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West Virginia Judge Stands Up For Constitutional RightsJudge Wilson, sitting as a temporary judge on the West Virginia Supreme Court of Appeals filed a dissenting opinion last week demonstrating that he understands tort reform and the judiciaries role in protecting the constitutional rights of not just a few, but of all citizens.

In MacDonald v. City Hospital, Inc., No. 35543, the Court faced the question of whether West Virginia’s legislative reduction of medical malpractice non-economic damages caps from $1 million to $250,000 was constitutional. The majority opinion [read the majority opinion here] upheld the cap reduction from $1 million to only $250,000.

Judge Wilson, in a dissenting opinion, make a strong case for why the majority got it wrong. Judge Wilson also makes an elegant argument against arbitrary damage caps and how such caps effectively deny citizens their constitutional right to trial by jury.

Read Judge Wilson’s opinion here.

Some excerpts from Judge Wilson’s opinion:

I dissent because, by this counterintuitive decision in this decisively important case, the justices capitulated to the West Virginia Legislature’s political- and unconstitutional- mistreatment of medical malpractice victims, and by its decision, delivered the coup de grace to the rights of thousands of West Virginians to be fully compensated for losses caused by the negligence of medical professionals


The Court was … reticent to rule in favor of the Plaintiffs because it didn’t want to be perceived as sitting as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.

Not affecting fundamental rights? This is the West Virginia Constitution we were interpreting.


When the Legislature turns against its constituency in favor of pressure groups with selfish interests, it is the peoples’ right to seek help from their Supreme Court, and it is the duty of the judicial branch to exercise its proper role in the "separation of powers" to void legislation that violates the constitutional rights of its citizens.

Malpractice victims’ damages may be primarily noneconomic with permanent disfigurement, maiming, and even death caused by a medical professional’s negligence. The capital facts of human suffering are hidden from our view. An unknown number of medical negligence victims can no longer use the court system because of the cap and the fact that lawyers are no longer willing to risk huge litigation expenses for a low net return for their clients and themselves. The cap deprives the injured of their right to full compensation for their injuries. But, in the most serious cases, it also deprives the injured person’s loved ones-their caretakers-ALL of their damages. Thus, in Robinson each of the parents’ respective $1,000,000 awards by the jury were taken away, and the $1,500,000 awarded to the child was reduced to $1,000,000, the cap at the time. And, in MacDonald, all of the compensation the jury awarded to Mrs. MacDonald was taken by the cap.

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

How could the majority in MacDonald avoid the reverberating "NO" answer to these questions…?


The majority in MacDonald dismissed the idea that the cap deprived Mrs. MacDonald of
her constitutional right to a jury trial despite the fact that all of the damages awarded to her by the jury were taken away by the cap. The Court’s justification was that our State Constitution does not state that “the right to trial by jury shall remain inviolate.” That is not the law.

The Court’s degrading of the right of a jury trial in a civil case in West Virginia is in square
conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase “the right to trial by jury shall remain inviolate” in its constitution makes no sense.


Not affecting fundamental rights? The right of equal treatment is also a very fundamental
right. How can a damage cap that blatantly favors a special class of medical professional by limiting or taking away the damages an injured person may recover from a medical professional be constitutional? No other person who negligently injures another person is given that unconstitutional protection. Would any West Virginia legislator suggest that lawyers be given that special protection? I doubt it.

This is what this case is really about:

It’s about all of those West Virginians who don’t understand what the West Virginia
Legislature did to them. They don’t understand what being deprived of meaningful “noneconomic” damages means to the seriously injured West Virginian. Those who would mislead the public, disparage noneconomic damages as not being serious damages. That is false.

“Noneconomic damages” are not limited to pain and suffering or loss of consortium. They
include damages for the loss of the ability to have children, the loss of a limb, or disfigurement. In many medical negligence cases “economic damages are minuscule.” “Economic damages” are those damages that include lost wages, medical bills and other types of economic losses.

If a mother or a father is not earning wages because she or he chooses to stay home with
little children, there is no lost wages claim when that person is the victim of medical negligence.

