W.Va. No Longer 'Judicial Hellhole,' Insurer Says

The Charleston Gazette, August 20, 2005

West Virginia is shedding its nefarious reputation as a “judicial hellhole” in terms of malpractice suits and is beginning to attract doctors, the president of the state’s largest malpractice insurer said Friday.

Laws regarding malpractice suits are the reason for the decrease, West Virginia Physician’s Mutual president, David Rader, told a mid-day Rotary Club luncheon at the University of Charleston. Those laws, passed in 2001, limited the amount of money a patient could be awarded in economic damages and applied more stringent guidelines on proving a claim. A recent bill lets doctors apologize to a patient or patient’s relatives without it being used in court as an admission of malpractice, according to the state Board of Medicine’s newsletter.

Additional causes include lawyers suing for other reasons such as licensing and prescription drugs, he told the Gazette. He also said patients fear driving their doctor away, so are more reluctant to sue. “We’re seeing the frequency and severity of [malpractice] suits going down,” Rader said. “I think that speaks well for the direction West Virginia is heading.”

As a result, Physician’s Mutual, in the year since its creation, has added to its membership rolls 100 doctors who moved to West Virginia from out-of-state, he said. In addition, the company, which serves 1,600 doctors and has nearly $100 million in assets, recently applied for a 5 percent decrease in the premiums physicians pay for malpractice coverage, Rader said.

The Gazette reported last week that Woodbrook Casualty Insurance, the state’s largest private malpractice coverage provider serving about 250 doctors, is seeking a 3.9 percent rate decrease. Both requests must go before the state Insurance Commission for approval.

Rader mentioned more than a few times that the overall effect is that patients are receiving better care through a more adequate supply of competent doctors.

He cast pre-reform West Virginia as a place where lawyers frequently engaged in class action and malpractice suits, only to win big settlements from friendly judges. Health care quality was unstable in these days, he said.

He referred to the hiring of John King of Putnam General Hospital — who has had multiple malpractice suits lodged against him — as a result of the exodus of qualified doctors because of the state’s former malpractice laws.

Although it’s possible that someone like King could slip through again, the likelihood has decreased, Rader said.

When asked, Rader said he was not aware of Dr. Roland Chalifoux Jr., a Texas neurosurgeon granted an unrestricted license to practice in West Virginia a year after his license was revoked in Texas for mishandling the treatment of three patients, one of whom died. Chalifoux was cleared in about 14 other incidents and is appealing the Texas decision.

A Gazette investigation in 2001 found that the number of doctors in the state increased by 14.3 percent between 1990 and 2000, while the overall population increased by only 0.7 percent.

A Gazette-Mail investigation of 2,300 resolved malpractice claims found that their number decreased from 1993 to 2001 and that West Virginia had less settlements and verdicts than border states and the average payment was equal to or less than those awarded in neighboring states.

Although he said he is not against doctor accountability for malpractice, Rader told the Gazette that damages should be reasonable.

“Fair is when the patient has a problem and they can find relief that does not cause harm to society,” he said, citing a hypothetical $10 million settlement in which the lawyer gets 40 percent as socially destructive.

“I’m looking for a balance.”