Recent Case Law and Statutes Governing Malpractice in West Virginia

West Virginia Law

PHYSICIANS REQUEST TO DISCUSS SETTLEMENT DOES NOT TOLL STATUTE OF LIMITATIONS June 14, 2022 In this case the patient had a total abdominal hysterectomy with bilateral salpingo-oophorectomy and lysis of adhesions performed by Karen Clark, MD. During that procedure, the patient alleged that Dr. Clark caused a left ureteral injury requiring additional surgeries. The patient’s attorney sent a notice of claim and screening certificate of merit consistent with the pre-suit notice requirements of the West Virginia Medical Professional Liability Act (MPLA). After the notice was sent, counsel for the partys corresponded by letter about the claim including discussions of a possible settlement. Dr. Clark, however, neither requested pre-suit mediation nor declined it. Eventually, long after the expiration of statute of limitations and any statutory tolling periods, Dr. Clark declined pre-suit mediation. The patient then filed suit which was dismissed by the Circuit Court of Cabell County based upon the running of the statute of limitations. The Supreme Court of Appeals of West Virginia held that equitable tolling and or equitable estoppel could not save the patient from the running of the statute of limitations. Adkins v Clark, 2022 WL 2128341 (W.Va. 2022)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCUSSES LOSS OF CHANCE DOCTRINE APPICABLE TO MEDICAL MALPRACTICE ACTIONS MAY 2, 2022 This case involves a patient who suffered a retroperitoneal bleed following an index diagnostic cardiac catheterization performed at Bluefield Regional Medical Center. The patient was eventually transferred to Carilion Memorial Hospital for cardiothoracic surgery where she eventually died. The patient’s estate filed suit against Bluefield Regional Medical Center asserting that the patient was not timely transferred and due to the delay, the patient died. The patient’s expert was of the opinion that the standard of care required a transfer time of one hour in accordance with the West Virginia cardiac catheterization standards. The expert testified that at 5 minutes before the decision was made to transfer the patient, the patient’s chance of survival was at least 50% or more had she been transferred immediately. The expert was of the opinion that the patient’s chance of survival decreased by about 10% for every hour that passed. The district court ruled that the patient failed to prove that the delay in transfer was a proximate cause of the patient’s death. The district court reasoned that a difference between the chance for survival at the time the standard of care required was “39.17%” versus the chance of survival at the time that she actually arrived “16.17%” was a difference of 23% which was below the 25% loss of chance threshold set forth in West Virginia Code §55-7 B-3. The district court ruling was overturned on appeal. The Fourth Circuit held that the statute does not require a plaintiff to prove that the malpractice caused a greater than 25% change in outcome. The Fourth Circuit also held that a plaintiff must also prove that the increased risk of harm to the patient was a substantial factor in bringing about the ultimate injury to the patient. Graham v Dhar, 2022 WL 1297111 (4th Cir. 2022)

WEST VIRGINIA SUPREME COURT ADDRESSES CERTIFICATE OF MERIT REQUIREMENTS APRIL 15, 2022 In this case the patient had undergone surgery for the implantation of a Watchman Left Atrial Appendage Closure Device which is designed to prevent clots that form in the left atrial appendage of the heart from migrating into the blood stream, potentially causing a stroke. During the surgery the Watchman device came free and embolized into the patient’s left ventricle causing her to go into cardiac arrest. The patient filed a notice of claim prior to the expiration of the 2-year statute of limitations indicating that she did not have sufficient time to secure a screening certificate of merit but would provided the same with in 60 days. The patient then filed suit before obtaining a screening certificate of merit. Then, after filing the suit, the patient filed the certificate of merit. The defendant physician filed a motion to dismiss asserting that the patient wrongly filed suit before obtaining a certificate of merit. The Circuit Court of Monongalia County agreed and dismissed the plaintiff’s complaint with prejudice. On appeal, the West Virginia Supreme Court held that the Circuit Court was correct in dismissing the complaint because a certificate of merit had not been filed before the complaint was filed. However, because the certificate of merit was filed within 60 days of the notice of claim, the West Virginia Supreme Court held that the dismissal should have been without prejudice. Tanner v Raybuck, 2022 WL 1124882 (W.Va. 2022)

ASSERTION OF CLAIMS OUTSIDE OF THE NOTICE OF CLAIM AND CERTIFICATE OF MERIT APRIL 15, 2022 This case involves an emergency cardiac catheterization procedure performed at Weirton Medical Center. During the procedure, Dr. Cherian placed one stent in the patient’s left anterior descending artery (“LAD”) and another in his right coronary artery (“RCA”). Although the patient initially tolerated the procedure well, shortly after it was concluded, the patient suffered a cardiac arrest. It was then discovered that both stents had clotted and the patient had acute stent thrombosis. The patient contended that as a result he suffered a catastrophic anoxic brain injury. The patient filed a notice of claim and screening certificate of merit in which the expert opined that Dr. Cherian deviated from the standard of care by failing to adequately cover the patient with anticoagulant drugs throughout the stent procedure and this deviation from the standard of care directly and proximately caused the patient to suffer an anoxic brain injury. During the case, the patient attempted to supplement his expert witness disclosures by having an expert testify that Dr. Cherian’s poor stent technique also contributed to the failed stent procedure. The Circuit Court allowed the patient to supplement the expert opinions. Dr. Cherian then filed for a writ with the West Virginia Supreme Court of Appeals arguing in part that these claims of negligence were not included in the pre-suit notice of claim. The West Virginia Supreme Court did not discuss the merits of this argument finding instead that a writ should not issue because the Circuit Court did not make appropriate findings of fact or conclusions of law that was a prerequisite for the Supreme Court to hear the writ. State ex rel. Cherian v. Wilson, 2022 WL 1124916 (W. Va. 2022)

WEST VIRGINIA SUPREME COURT RULES THAT CORPORATE NEGLIGENCE CLAIMS AGAINST A HOSPITAL MUST BE SET FORTH IN THE PRE-SUIT NOTICE OF CLAIM AND SCREENING CERTIFICATE OF MERIT NOVEMBER 23, 2021 This case involves a mother who presented to Ruby Memorial Hospital to give birth to twins. Eleven hours after the birth it is alleged that one of the twins was introduced to air bubbles through intravenous equipment. The air bubbles went into the child’s blood stream and were delivered to her liver, heart and brain. The parents asserted that this was caused by a West Virginia University Hospital employed nurse who failed to properly prime the intravenous tubing, pump and/or equipment which allowed the introduction of air bubbles into the tubing. The child was neurologically impaired and requires 24-hour care. The parents filed a pre-suit Notice of Claim and Screening Certificate of Merit in accordance with the requirements of the MPLA. After filing their original Complaint, the parents filed an Amended Complaint adding several new corporate negligence claims – failure to purchase and utilize equipment that would have prevented this event, failure to document, spoliation of evidence, and failure to report against WVUH. However, the parents did not file any new notice of claim or certificate of merit setting forth these additional corporate negligence claims. WVUH filed a Motion to Dismiss with respect to the new claims asserted in the Amended Complaint. The Monongalia County Circuit Court denied WVUH’s Motion to Dismiss. WVUH then filed a Writ of Prohibition with the West Virginia Supreme Court of Appeals who found that “the plain language of the MPLA applies to the corporate negligence claims.” The Supreme Court concluded that the parents were required to comply with the pre-suit notice requirements of the MPLA, and because they failed to do so, the Circuit Court lacks subject matter jurisdiction over the claims alleged in the Amended Complaint. State ex rel. West Virginia University Hospitals, Inc. v. Scott, 2021 WL 5446109 (W. Va. 2021).

