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Health Law Monitor

Health Care Providers are Protected Against Double Recovery by Plaintiffs Because W. Va. Code ยง 55-7B-9 (b) Requires Reduction of Jury Verdicts by the Amount of any Pretrial Settlements

March 15, 2024

By: Thomas J. Hurney Jr.

Hot off the presses yesterday (3/14/2024) is Cummings v. Paine where the Intermediate Court of Appeals (ICA) affirmed that jury verdicts against health care providers must be reduced by the amount of any pretrial settlements.  

In Cummings, after the jury awarded $250,000 against a doctor and physician’s assistant, the circuit court adjusted the verdict by the percentage of fault assessed against the plaintiff Estate (10%) and the amount of the pretrial settlement, resulting in a judgment for $11,250.  The Estate appealed. 

The ICA held that West Virginia Code § 55-7B-9(d), which requires the reduction for pretrial settlements, is “clear and unambiguous” and requires the reduction.  A more general statute, W. Va. Code § 55-7-13d, which does not require reduction for settlements did not apply because § 55-7B-9(d) is specific to medical professional liability actions and therefore takes precedence.  Last, the ICA rejected the argument that 55-7B-9(d) unconstitutionally caused an “absurd and unjust” “double reduction” of his verdict as “hypothetical” because the jury did not apportion fault to the settling defendants.

Cummings is important to health care providers because a plaintiff cannot settle with some parties, and then obtain a jury verdict without reduction.  This assures, consistent with the statute, that plaintiffs cannot achieve a double recovery. 


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