The Healthcare Defender

West Virginia’s Medical Professional Liability Act (“MPLA”) is a living and breathing construct. Ever evolving, our Supreme Court constantly issues important new decisional law that changes the face of medical professional liability. 

In today’s world, healthcare practitioners are at increased risk for medical malpractice if they fail to provide requisite care. Physicians providing high-risk care, such as trauma surgery and obstetric care, have even greater exposure since they are engaged in complex care due to time-sensitive and multifaceted decision-making, as well as the potential for serious patient injury. A study published in The New England Journal of Medicine estimated that by the age of 65 years, 75% of physicians in low-risk specialties would experience a malpractice claim, rising to 99% of physicians in high-risk specialties.[1] 

So, what is the standard of care physicians must adhere to or be considered in breach? Such a question is often difficult to answer with detailed precision. States are predominately charged with establishing medical malpractice law, not the federal government, and, accordingly, not all states are in exact agreement. Some states attempt to legislatively define the standard of care; others allow their respective state courts to define it. Moreover, even if parties can agree upon a legal definition, determining specifically what clinically represents the standard of care is usually not a straightforward issue.

The following three decisions shed light on some recent developments in the realm of medical professional liability in West Virginia, namely upon pre-suit requirements and whether various claims can fall within the purview of the MPLA. We also examine whether a party who was dismissed from a lawsuit can still face a judgment after trial. Importantly, our courts have recently looked to other sources to define basic terminology within the MPLA that may be crucial going forward.

Wingett v. Challa, 249 W. Va. 252, 895 S.E.2d 107 (2023)

Who can point the finger at whom?  By certified question, the Supreme Court examined in Wingett whether parties who are dismissed from an action brought under the MPLA, but who did not settle their claims with the plaintiff, may still be considered by the jury in apportioning fault under West Virginia Code § 55-7B-9(b) (2016). That provision states that the jury “shall” consider the fault of “all alleged parties.” Though not defined, the Supreme Court held that the language of the statute and its legislative history “compel a conclusion that the term ‘alleged parties’ encompasses those originally named as a party in the complaint as having contributed to the plaintiff's injuries irrespective of whether they remain parties to the litigation at the time of trial.”[2] The Supreme Court therefore answered the certified question in the affirmative. This is a crucial holding, as many parties can be granted early dismissal if improperly named in the suit. However, any one of the parties that remain in the case later may determine that the improperly named party can be on the verdict form for purposes of apportionment of fault after Wingett.  

The underlying medical malpractice case arose from the implantation of Mr. Darrell Wingett's permanent pacemaker. Mr. Wingett saw both Drs. Challa and Ratnani. Dr. Challa consulted with Mr. Wingett and Dr. Ratnani performed the implantation surgery. Both doctors agreed that Mr. Wingett required the permanent pacemaker. Three years after the implantation, Mr. Wingett contracted a MRSA infection that ultimately resulted in surgical removal of the permanent pacemaker. At that point, Mr. Wingett alleged he was advised that the pacemaker was the source of the infection and that it had not been operational since it was implanted in 2014. Mr. Wingett, consistent with the pre-suit notice provisions of the MPLA, sent a timely notice of claim and screening certificate of merit to Dr. Challa, Dr. Ratnani, and their respective practice groups: South Charleston Cardiology Associates (“SCCA”) and Professional Cardiothoracic Surgery, PLLC (“PCS”). The notice of claim and screening certificate of merit alleged that Mr. Wingett's symptoms were not appropriately assessed by either physician and that the recommendation of a permanent pacemaker and implantation of that device fell below the standard of care.

