Medical liability loophole?

While West Virginia finds itself outside the legal mainstream far too often, our state’s 2003 Medical Professional Liability Act (“MPLA”) does serve as a model for medical liability reforms. Whereas West Virginia was a state experiencing a health care crisis less than ten years ago, we are now rated by Medical Economics as one of the ten best states in which to practice medicine. 

Our state Supreme Court has rejected most legal challenges to the MPLA, leaving personal injury lawyers looking for creative ways to evade the reforms.  One potential loophole — which states with reform should be on the lookout — are nursing home lawsuits. 

West Virginia’s statute specifically includes nursing homes in its definition of covered health care providers. And our Legislature, in its legislative findings and declaration of purpose, cited its concern for increasing medical liability premiums for nursing homes as the number of lawsuits per bed has increased significantly in West Virginia. 

But that hasn’t stopped personal injury lawyers from trying to convince local judges that the reforms don’t apply to nursing homes. Out-of-state personal injury lawyers were able to evade the MPLA in one recent case, resulting in a verdict of $91.5 million. 

Ultimately, this issue will be decided by our state Supreme Court, as at least one other state Circuit Judge has ruled that nursing homes are covered under the MPLA for claims alleging negligent treatment. 

In the meantime, states with medical liability reforms should keep an eye out for similar lawsuit attacks, as national personal injury law firms are looking to take advantage of vulnerable state law.