Crystal G. Brown v. Ohio Valley Health Services & Education Corp. ( 2021 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS                                 FILED
    May 20, 2021
    EDYTHE NASH GAISER, CLERK
    Crystal G. Brown and Tri-State                                                  SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Ambulance, Inc.,
    Plaintiffs Below, Petitioners
    vs.) No. 20-0156 (Marshall County 18-C-263)
    Ohio Valley Health Services & Education
    Corporation; Ohio Valley Medical Center;
    Alecto Healthcare Services Ohio Valley, LLC;
    and John Does 1-5, individuals, Businesses or
    Entities,
    Defendants Below, Respondents
    MEMORANDUM DECISION
    Petitioners Crystal G. Brown and Tri-State Ambulance, Inc., by counsel Mark A. Kepple
    and Benjamin P. Visnic, appeal the Circuit Court of Marshall County’s January 27, 2020, order
    dismissing their complaint for their failure to comply with the Medical Professional Liability Act’s
    pre-suit notice requirements. 1 Respondents Ohio Valley Health Services & Education Corporation;
    Ohio Valley Medical Center; Alecto Healthcare Services Ohio Valley, LLC; and John Does 1-5,
    individuals, Businesses or Entities, by counsel J. Tyler Dinsmore, David S. Givens, and Jason J.
    Wade, filed a response.
    This Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the briefs, and the record
    presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
    a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
    Rules of Appellate Procedure.
    On December 16, 2016, Petitioner Crystal G. Brown, an emergency medical technician
    employed by Petitioner Tri-State Ambulance, Inc. (“Tri-State Ambulance”), was required to
    transport a patient from Respondent Ohio Valley Medical Center (“OVMC”) to a hospital in
    Columbus, Ohio. 2 On the way to Ohio, due to adverse weather conditions, Petitioner Brown
    1
    See 
    W. Va. Code § 55
    -7B-6.
    2
    Tri-State Ambulance had a contract with OVMC to provide ambulance services.
    1
    wrecked. Two passengers in Petitioner Brown’s ambulance—the patient and another employee of
    Tri-State Ambulance—were killed in the accident.
    Petitioners filed suit against respondents on December 17, 2018, asserting causes of action
    for “negligence, carelessness, and/or recklessness” and equitable subrogation. In support of their
    negligence claim, petitioners alleged that OVMC knew but failed to disclose that transporting the
    patient was not medically necessary to save his life and that dangerous weather conditions were
    approaching. This failure to disclose deprived Petitioner Brown of the information necessary to
    determine whether the trip should have been made that night. Petitioner Brown alleged that, as a
    result, she suffered bodily injury and physical and mental pain, and she alleged that she will
    continue to endure physical and mental pain and suffering and emotional distress. She also claimed
    lost wages and loss of earning capacity.
    In support of the equitable subrogation claim, Tri-State Ambulance alleged that it incurred
    losses by paying its deductible to its insurer and attorney’s fees and costs in connection with
    litigation initiated by other passengers in the ambulance. Because Tri-State Ambulance’s insurer
    settled the lawsuits, Tri-State Ambulance claimed its insurer is a partially subrogated insurer
    entitled to reimbursement by respondents. Tri-State Ambulance asserted that the insurance
    company “is subrogated to the rights of Tri-State Ambulance [] as against [respondents] to the
    extent of these costs.”
    Respondents filed an answer and served discovery. Then, on June 27, 2019, they moved to
    dismiss petitioners’ complaint. 3 Respondents argued that dismissal was proper because petitioners’
    claims were governed by the Medical Professional Liability Act (“MPLA” or the “Act”) and
    petitioners failed to comply with the Act’s pre-suit notice requirements. Further, with regard to
    petitioners’ equitable subrogation claim, respondents argued that petitioners failed to join them in
    the prior lawsuits, so petitioners had “no right to subrogation or contribution.”
    Petitioners argued in response that their claims were not covered by the MPLA; rather,
    liability was alleged to “stem[] from the working conditions [respondents] created by utilizing
    emergency services in severe weather when no emergency actually existed.” Additionally,
    petitioners argued that respondents mischaracterized their equitable subrogation claim as one for
    contribution, and that their claim should not be dismissed because “[i]t would be unjust for
    [petitioners] to have suffered financially and emotionally to defend themselves when the true
    tortfeasors are the [respondents] in the present action.”
    Following a hearing held on December 18, 2019, the circuit court granted respondents’
    motion to dismiss. The court found that “the crux of circumstances which set the events into motion
    and [about] which [petitioners] complain was a decision made by one or more of the [respondent]
    health care providers which the [c]ourt finds was a healthcare decision and within the definition
    of ‘health care’” provided in the MPLA. Thus, the court continued, petitioners were required to
    have complied with the MPLA’s pre-suit notice requirements, and their failure to do so deprived
    3
    Alternatively, respondents moved for consolidation of petitioners’ complaint with another
    civil action pending in Marshall County involving the patient’s estate.
    2
    the court of subject matter jurisdiction. Accordingly, the court dismissed petitioners’ complaint
    without prejudice by order entered on January 27, 2020. This appeal followed.
    We review de novo a circuit court’s order granting a motion to dismiss a complaint. Syl.
    Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 
    194 W. Va. 770
    , 
    461 S.E.2d 516
    (1995). Likewise, “[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.” Syl. Pt. 1,
    Chrystal R.M. v. Charlie A.L., 
    194 W. Va. 138
    , 
    459 S.E.2d 415
     (1995).
    Petitioners argue on appeal that the circuit court erred in finding that their claims fell within
    the purview of the MPLA. They state that their negligence claim is a non-medical negligence