PATIENT’S ESTATE CAN PROCEED AGAINST MENTAL HEALTH PROFESSIONALS WHO ALLEGEDLY BREACHED STANDARD OF CARE RESULTING IN SUICIDE EVEN IF CUSTODIAL RELATIONSHIP DID NOT EXIST NOVEMBER 16, 2021 In this case the patient had received behavioral and mental health treatment from Mid-Valley Healthcare Systems and others for more than ten years from January 1, 2008 thru June 2018. The patient was diagnosed with paranoid schizophrenia, borderline mental functioning, and panic disorder agoraphobia. The patient was treated with a combination of drugs, clinical management, and counseling. The patient’s estate alleged that on about February 28, 2018, the patient’s psychiatric condition began to deteriorate and on June 20, 2018 she presented for treatment at an emergency room where she reported that she was in “such a state of panic” that should have alerted her medical provider of the possibility of suicide. The patient then committed suicide on June 30, 2018. The patient’s estate filed suit alleging that despite the patient’s increasingly unstable presentation and reports of suicidal ideation, no changes were made to her treatment nor was she referred for hospitalization in a crisis stabilization unit or admission to an inpatient psychiatric unit. The Circuit Court dismissed the Complaint because the Complaint did not allege that the patient was in the voluntary or involuntary custody of any of the healthcare professionals at the time she was seen and that all services were rendered on an out-patient basis. The Supreme Court of Appeals of West Virginia held that a negligence-based claim for professional liability for failure to prevent suicide is not restricted to only those defendants who had a “custodial” relationship with the decedent. The Supreme Court of West Virginia reversed the dismissal by the Circuit Court. The West Virginia Supreme Court found that a health care provider could be liable for breach of the standard of care which resulted in a suicide even if the patient was not in the “custody” of the healthcare provider. Morris v. Corder, 2021 WL 5317018 (W. Va. 2021).

PHYSICIAN NOT ALLOWED TO MAINTAIN BAD FAITH CLAIM AGAINST HIS MALPRACTICE INSURER NOVEMBER 16, 2021 This case involves two separate medical malpractice actions against a medical doctor. The medical doctor was insured, with respect to both claims, by West Virginia Mutual Insurance Company, with limits of up to $2.000,000 for each medical malpractice claim. In the first case, the jury awarded Dominique Adkins $5,788,977 on her medical malpractice claim against the doctor. In that case, West Virginia Mutual could have settled the action before trial for $300,000 but refused to do so. After the verdict was rendered, West Virginia Mutual settled the claim for $950,000 several weeks after the verdict but before the Circuit Court entered the Judgment Order. In a second medical malpractice case against the doctor, Mutual settled the claim for $300,000. The doctor then filed suit against West Virginia Mutual Insurance Company asserting a “Shamblin” common-law bad faith claim for West Virginia Mutual’s alleged failure to settle. West Virginia Mutual Insurance Company filed a Motion for Summary Judgment on the doctor’s claims asserting that as the doctor was not exposed to any personal liability, he could not maintain a common-law bad faith claim. The doctor alleged that Mutual’s handling of the claims affected his ability to obtain employment. The Circuit Court of Kanawha County denied West Virginia Mutual’s Motion for Summary Judgment which ruling was reversed on appeal by the West Virginia Supreme Court. The Supreme Court, in concluding that the doctor’s claim against the insurance company should be dismissed stated, “In sum, when a plaintiff has no excess judgment to recover, no Shamblin cause of action exists.” The West Virginia Supreme Court also ruled that the doctor lacked standing to assert a claim under the Unfair Claims Settlement Practices Act found in W. Va. Code § 33-11-4. State ex rel. West Virginia Mutual Insurance Company v. Salango, 866 S.E.2d 74 (W. Va. 2021).

PLAINTIFF IN A MEDICAL MALPRACTICE ACTION MUST PRESENT SWORN EVIDENCE AS TO THE BREACH OF THE STANDARD OF CARE AND CAUSATION IN A MEDICAL MALPRACTICE ACTION. OCTOBER 29, 2021 The patient underwent heel spur surgery. Immediately following the surgery, the patient was in pain and was asked whether he wanted a nerve block. The patient allegedly consented to the nerve block and following the nerve block the patient suffered a nerve injury and Complex Regional Pain Syndrome. The patient filed suit alleging that because he was under the effects of anesthesia he could not have consented to the nerve block and that there was a breach of the standard of care in how the nerve block was performed which caused his nerve injury. During discovery the patient’s expert was equivocal as to how the injury occurred and as to what exactly caused the injury. Specifically, the expert stated that “how the injury happened, I can’t tell” “I don’t know how he did it.” The expert opined that because the patient entered the hospital without a nerve injury and left with a nerve injury that the surgeon must have caused the injury. The Circuit Court of Monongalia County granted the surgeon’s Motion for Summary Judgment and dismissed the case. On appeal, the patient’s attorney argued that the expert would have testified at trial as to the breach of the standard of care and causation. The West Virginia Supreme Court found that the expert witness disclosures were not evidence noting that the disclosure was an unsworn and unverified document. The West Virginia Supreme Court also found that the doctrine of res ipsa loquitur was inapplicable and cannot be used to prove a breach of the standard of care. As to the patient’s claim for lack of informed consent, the West Virginia Supreme Court noted that the Complaint did not assert a claim for lack of informed consent and the patient never moved to amend his Complaint. This case highlights the importance of having sworn expert testimony to support every element of a medical malpractice claim. The case also demonstrates the necessity of alleging all causes of action in the Complaint. Hamon v. Morris, 2021 WL 5033682 (W. Va. 2021).

WEST VIRGINIA’S ONE PERCENT ASSESSMENT ON MEDICAL MALPRACTICE SETTLEMENTS AND JUDGEMENTS IS NO LONGER APPLICABLE August 12, 2021 The West Virginia Legislature, through W.Va. Code §29-12D-1c required patients to pay a 1% assessment to the West Virginia Board of Risk and Insurance Management on the gross amount of any medical malpractice settlement or judgement. The purpose of this assessment was to fund the Patient Injury Compensation Fund. That Fund is now fully funded and patients no longer must pay the 1% assessment to the West Virginia Board of Risk and Insurance Management.

WEST VIRGINIA’S SCREENING CERTIFICATE REQUIREMENTS NO LONGER APPLY TO CLAIMS BROUGHT AGAINST THE UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT July 21, 2021 Prior to this decision, federal courts in West Virginia routinely held that in a medical malpractice action brought against the United States under the Federal Tort Claims Act, patients first had to comply with West Virginia’s Certificate of Merit laws found in W.Va. Code §55-7D-6. In this case, the United States Court of Appeals for the Fourth Circuit held that the pre-suit requirements of the West Virginia Medical Professional Liability Act which required a “Screening Certificate of Merit” and Notice of Claim to be filed at least 30 days before filing suit, did not apply to cases brought against the United States under the Federal Tort Claims Act. The United States Court of Appeals held that the Federal Rules of Civil Procedure, and not West Virginia’s MPLA requirements governed the procedural requirements for filing suit. However, because of a concern that the United States Supreme Court may ultimately hold that a state’s pre-suit requirements need to be complied with, out of an abundance of caution, Pauley Curry will continue to file Certificates of Merit and Notice of Claims prior to filing suit against the United States, where possible. Pledger v. Lynch, 2021 WL 3072861 (4 th Cir. 2021).

