The West Virginia Record - Supreme Court Candidates Speak at Medical Forum
All five state Supreme Court candidates recently made a pitch to perhaps their toughest audience: doctors.
Beth Walker, Margaret Workman, Robert M. Bastress Jr., Menis E. Ketchum and Chief Justice Elliott E. "Spike" Maynard were on hand for a candidate forum hosted by the West Virginia State Medical Association on Jan. 26. The forum was held in conjunction with the Association's mid-winter meeting held at the Charleston Marriott, and co-sponsored by WESPAC, the Association's political action committee.
The candidates were asked to not only introduce themselves, and credentials, but also discuss their position on medical liability and tort reform. Given the importance of the issues, Dr. Philip Stevens, WESPAC's chairman, and the forum's moderator, encouraged his colleagues to scrutinize the candidates since the vote they cast for the two seats on the High Court will be among the most important this election.
"This Court could, and probably will, have a profound impact on the people on West Virginia on the years to come," Stevens said. "Supreme Courts are really the glue that hold democracies together."
Leading off the forum was Walker, one of two female candidates and the lone Republican. An associate with the Charleston law firm of Bowles, Rice, McDavid, Graff and Love, specializing in employment law, Walker, 42, concurred with Stevens that the two justices elected in November will play a large role in setting the Court's tone well into the next decade.
"I'd like for you to take a moment now to think of the critical issues you in the medical community could be facing between now and the year 2021," Walker said. "Your vote for two justices in November will absolutely affect the state of West Virginia for the next 12 years."
Citing the Code of Judicial Ethics, Walker declined to say specifically how, if elected, she may or may not rule on issues relating to malpractice. However, she did say that she was impressed by the medical community and the Legislature at their ability "to strike and maintain that delicate balance between the need to have a vibrant health care system and also protecting the rights of those who may seek to pursue a claim in court."
Also, Walker said the Court should not "be an impediment to prosperity and opportunity in our state." Instead, it should be "an independent branch of government deciding cases on the Constitution, the law and established precedents."
"I strongly believe the Supreme Court's role is not to legislate from the bench," Walker said. "The Supreme Court and the entire judicial system needs to maintain the confidence of all West Virginians that our Court is accessible and fair to everyone."
Noting how "the only check on the Court's authority is its own self-restraint," Walker said she hopes her tenure on the Court is marked by "integrity and fairness."
"West Virginian's deserve a fair and impartial court system," Walker said.
An attorney now in private practice, Workman, 60, touted her 18 years on the bench - six as a Kanawha County Circuit judge, and 11 as Supreme Court justice - was characterized by "fairness and integrity" in which she followed the law "without fear or favor."
"I've been know throughout my legal career not to be a partisan for any interest," Workman said. "Over my 18 years as a judge, I'm proud of the fact I never did get any of the awards from either the trial lawyer's association or the defense counsel."
Like Walker, Workman cited the Code of Judicial Ethics in deferring comment on pending on impending legal or political issues. However, she encouraged those in attendance to ask their fellow medical professionals what of kind of judge she was when a malpractice case was before her.
"What you can do is, as far as your own interests go, is ask any of the lawyers who appeared before my court representing doctors, hospitals, nurses and the medical community whether they were given fair treatment in my court, and I think you will find the answer is yes."
Since West Virginia has no intermediate appellate court, the qualifications of a justice are important, Workman said. Among the two most important qualifications for a justice is "temperament and restraint."
Upon her election in 1988, Workman said she worked to restore respect for the Court a period of "great disrespect and disharmony."
Despite the disagreements she had with the 13 other justices with whom she served during 11 years on the bench, Workman said "the level of discourse was a high level, and not the kind of chaos and lower level of discourse we're seeing now."
"I believe I can do that again," Workman said.
Robert M. Bastress Jr.
Upon taking the podium during his time to talk, Bastress, a professor of law at West Virginia University, got a chuckle from the audience when he recounted the manner in how he landed his job.
"The man I replaced on the faculty, believe it or not, was lured away by the University of Michigan," Bastrass said.
Since coming to the Mountain State in 1978, Bastress, 59, has focused his teaching to constitutional, and labor and employment law. These two areas, Bastress said, are "very entertaining as well as intellectually challenging."
