On March 8, 2011, the West Virginia Supreme Court refused to enforce the rights of a spouse.  James MacDonald and his wife Debbie MacDonald had prevailed in a lengthy medical malpractice case in Berkeley County, West Virginia.  Mr. MacDonald was the typical American.  He had just retired as a school teacher, had been married for 36 years, and was known around his community as a teacher and a coach.  However, after malpractice was committed by his treating physician and hospital, the jury awarded him minor economic losses because there were few.  He had just retired (therefore not employed) and he was not going to need additional medical treatment because the damage that had been done could not be reversed.  He basically did not have the use of his legs.

The jury awarded him $1,000,000.00 on non-economic damages for past pain and suffering and the pain and suffering he would endure the rest of his life.  His wife, Debbie, who in many ways had now become a caretaker, who had lost her husband and now had to go back to work herself while trying to monitor her husband, who has lost the ability to even engage in what was their favorite pastime of teaching dancing was unanimously awarded the sum of $500,000.00 by a jury.  No one hearing the case would suggest that the award was inflated.  However, the Defendants argued first that a cap in West Virginia of $500,000.00 should be $250,000.00 because basically James was still able to breathe and do some things.  The fact that he could not possibly get out of a burning home, could not get off the floor if he fell, etc. was argued that it was not enough to allow him to recover $500,000.00.  The reason for that is that there is a cap in West Virginia providing $250,000.00 or $500,000.00 for catastrophic injuries.  The trial court reduced the $1,000,000.00 award to Mr. MacDonald to $500,000.00 conceding that there was a catastrophic injury.  However, he also reduced the award to Debbie MacDonald to nothing.

In other words, the legislation according to the judge, provided that it did not matter how many victims there were of malpractice, there could only be one $500,000.00 award and the spouse could not collect anything until Mr. MacDonald collected all that was available, in this case $500,000.00.

The case was taken to the West Virginia Supreme Court.  In West Virginia, it is necessary to ask the Court to take a case, as in a civil case an appeal is not a matter of right, it is a privilege.  When the West Virginia Supreme Court read the brief submitted by Plaintiff, they agreed on a 4 to 1 basis to consider the case.

First, one Judge voluntarily withdrew from the case because he served on the Board of a hospital.  Another Judge was asked to recuse himself and after initially refusing too, agreed to do so.  He had campaigned on the basis that he would never vote to change any medical malpractice laws.  There were videotapes of him making such pledges.  So, while he initially refused to withdraw from the case, he eventually did.  After the briefs were all filed, the case was argued as the two withdrawing judges were replaced.  By a vote of 4 to 1, the judges agreed find the cap constitutional.  The following Organizations filed briefs with the Court as a “friend of the Court” on behalf of the health care providers:

(1) the parties and their attorneys;

(2) the West Virginia Board of Risk & Insurance Management;

(3) the West Virginia Chamber of Commerce;

(4) the West Virginia Mutual Insurance Company;

(5) the Defense Trial Counsel of West Virginia;

(6) the West Virginia State Medical Association;

(7) the Component Societies of the West Virginia State Medical Association;

(8) the West Virginia Academy of Family Physicians;

(9) the West Virginia Hospital Association;

(10) the American Medical Association;

(11) the West Virginia Orthopaedic Society;

(12) the West Virginia Chapter American Academy of Pediatrics;

(13) the West Virginia Academy of Otolaryngology-Head and Neck Surgery, Inc.;

(14) the West Virginia Podiatric Medical Association;

(15) the West Virginia Medical Group Management Association;

(16) the West Virginia Radiological Society;

(17) the West Virginia State Neurosurgical Society;

(18) the Health Coalition on Liability and Access;

(19) the Physicians Insurers Association of America;

(20) the American Insurance Association;

(21) the Property Casualty Insurers Association of American; and

(22) the NFIB Small Business Legal Center.

Clearly the business community, the insurance industry, the health care industry, and all those organizations dedicated to limiting the rights of our citizens lined up to protect themselves. The result: Mrs. MacDonald received nothing, by a 4 to 1 decision.

What the Court did not address was the issue raised by Mrs. MacDonald: “I am a person who has a claim under West Virginia law, the jury found in my favor and made an award, but I cannot collect the award.”

Mrs. MacDonald was thus left in this position.  She filed her action as a claim of “loss of consortium,” which is a recognized claim in West Virginia.  She won her claim in front of a jury, unanimously.  However, she cannot collect one penny of that claim.  This is what would be known as a Catch 22.  She has a claim, she wins the claim, but she can collect nothing.

While the Court did not separate Mr. from Mrs. MacDonald in its Opinion they are, in fact, two different people with their own claims. Indeed, there was a separate verdict for Mrs. MacDonald and yet the West Virginia Supreme Court simply lumped the verdicts together.

Thus the Court had no time to even address Debbie’s issue.

There will certainly be motions filed in this matter, but one cannot help wonder why the Court did not even address the issue and allow Mrs. MacDonald’s valid claim to have no value, despite what a jury made up of voters in Berkeley County believed.  The Court simply allowed legislators to decide how much Debbie MacDonald should be awarded, and that amount was nothing. Legislators who knew nothing about the case or the injuries were allowed to impose their will over their citizens who vote, pay taxes, and die for their Country.

A movie called “Hot Coffee” is now available on HBO and it is a must see for any citizen who has ever heard the terms “jackpot justice,” “junk science,” “hit the lottery,” etc.  We now have a new term that can be used for those judicial decisions that protect everyone but citizens: Hot Coffee Justice.