Liz McCormick Published

Senate Bill 6 Stirs Emotions at Public Hearing in House Judiciary


An emotional public hearing was held this morning to discuss Senate Bill 6 dealing with medical professional liability for nursing home administrators.

Over 30 people spoke to the committee; some for the bill and some against.

Many wives and children of family members who had died while in the care of nursing homes stood to recount their stories and express the pain and anger they had felt toward the quality of care their loved ones had faced. They pleaded with lawmakers on the House Judiciary Committee, asking them to not pass the bill or at least to think before they pass it.

Three words remained constant among many of those family members who shared their stories. The words used were neglected, ignored, and abused.

Amy Kayson, is an attorney who has represented families of residents and the residents themselves for almost 20 years. She stood to oppose the bill.

“I want to tell you about a guy that we represented here in West Virginia who had been a World War II vet,” Kayson said, “and because there wasn’t sufficient staff to turn and reposition him in bed and to change him when he had an accident, he developed pressure sores so severe that they went to his very bone. Left in urine and feces on multiple occasions. You know what he complained about to the state investigators when they came to talk to him? He said I know they don’t have time to give me the care that I need, but the worst part is smelling my own flesh rot, and I know what that smells like because I’m a World War II vet. You want to cap his non-economic damages, but you’re going to leave his actual damages alone. He doesn’t have any economic damages. He’s not going to lose future earnings; he’s in a nursing home. What he’s lost is dignity. What he’s lost is the ability to live out the last few days of his life without pain. You cannot put a price on that. I ask that you not cap that.”

One of the speakers who supported the bill, Dr. Hoyt Burdick, a physician in Huntington, said it would broaden and clarify the definition of medical activities and providers.

“Twenty years ago, I was an aim in a medical mal-practice suit by a notorious trial lawyer from southern West Virginia, who is also one of only a couple of senators with a perfect voting record opposing medical professional liability reform,” Burdick said, “Incidentally, I was released with prejudice on the day before the trial with no real explanation. An important part of my job at Cabell and Marshall is recruiting and retaining physicians. When the malpractice lawsuit crisis was in the headlines, it seemed almost impossible to successfully recruit and retain physicians even those who grew up and were trained here. Speaking from experience, there was a time not long ago when West Virginia had serious problems with our professional liability system. Dr. Cater and others have outlined some of the progress we have made with tort reform, professional liability reform. We’ve had sustained reductions in the number of professional liability lawsuits, tax payers have benefited through reductions and suits and settlements by the board of risk management for state employed positions. The dollars that are not spent on insurance premiums and excessive tort settlements sustain medical practices, support employment in the healthcare sector.”

Andrew Paternostro, another attorney who has represented residents in nursing homes, spoke to oppose the bill.

“If you don’t want lawsuits, increase the standard of care or simply meet the standard of care,” Paternostro said, “Don’t come into a legislature and ask for a bill to be passed, so you’re damages can be limited, so a person who’s backside has rotted out and had to have surgery where the skin was taken out with a scalpel and scissors that you have to say to their loved ones, the most I can get you for the four surgeries is 250,000 dollars. The most I can get you for an amputated leg, because they allowed it to rot off, maybe 500,000 dollars, but they’ll argue profusely it’s 250,000 dollars. These cases are not defensible in a judicial system, in a fair judicial system with the judges we have and the jurors we have. I like the jurors, they listen to West Virginians, they know what to do, and to pass this act would simply take that power from jurors, from West Virginians, and it would be an imperious act to do so.”

Larry Pack, a leader at Sunrise Healthcare Management said he supports the bill because of insurance issues.

“Currently we’re experiencing major insurance problems,” Pack noted, “the type of problems we haven’t experienced, we haven’t seen since the early 2000s, before the legislature enacted the major reforms to the MPLA. Insurers simply, quite simply don’t want to write our company, they don’t even want to talk to us. We’ve only been able to find one company that’s willing to write us and were willing to quote our company. Insurance companies are leery of West Virginia; they’re leery of the litigation environment. Recent court decisions has eroded the MPLA protections, and the insurers have taken notice.” 

Senate Bill 6 has already passed the Senate 31 to 1.