Doctors in West Virginia say a medical malpractice crisis
threatens the state. Rising insurance rates are driving them to retire
early, limit their practices and even leave the state, they contend.
Doctors and insurers blame the frequency and severity of what they
describe as mostly meritless lawsuits filed against doctors in the
Mountain State. Lawyers say patients deserve compensation when negligent
doctors harm them. Who really pays the high price of medical
A three-day investigative series beginning today digs beneath the
rhetoric to examine the malpractice climate in West Virginia.
The Capitol swam with white as doctors in lab coats thronged the
Rotunda Tuesday, a climax of a lengthy campaign protesting rising medical
malpractice insurance rates.
A spotty public address system and the Rotunda dome muffled the series
of speakers at the White Coat Day rally. But the crowd cheered along
anyway, probably because they knew the "talking points" by heart.
The West Virginia Medical Association has echoed these "talking points"
for more than a year now, summed up in a glossy brochure handed out to the
"These [insurance] rates are being driven up primarily by the frequency
and severity of lawsuits," the brochure said, invoking the campaign's
The rally's numerous signs also reflected these talking points: "1 out
of 2 W.Va. docs sued," "Come to W.Va. and be sued," and "We need tort
There are other talking points. "Aggressive" lawyers and "liberal"
judges allow "outrageous" damage awards against doctors. West Virginia
outranks surrounding states with the amount of money awarded in
The brochure also said, "Over 85 percent of [malpractice] suits
were either dismissed as meritless or a jury ruled the doctor did nothing
wrong," quoting figures from an insurance company, Medical Assurance.
Doctors have repeated these points in opinion articles for nearly a
year. Newspapers from around the state have printed stories about what is
being called a crisis, sometimes echoing the talking points word-for-word.
"Nobody likes to pay higher insurance rates, but insurance companies
just don't pull these numbers out of a hat," one such article quoted an
insurance company official as saying.
A Sunday Gazette-Mail investigation suggests otherwise. Few, if any, of
these talking points are supported by a computer-assisted analysis of
every malpractice claim reported to the West Virginia Board of
Medicine since 1993.
The Gazette-Mail looked at nearly 2,300 reports of resolved
claims, filed as required by law with the board. Among the
- The number of malpracticeclaims has declined over the
- Less than one-fifth of the doctors licensed in the state were
involved in a claim reported during the entire period.
- Less than 4 percent of the doctors were involved in claims
filed, on average, in any given year.
- Nearly 200 doctors accounted for three or more claims each;
more than 20 had more than five.
- More than two-thirds of the cases ended with a settlement or damage
- Forty doctors account for more than one-fourth of the $354 million
worth of verdicts and settlements reported during this period.
- The total amount of settlements and verdicts reported each year has
been fairly consistent, and has actually declined since the early 1990s.
National figures, meanwhile, rank West Virginia in the bottom-half of
claims. The state ranks below all of its neighbors for total
payments, the figures show.
"The loss of a chance"
People sue doctors for different reasons, the reports filed with the
Board of Medicine show.
The family of Frank DeCapio, a Brooke County man, sued Dr. William
Booher alleging he missed signs of the cancer that killed DeCapio. He was
Booher, who is no longer licensed to practice in the state, agreed to
[liability] and demanded the company settle on his behalf," his insurance
company reported to the Board of Medicine in 1997.
Dr. Ernest Jerome Bonitatibus was blamed by the family of Charles
Horbatak after the 57-year-old died of a heart attack in 1993. Horbatak
had gone to the hospital earlier that day complaining of chest pains, the
claim report said. He was diagnosed with pneumonia and sent home. The
family settled the claim with Bonitatibus and the hospital, which they
blamed for hiring Bonitatibus, for $1 million, the report said.
More than 400 people died because of doctor mistakes, the reports filed
with the Board of Medicine since 1993 alleged. More than one-fourth of the
reports that detailed the alleged malpractice involved a patient's
The lawyers who represent the survivors of such patients question how
these claims can be called "frivolous."
"This is what doctors don't understand. We have standards," said Bill
Druckman, a Charleston lawyer. "It's not that they're bad people or
they're evil or they intend to harm somebody. But if they are negligent,
and that negligence harms somebody, our court system holds them
But the lawyers who defend the doctors question whether
malpracticeclaims wrongly second-guess the complex, often
"Medicine is not a complete and accurate science. There is a lot of art
involved," said Donald R. Sensabaugh Jr., a Charleston lawyer. "Human
beings are different, and not everybody has the classic symptoms of an
illness that you see in a textbook."
Since 1993, verdicts and settlements in claims filed over deaths
- whether blamed on botched surgery, a delayed or wrong diagnosis, or
other malpractice - totaled more than $82 million. That's about a
quarter of all the payments reported to the board.
"You essentially evaluate how much longer the patient would have
lived," said Donald J. Tennant Jr., a Wheeling lawyer who has represented
both doctors and patients, of such compensation. "It is the loss of a
chance. When it's a breadwinner, it's devastating."
National studies indicate that patients die much more frequently while
in a doctor's care than malpracticeclaims would suggest. A
people admitted to a hospital died because of a hospital mistake.
USA Today recently previewed a study slated for the March issue of
Chest, a medical journal. The study found that one out of every five
patients who died in a top-rate intensive care unit had been misdiagnosed
by a doctor.
Negligence and mistakes blamed on doctors prompted settlements and jury
verdicts that totaled $354 million between 1993 and last year, according
to the reports filed with the Board of Medicine.
The largest single award during that time was $5.7 million, paid on
behalf of Dr. Alber Lewis Ghobrial. A Wheeling psychiatrist, Ghobrial was
targeted in a claim filed after a Wheeling riverboat pilot, Mark Storm,
left the mental health facility where he had sought treatment. Storm, 30,
then murdered his mother, his wife, their two children and a brother
before killing himself in 1997.
Million-dollar settlements or jury verdicts are relatively rare in West
Virginia, the filed reports show. Only 63 settlements and verdicts topped
$1 million, about 4 percent of the 1,523 cases resolved in the plaintiff's
favor. The median settlement during those eight years was less than
$100,000, while the median verdict was $343,323.
West Virginia doctors must report malpractice cases to federal
health officials, much like they do to the state Board of Medicine. The
National Practitioner Data Bank lists these cases, though the doctors and
patients are not identified.
The NPDB ranked the state 35th for its median malpractice
payment. Pennsylvania had the nation's second-highest median payment,
while Maryland ranked 13th. Ohio, Virginia and Kentucky were ranked 23rd,
38th and 39th, respectively.
The Gazette-Mail obtained and analyzed the NPDB records. West Virginia
ranked behind all of its neighbors for total settlements and verdicts
reported in 1999, the most recent year for available data. It lagged
behind all of those states except Kentucky for total payments each year
between 1992 and 1998.
In West Virginia, the seven-figure claims almost always involved