Those medical bills that mom or dad regularly paid a substantial sum to an insurance
company to cover in the event they were needed, and when hospital and doctor bills are incurred because of medical malpractice, the medical expenses will, in most cases, be paid- are paid- by their health insurance company and can be recovered as economic damages. But that’s not as promising as it sounds. The rest of the story is that mom and dad now have to reimburse their health insurance company for those medical payments! That’s right-mom and dad not only have to pay the insurance premiums for the insurance in the event of a loss, they now have to pay the costs to bring the lawsuit to seek a jury award covering those expenses, pay the attorney for representing them, and then they have to reimburse the health insurance company for the medical bills that were covered by the insurance that mom and dad paid for. It’s a wonderful business world for insurance companies.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts.

Let me introduce them. First it was Mark, just a child, with a normal life expectancy. But
that’s all that’s normal. Mark has total brain damage caused by a medical professional’s negligence. Even the child’s ability to walk is severely limited. It’s also about Mark’s mom and dad and all of those superb parents whose lives are drastically changed by permanent injuries caused to their children by a medical professional’s negligence. Spend a day in their shoes if you think mental pain and loss of enjoyment of life are frivolous damages. Each day they deal with what a negligent doctor did to their lives–they do their best to live a normal family life–but the quality of their lives is irreparably weakened.

Gone is the ability of the Robinsons to do the happy things they could do before their son
was permanently injured. Fortunately the noneconomic damages cap at that time was $1 million. That covered some of the noneconomic damages the jury awarded Mark- but his mom and dad had all their damages taken away by the cap. See, Robinson v. Charleston Area Medical Center, 186 W.Va. 720, 143 S.E. 2d 351(1991).

It’s about the Verbas and the children who suffer from the death of a parent whose life was
cut short because of a medical professional’s negligence. The parent’s economic loss was
negligible. Therefore, after attorneys’ fees, required expert witness fees, costs of litigation, and the medical “cap,” the children receive little for their terrible loss. See, Verba v. Ghaphery, 210 W.Va 30, 552 S.E.2d 406 (2001).

It’s about the MacDonalds, a loving wife and her husband enjoying a good life together
until a medical professional’s negligence permanently changed that and caused the husband to suffer a severe form of muscle damage that kept him from walking until after an extended period of rehabilitation and physical therapy. Even after treatment he has a limited ability to walk and when he does he has to live with the burden of severe muscle weakness and balance issues with his lower body. If you think that the loss of consortium is an insignificant loss, step in this wife’s shoes. Wake up one morning and suddenly it’s gone! All of those things we take for granted each day from and with our loved one is gone– or is drastically changed. See, MacDonald v City Hospital, Inc., ____ W.Va. ____, ____ SE.2d____ (No. 35543 6/22/2011).

This is what this case is really about.

It’s about constitutional choices. The Supreme Court had a choice to choose to declare this cap legislation unconstitutional. The Court had every right and a duty to do so….

(emphasis supplied)

The passage above is an extended excerpt, but an excerpt nonetheless. I encourage you to read the entire opinion. [Again, you can read Judge Wilson’s opinion here.] The citizens of West Virginia would be better served if their legislature and the other justices of their Supreme Court of Appeals were as concerned for the constitutional and fundamental rights of West Virginians as Judge Wilson. Kudos to Judge Wilson for standing up for fundamental constitutional rights for all, not just a few.

[More on your 7th Amendment rights]

(c) Copyright 2011 Brett A. Emison

One Comment

  1. Gravatar for Cilla Mitchell

    In the nightmare of Tort Reform, Judge Wilson is a breath of fresh air and in my mind, a "knight in shinning armor.".

    The people of West Virgina do not understand what the Legislature of West Virginia did to them, any more than the people of Texas will ever understand what the Texas legislature has done to them when Governor Rick Perry signed the 2003 Tort Reform Act.

    What transpired when the 2003 Tort Reform was passed, the law prevented the common man from getting accountability.

    Providing a link to a video showing just how Tort Reform is working out in Texas, or not

    If you are unable to access link, just Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 - April 26 2008.

    Thank you for your time,

    Cilla Mitchell

    A Texas nurse and vet

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