WEST VIRGINIA SUPREME COURT AFFIRMS DISMISSAL OF PATIENT’S CLAIM FOR FAILURE TO ACCURATELY DISCLOSE OPINIONS OF EXPERT WITNESS June 23, 2021 In this case arising out of Wood County, the Estate of a patient asserted that the decedent died as a result of hypoxic brain injury following a hysterectomy, subsequent laparotomies, and intubation. The patient’s expert testified that he had not received or reviewed his Expert Disclosure until the night before his deposition and that the Disclosure contained a “highly incomplete” representation of his opinion. The expert further testified that he had not spoken with the patient’s attorney until the day before his deposition. The Circuit Court of Wood County found that the expert’s opinions were made in bad faith and granted Camden Clark Memorial Hospital’s Motion to exclude the expert’s testimony and granted the healthcare provider’s Motion for Summary Judgment. The West Virginia Supreme Court affirmed the dismissal of the patient’s case. This case highlights the importance of accurately disclosing expert opinions in support of a patient’s medical malpractice claim. Reeves v. Camden Clark Memorial Hospital Corporation, 2021 WL 2580731 (W.Va. 2021).

WEST VIRGINIA SUPREME COURT ADDRESSES NON-PARTY FAULT IN MEDICAL MALPRACTICE ACTION June 14, 2021 In this case the Circuit Court of Marshall County ruled prior to a medical malpractice trial that the fault of an alleged non-party, Akron City Hospital, should not be included on the verdict form. Dr. Chalifoux had inserted two spinal cord stimulator leads in the epidural space during a spinal cord stimulator trial. The next day the patient returned for removal of the spinal cord stimulator leads due to discomfort. Several days later, the patient presented at Akron City Hospital where an MRI revealed that the patient was suffering from a spinal hematoma. Surgery was then performed at Akron City Hospital to repair the hematoma. In the malpractice case against Dr. Chalifoux, the Circuit Court of Marshall County rejected Dr. Chalifoux’s argument that Akron City Hospital should be included on the verdict form. Dr. Chalifoux argued that under West Virginia’s general “Several Liability” statute, W.Va. Code § 55-7B-9, the trier of fact in assessing percentages of fault, shall consider the fault of all alleged parties. The Circuit Court denied Dr. Chalifoux’s Motion reasoning that Akron City Hospital was not a “alleged party” as it was not named in the Complaint and no third-party Complaint had been brought against it. The West Virginia Supreme Court denied Dr. Chalifoux’s writ of prohibition. State ex rel. Chalifoux v. Cramer, 2021 WL 2420196 (W.Va. 2021).

WRONGFUL DEATH ACT, RATHER THAN THE MEDICAL PROFESSIONAL LIABILITY ACT, SUPPLIED THE STATUTE OF LIMITATIONS FOR ESTATE’S WRONGFUL DEATH CLAIM AGAINST NURSING HOME OPERATOR June 11, 2021 In this case, a resident of Morgantown Health and Rehabilitation Center, which is a nursing home developed an unstageable decubitus ulcer on her coccyx and died a few days later on June 25, 2018 which death was attributed to sepsis and osteomyelitis. More than one year later, her Estate sued Morgantown Health alleging that poor care, neglect, and abuse resulted in the patient’s death. Morgantown Health moved to dismiss the case based upon the 1-year statute of limitations found in the MPLA. The Monongalia County Circuit Court denied the Motion relying upon the 2-year statute of limitations contained in the Wrongful Death Act. On appeal, the West Virginia Supreme Court held that the action was governed by the 2-year statute of limitations found in West Virginia’s Wrongful Death Act, W.Va. Code § 55-7-6. State ex rel. Morgantown Operating Company, LLC v. Gaujot, 2021 WL 2389783 (W.Va. 2021).

CONCURRING OPINION CLARIFIES REQUIREMENTS OF WEST VIRGINIA’S NON-PARTY FAULT STATUTE June 11, 2021 As part of the mass opioid litigation, the manufacturer and distributor defendants challenged certain rulings of the Mass Litigation Panel. In that case, the defendants filed Notices of Non- Party Fault. Judge Hutchison, in his concurring opinion stated: “Furthermore, West Virginia Code § 55-7-13d is clear that in order for an entity to be a “non-party’ in a negligence action, the actual parties must first make a bona fide attempt to sue and serve those entities and so try (but fail) to make them actual parties to the suit. To read the statue otherwise is to invite every defendant in every civil suit to flail about, blaming strangers for harms caused by the defendant without giving the stranger an opportunity to defend his or her reputation. To paraphrase the cliché, spaghetti will be thrown at strangers with hope that it sticks. There is nothing in the record of this case to suggest that the parties ever tried, let alone failed, to bring into this lawsuit the dozens of entities upon whom the defendants now seek to foist fault. By its own terms, the statute cannot be relied upon by the defendants in this case.” State ex rel. AmerisourceBergen Drug Corporation v. Moats, 2021 WL 2390204 (W.Va. 2021).

MPLA APPLIED TO THE DECISION TO TRANSPORT A PATIENT IN ADVERSE WEATHER CONDITIONS May 20, 2021 In this case, an emergency medical technician employed by Tri-date Ambulance was required to transport a patient from Ohio Valley Medical Center to a hospital in Columbus, Ohio. On the way to Ohio, due to adverse weather conditions, the ambulance wrecked killing a patient and another employee of the ambulance service. The West Virginia Supreme Court held that the decision to transport the patient to another healthcare facility was governed by the MPLA and as such the plaintiffs were obligated to comply with the Notice of Claim requirements of the MPLA. Brown v. Ohio Valley Health Services & Education Corporation, 2021 WL 2023532 (W. Va. 2021)

PLAINTIFFS REQUIRED TO FILE PRE-SUIT NOTICE OF CLAIM May 17, 2021 In this case the patient alleged that doctors and pharmacies prescribed and filled prescriptions for controlled substances in a concerted effort to addict the patient to opioids for monetary purposes. In that case, the patient failed to file Notice of Claims prior to filing suit. The Circuit Court of Wyoming County denied the defendants Motion to Dismiss which ruling was reversed by the Supreme Court of Appeals of West Virginia which ruled that the Circuit Court lacked subject matter jurisdiction over the plaintiff’s claims because they failed to comply with the pre-suit notice requirements of the MPLA. The West Virginia Supreme Court noted that the patient had filed multiple Notice of Claims, but the Notices were filed after the patient filed his Complaint. The West Virginia Supreme Court directed the Circuit Court to enter an Order dismissing the patient’s claims. State ex rel. Hope Clinic, PLLC v. McGraw, 858 S.E.2d 221 (W.Va. 2021).