The decision to remain in academia for the last 30 years, Bastress said is due to the perennial challenge each new class of students brings.
"I love it," Bastress said. "Teaching is a gas."
Despite being a law professor, Bastrass said he has not confined himself to ivory tower. Instead, he has taking some time to devote pro bono on many cases.
"As a consequence, I have had extensive litigation experience throughout my legal career at every level in the state and federal courts," Bastress said.
The decision to run for Supreme Court, in spite of having "this really great job" is timely, Bastress said, because "public confidence in the Court is at its lowest ebb." For Bastress, the two things lacking on the Court are integrity, and intellectual rigor.
"I think I've reached a point in my career where I can best serve the public in West Virginia by being on the state Supreme Court."
Like Walker and Workman, Bastress declined to comment specifically on medical malpractice or tort reform. Nevertheless, he admitted to not being an expert on subject, or having much experience in litigating on the matter
However, Bastress recognized that changes to medical malpractice arise in "social-economic context" in which the courts have given great deference to the legislature to make appropriate changes. Regardless of the issue, Bastress said, "I will apply that law and listen to the arguments made by the parties and reach a fair conclusion."
Menis E. Ketchum
Ketchum took the audience aback when he boldly took the podium and "respectfully disagreed" with other candidates in declining to comment on tort reform. A senior partner in the Huntington law firm of Greene, Ketchum, Bailey and Tweel, Ketchum, 65, said candidates should be a little more open about where they stand on important legal issues so voters can make an informed decision.
"I think we have an obligation to comment on specific issues," Ketchum said. "Because if we don't talk about specific issues, then how can you judge whether to vote for us or not."
"It's not enough for me to get up here and say 'I'm I good guy, and I'll consider it'," he added.
"The Law of Land says we can comment on specific issues," Ketchum said, referring to the U.S. Constitution.
Ketchum emphatically said the Medical Professional Liability Act is constitutional. Also, he was not less emphatic in saying how he would vote on challenges to MPLA.
"I will not vote to overturn it," Ketchum said. "I will not vote to change it. I will not vote to modify it."
Regardless of this stance on MPLA, Ketchum said his 40 years as a litigator is what makes him qualified to sit on the Court. Since 1967, Ketchum has not only sued and defended injured patients and insurance companies, but also doctors.
"I have tried more cases with a jury verdict than all of the other candidates combined," Ketchum said. "If I'm elected I will even-handedly apply the law to all the people. It won't matter who your lawyer is, it won't matter who you are."
Apparently, Ketchum's even-handedness has earned the respect of Tully Roisman, a Huntington doctor Ketchum sued in 1996, and who is now supporting his campaign.
Concluding the forum was Maynard, the only incumbent. Prior to talking about his qualifications, Maynard thanked the doctors "for keeping me alive for 65 years now."
"One of the reasons it's a pleasure to speak to you is because I am now a big consumer of your services," Maynard said. "It seems the older I get the more of them I have to consume."
Though there was no question that as a sitting judge he was prohibited from discussing any pending case, Maynard said he has no reservations discussing past decisions rendered by the Court. Also, he was clear that he could not make any promises on future votes.
"I'm especially sensitive these days about being recused," Maynard said.
In a case where the $ 1 million cap on damages was appealed, Maynard said he voted with the majority to uphold the cap. However, he was in the minority when the Court voted to overturn the portion of the 2001 reform that allowed majority verdicts in malpractice cases.
On a similar note, Maynard said he joined with his colleagues in declining to adopt the learned intermediary rule. According to Maynard, the rule would limit a plaintiff in a medical malpractice suit to sue only the "learned intermediaries," such as physicians, and not the manufacturers, for the damages caused by defective equipment, devices or medication.
Despite whether one believes MPLA is constitutional, Maynard said, "it has been socially very successful." From research he's seen, liability premiums are down, and insurance coverage is now available for physicians.
Also, MPLA has stemmed the "serious doctor drain" that the state witnessed in the early 2000s. According to Maynard, 200 new physicians have come to West Virginia since the 2003 reforms
"It's been effective in improving the delivery of medical care to the people of West Virginia which is really what it's all about."