Verba v. Ghaphery

Decision Date19 June 2001
Docket NumberNo. 27464.,27464.
Citation552 S.E.2d 406,210 W.Va. 30
CourtWest Virginia Supreme Court
PartiesThe Estate of Marjorie I. VERBA, by Sally Jo Nolan, Executrix, Appellant, v. David A. GHAPHERY, M.D., Appellee.

Robert P. Fitzsimmons, Esq., Russell Jay Guthrie, Esq., Fitzsimmons Law Offices, Wheeling, West Virginia, Attorney for Appellant.

Ancil G. Ramey, Esq., William E. Galeota, Esq., R. Christopher Anderson, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorneys for Appellee.

Frederick M. Baron, Esq., Jeffrey R. White, Esq., Attorneys for Amicus Curiae The Association of Trial Lawyers of America.

P. Michael Pleska, Esq., Attorney for Amicus Curiae The West Virginia Chamber of Commerce.

Michael J. Farrell, Esq., Tamela J. White, Esq., Attorneys for Amici Curiae The West Virginia Hospital Association and The West Virginia Health Care Association.

Charles R. Bailey, Esq., John T. Molleur, Esq., Attorneys for Amicus Curiae The West Virginia Behavioral Healthcare Providers Association.

Thomas J. Hurney, Jr., Esq., Kenneth R. Landis, Jr., Esq. (Pro Hac Vice), Kyle G. French, Esq. (Pro Hac Vice), Attorneys for Amicus Curiae The National Association of Independent Insurers.

Michele Grinberg, Esq., C. Benjamin Salango, Esq., Attorneys for Amicus Curiae West Virginia State Medical Association.

G. David Brumfield, Howard M. Persinger, III, Brumfield & Watson, Charleston, for Amici Curiae Tonya Chapman, Johnny Chapman, John Cameron Chapman, Amanda Gail Lucas and David Scott Lucas.


The appellant, the estate of Marjorie I. Verba, appealed from a decision of the Circuit Court of Ohio County which reduced her medical malpractice judgment from $2,821,000 to $1,020,510.51 as required by the medical malpractice cap set forth in W.Va. Code § 55-7B-8 (1986). On appeal, we were asked to revisit Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414 S.E.2d 877 (1991), in which we unanimously upheld the constitutionality of the $1,000,000 cap on noneconomic damages awarded in medical malpractice cases. By opinion dated December 13, 2000, this Court affirmed the judgment of the circuit court and once again found the medical malpractice cap to be constitutional. The appellant subsequently petitioned for a rehearing, and the petition was granted. On reconsideration, we affirm the judgment of the circuit court and uphold the constitutionality of the cap.


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 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.

The appellant brought a medical malpractice action against Dr. Ghaphery and a jury found for the appellant, awarding $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. See W.Va.Code § 55-7-6 (1992). As noted above, the trial court reduced the award to conform to the medical malpractice cap in W.Va.Code § 55-7B-8 (1986).


At the outset, we set forth the relevant principles which guide us in determining the constitutionality 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. 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.

Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). Concerning the level of scrutiny to be applied to issues affecting economic rights, we have held:

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, Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983) (as modified in Syllabus Point 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991)). We now discuss the specific issues before us.

This Court held in Syllabus Point 5 of Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414 S.E.2d 877 (1991):

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; and W.Va. Const. art. III, § 13, respectively.

Accordingly, we find no reason to revisit the constitutional issues previously raised in Robinson.1 Rather, we believe that our prior ruling is subject to the judicial doctrine of stare decisis which rests on the principle,

that law by which men are governed should be fixed, definite, and known, and that, when the law is declared by court of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority.

Booth v. Sims, 193 W.Va. 323, 350 n. 14, 456 S.E.2d 167, 194 n. 14 (1995) (citation omitted). Finding no palpable mistake or error in Robinson, we affirm that decision.