MALPRACTICE ACTION MUST BE BROUGHT IN THE COUNTY WHERE THE PROVIDER RENDERED OR FAILED TO RENDER HEALTHCARE SERVICES May 10, 2021 After Emily Heckler received psychiatric treatment at Chestnut Ridge Center in Morgantown, she was discharged and returned home to Tucker County with her father, Mark Heckler. Two days later, she stabbed her stepmother Marion to death. Marion Heckler’s Estate then brought a third-party medical negligence claim in Tucker County under the MPLA against West Virginia University Hospitals, Inc. d/b/a Chestnut Ridge Center and West Virginia University Board of Governors. The Circuit Court in Tucker County denied the defendants’ Motion to Dismiss for improper venue. The defendants then filed a writ of prohibition in the West Virginia Supreme Court which held that the actions should have been brought in Monongalia County, the county in which the medical determination was made. State ex rel. West Virginia University Hospitals, Inc. v. Nelson, 857 S.E.2d 923 (W.Va. 2021).

MALPRACTICE CLAIMS SUBJECT TO ONE DAMAGE CAP April 26, 2021 The patient underwent a total left knee arthroplasty, also know as a total knee replacement at Princeton Community Hospital. After the surgery, the patient was diagnosed with an infection of the left knee which required an irrigation and debridement and a subsequent surgery to remove the left knee prosthesis and insert an antibiotic spacer. The issue in this case was whether there was more than one occurrence of malpractice which would allow the plaintiff to recover in excess of the $250,000 cap on damages. The Supreme Court found that each injury complained of by the patient involved the same leg and the same infection and thus there was only one occurrence of medical negligence involving the patient. Musick v. Pennington, No. 19-0880 (W.Va. April 26, 2021).

WEST VIRGINIA LEGISLATURE PASSES COVID-19 IMMUNITY BILL March 11, 2021 On March 11, 2021 the West Virginia Legislature passed Senate Bill 277 which was titled The Covid-19 Jobs Protection Act. Governor Justice signed this Bill into law on March 19, 2021. Significantly, the Bill provides that, “there is no claim against any person, essential business, business, entity, healthcare facility, healthcare provider, first responder, or volunteer for loss, damage, physical injury, or death arising from Covid-19 care, or from impacted care.” This immunity from liability was made effective retroactively from January 1, 2020 and applies to any cause of action occurring on or after that date. The statute defined “impacted care” to mean “care offered, delayed, postponed, or otherwise adversely affected at a healthcare facility or from a healthcare provided that impacted the healthcare facility or healthcare provider’s response to, or as a result of, Covid-19 or the Covid-19 emergency.” If a “Covid defense” is raised in a medical malpractice action the defendant, but not the plaintiff, is permitted to ask for an early resolution as to the validity of that defense by making the appropriate motion to the presiding judge. W.Va. Code § 55-19-1, et seq.

STATUE OF LIMITATIONS FOR CLAIMS BROUGHT BY AN INFANT December 16, 2020 West Virginia Code § 55-7B-4(b) sets forth the statute of limitations for malpractice claims brought by an infant. The code § section provides that “the cause of action for injury to a minor, brought by or on behalf of a minor who was under the age of 10 years at the time of such injury shall be commenced within two years of the date of such injury, or prior to the minor’s 12th birthday, which ever provides the longer period.” In this case, the plaintiff, a minor, missed the statute of limitations and argued to the Circuit Court of Monongalia County, West Virginia that § 55-7B-4(b) was unconstitutional. The Circuit Court disagreed and an appeal was presented to the West Virginia Supreme Court. The Supreme Court, based on technical reasons, refused to hear the appeal and affirmed the decision of the Circuit Court. Justice Hutchinson pointed out the issue of the constitutionality in § 55-7B-4(b) should be addressed and urged the court to hear oral argument on this issue as opposed to side stepping a substantive decision. Wilson v. Kerr MD (December 16, 2020).

WEST VIRGINIA UNIVERSITY HOSPITALS FOUND NOT TO BE IN A JOINT VENTURE WITH UNIVERSITY HEALTH ASSOCIATES July 31, 2020 In this medical malpractice case West Virginia University Hospitals, Inc. was found to not be vicariously liable under a claim of joint ventures for the alleged medical negligence of a University Health Associates physician. The patient had alleged that because West Virginia University Hospitals had entered into a joint operating agreement with University Health Associates those parties were engaged in a joint venture known as WVU Healthcare. The West Virginia Supreme Court after noting the legislation establishing West Virginia University Hospitals concluded that the parties were not engaged in a joint venture. Importantly, Judge Hutchinson noted that because a majority of the court did not rule on the issue involved in this case the decision was not binding precedent meaning that a similar claim of join venture is not precluded from being asserted in future litigation against West Virginia University Hospitals. Wiles v. West Virginia University Hospitals, Inc., 2020 WL 4384235 (W.Va. 2020).

NECESSITY OF FILING A SCREENING CERTIFICATE OF MERIT February 3, 2020 A patient was scheduled to undergo a four-vessel coronary artery bypass surgery at Ruby Memorial Hospital. The patient suffered injuries to his penis when a nurse attempted to insert a catheter in preparation for the surgery. The patient failed to timely file a Screening Certificate of Merit as required by W.Va. Code § 55-7B-6 before a lawsuit was filed. The circuit court dismissed the plaintiff’s complaint for failure to file a Screening Certificate of Merit. This dismissal was affirmed by the Supreme Court of Appeals of West Virginia. Because the patient failed to file a Screening Certificate of Merit, patient’s claims were barred by the two-year statute of limitations. Clay v. J.W. Ruby Memorial Hospital, 2020 WL 533951 (W.Va. 2020).

SIGNING OUT OF HOSPITAL AGAINST MEDICAL ADVICE TERMINATED PHYSICIAN-PATIENT RELATIONSHIP November 8, 2019 The patient had her gallbladder removed at Raleigh General Hospital. After being discharged, the patient returned to Raleigh General a few days later and an ERCP was performed. During the procedure temporary stents were inserted into the patient’s common bile duct and pancreatic duct. The day after the surgery the patient left the hospital against medical advice. The form which the patient signed stated: I, Kruse, Misty, a patient in Raleigh General Hospital of Beckley have determined that I am leaving the hospital and I acknowledge and understand this action of so leaving the hospital is against the advice of the attending physician and of hospital authorities. I further acknowledge that I have been informed of the possible dangers and risks to my health and the health of others by my so leaving the hospital at this time, and I have been given full explanation of the consequences of my leaving the hospital and I do not wish any further explanation. I assume the risk and accept the consequences of my departure from Raleigh General Hospital at the time and hereby release all health care providers, including the hospital and its staff, from all liability and responsibility for the ill effects that may result to myself, my family and to others resulting from this discontinuance of treatment in the hospital. I have read and fully understand this document and understand the risk and benefits of leaving Against Medical Advice. The patient was never informed that the stents needed to be removed. Later, the stents became blocked causing an infection of the biliary tree, ascending cholangitis and sepsis. The patient filed suit claiming that she should have been informed of the need to remove the stents. The circuit court ruled that neither the physician or Raleigh General Hospital owed the patient any duty as the patient had signed out against medical advice. The Supreme Court of Appeals of West Virginia ruled that by signing out against medical advice the patient was no longer entitled to receive the benefits of the Medical Professional Liability Act and that her complaint was properly dismissed. Kruse v. Farid, 835 S.E.2d 163 (W.Va. 2019).

