The West Virginia Supreme court recently discussed how pre-suit notice and expert affidavit creates absurd results. This is very important since South Carolina passed similar legislation 2 years ago. The article was written by Justin D. Anderson for Daily Mail Capitol Reporter.
Supreme Court Justice Larry Starcher wrote "I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform) in its entirety," in a dissenting opinion last week.
The lower court found – and the Supreme Court agreed – that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care. Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and an affidaivt from a qualified expert.
Also, under the act, the plaintiffs’ non-economic damages will be capped at $250,000 and $500,000 for other damages.
Starcher called the pre-lawsuit requirements "pointless procedural hoops" because a jury could determine whether or not the sutures were safe. "To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles," Starcher wrote.
He continued, "The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence."
Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without "sale, denial or delay."
Starcher called the act "cookie-cutter" legislation that has created "absurd conundrums." He said the courts are more responsible and adept at making meaningful changes than the Legislature.
"But the Legislature, when changing the common law, often makes drastic statutory changes in response to real or perceived crises, and often without a clear understanding of the impact those changes might have on individual cases."