On May 10, 2019, Mr. Wingett filed his complaint and alleged, consistent with the screening certificate of merit, that a permanent pacemaker was not indicated for Mr. Wingett and that both physicians contributed to his injuries by failing to accurately assess his symptoms and recommending or surgically implanting the permanent pacemaker. Dr. Challa and SCCA answered the complaint in June 2019 and those parties proceeded to the discovery phase. However, Mr. Wingett was unable to serve Dr. Ratnani or PCS. Mr. Wingett's counsel advised Dr. Challa's counsel of the service issue with Dr. Ratnani and that a voluntary dismissal of Dr. Ratnani and his practice group may be forthcoming. That information led Dr. Challa to file a notice of non-party fault, out of an abundance of caution, without waiving his position that the MPLA still applied to the underlying claim. Mr. Wingett then filed the notice of dismissal, without prejudice, as to Dr. Ratnani and PCS, stating that Dr. Ratnani could not be served because he was believed to be residing in Pakistan, which is not a member of the Hague Convention.[3]

After the discovery phase, Dr. Challa sought to blame Dr. Ratnani for Plaintiff’s injuries. However, Mr. Wingett sought to preclude this argument, asserting that any consideration of Dr. Ratnani's contribution to the injuries failed, because Dr. Challa failed to establish an independent medical malpractice case against Dr. Ratnani.[4] Recall that Dr. Challa had filed a notice of non-party fault to say that “Dr. Ratnani may be at fault!” Mr. Wingett’s counsel further objected to consideration of Dr. Ratnani's medical care pursuant to the non-party fault statute, West Virginia Code § 55-7-13d, suggesting that the court could strike the notice of non-party fault pursuant to West Virginia Rule of Civil Procedure 12(f), and moved to change the style of the case to remove Dr. Ratnani and PCS. 

In response, Dr. Challa acknowledged that he did not intend to argue that Dr. Ratnani's care of Mr. Wingett fell below the standard of care. But, he noted that Dr. Ratnani should have been fluent in the guidelines for the procedure he performed. Dr. Challa also argued that Dr. Ratnani and PCS were “alleged parties” by virtue of being named by Mr. Wingett in the action and that the MPLA dictates that their fault be considered by the jury. See, West Virginia Code § 55-7B-9(b).[5] 

By certified question, the Supreme Court concluded that Dr. Ratnani and PCS were “alleged parties” under West Virginia Code § 55-7B-9(b), and thus, did not need to decide whether they may also be considered as “non-parties” for purposes of West Virginia Code § 55-7-13d. Thus, the Supreme Court’s ruling means that a healthcare provider who was originally named in a complaint, but later voluntarily dismissed as a party, is still an “alleged party” for the jury to apportion fault to under West Virginia Code § 55-7B-9(b) at trial if properly named in a notice of non-party fault.

West Virginia Code § 55-7B-9(b) of the MPLA provides that “[t]he trier of fact shall, in assessing percentages of fault, consider the fault of all alleged parties, including the fault of any person who has settled a claim with the plaintiff arising out of the same medical injury.” Dr. Challa argued that because Dr. Ratnani and PCS were named as parties in the complaint, they satisfy the definition of “alleged parties” and the statute requires that their fault be considered by the jury. Mr. Wingett, conversely, interpreted West Virginia Code § 55-7B-9(b) as creating only two distinct categories of those whose fault may be considered by the jury by operation of this provision: (1) party-defendants and (2) settling parties. Mr. Wingett argued that Dr. Ratnani and PCS do not fit into either category because they were dismissed from the action and did not settle. The Supreme Court held that the term “alleged parties” is “gray,” but that a party originally named in the Complaint were at one time, “alleged parties.” The fact that they were later dismissed, even at the election of Plaintiff’s counsel, does not alter that Plaintiff originally verified and alleged that they contributed to his injuries. The Court also looked at the MPLA’s legislative history and determined that not all tortfeasors who settle a claim with the plaintiff are, or ever were, “parties,” so it makes little sense to draw the line of “alleged parties” there. In fact, the MPLA, through its pre-suit notice requirements, encourages the settlement of cases before a complaint is filed – that is, before they can be made parties. 

Thus, the Supreme Court held that for purposes of West Virginia Code § 55-7B-9(b), a healthcare provider named in the complaint and alleged to have contributed to the plaintiff's injuries is an “alleged party,” even if that party is later voluntarily dismissed by the plaintiff prior to trial.

