IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term FILED
__________ February 9, 2017
released at 3:00 p.m.
RORY L. PERRY, II CLERK
No. 15-1148 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
__________
JOYCE E. MINNICH, as Executrix of the Estate of Andrew A. Minnich,
and JOYCE E. MINNICH, individually,
Plaintiff Below, Petitioner
v.
MEDEXPRESS URGENT CARE, INC. - WEST VIRGINIA d/b/a
MEDEXPRESS URGENT CARE - SOUTH CHARLESTON,
Defendant Below, Respondent
______________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Charles E. King
Civil Action No. 13-C-1547
AFFIRMED
_______________________________________________________
Submitted: January 10, 2017
Filed: February 9, 2017
John H. Tinney, Jr., Esq. Anthony C. Sunseri, Esq.
John K. Cecil, Esq. Darla A. Mushet, Esq.
Hendrickson & Long, PLLC Burns White LLC
Charleston, West Virginia Wheeling, West Virginia
Counsel for Petitioner Counsel for Respondents
CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
SYLLABUS
1. “Pursuant to W.Va. Code § 55-7B-2(e) (2006) (Supp. 2007), ‘health care’
is defined as ‘any act or treatment performed or furnished, or which should have performed
or furnished, by any health care provider for, to or on behalf of a patient during the patient’s
medical care, treatment or confinement.’” Syl. Pt. 5, Blankenship v. Ethicon, Inc., 221
W.Va. 700, 656 S.E.2d 451 (2007).
2. “The West Virginia Medical Professional Liability Act, codified at W.Va.
Code § 55-7B-1 et seq. applies only to claims resulting from the death or injury of a person
for any tort or breach of contract based on health care services rendered, or which should
have been rendered, by a health care provider or health care facility to a patient. It does not
apply to other claims that may be contemporaneous to or related to the alleged act of medical
professional liability.” Syl. Pt. 3, Boggs v. Camden-Clark Mem’l Hosp. Corp., 216 W.Va.
656, 609 S.E.2d 917 (2004).
3. “The failure to plead a claim as governed by the Medical Professional
Liability Act, W.Va. Code § 55-7B-1, et seq., does not preclude application of the Act.
Where the alleged tortious acts or omissions are committed by a health care provider within
the context of the rendering of ‘health care’ as defined by W.Va. Code § 55-7B-2(e) (2006)
(Supp. 2007), the Act applies regardless of how the claims have been pled.” Syl. Pt. 4,
Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E.2d 451 (2007).
LOUGHRY, Chief Justice:
The petitioner, Joyce Minnich,1 appeals from the October 28, 2015, order of
the Circuit Court of Kanawha County, denying her motion for reconsideration of an adverse
summary judgment ruling issued by the circuit court on December 1, 2014. Rather than
granting summary judgment as to the entirety of the petitioner’s negligence claim, the circuit
court simply concluded that the purported “premises liability” claim2 asserted by the
petitioner against the respondent, Medexpress Urgent Care, Inc. (“MedExpress”), falls within
the provisions of the West Virginia Medical Professional Liability Act (“MPLA”), W.Va.
Code § 55-7B-1 to -12 (2016).3 In seeking relief from this ruling, the petitioner argued that
the MPLA does not apply because Mr. Minnich was not treated by a “health care provider”4
prior to his fall within the MedExpress facility. Given Mr. Minnich’s lack of medical care
before the fall, the petitioner asserts that the subject claim is not a medical malpractice claim
but instead a negligence claim which stems from the respondent’s failure to maintain a safe
1
Mrs. Minnich brings this suit as both the personal representative of her deceased
husband and in her individual capacity.
2
The petitioner also brought a loss of consortium claim and a claim for damages under
the wrongful death statute.
3
The trial court, through its summary judgment ruling, granted the petitioner a
reasonable period of time to amend her complaint to comply with the pre-suit filing
requirements of the MPLA. See W.Va. Code § 55-7B-6 (2016).
