: "As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement except when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons."See also Syl. pt. 2, Sally-Mike ("As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement."); Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 450, 300 S.E.2d 86, 91 (1982) ("As a general rule awards of costs and attorney fees are not recoverable in the absence of a provision for their allowance in a statute or court rule.").
There are seven generally recognized exceptions to the American rule: (1) contracts, (2) common fund doctrine, (3) substantial benefit doctrine, (4) contempt, (5) bad faith, (6) statutes, and (7) rules of court. See generally John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice, 42 Am. U. L. Rev. 1567, 1578-1590 (1993).
Helmick makes clear that an exception to the American rule may be created by "rule of court." This exception articulates recognition of the inherent authority of courts to do all things necessary in the administration of justice. Nevertheless, this Court has sparingly exercised its inherent authority to permit attorney's fees to be awarded in specific types of litigation in the absence of a statute or contract by the parties. Following are examples of the limited occasions we have exercised such authority.
The Helmick formulation of the American rule clarifies loose language contained in some opinions of this Court that seemingly remove the authority of courts to use their inherent powers to award attorney's fees. For example, in Daily Gazette Co., Inc. v. Canady, 175 W. Va. 249, 250, 332 S.E.2d 262, 263 (1985), we said that under the American rule "each litigant bears his or her own attorney fees absent express statutory, regulatory, or contractual authority for reimbursement." Accord Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W. Va. 613, 619, 486 S.E.2d 782, 788 (1997); Benjamin P.B., 190 W. Va. at 84, 436 S.E.2d at 630. This formulation omitted language referring to the power of courts to use their inherent authority to award attorney's fees. Obviously, courts may, in limited situations, use their inherent powers to award attorney's fees when no other authority provides for such. Otherwise, the generally recognized exceptions to the American rule that have been created by courts could not have arisen. See 3 Stein on Personal Injury Damages § 17:53, at 17-66 (recognizing that exceptions to the American rule "have been developed, generally arising out of a court's equity jurisdiction.").
See Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 1945-46, 36 L.Ed.2d 702, 707 (1973) ("Although the traditional American rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory or contractual authorization, federal courts in the exercise of their equitable powers, may award attorneys' fees when the interests of justice so require."); Memco, Inc. v. Chronister, 27 S.W.3d 871, 877 (Mo.Ct.App. 2000) ("The generally recognized exception[] to [the American] rule [is] . . . fees awarded when a court of equity finds it necessary to award them in order to balance benefits."); City Nat'l Bank Trust Co. v. Owens, 565 P.2d 4, 8 (Okla. 1977) ("[O]ne of the exceptions to the general rule recognized at common law and in modern practice, is the court's inherent equitable power to award attorney fees regardless of the fact that an award is not authorized by statute or contract[.]"), superseded by statute on other grounds as stated in Gorst v. Wagner, 865 P.2d 1227 (Okla. 1993); Mehlenbacher v. Demont, 11 P.3d 871, 874 (Wash.Ct.App. 2000) ("Washington follows the American rule that attorney fees are only recoverable in a suit when authorized by statute, contract, or equity.").
In Syllabus point 3 of Shields v. Romine, 122 W. Va. 639, 13 S.E.2d 16 (1940), this Court noted the general rule that, "[a] court `has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.' 14 Am. Juris., Courts, section 171." Accord Syl. pt. 2, Frazee Lumber Co. v. Haden, 156 W. Va. 844, 197 S.E.2d 634 (1973). Moreover, this Court has recognized inherent judicial powers in a variety of contexts. See, e.g., Gum v. Dudley, 202 W. Va. 477, 505 S.E.2d 391 (1997) (imposing sanction for violation of duty of candor); In re Pauley, 173 W. Va. 228, 314 S.E.2d 391 (1984) (providing court personnel and allowing for the supervision thereof); Prager v. Meckling, 172 W. Va. 785, 310 S.E.2d 852 (1983) (imposing sanctions to maintain a fair and orderly trial); In re L.E.C., 171 W. Va. 670, 301 S.E.2d 627 (1983) (supervising, regulating, defining, and controlling the practice of law); Perlick Co. v. Lakeview Creditor's Trustee Comm., 171 W. Va. 195, 298 S.E.2d 228 (1982) (eliminating dormant cases from judicial dockets); E.H. v. Matin, 168 W. Va. 248, 284 S.E.2d 232 (1981) (transferring actions to lower tribunals for further proceedings); Sparks v. Sparks, 165 W. Va. 484, 269 S.E.2d 847 (1980) (granting custody of a child to a person outside jurisdiction of court or permission to one who has custody to take child to another state or foreign jurisdiction); State ex rel. Goodwin v. Cook, 162 W. Va. 161, 248 S.E.2d 602 (1978) (appointing special prosecutor). For further examples, see authorities cited in Daily Gazette Co., Inc. v. Canady, 175 W. Va. at 251-52, 332 S.E.2d at 331-32.
In Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., 188 W. Va. 468, 425 S.E.2d 144 (1992), we were asked to determine whether attorney's fees could be awarded to a plaintiff who prevailed in a fraud action. In order to answer the question affirmatively, this Court found that "fraud conduct" fell under the judicially adopted "bad faith" exception to the American rule. We further held "that where it can be shown by clear and convincing evidence that a defendant has engaged in fraudulent conduct which has injured a plaintiff, recovery of reasonable attorney's fees may be obtained in addition to the damages sustained as a result of the fraudulent conduct." Bowling, 188 W. Va. at 475, 425 S.E.2d at 151.
We were similarly requested, in Hayseeds, Inc. v. State Farm Fire Casualty, 177 W. Va. 323, 352 S.E.2d 73 (1986), to decide whether attorney's fees could be recovered by an insured against his or her insurer when the insurer had wrongfully refused to pay a claim filed by the insured. We held in Syllabus point 1 of Hayseeds that "[w]henever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for: (1) the insured's reasonable attorneys' fees in vindicating its claim; (2) the insured's damages for net economic loss caused by the delay in settlement, and damages for aggravation and inconvenience."
In the case of Aetna Casualty Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986), we were asked to determine whether attorney's fees may be awarded to an insured in a declaratory judgment proceeding against an insurer. We held in Syllabus point 2 of that case: "Where a declaratory judgment action is filed to determine whether an insurer has a duty to defend its insured under its policy, if the insurer is found to have such a duty, its insured is entitled to recover reasonable attorney's fees arising from the declaratory judgment litigation."
In Daily Gazette Co., Inc. v. Canady, 175 W. Va. 249, 332 S.E.2d 262 (1985), this Court was called upon to resolve the question of whether attorney's fees could be directly assessed against an attorney for egregious type trial conduct. We held in the single Syllabus point of that case:
A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law.
This Court created an additional exception to the American rule in Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86. In that case we were asked to determine whether attorney's fees may be awarded in a mandamus action when no express statutory authority provided for such fees. Utilizing its inherent authority, this Court ruled that, under limited circumstances, attorney's fees could be awarded. We specifically stated that "[i]n mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded." Nelson, 171 W. Va. at 451, 300 S.E.2d at 92.
In the decision of Jenkins v. J. C. Penney Casualty Insurance Co., 167 W. Va. 597, 280 S.E.2d 252 (1981), we were requested to ascertain whether there was an implied private cause of action by a third party against an insurer for violation of the unfair insurance settlement practice statute. In finding that such an action did exist, this Court, sua sponte, addressed the issue of attorney's fees in such a cause of action. We acknowledged that "[c]ertainly, increased costs and expenses including the increase in attorney's fees resulting from the failure to offer a prompt fair settlement could be recovered." Jenkins, 167 W. Va. at 609 n. 12, 280 S.E.2d at 259 n. 12.
The foregoing cases illustrate the willingness of this Court to use its inherent authority to depart from the American rule. While we have acknowledged that the "American rule on fee-shifting makes sense in most cases . . ., the fact that the general rule concerning fees works well most of the time does not necessarily imply that the rule works well all of the time." Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 662, 413 S.E.2d 897, 903 (1991). The point I am stressing was aptly stated as follows: "On what principle of justice can a plaintiff[,] wrongfully run down on a public highway[,] recover his doctor's bill but not his lawyer's bill." Judicial Council of Massachusetts, First Report, 11 Mass. L.Q. 1, 64 (1925). See also Rodulfa v. United States, 295 F. Supp. 28, 29 (D.D.C. 1969) ("In fact, under our system of law, a person who is successful in the litigation is a part loser because he has to pay his own expenses and counsel fees, except a few minor items that are taxable as costs."). It is because of the recognized potential negative consequences of the American Rule that this Court has, though sparingly, exercised our inherent authority to craft rules that provide remedies in situations where the American rule worked an injustice.