CERTIFICATE OF MERIT NEEDED IN INFORMED CONSENT CLAIM AGAINST DENTIST October 11, 2019 In this case a patient alleged that a dentist failed to obtain an informed consent for a bite adjustment which was performed. The patient’s complaint was dismissed due to her failure to file a Screening Certificate of Merit as required by W.Va. Code § 55-7B-6 of the Medical Professional Liability Act. After the circuit court dismissed her complaint, the patient argued before the West Virginia Supreme Court that a Certificate of Merit was not needed for an informed consent claim. The West Virginia Supreme Court disagreed with the patient noting that the patient alleged she sustained physical injury as a result of the dentist alleged negligence following his failure to obtain consent for the bite adjustment. Patterson v. Wylie, 2019 WL 5092636 (W.Va. 2019).

DEFENSE VERDICT IN FAVOR OF PHYSICIAN AND HOSPITAL AFFIRMED June 10, 2019 In this case the patient brought a medical malpractice action against an obstetrician and the hospital arising out of the delivery of her child. After attempting a vaginal delivery with the assistance of forceps, the obstetrician called for a cesarean section. The infant was born asphyxiated and was pronounced dead the following day. The mother alleged that the obstetrician was negligent and breached the applicable standard of care by failing to timely deliver the infant. After an 8-day trial the jury rendered a defense verdict which verdict was affirmed on appeal before the Supreme Court of West Virginia. The mother asserted that the circuit court erred by giving a multiple methods of treatment instruction. The mother also alleged that the circuit court erred in its rulings upon the admissibility of expert witness testimony at trial. The Supreme Court rejected the mother’s claims stating that she failed to put forth anything in the record that would warrant overturning the verdict rendered by the jury. In medical malpractice cases, the multiple methods of treatment jury instruction (which states that a healthcare provider is not negligent if he or she selects and utilizes in a non-negligent manner one of two or more generally recognized methods of diagnosis or treatment within the standard of care) is appropriate where the evidence shows that the challenge method of diagnosis or treatment enjoys such substantial support within the medical community that it is, in fact, widely and generally accepted. The necessity of presenting evidence sufficient to support a multiple methods of treatment jury instruction rest with the defendant. Yates v. University of West Virginia Board of Trustees, 549 S.E.2d. 681 (2001) Smith v. Clark, 828 S.E.2d 900 (W.Va. 2019)

ADDITIONAL FUNDING FOR THE PATIENT INJURY COMPENSATION FUND June 6, 2018 The West Virginia Legislature enacted West Virginia Code § 29-12D-1a effective June 6, 2018 which provided for additional funding of the Patient Injury Compensation Fund. This statute assessed a biennial assessment of $125 from every physician licensed by the osteopathic medicine board for the privilege of practicing medicine in the state. The statute also imposed an assessment of $25 for each trauma patient treated at a trauma center, for the period January 1, 2016 through June 30, 2021. The Legislature also assessed a fee of 1% of the gross amount of any settlement or judgment in a qualifying medical malpractice claim which assessment is from July 1, 2016 through December 31, 2021. West Virginia Code § 29-12D-1a

STATUTE OF LIMITATIONS BARS PATIENT’S CLAIM November 17, 2017 A patient filed a medical malpractice lawsuit against Thomas Memorial Hospital and an obstetrician arising out of a hysterectomy causing damage to the patient’s small bowel and colon. In that case it was undisputed that the post-operative infection and fistula had been diagnosed by July 21, 2013 which was 2-3 weeks after the surgery. The circuit court found that the two-year statute of limitations began to run on that date and thus the patient’s claims were barred when she waited until September 1, 2015 to serve a Screening Certificate of Merit. The patient argued that she did not realize that her problems were caused by the obstetrician but rather believed that her problems were caused by mesh which had been installed in a prior hernia surgery. The West Virginia Supreme Court rejected the patient’s claims finding that the patient learned something went wrong on July 21, 2013 and thus her claims were not timely filed. Parsons v. Herbert J. Thomas Memorial Hospital Association, 2017 WL 5513620 (W.Va. 2017).

SUPREME COURT AFFIRMS DEFENSE VERDICT October 20, 2017 The patient alleged that she experienced a permanent ulnar nerve injury in her left arm following a total elbow arthroplasty (total elbow replacement). At the conclusion of six days of trial, the jury returned a verdict finding that the patient failed to prove that the physician breached the standard of care in his treatment of petitioner’s elbow. At trial the circuit court prevented the patient from admitting evidence of a surgery schedule which showed that a medical resident was the one who transposed the ulnar nerve back into place after the elbow replacement and that the physician had left the procedure at this point. The West Virginia Supreme Court found no error and affirmed the jury verdict. Hamilton v. Ryu, 2017 WL 4711421 (W.Va. 2017).

FEDERAL COURT APPLIES WEST VIRGINIA COLLATERAL SOURCE LAW TO MALPRACTICE CLAIM BROUGHT UNDER THE FEDERAL TORT CLAIMS ACT August 3, 2017 Valley Health detected potential fetal abnormalities early in the mother’s pregnancy but it failed to inform the mother of these abnormalities until the mother’s third trimester. As West Virginia and surrounding states’ laws prohibited the termination of her pregnancy during the third trimester, this delay prevented the mother from making a timely and informed decision on whether to obtain an abortion. The son survived birth, but suffers from severe brain malformation and lives in a vegetative state. After a bench trial, the court awarded damages in the amount of $12,222,743. Under the Medical Professional Liability Act, payments received from collateral sources (Medicaid, health insurance, etc.) offset the damages recoverable. The court held a collateral source hearing finding that there should not be an immediate offset for past and future medical expenses as the West Virginia Medicaid Program has a lien against plaintiff’s damage award for past costs borne by the program. Simms v. United States, 2017 WL 3317417 (S.D.W.Va. 2017).

MPLA APPLIES TO PREMISES LIABILITY CLAIM February 9, 2017 A 71-year-old patient went to the South Charleston Med Express to seek medical care relating to shortness of breath, weakness, and the possible development of pneumonia. The patient had recently undergone hip surgery and had only recently begun to walk without the assistance of a walker. During the patient’s attempt to get on the examination table, the patient fell back, sustained injuries and died 90 days later. The patient’s case was dismissed by the circuit court on summary judgment because the patient’s Estate had not complied with the notice of claim provisions of the Medical Professional Liability Act. The patient’s Estate argued that Med Express had not provided any healthcare to the patient so a notice of claim and screening certificate of merit was not needed. The West Virginia Supreme Court found that the basis of the lawsuit was related to the providing of medical care. As such, the patient’s Estate was required to present expert witness testimony to establish the breach of the standard of care. The West Virginia Supreme Court found no error in the circuit court’s decision that the MPLA applied to this case. Minnich v. Med Express Urgent Care, Inc., 796 S.E.2d 642 (W.Va. 2017).

