CHARLESTON – The West Virginia Supreme Court has upheld a ruling reducing a $250,000 medical malpractice verdict to $11,250, finding state law required crediting a nursing home’s settlement against the award even though jurors assigned the facility no fault.
The 4-1 decision issued November 5 rejected Thomas Cummings’ challenge to the reduced judgment against Dr. Ward Paine and physician assistant Benjamin Klennert over injuries suffered by Cummings’ wife, Cynthia. The majority acknowledged that applying the law produced a “harsh outcome” but said its language was clear.
Justice James W. Flanigan dissented, calling the result “absurd, unjust and in contravention of the plain meaning of several liability.” He argued the two medical providers should pay damages reflecting the fault jurors assigned them rather than benefit from a settlement paid by defendants found to bear none.
Cynthia Cummings underwent right hip replacement surgery in March 2019 and was discharged to Madison Center, a nursing home where Paine and Klennert treated her. During her six weeks there, she developed a serious infection in her surgical wound, according to the opinion.
The infection required a two-month hospitalization and multiple surgeries, including removal of her artificial hip joint and two pounds of infected tissue. She later moved to another nursing home and died December 31, 2019.
In March 2020, Thomas Cummings sued the providers and Madison Center’s owners and operators in Monongalia Circuit Court, alleging failures to detect and treat the infection led to his wife’s death. The nursing home defendants settled for $237,500 before trial.
The case proceeded against Paine and Klennert. Jurors found both breached the standard of care and caused injuries and damages before Cynthia Cummings’ death. They awarded $250,000, assigning Paine and Klennert 45% fault each, Thomas Cummings 10% and the nursing home defendants none.
The dispute centered on a provision of West Virginia’s medical malpractice law requiring courts to subtract a pre-verdict settlement arising from the same medical injury before multiplying the remaining damages by each defendant’s percentage of fault.
Applying that settlement credit, the circuit judge subtracted $237,500 from the $250,000 verdict, leaving $12,500. Accounting for Thomas Cummings’ 10% share of fault left a combined judgment of $11,250 against the two providers – $5,625 each. The Intermediate Court of Appeals affirmed.
Cummings argued that the statute was ambiguous because it combined liability based on each party’s share of fault with a dollar-for-dollar settlement deduction. He also contended that the law could produce an improper double reduction and violate the state constitution’s guarantee of a remedy for injuries.
The Supreme Court majority found no ambiguity. Quoting an earlier decision, it said, “This Court does not sit as a superlegislature,” and emphasized that setting policy belongs to lawmakers.
The majority also said the claimed double reduction had not occurred because jurors assigned no fault to the settling nursing home defendants. Without a settlement credit, it reasoned, Cummings’ recovery would exceed the total damages jurors assigned to the case.
“Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes,” the majority said, quoting another precedent in rejecting arguments it regarded as hypothetical.
Flanigan said the ruling undermined the statute’s requirement of several liability, under which each defendant’s judgment is tied to that defendant’s assigned share of fault. Each provider, despite being found 45% responsible, would pay just 2.25% of the jury’s total damages award, he wrote.
“By contrast, the nursing home defendants, who were not allocated any fault, were responsible for most of the awarded damages,” Flanigan wrote.
He would have read the medical malpractice provision alongside a separate state liability statute that reduces a plaintiff’s recovery by a settling party’s percentage of fault rather than the settlement amount. He favored reversing the appeals court and sending the case back for recalculation.
Chief Justice C. Haley Bunn, Justices William R. Wooton and H. L. Kirkpatrick, and temporarily assigned Judge Jason Wharton concurred in the decision. Justice Charles S. Trump IV was disqualified.
West Virginia Supreme Court of Appeals case number 24-235 (Intermediate Court of Appeals case number 22-ICA-220, Monongalia Circuit Court case number 20-C-86)