So, who must do the alleging to make a would-be tortfeasor an “alleged party”? The Court did not give credence to Mr. Wingett’s contention that Dr. Challa needed to establish an independent medical malpractice claim against Dr. Ratnani. Rather, Dr. Challa was only trying to apportion fault to Dr. Ratnani – he was not independently suing Dr. Ratnani. The actual “allegations” were supplied by the plaintiff through his verified complaint. This is consistent with consideration of fault of settling defendants or those who settled prior to becoming a party. Allegations tendered by the plaintiff are sufficient there; the Supreme Court saw no reason to draw a distinction here where none exists in the statute. To hold otherwise would put Dr. Challa in the untenable position of criticizing Dr. Ratnani for recommending the same course of treatment that he himself recommended before Dr. Ratnani may be considered by the jury to be totally, partially, or not at all at fault. For those reasons, the Court disagreed that Dr. Challa had to either file a third-party complaint or offer expert testimony critical of Dr. Ratnani's care before Dr. Ratnani and PCS may be considered “alleged parties” for purposes of West Virginia Code § 55-7B-9(b).

Sager v. Duvert, 249 W. Va. 221, 895 S.E.2d 76 (November 8, 2023)

Three strikes and you’re out. Post-COVID, our Supreme Court has evaluated several complex “statutes of limitation” arguments that arose during the State’s Judicial Emergency in March 2020. In Sager, Petitioner began treatment with Respondents after a 2003 auto accident. On or about December 13, 2017, Petitioner was arrested after he allegedly got into an argument with his girlfriend and discharged a firearm inside a residence. He was indicted for domestic assault and wanton endangerment involving a firearm for this incident. After he was arrested in 2017, he sought medical detox, completing a rehab program in August 2018. In a May 1, 2018 letter, his doctor reported Sanger did well in rehab and had been prescribed “excessive and unusual amounts” of medications. The circuit court found that it was Petitioner's “initial indictment in January 2018 that set the wheels in motion for his treatment for substance abuse addiction in February 2018.” Petitioner later filed suit against Respondents on October 13, 2020, asserting medical negligence pursuant to the MPLA. Petitioner asserted that Respondents overprescribed and improperly filled prescriptions for controlled substances which were known to have addictive qualities and, in doing so, caused him to develop a debilitating addiction to pain medication.

Since dates are so critical to understanding SOL cases, here are the facts and dates. Petitioner initially served his first notice of claim upon Respondents on January 22, 2020 and provided a “statement of intent” to provide a screening certificate of merit within 60 days. On March 22, 2020, this Court entered an order declaring a judicial emergency regarding the COVID-19 crisis. On the following day, March 23, 2020, Petitioner served a second notice of claim that indicated, in part:

Due to the COVID-19 pandemic, the Certificate of Merit for the [Respondents] will be delayed as our expert, Dr. Ranieri, lives and practices in the New Jersey/New York area which has seen an outbreak of the virus on a mass scale. Dr. Ranieri is involved in the care and treatment of COVID-19 patients. Therefore, the Certificates of Merit will be provided at such time that the pandemic emergency has passed.

On May 6, 2020, the Supreme Court entered an Administrative Order,[6] provided in part:

Statutes of limitations and statutes of repose that would otherwise expire during the period of judicial emergency between March 23, 2020, and May 15, 2020, shall expire on May 18, 2020;

***

Deadlines set forth in court rules, statutes (excluding statutes of limitation and repose), ordinances, administrative rules, scheduling orders, or otherwise that expired between March 23, 2020, and April 17, 2020, are hereby extended to May 29, 2020, unless otherwise ordered by the presiding judicial officer;

***

Deadlines, statutes of limitations, and statutes of repose that do not expire during the period of judicial emergency between March 23, 2020, and May 15, 2020, are not extended or tolled by this or prior orders[.]

On July 2, 2020, Sanger served his third notice of claim with a June 29, 2020 certificate of merit. He filed suit on October 13, 2020. Defendants moved to dismiss on SOL grounds arguing Sanger “failed to comply with the deadlines and requirements established by the MPLA relating to the certificates of merit and filing of the complaint. In addition, the motions alleged that because the [] complaint was filed after the statute of limitations had run, [the] complaint failed to state a claim upon which relief could be granted.” After holding a hearing, by order entered Nov. 19, 2019, the circuit court converted the motions to summary judgment and dismissed the case finding that under the Supreme Court’s administrative order, Sanger was required to serve the certificate of merit no later than May 29, 2020, and the complaint was therefore filed outside the SOL. Plaintiff’s motion to alter or amend under Rule 50(b) was denied, which he later appealed.