COURT FINDS IN FAVOR OF PATIENT IN FEDERAL TORT CLAIMS ACT CASE November 15, 2016 This case involves bleeding by a 24-year-old mother after delivering her child via a cesarean section. The patient was then seen by an emergency room physician on Christmas Day for heavy bleeding who referred her to an obstetrician. The patient claimed that the obstetrician violated the standard of care because he did not attempt all available treatment options before performing a hysterectomy. The court found that the obstetrician’s treatment fell egregiously below the standard of care. The court found that the alternative treatments would have only taken a few minutes each to perform. The court awarded $29,661 for the patient’s economic damages, $603,020 in non-economic damages and $40,000 to the father for his loss of consortium claim for a total of $672,681. Lambert v. United States, 2016 WL 6782748 (S.D.W.Va. 2016).

COURT REFUSES TO DISMISS PUNITIVE DAMAGE CLAIM June 24, 2016 The patient was transported to Raleigh General Hospital after he lost control of his vehicle, and crashed into a ditch. At the scene, the patient was disoriented and emergency services personnel believed he may have been under the influence of unknown substances. The patient also had a fever. The physician treated the patient with anti-inflammatory agent, Toradol, together with fluids. The physician ordered blood and urine tests but did not wait for the blood test to return results before determining the patient was stable and discharged the patient. After the patient was discharged, the blood test revealed multiple signs of systemic infection. After several days the patient was again transported to Raleigh General where he was diagnosed with systemic sepsis and meningitis. The patient then suffered cardiopulmonary arrest and died. The physician filed a motion for summary judgment arguing that his conduct did not warrant an award of punitive damages. The United States District Court for the Southern District of West Virginia held that there was a genuine issue of material fact as to whether the physician’s conduct was such that the plaintiff’s Estate could recover punitive damages and denied the physician’s motion. Mandeville v. Nathanson, 2016 WL 3566241 (S.D.W.Va. 2016).

PATIENT NOT ENTITLED TO AWARD OF ATTORNEY’S FEES AND COSTS June 6, 2016 In this case, the patient went to Wetzel County Hospital Emergency Room in New Martinsville and came under the care of a surgeon. The patient’s symptoms included abdominal discomfort, nausea and vomiting. The following day the patient slipped into shock and died. The patient’s Estate filed suit alleging that the surgeon failed to perform exploratory surgery to identify, diagnose and correct the patient’s “intra-abdominal condition.” A jury found the surgeon guilty of negligence and returned a verdict of $4,000,000 in compensatory damages. The judgment was reduced by $1,162,741 based upon the caps on non-economic damages provided for by the MPLA. After the trial, the patient’s Estate sought to recover all attorney’s fees and costs incurred in prosecuting the medical malpractice action. The West Virginia Supreme Court found that the circuit court erred in awarding attorney’s fees and costs. Murthy v. Karpacs-Brown, 788 S.E.2d 18 (W.Va. 2016).

RES IPSA LOQUITUR WAS NOT APPLIED IN DENTAL MALPRACTICE CASE May 23, 2016 When a dentist attempted to extract a tooth, the tip of the dental instrument broke and lodged in the patient’s gums. The tooth extraction was aborted and the patient was later scheduled for oral surgery. The patient argued that where a foreign object remains in a patient gums following a dental procedure, expert testimony is not required to establish a breach of the standard of care. The West Virginia Supreme Court found that the circuit court committed no error in requiring the patient to provide expert testimony on the dentist’s failure to meet the proper standard of care. Maynard v. Wexford Health Sources, Inc., 2016 WL 2979651 (W.Va. 2016).

DAMAGES FOR PERSONAL INJURY SURVIVES THE DEATH OF A PATIENT IN MEDICAL MALPRACTICE ACTION May 19, 2016 The patient, who suffered from Alzheimer’s disease, resided at a nursing facility for 10 years prior to his death. In an action brought under the Medical Professional Liability Act, the patient’s Estate was allow to recover damages for injury sustained prior to his death. Thus, under West Virginia law, pre-death pain and suffering are recoverable. Williams v. CMO Management, LLC, 803 S.E.2d 500 (W.Va. 2016).

CHIROPRACTOR WAS NOT QUALIFIED TO TESTIFY AS TO THE BREACH OF THE STANDARD OF CARE AGAINST A PHYSICIAN March 14, 2016 This case involved treatment for the fracture of a finger. The court held that the patient’s expert, a chiropractor, was not qualified to testify that a medical doctor and a physician’s assistant breached the applicable standard of care in the treatment they provided the plaintiff. As this was the only expert identified by the patient in the case, the patient’s complaint was dismissed. Jacobs v. United States, 2016 WL 11430448 (N.D.W.Va. 2016).

MEDICAL MALPRACTICE SUIT MAY BE MAINTAINED AGAINST A WEST VIRGINIA SURGEON WHO PERFORMED THE SURGERY IN OHIO February 10, 2016 The patient, a resident of Ohio, underwent surgery in Ohio. The surgeon was a resident of West Virginia and the surgeon also practices in the state of West Virginia. The patient alleged that the surgeon removed a portion of her right clavicle rather than her right first rib during the surgery. After the surgery, the surgeon sent a letter from his West Virginia office to the patient’s primary care physician describing the surgery. The patient subsequently underwent several corrective procedures at the Cleveland Clinic which included a right first rib resection. The West Virginia Supreme Court held that the medical malpractice action could proceed in the state of West Virginia. State ex rel. Khoury v. Cuomo, 783 S.E.2d 849 (W.Va. 2016).

PEER REVIEW DOCUMENTS NOT DISCOVERABLE IN MEDICAL MALPRACTICE ACTION February 9, 2016 The patient had a thyroidectomy performed by Dr. Ghaphery at Wheeling Hospital. Following the surgery, the patient had difficulty breathing and swallowing, and was unable to talk. The patient then consulted with a specialist who informed her that the nerves surrounding her thyroid gland had been severed during her thyroidectomy resulting in bilateral vocal cord paralysis. The patient then brought suit against both Dr. Ghaphery and Wheeling Hospital, Inc. asserting claims for medical negligence, lack of informed consent, and negligent credentialing. During discovery of the case, the patient sought documents from Wheeling Hospital’s crediting committee. The West Virginia Supreme Court noted that the peer review privilege has been adopted by statute in West Virginia and generally protects peer review proceedings conducted by a review organization. See W.Va. Code § 30-3C-1 et seq. The West Virginia Supreme Court ruled that where the peer review committee merely uses information that has been generated or supplied by a source external to the committee, such information is discoverable from the original, external sources, but not from the peer review committee itself. State ex rel. Wheeling Hospital, Inc. v. Wilson, 782 S.E.2d 622 (W.Va. 2016).

SCREENING CERTIFICATES OF MERIT FOUND TO SATISFY STATUTORY MEDICAL MALPRACTICE PRE-SUIT NOTICE REQUIREMENTS November 20, 2015 Estate of patient, whose cause of death was respiratory failure due to stroke, brought a medical malpractice action against the doctors. The doctors filed a motion to dismiss asserting that the certificate of merit filed by the patient’s Estate was deficient. The West Virginia Supreme Court held that a principal consideration before a court reviewing a claim of insufficiency in a notice or certificate should be whether a party challenging or defending the sufficiency of a notice or certificate has demonstrated a good faith and reasonable effort to further the statutory purposes. In that case, the court held that the certificate of merit was sufficient. Keith v. Lawrence, 2015 WL 7628691 (W.Va. 2015).