Some commentators have argued that the negative impact of the American rule outweighs its benefits and it should, therefore, be totally abandoned. See generally W. Kent Davis, The International View of Attorney Fees in Civil Suits: Why Is the United States the "Odd Man Out" in How it Pays its Lawyers?, 16 Ariz. J. Int'l Comp. L. 361, 399 (1999) ("America is . . . the only major nation that denies the winner of a lawsuit the right to collect legal fees from the loser."); Gregory E. Maggs Michael D. Weiss, Progress on Attorney's Fees: Expanding the "Loser Pays" Rule in Texas, 30 Hous. L. Rev. 1915, 1919 (1994) ("The American system of allocating attorney's fees is not necessary to the administration of justice. In fact, it is in many ways an international oddity."); Albert A. Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Cal. L. Rev. 792, 797 (1966) ("[T]he prospect of recovery of counsel fees on meritorious claims would probably greatly increase the number of clients seeking lawyer's assistance."). At least one jurisdiction, Alaska, has abandoned the American rule altogether. See Susanne Di Pietro Teresa W. Carns, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases, 13 Alaska L. Rev. 33, 34 (1996) ("Alaska Civil Rule 82 entitles the prevailing party in a civil lawsuit to partial compensation of his or her attorney's fees from the losing party.").
Some commentators have argued that the negative impact of the American rule outweighs its benefits and it should, therefore, be totally abandoned. See generally W. Kent Davis, The International View of Attorney Fees in Civil Suits: Why Is the United States the "Odd Man Out" in How it Pays its Lawyers?, 16 Ariz. J. Int'l Comp. L. 361, 399 (1999) ("America is . . . the only major nation that denies the winner of a lawsuit the right to collect legal fees from the loser."); Gregory E. Maggs Michael D. Weiss, Progress on Attorney's Fees: Expanding the "Loser Pays" Rule in Texas, 30 Hous. L. Rev. 1915, 1919 (1994) ("The American system of allocating attorney's fees is not necessary to the administration of justice. In fact, it is in many ways an international oddity."); Albert A. Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Cal. L. Rev. 792, 797 (1966) ("[T]he prospect of recovery of counsel fees on meritorious claims would probably greatly increase the number of clients seeking lawyer's assistance."). At least one jurisdiction, Alaska, has abandoned the American rule altogether. See Susanne Di Pietro Teresa W. Carns, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases, 13 Alaska L. Rev. 33, 34 (1996) ("Alaska Civil Rule 82 entitles the prevailing party in a civil lawsuit to partial compensation of his or her attorney's fees from the losing party.").
I believe that, as a practical matter, the medical malpractice damage cap statute can be used in an unfair manner to cause injured plaintiffs to incur unnecessarily large litigation expenses. This is true because defendants, who know that their noneconomic damages exposure is statutorily limited in such actions and that the American rule will preclude the imposition of attorney's fees, will act to increase litigation costs in an effort to compel plaintiffs to drop their law suits or prematurely settle their claims because of the huge costs incidental to a trial. See John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice, 42 Am. U. L. Rev. 1567, 1619 (1993) (noting a California study showing one effect of the American rule is that defendants use it to "force injured plaintiffs to drop actions by driving up litigation costs"); Bradley L. Smith, Three Attorney Fee-shifting Rules and Contingency Fees: Their Impact on Settlement Incentives, 90 Mich. L. Rev. 2154, 2155 (1992) ("The American rule has been attacked on grounds of inefficiency and unfairness. Opponents claim the rule promotes wasteful litigation expenditures, implausible claims, strike suits, onerous discovery demands, and spurious defenses. Moreover, the American rule violates the equitable principle that a party who suffers injury should be made whole.").
While I am not prepared to suggest that prevailing plaintiffs should recover attorney's fees in all medical malpractice cases, I do believe that the denial of attorney's fees in medical malpractice cases resulting in a plaintiff's verdict of one million dollars or more in noneconomic damages demonstrates "one of the prominent instances where the American rule concerning attorneys' fees works badly." Miller v. Fluharty, 201 W. Va. 685, 693, 500 S.E.2d 310, 318 (1997) (quoting Hayseeds, Inc. v. State Farm Fire Cas., 177 W. Va. 323, 328, 352 S.E.2d 73, 78 (1986)). Plaintiffs in such cases usually will have been forced to incur large litigation expenses that can be traced back to the artificial ceiling imposed by the damage cap statute and the preclusion of attorney's fees by the American rule. For the prevailing plaintiff, the logical result of these artificially imposed limits on his or her recovery is a substantial reduction in his or her ultimate recover due to unnecessarily large litigation expenses. In this regard, it has been correctly observed that "[p]ayment for pain and suffering has, for years, served substantially to pay claimants' lawyers." Jeffrey O'Connell, A Proposal to Abolish Defendants' Payment for Pain and Suffering in Return for Payment of Claimants' Attorneys' Fees, 1981 U. Ill. L. Rev. 333, 351 (1981). Consequently, I believe it was the duty of this Court to hold that in a medical malpractice action where a plaintiff obtains a verdict awarding the maximum amount (or more) allowable under the damage cap statute, the plaintiff is entitled to a recovery of costs and reasonable attorney's fees.
