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"  CHARLESTON &ndash; Winners of a $629,000 judgment in a medical malpractice trial plead for more at the Supreme Court of Appeals, claiming a cap on their recovery violates the West Virginia Constitution.<br /><br />  \"Plainly, the West Virginia Legislature has no authority to try a case,\" Robert Peck of Washington wrote in an appeal brief.<br /><br />  \"It may not decide an issue of liability within judicial cognizance,\" he wrote.<br /><br />  The Justices will hear arguments March 8, not only on the constitution but also on cross appeals that would trim the verdict to $379,000 or zero.<br /><br />  Peck represents James and Debbie MacDonald, who sued physician Sayeed Ahmed in 2007, in Berkeley County.<br /><br />  They also sued City Hospital, a subsidiary of West Virginia University Hospitals.<br /><br />  They claimed improper administration of drugs injured James's leg.<br /><br />  At trial before Judge Gray Silver in 2008, jurors awarded James $750,000 for future pain and suffering, $250,000 for past pain and suffering, $92,000 in past medical expenses, and $37,000 in past lost wages, for a total of $1,129,000.<br /><br />  Jurors awarded Debbie $500,000 for sorrow, anguish and solace.<br /><br />  They assigned 70 percent of liability to Ahmed and 30 percent to City Hospital.<br /><br />  Silver ruled that $1,500,000 for non economic damages exceeded a $500,000 limit that legislators set in 2003, and he reduced the verdict by $1 million.<br /><br />  He denied a constitutional challenge from the MacDonalds, a motion from doctor and hospital to set aside the verdict, and their motion to apply a $250,000 cap.<br /><br />  On appeal, Peck wrote that the cap eliminated Debbie's right for loss of consortium when others with spouses less grievously injured would receive full compensation.<br /><br />  \"The absurdity of compensating lesser losses but requiring those suffering greater losses to bear that loss is as patent as it is arbitrary and irrational,\" he wrote.<br /><br />  \"That discriminating impact is magnified by the disproportionate way that the cap's burden falls on women,\" he wrote.<br /><br />  \"It is difficult to imagine how the purpose of reducing insurance costs constitutes a compelling state interest sufficient to override constitutionally guaranteed rights,\" he wrote.<br /><br />  He wrote that \"reducing malpractice insurance premiums may be directly accomplished through insurance regulation without trenching on injured peoples' rights.\"<br /><br />  He wrote, \"There is simply no truth to the Legislature's assumption that West Virginia was suffering from a loss of physicians in the years before the cap was enacted.\"<br /><br />  He wrote that claims were falling and awards were declining.<br /><br />  He wrote that the cap undermines health care by diluting the deterrent effect of holding doctors and hospitals accountable.<br /><br />  For City Hospital, Thomas Hurney Jr. of Charleston wrote that the Supreme Court has twice upheld medical malpractice caps.<br /><br />  He wrote that in 2002, former Gov. Wise referred to a collapse of the medical malpractice insurance system.<br /><br />  Hurney wrote, \"The Legislature had plenty of evidence of a problem, and devised a solution.\"<br /><br />  He attacked the verdict, claiming the MacDonalds presented no credible evidence that the hospital's failure to warn Ahmed of risks caused or contributed to an injury.<br /><br />  If the verdict stands, he wrote, the Justices should further reduce it because the injury fits a $250,000 cap category rather than the $500,000 category.<br /><br />  For Ahmed, Ancil Ramey of Charleston didn't challenge liability but joined City Hospital in pleading for a $250,000 cap.<br /><br />  Ramey wrote that Silver improperly allowed damages for partial loss of a limb when the law allowed damages only for total loss.<br /><br />  He wrote, \"Mr. MacDonald returned to substitute teaching, worked as a bagger in a grocery store, works out at a gym, performs many household activities, and obviously is not permanently prevented from independently caring for himself.\"<br /><br />  He wrote that James can walk on a treadmill, walk without a cane, and drive a car with no special devices.<br /><br />  \"To argue that limits on non economic damages in medical malpractice actions have no rational relationship to a governmental purpose is absurd,\" he wrote.<br /><br />  \"The logic of those limits is obvious,\" he wrote.<br /><br />  The Justices will hear the case at West Virginia University law school in Morgantown.<br /><br />  Justices Menis Ketchum and Thomas McHugh have disqualified themselves.<br /><br />  Circuit judges Tom Evans and Ronald Wilson will replace them."^^<http://www.w3.org/2001/XMLSchema#string>
<http://wvrecord.com/stories/510600116-justices-to-hear-argument-on-med-mal-caps>