4
See W.Va. Code § 55-7B-2(g) (2008). The applicable version of the MPLA is
contained in the 2006 codification of the West Virginia Code.
1
environment.5 Upon our examination of these contentions, we conclude that a “health care
provider,” as defined by the MPLA, did in fact provide “health care”6 related services to Mr.
Minnich prior to his fall. Accordingly, we affirm the trial court’s determination with regard
to the applicability of the MPLA.
I. Factual and Procedural Background
On January 25, 2013, Mr. Minnich, accompanied by his wife, presented at the
South Charleston MedExpress. Mr. Minnich visited MedExpress to seek medical care
pertinent to his complaints of shortness of breath, weakness, and the possible development
of pneumonia. Ms. Jessica Hively, a medical assistant7 employed by MedExpress, spoke to
the Minnichs to evaluate Mr. Minnich’s condition in the triage area of the MedExpress
facility. According to the petitioner, Ms. Hively was informed about Mr. Minnich’s recent
hip surgery and the fact that he had only recently begun to ambulate without the assistance
of a walker.
5
The petitioner relies upon the respondent’s exposure of Mr. Minnich to allegedly
unsafe equipment–specifically, the partially extended footstool used by the decedent in his
attempt to access the examination table.
6
See W.Va. Code § 55-7B-2(e) (2008) (defining “health care”).
7
Though the trial court refers to Ms. Hively as a “certified” medical assistant, this
state does not license or regulate medical assistants. Because the “certification” reference
pertains only to the completion of academic course work, we do not place any significance
on that term for purposes of determining whether Ms. Hively was a “health care provider”
under the MPLA.
2
After escorting the Minnichs to an examination room, Ms. Hively purportedly
directed Mr. Minnich to be seated on the examination table. Ms. Hively exited the room,
whereupon Mr. Minnich attempted to get onto the table using a retractable step connected
to the table. During his attempt to access the examination table, Mr. Minnich fell back into
Mrs. Minnich. As a result, the Minnichs both fell to the floor and sustained injuries.8 Mr.
Minnich died ninety days later.9
On August 14, 2013, Mrs. Minnich filed a complaint against the respondent
in which she asserted three causes of action: negligence based on premises liability; loss of
consortium; and wrongful death. On March 7, 2014, a default judgment was entered against
MedExpress, which was later set aside over the petitioner’s objection. Through its answer
and affirmative defenses filed on September 8, 2014, MedExpress asserted that this action
arose under the MPLA. On October 24, 2014, the respondent again sought to invoke the
MPLA in its motion for summary judgment. By order entered on December 1, 2014, the
circuit court granted MedExpress summary judgment as to the premises liability claim,
8
The MedExpress staff dressed and treated a skin tear on Mr. Minnich’s left forearm,
wrist, and hand. The petitioner alleges that, as a result of the fall, Mr. Minnich suffered a
subarachnoid hematoma (brain bleed) and a laceration of his forearm, while she sustained
a periorbital hematoma and a knot on the back of her head.
9
The petitioner asserts that the brain bleed Mr. Minnich suffered as a result of the fall
substantially contributed to his physical demise and ultimately to his death.
3
directing the petitioner to amend her complaint to plead a medical malpractice claim
compliant with the MPLA filing requirements.10
Following this Court’s refusal to issue a rule to show cause in response to the
petitioner’s request for a writ of prohibition,11 Mrs. Minnich filed a motion seeking
reconsideration of the circuit court’s summary judgment ruling. By ruling entered on
October 28, 2015, the circuit court denied the request for reconsideration and affirmed its
previous grant of summary judgment with regard to the premises liability claim. The circuit
court further ruled that its October 28, 2015, order was a final judgment with regard to the
premises liability claim which was subject to immediate appeal pursuant to Rule 54(b) of the
West Virginia Rules of Civil Procedure. It is from this ruling that the petitioner now appeals.
