Whether Defendant’s failure to fully extend an exam table’s retractable step constitutes ordinary negligence?
On January 25, 2013, Mr. Andrew Minnich, now deceased, and his wife, Petitioner/Plaintiff Joyce Minnich, went to Respondent/Defendant South Charleston MedExpress for evaluation of Mr. Minnich’s complaints of shortness of breath and weakness. Mr. Minnich advised Ms. Jessica Hiveley, a non-certified Medical Assistant ("MA"), that he had had a recent hip surgery and had just began walking without the use of an assistive device. Ms. Hiveley escorted Mr. and Mrs. Minnich to an examination room and directed Mr. Minnich to be seated on the exam table. Ms. Hiveley then left the room. (The Defendant and Ms. Hiveley denied directing Mr. Minnich to be seated on the exam table. Moreover, the Defendant claims that it has a policy of never directing patients to be seated on the exam table.) As Mr. Minnich attempted to get onto the exam table by way of a retractable step, which Plaintiff claims was not fully extended, he fell back into his wife and both of them fell to the floor sustaining injury. The Defendant’s staff dressed and treated a skin tear on Mr. Minnich's left forearm, wrist, and hand. Mr. Minnich underwent a chest x-ray to address his complaints of shortness of breath before being discharged. Approximately three (3) months later, Mr. Minnich died from circumstances associated with a brain bleed, which were alleged to have been caused by the fall.
On August 14, 2013, Petitioner filed her Complaint, which included the following counts: (1) Negligence (Premise Liability); (2) Loss of Consortium; and (3) Wrongful Death. Plaintiff alleged that basic precautions as to assistance, supervision, and "customer" safety were ignored while Plaintiff and Mr. Minnich were on the premises for services. Plaintiff asserts that it was reasonably foreseeable that in directing Mr. Minnich to position himself on the exam table without assistance and/or observing him do so, and without assuring that the retractable step was fully extended, Mr. Minnich would sustain injury. Plaintiff also alleged that MedExpress was negligent in failing to implement precautions and procedures to protect Mr. and Mrs. Minnich, to assist Mr. Minnich upon the examination table, to assure the table was fully functional, and to observe Mr. Minnich's positioning to assure he was not injured in doing so.
On September 8, 2014, Defendant filed its answer asserting that the MPLA was applicable to Plaintiff s claims. On October 24, 2014, Defendant filed a motion for summary judgment arguing that the MPLA was applicable to Petitioner's claims.
On December 1, 2014, the trial court entered a summary judgment order, which disposed of Plaintiff’s premises liability claim and directed Plaintiff to amend her Complaint and, assert claims on behalf of Mr. Minnich in compliance with the MPLA. The circuit court determined that Plaintiff s claims were based upon "health care services" rendered, or which should have been rendered by the Defendant, a health care provider; and, were therefore subject to the MPLA and its pre-suit requirements.
On January 16, 2015, Plaintiff petitioned for a writ of prohibition. On March 11, 2015, the West Virginia Supreme Court, without explanation, refused Plaintiff's Petition.
On August 31, 2015, Plaintiff filed a motion for reconsideration. The trial court denied Plaintiff's motion for the reasons detailed in its summary judgment order. By finding that Plaintiff's claims were subject to MPLA, the circuit court held that the summary judgment order precluded Plaintiff from proceeding with its premises liability claim. Thus, the order constituted a final judgment with regard to Plaintiff's premises liability claim. Therefore, in accordance with Rule 54(b) of the West Virginia Rules of Civil Procedure, the circuit court held that there is no just reason for delay and that its order was immediately appealable to the Supreme Court of Appeals of West Virginia.
The MPLA defines "[H]eath care" to include: "any act or treatment performed or furnished, or which should have been performed or furnished, by a ‘health care provider’ for, to or on behalf of a patient during the patient's medical care, treatment or confinement." See, W.Va. Code §55-7B-2(e) (2010); see, also, Blakenship v. Ethicon, 221 W.Va. 700, 656 S.E.2d 451, 458 (2007). In this case, the circuit court found that Mr. Minnich’s injury occurred during the provision of health care services by a health care provider for which the MPLA provides an exclusive remedy. W.Va. Code §55-7B-2(g); Boggs v. Camden-Clark Mem. Hosp., 216 W.Va. 656, 662, 609 S.E.2d 917, 923 (2004). (MPLA is sole remedy to address any claims related ''to health care services rendered, or that should have been rendered" by a "health care provider".)
Plaintiff/Petitioner argues that the circuit court erred by adopting Respondent's "continuity of care" argument that essentially provides that once you become a patient, any claim you may have against a health care provider until discharge falls within the purview of the MPLA because it occurred during the "continuity of care." Plaintiff/Petitioner contended that this argument was specifically rejected by the Supreme Court in Manor Care, Inc. v. Douglas, 234 W.Va. 57, 73 763 S.E.2d 73, 89 (2014) (The fact that an injury occurs at a health care facility to a patient, without more, is insufficient to bring the claim within the purview of the MPLA.) Plaintiff/Petitioner highlighted the fact that Mr. Minnich had not been examined or treated in advance of the fall.
Plaintiff/Petitioner contends that the circuit court erred in finding that Mr. Minnich was seen by a health care professional prior to his fall, as Ms. Hiveley, a non-certified medical assistant, was the only person with whom Mr. Minnich had contact prior to his fall. Plaintiff/Petitioner highlighted that the MPLA's definition of health care provider omits medical assistants; and, following recent amendments where the definition of health care provider was greatly expanded in scope, medical assistants were again omitted. W.Va. Code § 55-7B-2(g) (2015).
Furthermore, Plaintiff/Petitioner refuted the notion that Mr. Minnich’s injury occurred during the provision of “health care services” as no specialized medical skill or training is necessary to fully extend a footstool. Moreover, there was no evidence to suggest that Ms. Hiveley assessed Mr. Minnich for risk of falling, and therefore, Plaintiff argued there was no “health care service” rendered. According to Boggs, Ms. Hiveley was not acting as a medical professional, and she was not rendering health care services; therefore, the MPLA did not apply. See, Boggs, 216 W.Va. 656, 662-63, 609 S.E.2d 917, 923-24 (2007).
Plaintiff/Petitioner also cited Riggs v. WVU Hospital, Inc., 221 W.Va. 646, 666, 656 S.E.2d 91, 111 (2007), which stands for the proposition that a breach of duty by a hospital to maintain a safe environment, which causes injury to a patient or non-patient, does not fall under the MPLA. (Despite the fact the plaintiff's injury occurred in a health care facility, while the plaintiff was a patient and undergoing surgery, the hospital's breach of its duty to maintain a safe environment, i.e. sterile and free from infection, was unrelated to the plaintiff's knee surgery and, therefore, not covered by the MPLA.)
This is a difficult case to analyze. On one hand, the facts of the case do not fit the mold of a traditional medical malpractice case. The MPLA is not implicated solely because the incident involved a patient in a health care facility about to receive health care services. The medical assistant is arguably not a health care professional as defined by the MPLA, and it is questionable as to whether the service that should have been provided, i.e. preparing the exam table for use, can be viewed as a “health care service.” No expert would be necessary to educate the jury that the exam table step should have been fully extended before instructing an individual to use it. On the other hand however, the Court may take a narrower approach and find that Mr. Minnich was a patient and his injury occurred during the time when health care services were in the process of being administered by the Defendant MedExpress, a health care provider, thereby implicating the MPLA.