    claim, not one involving medical professional liability, and they highlight that Petitioner Brown is
    not a patient under the MPLA and that respondents’ failure to inform her of hazardous working
    conditions is not medical treatment or a medical decision. They claim that applying the MPLA’s
    pre-suit notice requirements to this non-patient situation would result in an absurdity because the
    required screening certificate of merit must be executed by a health care provider who, among
    other things, treats “injuries or conditions similar to those of the patient.” See 
    W. Va. Code §§ 55
    -
    7B-6(b)(2), -7(a)(6). With regard to their equitable subrogation claim, petitioners state that it has
    nothing to do with the MPLA or health care. They note that they are not seeking subrogation on
    claims paid on behalf of the patient; therefore, the MPLA is not implicated. 4
    The Act provides that “no person may file a medical professional liability action against
    any health care provider without complying with” certain pre-suit notice requirements. 
    W. Va. Code § 55
    -7B-6(a). Petitioners do not dispute that respondents are “health care providers” under
    the Act. See 
    id.
     § 55-7B-2(g). Rather, the issue is whether petitioners have filed a “medical
    professional liability action.” Under the Act, “medical professional liability” is defined broadly to
    mean
    any liability for damages 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 also
    means other claims that may be contemporaneous to or related to the alleged tort or
    breach of contract or otherwise provided, all in the context of rendering health care
    services.
    Id. § 55-7B-2(i). “Health care,” in turn, is defined in relevant part as
    [a]ny 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
    4
    Petitioners also devote several pages of their brief to arguing that their equitable
    subrogation claim is not a contribution claim. The circuit court made no such findings, and
    respondents do not argue this issue in their response. For purposes of this appeal, we accept that
    petitioners pled an equitable subrogation claim. Accordingly, we need not recount their arguments
    on this issue here.
    3
    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.
    Id. § 55-7B-2(e)(2) (emphasis added).
    Applying these definitions to petitioners’ complaint, it is clear that they have stated claims
    that fall within the purview of the MPLA. Petitioners’ negligence claim is predicated on
    respondents’ decision to transport the patient to another healthcare facility. As set forth above, the
    Act specifically includes “medical transport” within the definition of “health care.” See id. And,
    as the Act includes within the definition of “medical professional liability” those claims that “may
    be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided,
    all in the context of rendering health care services,” petitioners’ equitable subrogation claim,
    arising from these same circumstances, also falls within its ambit. Id. § 55-7B-2(i).
    That Petitioner Brown was not the patient does not preclude application of the MPLA. In
    syllabus point 5 of Osbourne v. United States, 
    211 W. Va. 667
    , 
    567 S.E.2d 677
     (2002), we held
    that the Act “permits a third party to bring a cause of action against a health care provider for
    foreseeable injuries that were proximately caused by the health care provider’s negligent treatment
    of a tortfeasor patient.” In reaching this holding, we observed that, in defining “medical
    professional liability,”
    the Legislature employed both the word “person” and the term “patient”: “any
    liability for damages 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.
    Id. at 672-73, 
    567 S.E.2d at 682-83
     (quoting 
    W. Va. Code § 55
    -7B-2(d) (1986)). This distinction
    made it “apparent that the Legislature intended to allow individuals generally to recover damages
    for injuries attributable to medical professional liability regardless of whether they are actually
    ‘patients.’” 
    Id. at 674
    , 
    567 S.E.2d at 684
    . Thus, the MPLA applies to petitioners’ claims, though
    petitioners are not patients, because they have stated claims for medical professional liability.
    Finally, we made clear in syllabus point 2 of State ex rel. PrimeCare Medical of West
    Virginia, Inc. v. Faircloth, 
    242 W. Va. 335
    , 
    835 S.E.2d 579
     (2019), that a circuit court is deprived
    of subject matter jurisdiction over medical professional liability actions where a person filing such
    action fails to comply with the Act’s pre-suit notice requirements set forth in West Virginia Code
    § 55-7B-6. Because petitioners failed to comply with those pre-suit notice requirements, the circuit
    court did not err in dismissing their complaint for want of subject matter jurisdiction.
    For the foregoing reasons, we affirm.
    Affirmed.
    ISSUED: May 20, 2021
    4
    CONCURRED IN BY:
    Chief Justice Evan H. Jenkins
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    DISSENTING:
    Justice John A. Hutchison
    Justice William R. Wooton
    Hutchison, J., dissenting:
    I dissent to the majority’s resolution of this case. I would have set this case for oral
    argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs
    and the issues raised therein, I believe a formal opinion of this Court was warranted—not a
    memorandum decision. Accordingly, I respectfully dissent.
    Wooton, J., dissenting:
    The majority’s decision in this case goes far beyond anything in this Court’s precedents.
    Petitioners in this case were not patients, and their injuries and damages were not “caused by the
    health care provider’s negligent treatment of a tortfeasor patient[,]” as in Osborne. If this Court is
    going to extend blanket immunity to health care practitioners for harm caused in any way to
    anyone—and make no mistake, this is the practical effect of today’s decision—we should do it in
    a signed opinion setting forth a rationale which supports such a radical extension of the Medical
    Professional Liability Act.
    5
    

Document Info

Docket Number: 20-0156

Filed Date: 5/20/2021

Precedential Status: Precedential

Modified Date: 5/20/2021