For the foregoing reasons, I respectfully concur, in part, with and dissent, in part, from the Court's per curiam opinion in this case. I am authorized to state that Chief Justice Maynard joins me in this separate opinion.
I join in Justice McGraw's well-stated dissent, because I believe that the $1,000,000 "cap" imposed by W. Va. Code, 55-7B-8 is a patent violation of the equal protection provisions of the West Virginia Constitution. This discriminatory statute arbitrarily treats similarly situated persons differently and unfairly. A plaintiff who is injured by the negligence of anyone other than a "health care provider" can collect his/her full damages — but a plaintiff who is injured by the negligence of a "health care provider" cannot. Why should hospitals get more protection for their carelessness than I do as a driver or homeowner? As Justice McGraw's dissent makes clear, we should revisit the constitutionality of W. Va. Code, 55-7B-8, and invalidate the statute.
I write separately, however, to point out an unintended mathematical error in the Court's voting pattern.
A majority of this Court voted to support the issuance of a per curiam opinion finding that W. Va. Code, 55-7B-8 is constitutional. After that vote, Justice Davis, joined by Chief Justice Maynard, filed a separate opinion indicating that "the cap of one million dollars is nevertheless invalid because it does not fulfill the legislative intent that plaintiffs receive one million dollars as it was valued in 1986." Both I and Justice McGraw agree that the cap should be invalidated on this ground as well.
By my count, four of the five justices on this Court currently have held that the "cap" in W. Va. Code, 55-7B-8 should be invalidated — albeit for different reasons. On this basis, any litigant faced with the cap created by W. Va. Code, 55-7B-8 could properly contend that the statute, at least in its current form, may not be enforceable. I now believe it is safe to say that this Court has already — sub silentio — invalidated W. Va. Code, 55-7B-8.
In conclusion, I respectfully dissent to the Court's per curiam opinion. I join in the dissenting portion of Justice Davis' separate opinion (with Chief Justice Maynard joining) indicating that the subject statute is unenforceable on the grounds of "inflation," and I agree with Justice Davis (with Chief Justice Maynard joining) that this Court should have addressed "the merits of awarding attorney's fees and costs in such cases."
This Court should more closely re-evaluate its earlier decision in Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991), which in my view failed to discern obvious constitutional infirmities in the $1 million cap imposed by W. Va. Code § 55-7B-8 on non-economic damages awarded in medical malpractice cases. The statute fails to pass constitutional muster on at least two grounds.
Appellant, as well as amicus curiae The Association of Trial Lawyers of America, also present a persuasive argument that § 55-7B-8 runs afoul of the right to a jury trial provided by Article III, § 13 of the West Virginia Constitution. See, e.g., Lakin v. Senco Prod., Inc., 987 P.2d 463 (Ore. 1999) (invalidating $500,000 cap on noneconomic damages based upon interference with constitutional right to trial by jury); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989) (finding that statutory limit on compensatory noneconomic damages violated state constitutional right to trial by jury). But, as appellee rightly points out, the present case involves a statutory cause of action for wrongful death, which falls outside the ambit of this constitutional provision. See Simms v. Dillon, 119 W. Va. 284, 193 S.E.2d 331 (1937) (holding that Article III, § 13 does not guarantee the right to trial by jury in any circumstance where it did not exist at common law), overruled on other grounds, State Road Comm'n v. Milam, 146 W. Va. 368, 120 S.E.2d 254 (1961).
