either a death or an infant who suffered brain damage during birth. Those
infant claims represent another closely contested area of medical
"The tragedy about this, you have a horribly injured child," said
Sensabaugh, the Charleston defense lawyer. "It's a very difficult case for
a doctor to defend, because there's enormous sympathy for the infant's
Sensabaugh said that some of these suits overlook or ignore other
factors, such as genetic disorders, as the true source of the birth
The lawyers who represent the families of such children could not
"The fact is, when you choke a baby or starve a baby of oxygen during
delivery, an honest doctor isn't going to tell you that the resultant
brain damage is due to genetics," said Druckman, the Charleston lawyer.
"If you don't get the baby out, you may very well be held responsible."
Druckman represented the family of a brain-damaged infant awarded the
largest medical malpractice verdict in state history, a $15.25
million jury verdict in 1990. The Supreme Court later reduced the amount
to a now-record $11.75 million.
Druckman said infant cases dispel another myth about malpractice
lawsuits: that they're filed willy-nilly by greedy or overly aggressive
"It costs between $75,000 to $100,000 to pursue a brain damage case,"
he said. "Any lawyer who thinks they're going to win that kind of case
with sympathy is going to go out of business."
Most other malpractice cases cost from $50,000 to $100,000 to
prepare, between gathering evidence and testimony, hiring experts, etc.,
"There used to be an argument that you file a suit and someone just
throws money at you to make it go away. Nobody does that. That's crazy.
That's suicide," he said.
Though Sensabaugh said he believes he has seen his share of meritless
cases, he agreed that the cost of developing a case may determine whether
it is ever filed.
"There is malpractice that occurs that causes minor injuries,
but those people don't have recourse because no one will take their case
and file an action," he said.
A question of merit
Not every malpractice claim that is dismissed was frivolous. For
that matter, not every claim that settles out-of-court has merit, say
targeted doctors and the insurance companies who reported their cases to
the Board of Medicine.
The reports filed with the board are replete with denials of fault and
other defenses among the 1,458 cases that ended with settlements. For
- 23 cases settled for "economic reasons" for $2.7 million
- 11 cases settled for "nuisance value" for $130,000
- 37 cases settled for $7.3 million despite "liability denied" by
- 74 cases settled as a "compromise of disputed claim" for $14.8
- 18 cases settled for "cost of defense" for $753,000
The lawyers who represent patients bristle at how the doctors and their
insurers sometimes sum up the alleged malpractice in these reports.
"I have seen some very self-serving statements of non-liability in
cases where there were egregious, just egregious actual facts," said
Tennant, the Wheeling lawyer. "What doctors want you to believe is that
every settlement is a cost-of-defense settlement. I see very few insurance
carriers willing to pay cost-of-defense in cases where there is no risk of
losing. Those cases are being actively defended and tried."
At least 50 of these settled cases involved a death. One blamed a
doctor who failed to answer his pages before his patient delivered a
The reports filed with the board also sometimes explain why
claims are dismissed. About a dozen were dismissed because a
law-imposed deadline blocked the patient from pursuing the case. Another
120 cases were closed because the patient agreed to drop the doctor from
Such dismissals appear in cases where more than one doctor has been
blamed. The reports that identified patients by name listed a total of
1,736 names. Nearly 200 of those names appeared in more than one report
filed with the board.
A number of those dismissal reports said that other doctors or
hospitals remained defendants in the claims. Other such reports
case in exchange for the dismissals.
The Gazette-Mail shared its computer-assisted analysis with the
president of the West Virginia Medical Association on Tuesday, White Coat
Day at the Legislature. Dr. John Holloway distanced his group from the
"talking points" that its campaign has trumpeted, as recently as that
morning during the Capitol rally.
"You have to understand, these are the numbers given us by Medical
Assurance," he said. "I'm not defending the insurance company. I'm not a
While he was not accepting or refuting the analysis, Holloway said,
"It's silly to argue about numbers. We're concerned about the direction of
the practice of medicine in West Virginia."
Frank O'Neil, a vice president for Medical Assurance, said Friday that
the insurer stands by the numbers, noting that they reflect only Medical
Sensabaugh, the Charleston defense lawyer, said his firm represents
more doctors in malpractice cases than any other in the state. He
reported to the Board of Medicine, based on his firm's success rate.
"I know for a fact that at our firm, the doctor has not paid anything
in between 80 and 90 percent of the cases," he said. "I suspect that there
is an underreporting of dismissals."
Insurance companies face fines of between $1,000 and $10,000 for
failing to report resolved claims. Board of Medicine Executive
Director Ronald Walton said no insurer has been fined or sent a written
warning for failing to report a claim between 1993 and last year.
"Someone would have to report it to us, but I don't recall any sent
within the last eight years," he said.
It was at a large gathering of West Virginia's doctors that their
group's president decided to devote his entire address to the "evils" of
"The successful prosecution of one such suit implies a succession of
them," he said. "The desire for the easy attainment of a fortune, by a
prosecution for malpractice grows like a contagion and spreads like
The situation grows worse "on account of the magnitude of the damages
awarded by ignorant juries," he continued "The institution of such a suit
against a [doctor] should be regarded as an attack on the whole
profession. We should present a united front in repelling it."
Though it may sound like it, the speech was not delivered at White Coat
Day at the Legislature.
A doctor named R.H. Cummins gave the speech in 1873, as president of
the state's Medical Society.
Since the state was born, medical malpractice lawsuits have been
a hot topic for some doctors in West Virginia. In fact, the only sort of
"tort reform" - laws that change how lawsuits are settled and how civil
juries decide cases - recently passed in West Virginia addresses medical
malpractice lawsuits alone.
This law, passed in the 1980s, limits the amount of money juries can
award to compensate the victims of doctors for "non-economic" damages:
pain, suffering and similar intangible injuries.
The Supreme Court has twice ruled that this $1 million cap is
constitutional, as recently as last year. But the court voted to
reconsider the cap earlier this year, setting the stage for yet another
legal showdown between doctors and the patients who sue them alleging
"Somehow, the argument is that doctors shouldn't have to live up to a
have standards, car dealers have standards, and doctors have standards."
"The Price of Practice" continues Monday in the Charleston Gazette with
a look at medical malpractice insurance and the state Medical
Association's quiet deal with one provider.
To contact staff writer Law-rence Messina, use e-mail or call 348-4869.