Verba v. Ghaphery

• Decision Date: 13 December 2000
• Docket Number: 27464
• Citation: Verba v. Ghaphery, 543 S.E.2d 347 (W. Va. 2000)
• Court: West Virginia Supreme Court
• Parties: THE ESTATE OF MARJORIE I. VERBA, by SALLY JO NOLAN, Executrix, Plaintiff Below, Appellant v. DAVID A. GHAPHERY, M.D., Defendant Below, AppelleeIN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2000 Term Submitted:

THE ESTATE OF MARJORIE I. VERBA, by SALLY JO NOLAN, Executrix Plaintiff Below, Appellant v DAVID A. GHAPHERY, M.D., Defendant Below, Appellee

No. 27464

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2000 Term

Submitted: September 6, 2000

Filed: December 13, 2000

Appeal from the Circuit Court of Ohio County

Honorable Arthur M. Recht, Judge, Civil ActionNo. 97-C-466

SYLLABUS BY THE COURT

1."'"In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches.[W.Va. Const. art. V, 1.]Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question.Courts are not concerned with questions relating to legislative policy.The general powers of the legislature, within constitutional limits, are almost plenary.In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt."Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351(1965).'Syl. pt. 2, West Virginia Public Employees Retirement System v. Dodd, 183 W.Va. 544, 396 S.E.2d 725(1990)."Syl. Pt. 1, Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414 S.E.2d 877(1991).

2.'"'"Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally.Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause."Syllabus Point 7, [as modified,] Atchinson v. Erwin, , 302 S.E.2d 78(1983).'Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., , 328 S.E.2d 144(1984)."Syl. pt. 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440(1991).'Syl. Pt. 2, Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414 S.E.2d 877(1991).

3. "W.Va.Code, 55-7B-8, as amended, which provides a $1,000,000 limit or 'cap' on the amount recoverable for a noneconomic loss in a medical professional liability action is constitutional.It does not violate the state constitutional equal protection, special legislation, state constitutional substantive due process, 'certain remedy,' or right to jury trial provisions.W.Va. Const. art. III, 10;W.Va. Const. art. VI, 39;W.Va. Const. art. III, 10;W.Va. Const. art. III, 17;andW.Va. Const. art. III, 13, respectively."Syl. Pt. 5, Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. at 720, 414 S.E.2d 877(1991).

Robert P. Fitzsimmons, Esquire, Wheeling, West Virginia, Attorney for Appellant

William E. Galeota, Esquire, Morgantown, West Virginia, Ancil G. Ramey, Esquire

R. Christopher Anderson, Esquire, Charleston, West Virginia, Steptoe & Johnson

Attorneys for Appellee

AFFIRMED

The Opinion of the Court was delivered PER CURIAM.

CHIEF JUSTICE MAYNARD concurs in part and dissents in part and reserves the right to file a concurring/dissenting Opinion.

JUSTICE DAVIS concurs in part and dissents in part and reserves the right to file a concurring/dissenting Opinion.

JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.

JUSTICE MCGRAW dissents and reserves the right to file a dissenting Opinion.

Per Curiam:

Appellant, the estate of Marjorie I. Verba, asks this Court to revisit its previous decision in Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414 S.E.2d 877(1991), in which we, acting unanimously, upheld the constitutionality of the $1,000,000 cap imposed by West Virginia Code 55-7B-8(2000) on noneconomic damages that are awarded in medical malpractice cases.Asserting that the cap violates multiple constitutional provisions, Appellant seeks a reversal of the June 24, 1999, order of the Circuit Court of Ohio County, granting AppelleeDavid A. Ghaphery's motion to alter or amend the judgment, through which the jury's award of noneconomic damages was reduced to $1,000,000.After thoroughly considering the arguments raised, we find no basis for altering our prior ruling in Robinson, and accordingly, we affirm the decision of the lower court.

I.Factual Background

Dr. Ghaphery performed anti-reflux surgery on sixty-eight-year-old Marjorie Verba on February 21, 1996.Ms. Verba remained in the hospital for four days following surgery.The parties dispute whether Ms. Verba was continuing to have medical problems at the time of her release on February 25, 1996.Within ten to twelve hours of discharge, Ms. Verba had died.The results of an autopsy indicated that a surgical nick resulted in a laceration to the stomach, which in turn caused Ms. Verba to contract peritonitis and to die as a result.

Appellant initiated a medical malpractice action against Dr. Ghaphery and after hearing the evidence and arguments regarding the issue of whether Dr. Ghaphery deviated from the accepted standards of care, the jury found for Appellant.The jury awarded $300,000 for physical pain, mental pain, and loss of enjoyment of life; $21,000 for medical and funeral bills; and $2,500,000 to the beneficiaries of Ms. Verba's estate under the wrongful death statute.SeeW.Va. Code 55-7-6(2000).By order entered on July 24, 1999, the trial court reduced the judgment to $1,020,510.51, as required by the medical malpractice cap set forth in West Virginia Code 55-7B-8.Based upon its position that the statutory cap at issue is unconstitutional, ¹Appellant seeks a ruling from this Court that the reduction of the jury verdict was improper.

II.Discussion

In addressing this same issue in Robinson, we first articulated the relevant principles which undergird this Court's consideration of legislative acts:

"'In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches.[W.Va. Const. art. V, 1.]Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question.Courts are not concerned with questions relating to legislative policy.The general powers of the legislature, within constitutional limits, are almost plenary.In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.'Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351(1965)."Syl. pt. 2, West Virginia Public Employees Retirement System v. Dodd, 183 W.Va. 544, 396 S.E.2d 725(1990).

Syl. Pt. 1, Robinson, 186 W.Va. at 722, 414 S.E.2d at 879.

We then identified the level of constitutional scrutiny which is applied to issues affecting economic rights:

"'"Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally.Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause."Syllabus Point 7, [as modified,] Atchinson v. Erwin, , 302 S.E.2d 78(1983).'Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., , 328 S.E.2d 144(1984)."Syl. pt. 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440(1991).

Syl. Pt. 2, Robinson, 186 W.Va. at 722-23, 414 S.E.2d at 879-80.

After considering essentially the same constitutional challenges as Appellant raises in this case, ²we held that:

W.Va. Code, 55-7B-8, as amended, which provides a $1,000,000 limit or "cap" on the amount recoverable for a noneconomic loss in a medical professional liability action is constitutional.It does not violate the state constitutional equal protection, special legislation, state constitutional substantive due process, "certain remedy," or right to jury trial provisions.W.Va. Const. art. III, 10;W. Va. Const. art. VI, 39;W. Va. Const. art. III, 10;W.Va. Const. art. III, 17;andW. Va. Const. art. III, 13, respectively.

Syl. Pt. 5, Robinson, 186 W.Va. at 723, 414 S.E.2d at 880.

Appellant urges this Court to reverse its prior determination in Robinson that the medical malpractice cap is constitutional.Seeid.The only new arguments, which were not considered by this Court when Robinson was issued, concern the effects of inflation on the $1,000,000 cap, the lack of evidence indicating that medical malpractice reform has lessened either health care costs or malpractice premiums, and an alleged "separation of powers" problem.We address these new arguments in turn.

Appellant looks to dicta in Robinson which suggested that, if the legislature decided to lower the $1,000,000 cap, the Court might reconsider its position on the reasonableness of the cap.Seeid. at 730, 414 S.E.2d at 887.In making her argument that inflation has sufficiently affected the reasonableness of the cap, ³Appellant overlooks a critical aspect of this Court's language in Robinson.We did not invite a reconsideration of the reasonableness of the cap based on inflationary effects; what we did was to state that if the...