In addition, we note that the parties as well as amici presented copious statistics to this Court to either defend or refute the legislature's findings in support of the medical malpractice cap. However, we "ordinarily will not reexamine independently the factual basis for the legislative justification for a statute. Instead, the inquiry is whether the legislature reasonably could conceive to be true the facts on which the challenged statute was based." Robinson, 186 W.Va. at 730,414 S.E.2d at 887 (citation omitted). Our review of the legislature's findings and declaration of purpose in W.Va.Code § 55-7B-1 (1986) leads us to conclude that the legislature reasonably could conceive to be true the facts on which the Medical Professional Liability Act, including the medical malpractice cap, is based. Further, we resolve any reasonable doubts on this question in favor of the constitutionality of the cap.

The appellant also avers that the cap violates the "separation of powers" doctrine, see W.Va. Const. art. V, § 1, a claim, according to the appellant, not specifically addressed in Robinson. The appellant argues that the cap effectively constitutes a legislative remittitur for any verdict that exceeds $1,000,000 in noneconomic damages. We find no merit in the appellant's argument.

It is beyond dispute that the legislature has the power to alter, amend, change, repudiate, or abrogate the common law. This Court has recognized that "[b]y virtue of the authority of Article 8, Section [13]2 of the Constitution of West Virginia and of Code, 1931, 2-1-1 it is within the province of the legislature to enact statutes which abrogate the common law." Syllabus, Perry v. Twentieth St. Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974) (footnote added). "[T]he indisputable fact [is] that the legislature has the power to change the common law of this State." Gilman v. Choi, 185 W.Va. 177, 186, 406 S.E.2d 200, 209 (1990), overruled on other grounds as stated in Mayhorn v. Logan Med. Found., 193 W.Va. 42, 454 S.E.2d 87 (1994). See also Robinson, supra; Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634 (1991); and Wallace v. Wallace, 155 W.Va. 569, 184 S.E.2d 327 (1971), overruled on other grounds as stated in Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990).

In Edmonds v. Murphy, 83 Md.App. 133, 149, 573 A.2d 853, 861 (1990), aff'd, 325 Md. 342, 601 A.2d 102 (Md.1992), the Court of Special Appeals of Maryland recognized that the power to alter the common law includes "the power to set reasonable limits on recoverable damages in causes of action the legislature chooses to recognize." (Quoting Franklin v. Mazda Motor Corp., 704 F.Supp. 1325, 1336 (1989)). The court reasoned "that if the legislature can, without violating separation of powers principles, establish statutes of limitation, establish statutes of repose, create presumptions, create new causes of action and abolish old ones, then it also can limit noneconomic damages without violating the separations of powers doctrine[.]" Id. We concur with this reasoning and acknowledge the power of the legislature to set reasonable limits on recoverable damages in civil causes of action.


To continue reading

Request your trial
20 cases
  • State ex rel. Medical Assurance v. Recht
    • United States
    • West Virginia Supreme Court
    • April 30, 2003
    ...(1986).3 Respondent appealed the reduction and challenged the constitutionality of the one million-dollar cap. In Verba v. Ghaphery, 210 W.Va. 30, 552 S.E.2d 406 (2001), this Court upheld the cap's Following the favorable jury verdict and prior to the appeal, Respondent was granted leave to......
  • Macdonald v. City Hosp. Inc.
    • United States
    • West Virginia Supreme Court
    • June 22, 2011
    ...occasions, in the cases of Robinson v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414 S.E.2d 877 (1991) and Verba v. Ghaphery, 210 W.Va. 30, 552 S.E.2d 406 (2001), this Court upheld the constitutionality of the cap which was set at $1,000,000. Since Robinson and Verba were decided......
  • Rhyne v. K-Mart Corp.
    • United States
    • North Carolina Supreme Court
    • April 2, 2004
    ...663 N.W.2d 43, 77 (2003) (per curiam); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1055 (Alaska 2002); Estate of Verba v. Ghaphery, 210 W.Va. 30, 552 S.E.2d 406, 411 (2001) (per curiam); Kirkland ex rel. Kirkland v. Blaine County Med. Ctr., 134 Idaho 464, 471, 4 P.3d 1115, 1122 (Idaho 2000)......
    • United States
    • Nebraska Supreme Court
    • May 16, 2003
    ...Neb. 707, 371 N.W.2d 708 (1985), disapproved on other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986); Verba v. Ghaphery, 210 W.Va. 30, 552 S.E.2d 406 (2001). Also, all reasonable intendments must be indulged to support the constitutionality of legislative acts, including clas......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT