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nursing_homes2A Supreme Court case in West Virginia will decide if the medical malpractice cap in that state applies to nursing homes as well as hospitals and doctors.  Currently the state has a very low cap, only $500,000 on non-economic damages in medical malpractice cases.  The issue came up when a Kanawha County jury held the Heartland of Charleston nursing home liable for the death of a former resident and assessed more than $90 million in damages.  The lawyer for the victim of the family argued that liability caps would not apply for a number of reasons. The jury returned the verdict that 20 percent of the responsibility for the negligence claim dealt with medical professional negligence and 80 percent was ordinary negligence, he said.  Which means 20 percent would fall under the legislation and 80 percent would not.  Another reason caps would not apply, said the attorney, is because Manor Care (the nursing home) provides its own insurance. The reason that medical malpractice caps exist in the first place is the misguided fear of increased insurance costs and diminished availability of professional liability insurance.  On the contrary, the cost of medical malpractice insurance has been dropping, nationally, for about a decade.  Not to mention that statistics prove that there has been a 40 percent drop in the number of paid claims and a 29 percent drop in the total amount paid. The executive director of the West Virginia State Medical Association describes the Heartland case, with its $11.5 million in compensatory and $80 million in punitive damages, as “a big shock.” He believes the verdict “can be a deterrent for a business that wants to grow and expand in our state, and tragically, even continue to do business in our state.”  That statement seems exaggerated since doctors, nurses and nursing homes carry this type of insurance for exactly this reason.  I would hope that a large verdict like this would encourage other nursing homes to keep strong safety procedures in place and to make sure doctors are careful.  I hardly think a strong jury verdict will send businesses fleeing West Virginia.


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