First, the limitation on non-economic damages denies equal protection by discriminating among tort victims in such way as to deny recovery to the most egregiously injured. The Robinson Court prefaced its analysis of the equal protection challenge to W. Va. Code § 55-7B-8 by stating that "'[a] statutory limitation on [a common-law measure of] recovery is simply an economic regulation, which is entitled to wide judicial deference.'" 186 W. Va. at 729, 414 S.E.2d 886 (quoting Etheridge v. Medical Center Hosp., 237 Va. 87, 99, 376 S.E.2d 525, 531 (1989)). Several state courts have, however, recognized that the right to recover for personal injury is a significant substantive right requiring application of intermediate scrutiny or equivalent approaches. See, e.g., Spilker v. City of Lincoln, 469 N.W.2d 546, 548 (Neb. 1991); Hanson v. Williams County, 389 N.W.2d 319, 325 (N.D. 1986); Heath v. Sears, Roebuck Co., 464 A.2d 288, 295 (N.H. 1983). I would have this Court overrule Robinson on this point and join those jurisdictions that apply a heightened level of equal-protection scrutiny to statutory limitations on the right of injured persons to recover tort damages from otherwise liable parties. Specifically, the Court should apply intermediate scrutiny, where it must be shown that the challenged legislation is substantially related to the achievement of an important governmental interest. See Payne v. Gundy, 196 W. Va. 82, 468 S.E.2d 335 (1996) (applying intermediate scrutiny to gender discrimination case); Israel by Israel v. W. Va. Secondary Schools Activities Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989) (same); Shelby J.S. v. George L.H., 181 W. Va. 154, 381 S.E.2d 269 (1989) (applying intermediate level of scrutiny to case involving illegitimacy).
Under such analysis, it is highly doubtful that § 55-7B-8 would pass constitutional muster. As other courts have observed, statutes imposing a "one-size-fits-all" limitation on damages (economic or non-economic) create classifications based upon severity of injury, and then proceed to penalize those who are more seriously injured by denying them compensation beyond the statutory limit:
[T]he burden imposed by [a statute limiting non-economic damages in medical malpractice cases] on the rights of individuals to receive compensation for serious injuries is direct and concrete. The hardship falls most heavily on those who are most severely maltreated and, thus, most deserving of relief. Unlike the less severely injured, who receive full and just compensation, the catastrophically injured victim of medical malpractice is denied any expectation of compensation beyond the statutory limit. Moreover, the statute operates to the advantage not only of negligent health care providers over other tortfeasors, but of those health care providers who are most irresponsible.
Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 169 (Ala. 1991) (emphasis in original). The Supreme Court of New Hampshire echoed this reasoning, noting that
[i]t is clear that the cap on damage recovery distinguishes not only between malpractice victims and victims of other torts but also "between malpractice victims with non-economic losses that exceed $250,000 and those with less egregious non-economic losses." . . . We agree with the North Dakota Supreme Court that
"the limitation of recovery does not provide adequate compensation to patients with meritorious claims; on the contrary, it does just the opposite for the most seriously injured claimants. It does nothing toward the elimination of nonmeritorious claims. Restrictions on recovery may encourage physicians to enter into practice and remain in practice, but do so only at the expense of claimants with meritorious claims."
Arneson v. Olson, 270 N.W.2d [125,] 135-36 [(N.D. 1978)]. It is simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation.
Carson v. Maurer, 424 A.2d 825, 836-37 (N.H. 1980) (citation omitted); see also Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1069-78 (Ill. 1997) (holding that $500,000 limit on noneconomic damages violated constitutional prohibition against special legislation, because, inter alia, "the statute discriminates between slightly and severely injured plaintiffs, and also between tortfeasors who cause severe and moderate or minor injuries"); Smith v. Schulte, 671 So.2d 1334, 1336-44 (Ala. 1995) (finding that statute limiting the amount recoverable in a wrongful death action against a health care provider to $1,000,000 violated the equal protection guarantee of the Alabama Constitution).
I agree fully with Chief Justice Bird's dissent in Fein v. Permanente Medical Group, 38 Cal.3d 137, 695 P.2d 665, 211 Cal.Rptr. 368 (en banc), where she stated:
There is no logically supportable reason why the most severely injured malpractice victims should be singled out to pay for social relief to medical tortfeasors and their insurers. The idea of preserving insurance by imposing huge sacrifices on a few victims is logically perverse. Insurance is a device for spreading risks and costs among large numbers of people so that no one person is crushed by misfortune. . . . In a strange reversal of this principle, the statute concentrates the costs of the worst injuries on a few individuals.
38 Cal.3d at 173, 211 Cal.Rptr. at 393-94, 695 P.2d at 689-90 (Bird, C.J., dissenting). Accordingly, given the obvious existence of alternatives to § 55-7B-8 that impose far less hardship on the most egregiously injured victims of medical malpractice, I would find that the statute violates the equal protection guarantees contained in Article III, § 10 of the West Virginia Constitution, as well as the prohibition against special legislation set forth in Article IV, § 39.
