Court Upholds Cut to Malpractice Award

West Virginia's high court sided 4-1 with reducing a $250,000 jury verdict against two providers to $11,250 after a settlement credit was applied.

Updated on Nov. 6, 2026 in Nursing Jobs

The West Virginia Supreme Court ruled 4-1 on November 5, 2026, upholding the reduction of a $250,000 medical malpractice verdict to $11,250 in a case brought by Thomas Cummings over the death of his wife, Cynthia Cummings. The court found West Virginia law required subtracting a $237,500 nursing home settlement from the verdict before applying fault percentages.

Why it matters

The ruling clarifies how settlement credits interact with fault allocation in West Virginia malpractice cases, directly affecting how much injured patients and their families recover. Justice James W. Flanigan's dissent signals a continuing disagreement over how the statute should be applied.

The jury assigned 45% fault to each provider and 10% to Thomas Cummings, after the circuit judge subtracted the $237,500 settlement from the $250,000 verdict, leaving $12,500. The majority's calculation produced a combined $11,250 judgment against Dr. Ward Paine and Benjamin Klennert.

The players

West Virginia Supreme Court

The state's highest court, which reviewed the malpractice award reduction and issued the 4-1 majority ruling upholding the lower calculation.

James W. Flanigan

A West Virginia Supreme Court justice who dissented, arguing the case should be reversed and sent back for recalculation under his reading of the statute.

The details

Cynthia Cummings developed a serious surgical wound infection at Madison Center nursing home after her March 2019 hip replacement, requiring a two-month hospitalization and multiple surgeries before she died on December 31, 2019. Her husband sued in Monongalia Circuit Court in March 2020, and the nursing home defendants settled before trial.

March 2019: Cynthia Cummings underwent right hip replacement surgery.
December 31, 2019: Cynthia Cummings died.
March 2020: Thomas Cummings filed suit in Monongalia Circuit Court.
November 5, 2026: The West Virginia Supreme Court issued its 4-1 decision.

Legal Precedent

The majority's reading of West Virginia's malpractice statute sets how pre-verdict settlements reduce damages before fault is apportioned. Flanigan's dissent represents an alternative interpretation that would change the per-provider payout, leaving the statute's application open to further litigation.

Patients and families pursuing malpractice claims in West Virginia may recover less when a co-defendant settles beforehand, because the settlement is subtracted before fault is applied. Healthcare providers in the state face a calculation that can significantly lower their share of a judgment.

The takeaway

The ruling shows that the order of operations in a malpractice award, settlement credit first and fault percentages second, can change the final payout dramatically. Anyone involved in a similar claim should review how settlements and fault allocations interact under state law.