By Candice Harlow and Brianna Frontuto
On November 5, 2026, the Supreme Court of Appeals of West Virginia released a memorandum decision addressing offsets for pretrial settlements under the West Virginia Medical Professional Liability Act (MPLA), W. Va. Code § 55-7B-9. The Court affirmed the Intermediate Court of Appeals’ decision in Cummings v. Paine, 249 W. Va. 568, 899 S.E.2d 646 (Ct. App. 2024), holding that the statute was unambiguous and should be applied as written.
The plaintiff settled with the defendant facility for $237,000 and proceeded to trial against the physician and his assistant. The jury awarded $250,000. The circuit court denied the plaintiff’s motion to preclude reducing the verdict by the settlement amount. Instead, it applied § 55-7B-9(b), which provides that the:
“court shall first . . . reduce the adjusted verdict by the amount of any pre-verdict settlement arising out of the same medical injury … [and] then, with regard to each defendant, multiply the total amount of damages remaining . . . by the percentage of fault attributed to each defendant by the trier of fact.”
The circuit court reduced the verdict by the settlement, leaving $12,500. It then reduced that amount by the plaintiff’s 10% share of fault and entered judgment against the defendants for $11,250.
The Supreme Court of Appeals concluded that § 55-7B-9 was not ambiguous and that neither the circuit court nor the Intermediate Court of Appeals erred in applying its terms as written. The Court also observed that, because the jury valued the plaintiff’s damages at $250,000, Cummings’ proposed approach “would result in a recovery for the petitioner exceeding the total value of damages that the jury assigned to the case.”
Justice Flanigan dissented, finding that W. Va. Code § 55-7B-9 is ambiguous and should be read in conjunction with W. Va. Code § 55-7-13d.