West Virginia’s New Legislators May Start Pushing Tort Reform this January

The West Virginia legislature, both the House of Delegates and the State Senate, starts its first 2015 session on January 14^th. According to the West Virginia Record, tort reform is high on the list of priorities this year because Senate President Bill Cole does not want the state to be labeled a “Judicial Hellhole” by the American Tort Reform Association, an organization that claims it wishes to “repair” our civil justice system, but in truth simply wants to push for compensation caps for victims of personal injury and medical malpractice.

What exactly is “tort” reform?

The word “tort” comes from the French word for “wrong,” and in a legal sense it means any act (intentional or not) which causes injury to another person. The legal definition of tort law is “a body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others.” Tort reform, therefore, encompasses changing the laws and statutes in regards to:

1. What constitutes the intentional or accidental wrong
2. How the injury might be defined
3. How much compensation an injured person is entitled to collect

In everyday use, however, tort reform is synonymous with compensation reform. When politicians speak of tort reform, they are really saying that they believe injury and malpractice victims should receive less money for their injuries. It is an insurance-friendly term that indicates a politician’s view of malpractice – namely, that doctors who commit malpractice and the hospitals which protect them should not be held accountable for their errors, and that victims who seek compensatory damages that seem excessive to those same politicians do not deserve the money.

In other words, the legislatures decides that it knows how much a person’s injury is worth better than a jury of citizens who listen to the facts in a particular case. The legislature’s one-size fits all cap supplants the collective decision-making of a jury.

Why this issue is a big deal

It is easy for politicians to say that the only people who do not want tort reform in West Virginia are personal injury lawyers looking to make money – but it is straw man argument, because it A) ignores the victims of those injuries, and B) assumes the worst about attorneys. Right now, the state caps non-economic damages for medical malpractice cases at about $350,000 (or $650,000 in very limited circumstances). But what if you schedule an appendectomy and the surgeon amputates your leg instead? Or if you need to have your left leg amputated, but the surgeon removes the right leg instead? How much is your leg (or both legs, in the second example), your ability to walk, your ease of access to your home or the homes of your loved ones really worth? West Virginia says the value of a citizen’s pain and suffering in this case – no matter the plaintiff’s age, occupation or activity level – is worth less than $650,000 at the most, regardless of how egregious that error is.

The Senate and House seem determined to reduce the amount of compensation injury and malpractice victims are entitled to receive. It is up to all of us to make sure that we protect those victims – not the insurance companies. To learn more about how tort reform might affect injury victims in West Virginia, we invite you to visit Paulson & Nace, PLLC.