Applying the five-part test in Dunn v. Rockwell, the Supreme Court found the applicable SOL was the two-year statute in MPLA § 55-7B-4. The date of Petitioner’s injury “necessarily occurred prior to the end of his treatment with Respondents in February 2018. Further, if his addiction resulted from the health care that Respondents provided, that addiction also had to have existed, at a minimum, by the last date that Respondents provided healthcare to him.” 

Petitioner focused on the third Dunn element – the application of the discovery rule – arguing “he was not reasonably aware that Respondents had allegedly overprescribed prescription medication until it became evident the medications were actually causing, rather than treating, his pain symptoms” on August 27, 2018, “describing such day as the date that his ‘mind and body’ were opioid free with no mention of pain.” Alternatively, Sanger argued he could not have known before receiving his medical records in July 2018. 

The Court rejected these arguments. On November 8, 2023, the Supreme Court affirmed the circuit court’s orders granting summary judgment and denying a Rule 59(e) motion because the action was barred by the statute of limitations. West Virginia Code § 55-7B-6(d), where applicable, permits claimants who “have insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations to furnish a statement of intent to provide the screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.” West Virginia Code § 55-7B-6(d). Petitioner's argument that the statute of limitations began to run in July or August 2018, was belied by his actions. On January 22, 2020, Petitioner served his first notice of claim with a statement of intent that he would provide a screening certificate of merit within sixty days. By filing the first notice of claim pursuant to West Virginia Code § 55-7B-6(d), Petitioner arguably believed that the expiration of the statute of limitations was imminent and that he had insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations. Examining the record as to when Sanger was “aware, or should reasonably have become aware, that medical treatment by a particular party has caused a personal injury,” the Court found that by May 1, 2018, he was “drug free” and had told his treating physician, Dr. Lewis, the defendants “gradually increased his dosages… without making him aware of the potential problems it could cause.” In his letter that date, Dr. Lewis commented that the dosages and combinations were excessive. On May 7, 2018, the circuit court was informed Sanger successfully completed his rehab and his counsel sought records four days later. “Having possessed such knowledge by May 11, 2018, [Sanger]’s allegation that he lacked sufficient knowledge of the nature of his claim or the parties responsible for his alleged injury until July or August 2018 [was] simply unsupported by the record.” The Court then rejected Sanger’s argument that he complied with the MPLA to toll the statute, finding he had “sufficient knowledge” by May 11, 2018, giving him until May 11, 2020. “Taking into account administrative orders entered by this Court to address the COVID-19 emergency, in order to implicate the tolling provisions of the MPLA, [Sanger] was required to serve such screening certificate of merit by May 29, 2020, but he failed to do so.”

Importantly, while he “filed a timely notice of claim in January 2020, he did not file a completed notice of claim, including the certificate of merit until July 2020. The mere filing of successive notices of claim and characterizing them as “amended” did not toll the statute of limitations under the MPLA (bold added).” Petitioner had sufficient knowledge of the relevant facts related to his claim by May 11, 2018, the statute of limitations began to run on that date. Accordingly, Petitioner had until May 11, 2020, to serve the notice of claim to toll his statute of limitations under West Virginia Code § 55-7B-6(i). The third notice of claim and certificate of merit were therefore filed outside the statute of limitations. 

Atkinson v. NCI Nursing Corps., 249 W. Va. 443, 895 S.E.2d 846 (2023)

A drug test gone wrong: is it healthcare? In Atkinson, our Intermediate Court of Appeals (“ICA”) cautioned against a broad reading of the MPLA, as it is “designed to be in derogation of the common law” in narrowing the statutory rights of citizens to compensation for injury and death. James Atkinson, (or “Petitioner”), alleged that he was a patient of NCI Nursing Corps. (“Respondent” or “NCI”), a healthcare facility under the MPLA. Respondent alleged that Petitioner failed to comply with the pre-suit notice required by the MPLA, and the circuit court affirmed. On November 15, 2023, the ICA reversed the Circuit Court’s Order and remanded the case for further proceedings, and held that a urinalysis screen at an employee’s workplace does not constitute an act of “healthcare,” involve a “medical diagnosis,” or involve “medical care,” two terms that are not defined by the MPLA. Importantly, the ICA found this situation “analogous to a physician performing record reviews or independent medical evaluation of an individual.”  