DETERMINATION OF WHICH DAMAGE CAP APPLIES IS FOR FINDER OF FACT July 11, 2015 The patient was pursuing a medical malpractice action seeking to recover for injuries he received to the nerves of one of his feet. In this medical malpractice action brought under the Federal Tort Claims Act, the United States argued as a matter of law that the low cap on economic damages found in West Virginia Code § 55-7B-8 should apply. The United States District Court for the Northern District of West Virginia disagreed holding that whether the $500,000 cap applies is a determination for the finder of fact. The Court found that the medical providers breached the standard of care in their treatment of the patient and awarded the patient $300,000. Giambalvo v. United States, 2015 WL 4132042 (N.D.W.Va. 2015)

COURT DENIES HOSPITAL’S MOTION TO BIFURCATE NEGLIGENT CREDENTIALING CLAIM June 18, 2015 This case arises out of the medical treatment of a patient by a podiatrist. It was alleged that the hospital was negligent in hiring and retaining the podiatrist and in the credentialing and privileging of the podiatrist. The hospital sought to have those claims decided in a separate trial. The federal court found that the hospital had not met its burden of demonstrating sufficient prejudice to warrant separate trials. Welch v. Logan General Hospital, LLC, 2015 WL 3797148 (S.D.W.Va. 2015).

EVIDENCE SUFFICIENT TO SHOW WILLFUL, WANTON AND RECKLESS CONDUCT BY DOCTOR WARRENTING PUNITIVE DAMAGES June 16, 2015 This 65-year-old patient was treated at Bluefield Regional Medical Center for obstructive sleep apnea, COPD, and chronic hypercapnia, a condition which caused him to retain excess carbon dioxide in his blood and the become confused and agitated. The patient then developed tachyarrhythmia, QRS widening, bradycardia, and asystole and died. His family filed a malpractice action against his doctors alleging they deviated from the standard of care by prescribing excessive dosages of Haldol and Seroquel and by willfully and recklessly failing to take any measure to investigate or rectify the reasons for his prolonged state of unconsciousness. Following a three-day jury trial, the jury awarded $500,000 in non-economic damages, and $500,000 in punitive damages. On appeal, the West Virginia Supreme Court found that the physician’s conduct was sufficient to allow an award of punitive damages. The Supreme Court noted the plaintiff’s expert testimony that the patient got sedated when he shouldn’t, he did not get a bed side sitter to control his agitation if that was deemed necessary, he didn’t get BIPAP when he needed it, he didn’t get a pulmonary consult, and that the expert testified “this was as bad a care as I’ve ever seen in my 30 years in a three-day hospitalization.” Stephens v. Rakes, 775 S.E.2d 107 (W.Va. 2015).

PATIENT GRANTED SUMMARY JUDGMENT ON BREACH OF THE STANDARD OF CARE IN A FEDERAL TORT CLAIMS ACT CASE August 5, 2014 In this case, the court found that an obstetrician and certified nurse midwife, both employees of Valley Health Systems, Inc., and deemed employees of the United States failed to exercise the required standard of care in providing healthcare services to a mother during her pregnancy by (a) not obtaining an appropriate history from the patient, (b) not investigating the “rare blood disorder” that was reported to them as to the patient’s first pregnancy, (c) failing to appreciate the significance of the antibody testing that occurred during the initial pre-natal visit, and (d) failing to properly monitor and manage the mother during the pregnancy through the use of blood testing such as serial antibody testing, serial amniocentesis, or serial middle cerebral artery Doppler. Thus, the court granted the patient’s motion for summary judgment concerning breach of the standard of care. Adkins v. United States, 2014 WL 3853453 (S.D.W.Va. 2014).

AMOUNT OF ADMINISTRATIVE CLAIM WAS ALLOWED TO BE INCREASED IN A FEDERAL TORT CLIAMS ACT CASE January 2, 2014 Medical malpractice claims arising from malpractice committed by healthcare professionals who are employed by federally funded healthcare clinics are governed by the Federal Tort Claims Act. In those claims, an administrative claim must be filed with the United States government before suit maybe filed. Ordinarily, the amount claimed in the administrative claim is the limit which may be awarded by the federal court in the subsequent medical malpractice action. In this case, the federal court allowed the administrative claim to be increased based upon newly discovered evidence as the infant’s diagnosis of global development delay could not have been reasonably discovered at the time the mother filed her administrative claim for negligent pre-natal care. Adkins v. United States, 990 F.Supp.2d 621 (S.D.W.Va. 2014).

SUPREME COURT AFFIRMS THE GRANTING OF SUMMARY JUDGMENT TO HEALTHCARE PROVIDER October 25, 2013 In this case, a child suffering from encephalitis and seizures died at Charleston Area Medical Center. The patient’s lone expert took the position that her death was the result of a hypoxic ischemic event, resulting from laryngospasm which occurred when she was in the treatment room. The expert testified that the failure to more emergently intubate her contributed “somewhat” to her death. The expert admitted that he could not say to a reasonable degree of medical probability that the patient would have lived if she had been intubated earlier. Based upon this deposition testimony the circuit court granted the healthcare provider’s motion for summary judgment. This dismissal was affirmed by the West Virginia Supreme Court who ruled that the lack of expert medical testimony as to causation was fatal to the plaintiff’s claim. This case highlights the necessity of having quality experts to establish every element of a medical malpractice claim. Dellinger v. Pediatrix Medical Group, P.C., 750 S.E.2d 668 (W.Va. 2013).

DOCTOR’S FAILURE TO SEND PATIENT’S BODY FOR AUTOPSY DID NOT WARRANT JURY INSTRUCTION FOR SPOLIATION OF EVIDENCE October 18, 2013 Estate of patient who died due to blood loss anemia as a result of suspected perforated ulcer and hemorrhage brought medical malpractice action against the doctor. After the patient’s death, the hospital staff inquired of the family whether they desired an autopsy and they declined. The treating physician completed the death certificate listing cardiogenic shock as the immediate cause of death due to or as a consequence of blood loss anemia due to a suspected perforated ulcer and hemorrhage. Patient’s Estate alleged that the treating physicians failed to diagnose a small bowel obstruction which escalated to a complete bowel obstruction. However, at trial, the Estate’s own experts disagreed with one another as to the cause of death. After a five-day trial, the jury returned a verdict for the defense. On appeal, the Estate argued that the physician’s failure to send the patient’s body for an autopsy constituted spoliation of evidence. The West Virginia Supreme Court disagreed stating that it was the patient’s “family that had control over the body and declined the autopsy.”Samples ex rel. Estate of Samples v. Holbrook, 2013 WL 5676638 (W.Va. 2013).

