On January 25, 2013, Mr. Andrew Minnich, now deceased, and his wife, Petitioner/Plaintiff Joyce Minnich, presented 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 just began walking without the use of an assistive device secondary to recent hip surgery. Ms. Hiveley escorted the 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 individuals 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 (Premises Liability); (2) Loss of Consortium; and (3) Wrongful Death. Plaintiff alleged that basic precautions as to assistance, supervision, and as to a "customer's" safety were ignored while Plaintiff and Mr. Minnich were on the premises for services, offered and provided by MedExpress. 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 to 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 guard and protect Mr. and Mrs. Minnich and in failing 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.
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 there 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 earlier 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. In accordance with Rule 54(b) of the West Virginia Rules of Civil Procedure, the circuit court held that there was no just reason for delay and that its summary judgment order was immediately appealable to the Supreme Court of Appeals of West Virginia.
Whether a health care provider as defined by the MPLA provided health care related services to Mr. Minnich prior to his fall?
The West Virginia Supreme Court of Appeals determined that the Petitioner, despite not specifically pleading and intending to implicate the MPLA, developed facts to show that Mr. Minnich received “health care” related services by a “health care provider,” as defined by the MPLA, prior to his fall, and that Petitioner’s theories of negligence involved, in part, the conduct of an employee of a health care facility, thereby necessarily limiting Petitioner’s claim to the MPLA.
Petitioner did not plead a violation of the MPLA; however, Petitioner did claim that the conduct of Defendant’s employee caused Petitioner’s injury. 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).
In analyzing the communications between Mr. Minnich and Ms. Hively, the Court referred to the MPLA’s definition of a health care provider: “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). Thus, the Court determined that Ms. Hiveley, an employee of MedExpress, was a health care provider.
The MPLA 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. Boggs v. Camden-Clark Memorial Hospital Corp., 216 W.Va. 656, 609 S.E.2d 917 (2004). In this case, the Court held that the intake aspect of a patient’s visit to a health care provider is “within the context of the rendering of medical services.” See e.g., Gray v. Mena, 218 W.Va. 564, 570, 625 S.E.2d 326, 332 (2005) The Court reasoned 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. Moreover, the Court determined that Petitioner 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.” Accordingly, the opinion of the trial court was affirmed.
Justice Davis dissented, believing that the majority opinion ignored the facts of record in favor of a narrow construction of the allegations set forth in the complaint, namely that Mr. Minnich’s fall occurred while he was attempting to comply with the directive of a health care provider to sit on an examination table. Justice Davis’ review of the record suggested that this characterization of the underlying events is factually inaccurate and wrongly portrayed what actually transpired, which was nothing more than ordinary negligence, i.e. the Defendant’s failure to extend a footstool. Justice Davis did not believe that expert testimony was necessary to educate a jury that it would be careless not to fully extend a footstool in an exam room knowing that a person may choose to utilize it.
Clearly, the Supreme Court is interpreting the scope of the MPLA broadly. It appears that if the conduct of an employee of a health care facility is alleged to have caused injury to a person triaged or registered to receive health care services, the MPLA will apply.