Petitioner, a coal mine belt supervisor employed by Harrison Coal Company, was required to submit to a drug and alcohol screen administered by Respondent. Respondent sent Petitioner’s sample to a laboratory, MedTox Laboratories, Inc. (“MedTox”), which showed the presence of marijuana. Petitioner’s employer suspended him without pay and thereafter terminated his employment. However, Petitioner alleged that he never ingested any illegal drugs. He contested the test results and submitted to an additional drug test and a hair follicle test. The additional drug test was also positive for marijuana, but the hair follicle test was negative. Thereafter, Mr. Atkinson protested the West Virginia Office of Miners’ Health, Safety and Training (“WVOMHST”) suspension of his mining certifications. During that process, the NCI nurse who conducted the random drug screening testified that he did not conduct the drug screening in accordance with 49 C.F.R. § 40.33(a) and (e), which require that parties collecting urine samples from miners subscribe to a mandated list-serve and receive refresher training at least every five years. The nurse also testified that he did not have any documentation showing that he met the requirements set forth in 49 C.F.R. § 40.33(g), which is required in order for an individual to be permitted to act as a collector in the drug testing program. Mr. Atkinson alleged that this failure automatically rendered the drug screen results “null and void.” However, NCI and MedTox did not void or otherwise disqualify the results of the urinalysis.

On July 18, 2022, Petitioner filed the underlying complaint asserting claims for “professional malpractice” (Count I), negligence (Count II), violation of statutes (Count III), and sought punitive and other damages. On August 29, 2022, NCI filed its Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the West Virginia Rules of Civil Procedure. In its Motion, NCI alleged that Mr. Atkinson's claim “relate[d] to and stem[ming] from his [p]rofessional [m]alpractice claims asserted in Count 1” of his complaint was an MPLA claim and subject to the pre-suit notice requirements of West Virginia Code § 55-7B-6.

On October 31, 2022, the court entered an order granting NCI's Motion to Dismiss. Specifically, the court found that Mr. Atkinson failed to comply with the requirements of the MPLA deemed applicable thereto given the determination that NCI was “a [health care] provider pursuant to the MPLA and their services rendered with respect to Plaintiff qualify as [health care].” Petitioner appealed and the ICA reviewed this case de novo. 

The ICA held that the actions of NCI did not constitute “health care” under West Virginia Code § 55-7B-2(e)(1). The Court “easily dismiss[ed]” the consideration that conducting a uranalysis drug screen test was an act, service or treatment provided in furtherance of either a physician or health care facility's “plan of care.” First, no physician or health care facility took part in the collection of Mr. Atkinson's urine, which took place at Mr. Atkinson's workplace. Second, there was no “plan of care” for Mr. Atkinson or treatment provided to or planned for Mr. Atkinson by NCI – just simply the collection of urine for a routine drug and alcohol screening. Thus, the Court was left to determine if collecting a urine sample and completing a uranalysis is an act, service, or treatment provided under, pursuant to, or in furtherance of a “medical diagnosis,” which, importantly, is a term that is not defined by the MPLA. Thus, the Court relied upon persuasive guidance to hold that “medical diagnosis” is a term of art that has a specific and particular meaning, “relating to the identification and alleviation of a physical or mental illness, disease, or defect.” While the uranalysis was designed to identify the presence of various substances in Mr. Atkinson's urine, the ICA held that “the test itself did not identify any physical or mental illness, disease, or condition.”  Thus, the urinalysis did not constitute “a medical diagnosis.”

