West Virginia Supreme Court Justice Criticizes Tort Reform

Last week, West Virginia Supreme Court justice Larry Starcher railed against West Virginia’s tort reform. In recent years, West Virginia has passed medical malpractice tort reform measures that require plaintiffs to provide pre-suit expert reports saying that the claim has merit. The reforms also have caps on damages.

Because plaintiffs want to avoid these requirements, there is often a fight about whether the claims are medical malpractice claims subject to the tort reform laws. In the recent West Virginia case, the plaintiffs were suing the manufacturer of contaminated sutures and the medical providers that administered them. The court ended up holding that the claims were health care liability claims subject to the act.

In a dissent, Justice Starcher wrote:

I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform in its entirety.

Application of the (reform) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles.

Sadly, Texas courts have had no trouble finding that the Texas medical malpractice act applies in what would seem absurd situations. The snowball started in 2005 with the Texas Supreme Court’s decision in Diversicare v Rubio, where the court held that the Texas medical malpractice laws applied when a nursing home resident sued a nursing home after the resident was sexually assaulted by another patient (who had a history of sexual assault).

In 2007 alone, Texas appellate courts have used the Rubio case to find that the Texas medical malpractice reforms covered claims by a patient who was sexually assaulted during an exam (Vanderwerff v. Beathard – Dallas court of appeals), by a patient who was injured when the bed she was sleeping in collapsed (Christus Health v. Beal – Houston), by a patient who fell while getting out of bed because the foot of the bed he was using to help himself get up fell apart (Marks v. St. Lukes Episcopal Hospital – Houston), and by a patient suing a doctor for disclosure of confidential information (Sloan v. Farmer – Dallas).

Each of these cases results in a strange anomaly. If a third party visitor to a hospital or doctor’s office is sexually assaulted by another patient or a staff member, that visitor has an assault claim. But a patient is limited to a medical malpractice claim. Similarly, if a visitor goes to see someone in the hospital and is sitting on a bed and it collapses, that visitor has a products liability or premises defect claim. But, again, a patient is limited to a medical malpractice claim. In each case, the stranger receives more protection from the law than the actual patient.

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