II. Standard of Review
Our review of this matter is plenary as we set forth in syllabus point one of
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of
summary judgment is reviewed de novo.”). Because we must decide whether the trial court
10
The circuit court viewed the originally-pled “premises liability” claim and the claim
for professional negligence under the MPLA as two separate claims and therefore viewed
his ruling regarding the applicability of the MPLA as requiring outright dismissal of the
premises liability claim, rather than simple amendment of the claim to be MPLA compliant.
Accordingly, the circuit court entered summary judgment on the premises liability claim.
11
The petition was refused by this Court on March 11, 2015.
4
was correct in applying the MPLA to this matter, our review is further guided by this Court’s
recognition in syllabus point one of Chrystal R.M. v. Charles A.L., 194 W.Va. 138, 459
S.E.2d 415 (1995), that “[w]here the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” With these standards in mind, we proceed to determine whether the circuit court
committed error.
III. Discussion
At the center of this case is the question of whether the services received by
Mr. Minnich prior to his fall constitute “health care” within the meaning of the MPLA. The
petitioner argues that Mr. Minnich did not receive any medical care prior to his fall sufficient
to invoke the provisions of the MPLA. Conversely, MedExpress argues that the MPLA is
applicable because the petitioner has expressly averred that MedExpress failed to exercise
proper clinical judgment after evaluating Mr. Minnich in connection with the health care
services he expressly sought from MedExpress.
To support her contention that Mr. Minnich never received medical services
before the injury-causing fall, the petitioner posits that Ms. Hively–the MedExpress medical
assistant–does not qualify as a “health care provider” under the MPLA. As a result, the
confabulation with Ms. Hively cannot constitute “health care”–a predicate necessary to bring
5
this case within the parameters of the MPLA. The definition of “health care” provided by
the MPLA specifically refers to acts or treatment either actually performed or which should
have been performed by a “health care provider.” See W.Va. Code § 55-7B-2(e) (2006).
As we held in syllabus point five of Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E.2d
451 (2007):
Pursuant to W.Va. Code § 55-7B-2(e) (2006) (Supp.
2007), “health care” is defined as “any act or treatment
performed or furnished, or which should have performed or
furnished, by any health care provider for, to or on behalf of a
patient during the patient’s medical care, treatment or
confinement.”
The pertinent definition of “health care provider”12 under the MPLA is:
a person, partnership, corporation, professional limited liability
company, health care facility or institution licensed by, or
certified in, this State or another state, to provide health care or
professional health care services, including, but not limited to,
a physician, osteopathic physician, hospital, dentist, registered
or licensed practical nurse, optometrist, podiatrist, chiropractor,
physical therapist, psychologist, emergency medical services
authority or agency, or an officer, employee, or agent thereof
acting in the course and scope of such officer’s, employee’s or
agent’s employment.
W.Va. Code § 55-7B-2(g) (2008) (emphasis supplied).
12
As part of the legislative amendments to the MPLA in 2015, the definition of a
“health care provider” was expanded to include additional entities such as a speech-language
pathologist; audiologist, occupational therapist, pharmacist, technician, certified nursing
assistant; the scope of such providers was also broadened to include “any person supervised
by or acting under the direction of a licensed professional, any person taking actions or
providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a
health care facility’s plan of care, medical diagnosis or treatment.” However, as noted
above, those definitions do not apply to this case. See supra note 4.
6
In trying to convince this Court that Ms. Hively–a medical assistant who is not
subject to licensure–does not come within the list of entities specifically demarcated as a
“health care provider,” the petitioner overlooks the legislative decision to include employees
of any of the statutorily-delineated entities within the definition of a “health care provider.”
