West Virginia Record

Thursday, October 17, 2019

Justices reverse Cabell judge on med mal ruling

By Steve Korris | Nov 14, 2008

Cabell Huntington Hospital

CHARLESTON – Cabell Circuit Judge David Pancake misread a clock in West Virginia medical malpractice law by four years when he threw out a mother's suit against Cabell Huntington Hospital, the Supreme Court of Appeals decided Nov. 6.

All five justices reversed Pancake's order granting summary judgment against Jeanne Cartwright, who sued the hospital as parent of 13-year-old Tiffany Cartwright.

The justices wrote that Pancake's error "seriously affects the fairness and integrity of the judicial process."

They remanded to him a suit seeking to hold Cabell Huntington Hospital liable for spinal injury that paralyzed Tiffany.

Tiffany's mother took her to the emergency room in October 1999. Tiffany's legs kept growing weaker and she had turned incontinent.

Pediatricians on call referred Tiffany to Carl McComas at Tri-State Neuroscience Center. He admitted her to the hospital and released her a week later.

He examined Tiffany in his office 23 days after her release and ordered a magnetic resonance image of her spine.

That MRI revealed a bloody mass compressing her spinal cord.

Tiffany underwent surgery at Children's Hospital in Columbus, Ohio, but paralysis and incontinence continued.

Her mother sued McComas on April 23, 2003, for failing to order an MRI during the week Tiffany spent in Cabell Huntington.

She did not sue the hospital, though state law allowed a claim against a hospital for acts of a doctor who didn't work for the hospital but acted as its "ostensible agent."

On July 1, 2003, an amendment to state law took effect that prohibited ostensible agency claims unless the agent carried less than $1 million in malpractice insurance.

On June 15, 2005, Cartwright added Cabell Huntington Hospital as a defendant under a theory of ostensible agency.

The hospital moved for summary judgment, arguing that the 2003 amendment precluded an ostensible agency claim.

Pancake granted the hospital's motion last year.

For Cartwright, Brian Prim and Carl Hostler of Prim Law Firm in Hurricane appealed on constitutional grounds.

They argued that Pancake violated Cartwright's due process rights by applying the 2003 law retroactively.

They overlooked an obvious point, however, for state law allows a medical malpractice suit for a child less than 10 years old to begin at any time prior to the 12th birthday.

The Justices seized on the point and declared constitutional analysis unnecessary.

"Instead we find that the lower court's summary judgment ruling represents plain error and warrants reversal on that ground," they wrote in an unsigned opinion.

"The enlarged filing period the Legislature has provided for minors under the age of ten at the time of injury is unquestionably applicable to Tiffany since she was only four years old when the alleged acts of malpractice occurred," they wrote.

"Thus, under the terms of the statute, the limitations period for filing suit did not expire until Tiffany's twelfth birthday in 2007."

Although they rarely invoke plain error, they wrote, this case justified it because "a fair opportunity has not been extended to protect the substantial rights of a minor child."

Anthony D'Amico of Pittsburgh represented Cartwright along with Prim and Hostler.

Thomas Craig, Rebecca Brown and David Amsbary, all of Bailes, Craig and Yon in Huntington, represented Cabell Huntington Hospital.

Cartwright settled her claim against McComas, according to the Justices.

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