State of West Virginia ex rel. West Virginia Division of Corrections and Rehabilitation v. Honorable Alfred E. Ferguson, Judge of the Circuit Court of Cabell County, West Virginia and Mary Jane Comas, as Administratrix of the Estate of Deanna R. McDonald

No. 22-777, SER West Virginia Division of Corrections and Rehabilitation v. The
Honorable Alfred E. Ferguson, et al. FILED
June 8, 2023
released at 3:00 p.m.
Armstead, Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

By denying DCR’s Petition for a Writ of Prohibition, the majority has

erroneously allowed a textbook medical negligence claim to be asserted against the DCR,

an entity it expressly finds is not a health care provider or health care facility.

The majority’s opinion results in Respondent being permitted to proceed

against the DCR on what I believe is clearly a medical negligence claim, following the

circuit court’s dismissal of DCR’s third-party complaint against the actual healthcare

provider, PrimeCare. 1 The history of this action, as well as the allegations contained in the

Amended Complaint, illustrate that, regardless of Respondent’s characterization of this

action, it is actually a medical malpractice claim. Although Respondent filed suit against

DCR and John Doe defendants, she specifically asserted claims for medical negligence

against PrimeCare and other non-parties in her initial Complaint. Count II of the initial

Complaint was titled “Medical Professional Negligence,” and it named as defendants not

1
According to PrimeCare, the Respondent:

initially attempted to bring an action against PrimeCare, but
was barred from doing so because she failed to timely comply
with the MPLA’s mandatory pre-suit notice requirements
resulting in the expiration of the statute of limitations on any
such claims. []Instead, [Respondent] commenced this action
against the [DCR] which now seeks to bring PrimeCare into
this action likely because of [Respondent’s] inability to do so.

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only PrimeCare Medical and PSIMed, but importantly, also asserted those claims against

DCR. Following the filing of the DCR’s motion to dismiss, Respondent moved to amend

her complaint and her motion was granted. Now, Respondent argues that her Amended

Complaint “contains no claim for medical negligence against any individual, facility, or

provider.” I disagree. Respondent’s retooling of the language of her Amended Complaint

does not change the fact that it alleges medical malpractice on the part of DCR.

Before this Court, Respondent argues that her Amended Complaint removes

her previously asserted claim for medical negligence and relies “solely on various state law

claims, general negligence, and civil rights violations.” In support of this argument,

Respondent notes that her Amended Complaint did not use the title or the phrase “medical

professional negligence,” and it does not include language regarding the notice and

certification requirements for an MPLA case. Although it is true that the Amended

Complaint does not include a count titled “Medical Professional Negligence,” this Court

must “look beyond the labels of causes of action and artful pleading and instead critically

examine the allegations pled to determine whether the [Respondent’s] complained-of

conduct falls under the MPLA’s provisions.” Damron v. PrimeCare Medical of West

Virginia, Inc., No. 20-0862, 2022 WL 2078178, at *3 (W. Va. June 9, 2022) (memorandum

decision). Further, “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.” Blankenship v. Ethicon, Inc., 221 W. Va. 700, 702-703, 656 S.E.2d 451,

453-454 (2007) (emphasis added).

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 The factual circumstances giving rise to Respondent’s claims stem from her

allegations that Ms. McDonald did not receive adequate and appropriate health care while

she was incarcerated at the Western Regional Jail. With respect to Count I of the Amended

Complaint, Respondent alleges, among other things, that DCR’s representatives,

employees and agents failed to:

(1) ask appropriate mental health questions;

(2) appropriately score responses and answers to questions they did ask;

(3) appropriately assess Ms. McDonald’s health risks;

(4) take steps to prevent and treat Ms. McDonald’s mental health and

substance abuse withdrawal risks;

(5) review intake notes and material;

(6) assess Ms. McDonald’s medical conditions, including her mental health

conditions; and

(7) recognize the mental health and drug and alcohol abuse withdrawal issues

present.

Although Respondent acknowledges that DCR contracts with PrimeCare to

provide medical and health related services to inmates such as Ms. McDonald, she alleges

that DCR has a duty to “ensure” that PrimeCare appropriately provides medical care

including mental health services.

With respect to Count II, Respondent alleges the following failures on the

part of DCR:

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 (1) failure to follow well-established mental health treatment protocols for

mental health and substance abuse disorders and withdrawal symptoms;

(2) failure to adequately monitor Ms. McDonald during drug and alcohol

detox and withdrawal;

(3) failure to carefully and regularly conduct mental health checks on Ms.

McDonald during her incarceration;

(4) failure to properly assess the mental health conditions present and seek

medical and hospital clearance prior to incarcerating Ms. McDonald;

(5) failure to obtain readily available prior health care records; and

(6) failure to give appropriate scores and weight to dangers present. 2

As the majority recognizes, the MPLA provides, in pertinent part, that

“health care” is:

...

(2) Any act, service, or treatment performed or furnished, or
which should have been performed or furnished, by any health
care provider or person supervised by or acting under the
direction of a health care provider or licensed professional for,
to, or on behalf of a patient during the patient’s medical care,
treatment, or confinement, including, but not limited to,
staffing, medical transport, custodial care, or basic care,
infection control, positioning, hydration, nutrition, and similar
patient services; …

2
In addition, Respondent alleges that an intake interview was conducted when Ms.
McDonald was intoxicated.
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West Virginia Code §55-7B-2 (e)(2) (emphasis added). The majority also acknowledges

that, at its core, DCR’s argument is that, since it is not a health care provider or health care

facility, Respondent’s claims against it must be dismissed. Indeed, the majority states:

DCR’s primary argument to this Court is that the allegations
contained in the amended complaint fall within the MPLA’s
definition of professional medical liability. DCR then argues
that only a health care provider as defined by the MPLA can
be sued for professional medical liability. It finally concludes,
“[b]ecause the [DCR] is not a health care provider, the claims
asserted in the Amended Complaint, which are based upon
professional medical liability, regardless of how pled, should
be dismissed against it.”

Nonetheless, the majority, while agreeing that DCR is neither a health care

provider or health care facility, merely accepts Respondent’s portrayal of the Amended

Complaint as alleging state law claims, negligence, and civil rights violations rather than

medical malpractice. In reality, the allegations contained in the Amended Complaint are

actually comparable to the claims advanced in Damron. In Damron, the petitioner alleged

that PrimeCare 3 delayed sending him to a specialist for treatment of his fractured jaw.

Further, he maintained that his original and amended complaints did not assert a claim for

medical negligence, but this Court disagreed and found, in part, that the petitioner had pled

claims “for the negligent failure to provide medical care,” which stemmed “solely from the

rendering, or alleged failure to render, ‘health care’ and therefore sound in terms of medical

negligence.” Damron at *7. Despite her claims to the contrary, Respondent’s claims also

3
Unlike the present case, the petitioner in Damron asserted a claim against PrimeCare.
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stem from the alleged failure to render health care and therefore sound in terms of medical

negligence. Accordingly, I disagree with the majority’s conclusion that the claims asserted

in the Amended Complaint sound in ordinary negligence rather than medical malpractice.

For these reasons, I believe the circuit court clearly erred by denying DCR’s

motion to dismiss, and I respectfully dissent as to the majority’s decision to deny

Petitioner’s petition for a writ of prohibition.

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