CHARLESTON, W.Va. (Legal Newsline) - Winners of a $629,000 judgment in a medical malpractice trial will plead for more at the Supreme Court of Appeals, claiming a cap on their recovery violates the West Virginia Constitution.

"Plainly, the West Virginia Legislature has no authority to try a case," Robert Peck of Washington, D.C., wrote in an appeal brief.

"It may not decide an issue of liability within judicial cognizance," he wrote.

The Justices will hear arguments Tuesday, not only on the constitution but also on cross appeals that would trim the verdict to $379,000 or zero.

Peck represents James and Debbie MacDonald, who sued physician Sayeed Ahmed in 2007, in Berkeley County.

They also sued City Hospital, a subsidiary of West Virginia University Hospitals.

They claimed improper administration of drugs injured James' leg.

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.

Jurors awarded Debbie $500,000 for sorrow, anguish and solace.

They assigned 70 percent of liability to Ahmed and 30 percent to City Hospital.

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.

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.

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.

"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.

"That discriminating impact is magnified by the disproportionate way that the cap's burden falls on women," he wrote.

"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.

He wrote that "reducing malpractice insurance premiums may be directly accomplished through insurance regulation without trenching on injured peoples' rights."

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."

He wrote that claims were falling and awards were declining.

He wrote that the cap undermines health care by diluting the deterrent effect of holding doctors and hospitals accountable.

For City Hospital, Thomas Hurney Jr. of Charleston wrote that the Supreme Court has twice upheld medical malpractice caps.

He wrote that in 2002, former Gov. Wise referred to a collapse of the medical malpractice insurance system.

Hurney wrote, "The Legislature had plenty of evidence of a problem, and devised a solution."

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.

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.

For Ahmed, Ancil Ramey of Charleston didn't challenge liability but joined City Hospital in pleading for a $250,000 cap.

Ramey wrote that Silver improperly allowed damages for partial loss of a limb when the law allowed damages only for total loss.

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."

He wrote that James can walk on a treadmill, walk without a cane, and drive a car with no special devices.

"To argue that limits on non economic damages in medical malpractice actions have no rational relationship to a governmental purpose is absurd," he wrote.

"The logic of those limits is obvious," he wrote.

The Justices will hear the case at West Virginia University law school in Morgantown.

Justices Menis Ketchum and Thomas McHugh have disqualified themselves.

Circuit judges Tom Evans and Ronald Wilson will replace them.