Because the status of MedExpress as a health care facility13 is not disputed, Ms. Hively, as
respondent’s employee, qualifies as a “health care provider” for purposes of the MPLA.14
Given that Ms. Hively is a “health care provider” under the MPLA, we must
proceed to determine whether the discourse between Ms. Hively and Mr. Minnich comes
within the ambit of “health care” for purposes of the MPLA. As we held in syllabus point
three of Boggs v. Camden-Clark Memorial Hospital Corp., 216 W.Va. 656, 609 S.E.2d 917
(2004):
The West Virginia Medical Professional Liability Act,
codified at W.Va. Code § 55-7B-1 et seq. applies only to claims
resulting from the death or injury of a person for any tort or
breach of contract based on health care services rendered, or
13
See W.Va. Code § 55-7B-2(f) (2008).
14
To qualify under the subject definition of a “health care provider,” Ms. Hively had
to be acting in the course and scope of her employment. See W.Va. Code § 55-7B-2(g). The
health care services nature of her position at MedExpress, rather than just the fact of her
employment, is what brings Ms. Hively within the definition of “health care provider.” See
Boggs v. Camden-Clark Mem’l Hosp. Corp., 216 W.Va. 656, 662-63, 609 S.E.2d 917, 923-
24 (2004) (“The Legislature has granted special protection to medical professionals, while
they are acting as such.).
7
which should have been rendered, by a health care provider or
health care facility to a patient. It does not apply to other claims
that may be contemporaneous to or related to the alleged act of
medical professional liability.
The petitioner contends that the services Mr. Minnich received from Ms. Hively preceding
his fall do not qualify as “health care.” In addition, she asserts that her failure to bring suit
against any individual provider of health care services is proof that her action does not sound
in medical malpractice.
We quickly dispense with the petitioner’s attempt to rely on her decision to file
what she characterized as a “premises liability” claim and not a medical malpractice claim.
As we explained in syllabus point four of Ethicon:
The failure to plead a claim as governed by the Medical
Professional Liability Act, W.Va. Code § 55-7B-1, et seq., does
not preclude application of the Act. Where the alleged tortious
acts or omissions are committed by a health care provider within
the context of the rendering of “health care” as defined by
W.Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies
regardless of how the claims have been pled.
221 W.Va. at 702, 656 S.E.2d at 453; accord Shirley v. Hosp. Auth. of Valdosta/Lowndes
Cty., 587 S.E.2d 873, 874-75 (Ga. App. 2003), overruled on other grounds as stated in
Chandler v. Opensided MRI of Atlanta, LLC, 682 S.E.2d 165 (Ga. App. 2009) (recognizing
that plaintiffs’ characterization of claim as professional or ordinary negligence is not
controlling). As Ethicon makes clear, a plaintiff cannot avoid the MPLA by virtue of failing
to expressly allege a malpractice claim. If a claim falls squarely under the MPLA, the
8
manner in which a complaint is drafted will not prevent the invocation of the MPLA. See,
e.g., Ethicon, 221 W.Va. at 707, 656 S.E.2d at 458 (approving circuit court’s analysis that
plaintiffs’ labeling “as ‘products’ claims does not change the fundamental [MPLA] basis of
this tort action”); Gray v. Mena, 218 W.Va. 564, 570, 625 S.E.2d 326, 332 (2005)
(permitting plaintiff who opted not to bring MPLA action opportunity to amend complaint
and comply with MPLA requirements rather than upholding dismissal for non-compliance
with MPLA filing requirements). As we stressed in Ethicon, “the determination of whether
a cause of action falls within the MPLA is based upon the factual circumstances giving rise
to the cause of action, not the type of claim asserted.” 221 W.Va. at 702-03, 656 S.E.2d at
453-54 (emphasis supplied).
Turning to the crux of this case, we address the ultimate issue of whether the
fall sustained by Mr. Minnich occurred in the course of his receipt of health care services at
MedExpress. The petitioner urges that the fall did not occur during receipt of health care
services inasmuch as Mr. Minnich experienced the fall prior to his receipt of any health care
services. While the petitioner would have us believe that the fact that a licensed health
professional, such as a nurse or doctor, had not yet undertaken a physical examination of Mr.