For similar reasons, the statute also runs afoul of the "certain remedy" provision contained in Article III, § 17 of the West Virginia Constitution. In Robinson, the Court rejected this reasoning, finding that § 55-7B-8 was constitutional under the test previously formulated in syllabus point 5 of Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634 (1991):
"When legislation either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication, thereby implicating the certain remedy provision of article III, section 17 of the Constitution of West Virginia, the legislation will be upheld under that provision if, first, a reasonably effective alternative remedy is provided by the legislation or, second, if no such alternative remedy is provided, the purpose of the alteration or repeal of the existing cause of action or remedy is to eliminate or curtail a clear social or economic problem, and the alteration or repeal of the existing cause of action or remedy is a reasonable method of achieving such purpose."
Syl. pt. 3, Robinson, supra (quoting Lewis). As one commentator has correctly perceived, the Lewis/Robinson approach does no more than "impose a minimal `rationality requirement' on the state legislature to justify the diminishment of the common law remedy." Jennifer Friesen, State Constitutional Law § 6-3(c)(1), at 358 (2d ed. 1996).
In my estimation, the present standard does not give proper heed to the important constitutional interests at stake when an existing remedy is substantially altered by the Legislature. Instead, the proper standard that should be employed in this circumstance requires that such restrictive legislation must either provide a quid pro quo or reasonable alternative remedy, or it must be shown that abolishment or modification of the substantive right is required in order to achieve an important public objective, and the means chosen by the Legislature must be substantially related to achieving that purpose. See Smith v. Department of Ins., 507 So.2d 1080, 1088-89 (Fla. 1987) (per curiam) (invalidating $450,000 cap on noneconomic damages recoverable in tort based upon Florida's constitutional guarantee of access to court for redress of injury, where "overpowering public necessity" not demonstrated); Kansas Malpractice Victims v. Bell, 757 P.2d 251, 262-64 (Kan. 1988) (finding that $1 million limit on medical malpractice recovery, with $250,000 cap on noneconomic damages, offended constitutional right to "remedy by due course of law," where no quid pro quo provided); see also State ex rel. Oatl v. Sheward, 715 N.E.2d 1062, 1092 n. 14 (Ohio 1999) (suggesting that heightened scrutiny would be applied to claim that cap violated due course of law provision if it were found that right to jury trial were implicated). I would overrule Robinson and its precursors on this issue, and, at the very least, remand the present case for the development of a factual record pertinent to determining whether § 55-7B-8 passes scrutiny under this revised standard.
The Court in this case has chosen to ignore these deficiency in Robinson, and instead retreat behind the doctrine of stare decisis. While this Court obviously has an institutional responsibility to be consistent in its enunciation of the law, it should never be deterred from rectifying previous errors that implicate significant personal rights:
"No legal principle is ever settled until it is settled right. . . . `Where vital and important public and private rights are concerned, and the decisions regarding them are to have a direct and permanent influence upon all future time, it becomes the duty as well as the right of the court to consider them carefully, and to permit no previous error to continue, if it can be corrected.'"
Sizemore v. State Workmen's Compensation Comm'n, 159 W. Va. 100, 108, 219 S.E.2d 912, 916 (1975) (citation omitted). Moreover, where the pertinent question involves a determination of the scope of the protections set forth in our state constitution's Bill of Rights, the Court should never be deterred from ultimately reaching the correct result. See Frey v. United States, 421 U.S. 542, 559, 95 S.Ct. 1792, 1801, 44 L.Ed.2d 363 (1975), (Marshall, J. dissenting) ("important decisions of constitutional law are not subject to the same command of stare decisis as are decisions of statutory questions") (citations omitted).
In her dissent, Justice Davis, joined by Chief Justice Maynard, concludes that (1) W. Va. Code § 55-7B-8 should be invalidated on the ground that it "no longer fulfills the legislative intent of allowing a maximum recovery of one million dollars in real value," given the dwindling effect of monetary inflation; and (2) a plaintiff should be permitted to recover attorney fees and costs in medical malpractice cases where such party "obtains a jury verdict awarding the maximum (or more) allowable under the damage cap statute." I am in full agreement with Justice Davis and Chief Justice Maynard on these points.
For the foregoing reasons, I respectfully dissent.