CLARKSBURG -- Doctors and lawyers who sparred in a forum on medical malpractice Thursday night were unified on one point. Both groups believe liability insurance companies are a contributor to West Virginia's health-care crisis.
Many of the nearly 100 local residents who attended appeared to share that anti-insurance-company sentiment although they largely seated themselves wedding style: Health-care access supporters on the right, court access supporters on the left.
"He's my hero," said Anita Werner of Clarksburg.
She had braved frigid weather in support of Dr. David Waxman, an orthopedic surgeon who was one of three area doctors to debate a panel of two trial lawyers and a consumer advocate who said he had lost both parents to medical malpractice. No representatives from liability insurance companies participated in the regionally televised event.
"The possibility of losing him because of all this mess ... it's frightening," Werner said.
On the other side of the Harrison County Senior Citizens Center's ballroom, James Miller of Clarksburg lifted a left hand that was missing an index finger as his reason for attending. He has a pending malpractice lawsuit in which he claims a doctor's misdiagnosis was the cause of his loss.
"I want insurance companies to be accountable instead of putting caps on each patient," Miller said.
A cap on non-economic damages that is being considered by the state Legislature was a common theme of a debate that occasionally deteriorated into personal potshots about panel members' pricey vacations and real estate dealings. The current bill calls for a $250,000 limit on damages that are not related to concrete expenses such as medical care.
"(West Virginia's) effort to pass a $250,000 cap is draconian," said Tim Manchin, a Fairmont trial lawyer. "It goes backward in time."
Manchin said California, which has a $250,000 non-economic cap touted by doctors for stabilizing rates over the long term, actually has an inflation provision and its cap is now $677,000 in practice.
The doctors said the cap is part of several reforms necessary to make the malpractice legal arena more about compensating patients for medical mistakes than about winning the jury jackpot.
"There are many frivolous lawsuits," said Dr. Saad Mossallati, a Clarksburg surgeon who said he once was sued by a patient whom he had never seen or been asked to see.
Both sides also focused on access.
"This is definitely affecting your access to care," said Dr. Doug McKinney, a Clarksburg urologist who is president of the West Virginia Medical Association.
He said high malpractice insurance premiums are contributing to early retirements and relocations among physicians who are already in state and causing recruitment problems, as well.
Mossallati said it is the high percentage of court awards that goes to lawyers that is ultimately behind the premium increases. He said the contingency fees are so high they make filing frivolous lawsuits too tempting.
David Romano, a Clarksburg attorney who is former president of the West Virginia Trial Lawyers Association, said limiting damage awards would limit malpractice victims' access to courts, however.
"Contingency fees are the poor man's key to the courthouse," he said of giving lawyers reasonable incentive to take on the cases of malpractice victims who can't pay legal fees up front.
Some pointed questions from a media panel went largely unanswered. These included: How can malpractice cases be less costly to settle or arbitrate? Another was: How much of a financial hit are malpractice insurance premiums for the average state doctor in terms of a percentage of gross annual income?
Regional editor Nora Edinger can be reached at 626-1447 or by e-mail at nedinger@exponent-telegram.com.