Minnich controls whether this case falls under the MPLA, we are not persuaded. Integral
to the diagnosis and examination of a patient by a medical professional is the component of
the health care visit that customarily precedes the actual physical examination. Absent the
9
intake aspect of a patient’s visit to a health care provider, the examination would not be as
properly focused or as likely to result in a correct diagnosis. Consequently, we have little
difficulty viewing the questioning by Ms. Hively of the Minnichs and the taking of vital
signs that occurred prior to the fall as transpiring during the course of or “within the context
of the rendering of medical services.” Gray, 218 W.Va. at 570, 625 S.E.2d at 332. The
petitioner’s attempt to exclude any injuries sustained by a patient before a doctor or nurse
enters the examination room, but after a medical history and intake have been taken, from
the reach of the MPLA is unavailing.15
The critical inquiry is whether the subject conduct that forms the basis of the
lawsuit is conduct related to the provision of medical care. See Ethicon, 221 W.Va. at 707,
656 S.E.2d at 458 (discussing this Court’s recognition in Boggs and Gray of actions falling
outside MPLA’s scope as “conduct that is unrelated to providing medical care”); see also
Manor Care, Inc. v. Douglas, 234 W.Va. 57, 75, 763 S.E.2d 73, 91 (2014) (concluding that
negligence-based claims predicated on corporate budgeting and staffing decisions do not fall
15
To be clear, this is not a case where a patient is injured independent of any provision
of health care services, such as an incident that might occur in the waiting area of the facility
independent of any interaction with a “health care provider.” See, e.g., Dawkins v. Union
Hosp. Dist., 758 S.E.2d 501, 504-05 (S.C. 2014) (holding that injury sustained from fall in
hospital’s waiting area restroom before receipt of medical care was not subject to medical
malpractice filing requirements); see also Pitt-Hart, MD v. Sanford USD Med. Ctr., 878
N.W.2d 406, 412 (S.D. 2016) (contrasting nonpatient slipping on icy sidewalk outside
hospital’s premises with dropping of post-operative knee replacement patient by healthcare
technician).
10
under the MPLA). We simply cannot accept the petitioner’s attempt to frame the injuries
Mr. Minnich sustained in this case as being unrelated to the provision of health care services.
As support for this conclusion, we rely upon the following allegation set forth
in the complaint: “Despite the fact that the employee was instructed that Mr. Minnich was
feeling weak and had just stopped using a walker to get around because of hip surgery, the
MedExpress South Charleston staff member did not assist Mr. Minnich onto the exam table
or examine the table to make certain that it was in good working order.” From the record
in this case, it is abundantly clear that Mr. Minnich was physically in the examination room
at the time of the fall after having completed the necessary disclosure of his condition and
concerns to a “health care provider.” This fall occurred while attempting to comply with the
directive of that “health care provider” to sit on the examination table–a piece of medical
equipment routinely used to examine a patient. Thus, the injuries sustained by Mr. Minnich
as a result of the fall were sustained in the course of his evaluation at MedExpress. That
evaluation, an essential aspect of Mr. Minnich’s medical diagnosis and/or treatment which
involved usage of the examination table as medical equipment, was necessarily part of the
health care services MedExpress undertook to provide Mr. Minnich.
In pleading this case, the petitioner alleged that a MedExpress employee, after
being informed of his medical history, failed to properly assist Mr. Minnich to gain access
11
to the examination table. Through this allegation, the petitioner injected the issue of whether
Ms. Hively, armed with the knowledge of Mr. Minnich’s recent medical history, complied
with the standard of care expected of a health care services provider. Thus, the petitioner
specifically raised the issue of Ms. Hively’s professional training and judgment by relying
on the awareness MedExpress had regarding Mr. Minnich’s weakened condition and his
ambulatory restrictions. In Bardo v. Liss, 614 S.E.2d 101 (Ga. App. 2015), the appellate
court determined that allegations of the physician’s failure to assist a patient as she stepped
off the examination table was rooted in professional rather than ordinary negligence
“because the degree of physical assistance needed by a patient to prevent a fall in light of the
patient’s medical condition required the exercise of expert medical judgment.” Id. at 103-04.
