Published 10/1/2007
Robert L. Ghiz, MD

Tort reform in West Virginia

How do you measure the beneficial effects of legislation? Is it an increase in the number of physicians in the state? Is it the ease of recruiting physicians who are willing to visit and consider practicing here? Is it the ability to attract highly specialized physicians for tertiary care? Is it the lowering of premiums for liability insurance? Is it the reduction in the number and severity of claims? Is it the number of liability carriers who are willing to write insurance in the state? The answer to most of the above questions in West Virginia is yes.

West Virginia enacted medical liability tort reform four times in the last 10 years. In 1987, legislation placed a $1 million cap on noneconomic damages in medical liability cases. In 2001, all medical liability lawsuits were required to have a certificate of merit. In 2003, the cap on noneconomic damages was lowered to $250,000 and joint and several liability reforms were enacted. Finally, 2004 saw the passage of “I’m sorry” legislation. Most physicians and attorneys believe these reforms have had a beneficial effect on the practice of medicine in the state.

It’s in the numbers
The number of physicians actively practicing in West Virginia in 1997 was 3,317; in December 2006, that figure was 3,743, an increase of 426. Nearly half (200 of 426) were added after the 2003 tort reforms. The number of recruits, even among highly specialized physicians, who are willing to visit and interview in West Virginia, has also increased.

In 2002, 315 liability suits were filed in West Virginia; in 2006, less than half that number (154) were filed. Based on the number (75) of lawsuits filed in the first 6 months of 2007, we anticipate a similar number. Additionally, neither the severity nor the amounts of the awards in cases that do go to trial or are settled in mediation have increased.

The West Virginia Mutual Insurance Company insures 1700 physicians, 70 percent of all the actively practicing doctors who purchase commercial insurance in the state. This company began on July 1, 2004, as part of the tort reform package of legislation passed in 2003. It is a start-up company owned by the policyholders and has enjoyed a great deal of success. The company is becoming financially stable and has reduced its premiums by 20 percent in the past 2 years.

The expected influx of “for profit” companies coming into West Virginia to do business has not materialized, however. Many knowledgeable individuals consider that the judicial system is still very plaintiff-oriented, making companies leery of doing business in the state. In fact, the West Virginia Supreme Court has weakened the tort reform somewhat by slowly limiting the scope and conditions of the cases that qualify for the medical liability reforms.

Looking forward
What the future holds for the practice of medicine and the medical liability climate in the state is anybody’s guess. In 2008, two Supreme Court Justices are up for election for 12-year terms. Orthopaedic surgeons in West Virginia, as well as in other states, must become personally involved and make sure that the voices of physicians are heard and a balanced court is elected. So far, the West Virginia Orthopaedic Society has done very well and plans to continue its efforts to preserve these hard won tort reforms.

Robert L. Ghiz, MD, is a member of the West Virginia Orthopaedic Society. He can be reached at bonedoc7@msn.com