DETERMINATION OF WHETHER HIGH CAP APPLIES IS FOR TRIER OF FACT June 20, 2013 This litigation involved a medical malpractice action where a pre-trial dispute occurred as to whether plaintiff’s decedent’s injuries were sufficient to invoke the high cap under W.Va. Code § 55-7B-8. One of the plaintiff’s arguments as to why the high cap applied was because plaintiff’s decedent was required to have two ostomies constructed as a result of the healthcare provider’s negligence causing scarring. The United States District Court for the Northern District of West Virginia determined that those types of injuries (scarring) raised material questions of fact that would have to be resolved by the fact finders versus a pre-trial determination by the court. It was up to the trier of fact, at trial, to determine whether there was “scarring” or some “permanent and substantial physical deformity” meriting application of the high cap. Dawson v. United States, 2013 WL 3187078 (N.D.W.Va. 2013).

UNITED STATES NOT ENTITLED TO SUMMARY JUDGMENT AS TO STATUE OF LIMITATIONS ON A FEDERAL TORT CLAIMS ACT CASE AGAINST THE UNITED STATES February 11, 2013 Mother of minor child brought a Federal Tort Claims Act (FTCA) action against the United States, alleging that obstetrician at federally funded healthcare clinic that provided pre-natal care during her pregnancy failed to diagnose and treat pre-natal blood incompatibility condition. The United States moved to dismiss the complaint based upon the statute of limitations. The federal court held that although the mother knew of brain damage and other injuries to her newborn child at time of child’s discharge from the hospital one month after his birth, genuine issue of material fact as to when mother knew or should have known that the conduct of medical personnel at the federally funded healthcare clinic played a role in her child’s injury. The court ruled that the statute of limitations does not begin to run until the individual knows or should have known of the injury and that the conduct of the medical professional played a role in the injury. The continuous treatment doctrine did not apply as the treatment ended at the time of the child’s birth. Adkins v. United States, 923 F.Supp.2d 853 (S.D.W.Va. 2013).

HOSPITAL WAS NOT VICARIOUSLY LIABLE TO PATIENT UNDER THEORY OF RESPONDEAT SUPERIOR OR JOINT VENTURE November 20, 2012 Thomas Memorial Hospital was not liable for the alleged negligence of emergency room physicians at its hospital where the physicians were independent contractors. The West Virginia Supreme Court discussed a four-factor test to determine whether the physicians were independent contractors including: 1) Selection and engagement of the physicians; 2) Payment of compensation; 3) Power of dismissal; and 4) Power of control. The West Virginia Supreme Court concluded that the physicians were not agents or actual employees of Thomas Hospital, that the hospital could not be vicariously liable for the physicians’ negligence, and that the hospital was not engaged in a joint venture with the physicians. Cunningham v. Herbert J. Thomas Memorial Hospital Association, 737 S.E.2d 270 (W. Va. 2012).

VENUE APPROPRIATE IN COUNTY WHERE MALPRACTICE OCCURRED November 16, 2012 In this case it was alleged that medical malpractice resulted in the wrongful death of the patient. The patient’s Estate brought suit in Kanawha County, West Virginia where the patient eventually died. However, the court ruled that the action should have been brought in Fayette County where the alleged malpractice occurred. Jewell v. Petersen, 2012 WL 5834889 (W.Va. 2012).

MEDICAID’S LIEN INTEREST WAS LIMITED TO FUNDS ALLOCATED SOLELY TO PAST, NOT FUTURE, MEDICAL EXPENSES June 21, 2012 This case illustrates Medicaid’s right to subrogation in medical malpractice actions where Medicaid has paid some of the medical bills. In that case, the malpractice lawsuit was brought in Ohio but West Virginia Medicaid had paid some of the patient’s medical bills that resulted from the malpractice. The court noted that under West Virginia’s Medicaid Subrogation Act, West Virginia Code § 9-5-11, The West Virginia Department of Health and Human Resources has a subrogation right against the recovery a Medicaid recipient receives from third party tortfeasors. The West Virginia Supreme Court held that the DHHR was only entitled to subrogation with respect to past medical bills and that the patient was entitled to deduct from the subrogation amount a pro rata share of the attorney’s fees and costs. In re E.B., 729 S.E.2d 270 (W.Va. 2012).

ISSUE OF WHETHER LOW DAMAGE CAPS OR HIGH DAMAGE CAPS APPLIED IN MEDICAL MALPRACTICE ACTION WAS FOR THE JURY TO DECIDE June 22, 2011 This case arises out of medical treatment provided to a patient at City Hospital. The patient was suffering from symptoms consistent with pneumonia. The patient had a significant medical history as childhood diabetes had led to organ damage requiring him to undergo a kidney transplant. The patient developed rhabdomyolysis, a severe form of muscle damage, as a result of being given the combination of Lipitor, Diflucan, and Cyclosporin during his hospitalization. The patient filed suit alleging that the physician at City Hospital should not have administered the medication under the circumstances. A jury found the physician to be 70% at fault and City Hospital to be 30% at fault. The jury awarded $92,000 for past medical expenses, $37,000 for past lost wages, $250,000 for past pain and suffering, and $750,000 for future pain and suffering. The jury also awarded the patient’s wife $500,000 for loss of consortium. Following the verdict, the trial court reduced the non-economic damages to $500,000 pursuant to the statutory cap on non-economic damages found in the Medical Professional Liability Act. On appeal, the Supreme Court found that these damage caps were constitutional but rejected the hospital’s argument that the high cap should apply. Pursuant to West Virginia Code § 55-7B-8 non-economic losses are capped at $250,000 unless the patient has suffered either “(1) wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities.” The Supreme Court held that whether the high cap or low cap applies to a specific patient’s injuries is a factual determination that clearly should have been made by the jury.” MacDonald v. City Hospital, Inc., 715 S.E.2d 405 (W.Va. 2011).

IMPROPER COMMENTS BY DEFENSE COUNSEL November 13, 2009 In this case, the patient’s Estate filed a medical malpractice action against a surgeon in connection with bleeding complications during open-heart surgery that led to the deprivation of oxygen and irreversible brain damage. The jury returned a verdict for the physician and the circuit court denied the patient’s motions for a new trial and for sanctions. The patient’s Estate filed an appeal based upon defense counsel’s closing argument. During closing arguments, defense counsel utilized a PowerPoint presentation that depicted a “Wizard of Id” cartoon that mocked litigation by plaintiffs against physicians. In that case, defense counsel claimed that plaintiff’s counsel and his expert “will take a bad result and turn it into malpractice every time.”The West Virginia Supreme Court held that this type of character derogation is clearly outside the bounds of immiscible argument and summation and ordered a new trial. Jones V. Setser, 686 S.E.2d 623 (W.Va. 2009).

CONTINUOUS TREATMENT DOCTRINE RECOGNIZED AS AN EXCEPTION TO THE TWO-YEAR STATUTE OF LIMITATIONS BUT FOUND INAPPLICABLE November 19, 2008 The patient and his wife filed a medical malpractice claim against a surgeon who left a scalpel blade in the patient’s hand. The circuit court dismissed the case as not being timely filed. The court recognized that under the continuous medical treatment doctrine, when a patient is injured due to negligence that occurred during the continuous course of medical treatment and is unable to ascertain the precise date of injury, the statute of limitations will begin to run on the last date of treatment. However, in order to establish a continuing tort theory a plaintiff must show repetitious wrongful conduct and for that reason. As the plaintiff had failed to allege repetitious wrongful conduct, the court ruled that continuous treatment doctrine would not apply in that case. Forshey v. Jackson, 671 S.E.2d 748 (W.Va. 2008).