When West Virginia Takes Away the Right to Sue, Who Is It Protecting?

A recent Mountain State Spotlight article reports that the West Virginia Division of Corrections and Rehabilitation is asking the West Virginia Supreme Court of Appeals to substantially limit the ability of inmates and their families to hold the State accountable when correctional officials are deliberately indifferent to serious medical needs.

I wish I could say that surprised me.

It does not.

Many years ago, I represented the family of Dr. Charles Knouse after he died while being held at the South Central Regional Jail. The Knouse case was my first real foray into civil rights litigation. It was also a wake-up call for me about what can happen inside West Virginia’s correctional system when there is inadequate accountability.

Dr. Knouse entered the jail with serious medical problems and was taking numerous medications. A federal magistrate had ordered that he receive his medications and be housed in the medical unit. He nevertheless died in the jail.

When we investigated his death, we obtained surveillance video and compared it with medical records. The records indicated that nurses had performed wellness checks at Dr. Knouse’s cell. The surveillance video showed they had not been there at the recorded times. The nurses were subsequently terminated.

We also pursued a civil rights claim against a correctional officer responsible for conducting suicide checks. Surveillance footage showed that the required checks had not been performed throughout his shift. Even more disturbing, approximately five hours before Dr. Knouse was found dead, the video showed the officer telling him to “shut up” while Dr. Knouse was asking for medical help.

We ultimately recovered $1 million from the medical provider’s insurer and another $400,000 in connection with the civil rights claim against the correctional officer.

That case taught me something I have never forgotten:

Accountability changes behavior. Immunity encourages the opposite.

The Right to Sue Is Your Right

People sometimes hear phrases such as “tort reform,” “liability reform” and “lawsuit reform” and assume politicians are doing something about frivolous lawsuits and greedy lawyers.

But look more closely at what many of these laws actually do.

When the Legislature places a cap on damages, whose damages are being capped?

Yours.

When it restricts the circumstances under which a corporation, medical provider or government agency can be sued, whose rights are being restricted?

Yours.

When it creates immunity from liability, who receives that immunity?

Usually not you.

The beneficiary is generally a corporation, insurance company, government agency or other institution that would otherwise have to answer in court for its conduct.

That distinction matters.

West Virginia’s Jails Are Not a Place Where We Need Less Accountability

The allegations described by Mountain State Spotlight are disturbing.

One case involves a 24-year-old woman whose lawyers contend the jail knew about her significant mental-health history and who was found dead in her cell five days after being incarcerated.

Another involves a 79-year-old man who reportedly told jail personnel that he took daily medications and asked them to contact his wife because she knew what they were. According to the allegations, nobody called her. He went approximately 15 days without his medications before eventually being hospitalized and dying from complications of an untreated heart attack.

The State is now asking the West Virginia Supreme Court to limit the ability of families in cases such as these to pursue monetary damages against the State based upon deliberate indifference.

Think about that for a moment.

A person in jail cannot choose another medical provider. He cannot drive himself to an emergency room. He cannot walk out the door and go to his family doctor. He cannot even leave the building.

The government has taken control over virtually every aspect of that person’s life.

With that extraordinary power should come extraordinary responsibility—not immunity.

And remember: many people in regional jails have not been convicted of anything. They are pretrial detainees who are presumed innocent.

Being arrested is not supposed to carry a potential sentence of death by medical neglect.

Why Civil Lawsuits Matter

There is a tendency to portray civil lawsuits as being only about money.

That misses their larger purpose.

The civil justice system is one of the few places where an ordinary citizen can force a government agency, corporation, insurance company or institutional medical provider to answer questions under oath, produce its records, disclose its internal policies and explain its conduct to a jury.

That is precisely what happened in the Knouse case.

Without a lawsuit, we would not have had the discovery process that allowed us to obtain and compare the medical records and surveillance footage.

Without the ability to hold the responsible parties financially accountable, there would have been far less incentive for anyone to explain what happened.

A lawsuit cannot bring someone’s husband, wife, son, daughter, mother or father back.

But civil accountability can expose misconduct. It can compensate families. It can create financial consequences for dangerous practices. And perhaps most importantly, it can give institutions an economic reason not to allow the same thing to happen again.

West Virginians Should Pay Attention to What Their Legislature Is Taking Away

For years, West Virginia politicians have sold restrictions on civil lawsuits under the appealing label of “tort reform.”

I see it differently.

Every time the Legislature makes it more difficult to sue a negligent corporation, an insurance company, a medical provider or the government, it is transferring power away from individual West Virginians and toward institutions that already possess far greater economic and political power.

People should ask a simple question whenever another “tort reform” bill is introduced:

What right do I have today that this bill will take away tomorrow?

That question transcends political party.

A conservative West Virginian can be injured by negligence.

A liberal West Virginian can lose a family member in a jail.

A Republican can have an insurance claim wrongfully denied.

A Democrat can be injured by a corporation that ignored a safety rule.

Civil justice is not a Republican right or a Democratic right.

It is a citizen’s right.

Yet voters continue to elect legislators who then vote to restrict the very legal rights those voters may someday desperately need.

Many people do not realize what has been taken from them until something terrible happens to their own family.

Then they walk into a lawyer’s office and learn that the Legislature has already limited their recovery, shortened their remedy, raised the legal hurdle they must overcome or immunized the responsible party altogether.

By then, it is too late.

If the Courts Say No, Watch the Legislature

The West Virginia Supreme Court will decide the legal questions presently before it.

I hope the Court preserves meaningful avenues for families to hold the State accountable when constitutional violations occur.

But West Virginians should also watch what happens afterward.

If the State does not obtain the immunity or limitation on liability it seeks from the Court, I would not be surprised to see the same objective pursued in the Legislature.

We have seen repeatedly how powerful insurance, corporate and institutional interests can obtain legislation limiting civil liability.

That is why this issue is bigger than two cases presently before the Supreme Court.

It is about who ultimately bears the consequences when government fails.

If a correctional institution knows that a person faces a serious medical risk and consciously disregards that risk, the answer should not be to make it harder for the victim’s family to seek justice.

The answer should be to make sure it never happens again.

The Knouse case taught me that lesson years ago.

After more than three decades practicing law, I believe it more strongly today:

The less accountable we make powerful institutions, the less reason they have to act responsibly.

West Virginians should be very careful before allowing politicians to take away another right in the name of “reform.”

Because the right they take away today may be the right your family needs tomorrow.