The ICA also considered whether the services provided to Petitioner fell under the definition of “healthcare” pursuant to the MPLA. This required the Court to analyze another undefined term incorporated into the MPLA: “medical care.” The ICA relied upon Merriam-Webster’s dictionary definition, which defines “medical” as “of, relating to, or concerned with physicians or the practice of medicine,”[7] and “care” as “serious attention.”[8] Thus, the ICA found that the plain and commonly accepted meaning of medical care relates to or concerns serious attention by a physician or the practice of medicine. Because no physician gave Mr. Atkinson serious attention, i.e., care, no “medical care was provided to Mr. Atkinson by anyone at NCI. NCI simply acted as an agent assisting in the collection of the urine sample, preservation of the sample, and transport of that sample to the appropriate laboratory for testing.”[9] Accordingly, we find that NCI did not provide medical care to Mr. Atkinson, under West Virginia Code § 55-7B-2(e)(2).

In summary, the ICA concluded that “under the limited facts and circumstances of this case, in submitting to a urinalysis, not ordered by any physician for diagnosis and/or treatment, and not performed at a health care facility, Mr. Atkinson did not receive “health care” from NCI under West Virginia § 55-7B-2, (e)(1) or (e)(2),6 and the application of the MPLA is not triggered.” Importantly, the ICA found this situation “analogous to a physician performing record reviews or independent medical evaluation of an individual.” In that situation, the Supreme Court has reasoned that a “physician who undertakes to evaluate prospective employee's medical records for the employer lacks sufficient professional relationship with employee to support malpractice action.”[10] Practitioners should be mindful of these distinctions and recent terminology in the MPLA that our courts have defined.

Footnotes:

[1] https://www.nejm.org/doi/full/10.1056/NEJMsa1012370

[2] Wingett v. Challa, 249 W. Va. 252, 895 S.E.2d 107, 109 (2023)

[3] The notice of dismissal also alleged that PCS's license to do business in West Virginia had been revoked on November 1, 2016, but did not make any assertions about service of process on that party except to state that no answer or motion for summary judgment had been filed. Finally, Mr. Wingett asserted that Dr. Ratnani and PCS were not necessary parties at the time of the filing of the notice of dismissal.

[4] Mr. Wingett filed a motion in limine to preclude Dr. Challa from arguing, offering into evidence, or eliciting testimony from witnesses that Dr. Ratnani or PCS was responsible for Mr. Wingett's damages. The basis of the motion in limine was that Dr. Challa had served no notice of claim, screening certificate of merit, or third-party complaint against those parties nor had he retained an expert to testify that Dr. Ratnani deviated from the standard of care by recommending and implanting a permanent pacemaker that proximately caused Mr. Wingett's injuries.

[5] In pre-trial memoranda, the parties stated that they were unable to reach an agreement as to the jury's consideration of Dr. Ratnani and PCS under either the MPLA or the non-party fault statute. The circuit court entered an order stating that it was initially inclined to deny Mr. Wingett's motion in limine, but agreed to certify the question to the Supreme Court and to continue the trial pending an answer.  The certification order asked, “[s]hould the jury be allowed to consider the fault of a party who was originally named as a defendant but voluntarily dismissed by the plaintiff pursuant to either West Virginia Code § 55-7B-9, West Virginia Code § 55-[7]-13c, and/or West Virginia Code § 55-7-13d under the specific facts set forth in the instant case?”

[6]https://cms4files.revize.com/upshurwv/WV%20Supreme%20Court%20May%206%202020%20Order%20Protocols%20and%20Map%20(2).pdf

[7] Medical, Merriam-Webster Collegiate Dictionary (11th ed. 2003).

[8] Care, Black's Law Dictionary (11th ed. 2019).

[9] Atkinson v. NCI Nursing Corps., 249 W. Va. 443, 895 S.E.2d 846, 853 (Ct. App. 2023)

[10] Syl. Pt., Rand v. Miller, 185 W. Va. 705, 408 S.E.2d 655 (1991); See also Kirk v. Anderson, 496 P.3d 66 (Utah 2021) (holding that there is not physician-patient relationship between IME examiner and claimant); See also Smith v. Radecki, 238 P.3d 111 (Alaska 2010) (physicians conducting IME's at the behest of third parties assume a fundamentally different role from a diagnosing or treating physician).