Opinion by WV Supreme Court in Boggs v. Camden Clark Memorial Hospital

The West Virginia Supreme Court of Appeals issued a decision in the Boggs v. Camden Clark case which I orginally reported on back in an October 2004 blog post. As you will recall, this was the first case to be heard by the Court challenging several medical liability reform provisions enacted by the West Virginia Legislature in recent years.

The case involved a plaintiff whose suit was dismissed by a Circuit Court Judge in Wood County when the plaintiff's counsel failed to provide a signed certificate of merit statement from a physician and failed to serve the notice of claim by certified mail. Both the signed certificate of merit and the requirment that the notice be sent by certified mail were requirements put into law under HB 601 which passed on December 1, 2001 after a 5-week special session dealing specifically with our state's liability insurance crisis. These reforms were then followed in 2003 by the passage of HB 2122 which enacted more significant reforms including lowering the caps on damages.

The 4 to 1 decision (Justice Maynard dissenting) found in favor of the plaintiffs . The decision permitted the plaintiff to amend his complaint, and allowed the reinstated complaint to be governed by the Medical Professional Liability Act II (prior to the reduction of the caps of damages).

To read the opinion issued by the court and the dissent issued by Justice Maynard, you may access the Supreme Court's web page by clicking on the link below.

Following is a AP news article from the Clarleston Gazette regarding the decision:

AP - 12/9
Supreme Court revives malpractice lawsuit

CHARLESTON, W.Va. (AP) -- A paperwork error was not serious enough to force the dismissal of a medical malpractice lawsuit filed by the family of a woman who died at a Parkersburg hospital, the state Supreme Court has ruled.

A Wood County judge had tossed out the June 29, 2003, lawsuit filed by the family of Hilda Boggs because a lawyer gave Camden Clark Memorial Hospital written notice 27 days prior to filing the lawsuit, when state law requires 30 days notice.

The high court ruled 4-1 Wednesday to revive the lawsuit. Writing for the majority, Justice Warren McGraw said the hospital had known since February 2002 that the family intended to file a lawsuit.

Boggs' family can seek $1 million in damages for pain and suffering allegedly caused by her 2001 death at Camden Clark.

If the family had to refile the lawsuit, a state law that took effect July 1, 2003, would have capped the non-economic damages at $500,000.

Boggs, a 50-year-old teacher, was hospitalized after breaking her ankle in a fall at Mineral Wells Elementary School.