The court noted that “[w]here the professional’s alleged negligence requires the exercise of
professional skill and judgment to comply with a standard of conduct within the
professional’s area of expertise, the action states professional negligence.” Id. at 103; accord
Holloway v. Northside Hosp, 496 S.E.2d 510, 511 (Ga. App. 1998) (rejecting claim that
allegations concerning nurses’ failure to properly assist plaintiff to prevent fall sounded in
ordinary negligence, based on conclusion that expert testimony was required to determine
whether hospital employees’ actions deviated from applicable standard of care).
12
Like this Court,16 other courts have recognized that the occurrence of an injury
or an action taken by a health care professional within or on the premises of a health care
facility is not what determines the applicability of a state’s medical malpractice schema. See
Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 504 (S.C. 2014) (stating that “not every
action taken by a medical professional in a hospital or doctor’s office necessarily implicates
medical malpractice”); see, e.g. Toledo v. Mercy Hosp. of Buffalo, 994 N.Y.S.2d 298,
303–04 (N.Y. Sup. Ct. 2014) (holding that malpractice statute did not govern hospital
patient’s fall caused by slipping on urine while walking to restroom). As an additional basis
for deciding whether an action falls subject to a state’s medical malpractice laws, many states
look to “whether expert testimony is necessary to aid the jury’s determination of fault,
particularly with respect to the ‘duty’ and ‘causation’ elements of the claim.” Dawkins, 758
S.E.2d at 504; see also Shirley, 587 S.E.2d at 874-75 (discussing existence of “medical
question” and application of medical judgments as indicia of whether expert testimony is
required to address allegations of ordinary versus professional negligence). The petitioner
addresses the issue of whether expert testimony is required in this case in an overly narrow
fashion. Omitting the impact of Ms. Lively’s knowledge of Mr. Minnich’s weakened
condition, she suggests that the precautions required to ensure that a footstool is fully
16
See Manor Care, 234 W.Va. at 72, 763 S.E.2d at 88 (stating that Boggs stands for
the proposition that some claims that may be brought against a health care provider simply
do not involve health care services and, therefore, are not subject to the MPLA”); Boggs,
216 W.Va. at 662-63, 609 S.E.2d at 923-24 (discussing non-applicability of MPLA to claims
of fraud, spoliation of evidence, and negligent hiring).
13
extended and “safe to use does not require specialized knowledge.” But the issue of
negligence, as pled in the complaint, links Ms. Lively’s decision not to assist Mr. Minnich
onto the examination table with her awareness of his condition and frailties.
Despite the petitioner’s protestations to the contrary, she has pled her case in
a manner that requires the introduction of expert evidence to address whether Mr. Minnich
should have been permitted to climb onto the examination table unassisted. In framing her
complaint, the petitioner expressly made an issue of Ms. Hively’s clinical judgment in
leaving Mr. Minnich to access the examination table with no supervision or assistance after
being advised of his recent hip surgery, his current weakness, and his limited ambulatory
status. We agree with the trial court’s assessment that the petitioner has raised the issue of
whether proper clinical judgment was exercised in the course of Mr. Minnich’s health care
evaluation. Absent expert witness’ testimony, the jury will be unable to determine whether
Ms. Hively breached the duty of care she owed as a “health care provider” to Mr. Minnich
in connection with his receipt of health care at MedExpress. Accordingly, we find no error
in the circuit court’s decision that the MPLA applies to this case.
14
IV. Conclusion
Based on the foregoing, the October 28, 2015, order of the Circuit Court of
Kanawha County is affirmed, which expressly incorporates the specific directive set forth
in the December 1, 2014, summary judgment ruling that the petitioner shall be granted a
reasonable period of time to amend her complaint to assert a claim under the Medical
Professional Liability Act.
Affirmed.
15