Supreme Court affirms dismissal of case against Fairmont General

By Nathan Bass | May 29, 2013

Fairmont General Hospital


CHARLESTON – A Marion County man will not have his day in court as the state Supreme Court has affirmed the circuit court’s dismissal with prejudice of the plaintiff’s lawsuit against a hospital and two affiliated individuals.

The unanimous memorandum decision was filed on May 24.

In August 2008, Michael Smallwood filed a civil action in the Circuit Court of Marion County alleging violations of the United States Health Insurance Portability and Accountability Act, known as HIPPA, by Fairmont General Hospital, Inc., Terri Bonasso, and Dr. Gravrilo Lazovic.

The circuit court dismissed the action, with prejudice, on May 18, 2010. However, on Jan. 12, 2012, Smallwood filed another action with the court and after the defendants filed a motion to dismiss, Smallwood filed an amended petition. Smallwood represented himself throughout the proceedings.

“The amended petition alleged that petitioner was a patient at Respondent Fairmont General’s emergency room after being injured in an accident, and that Respondent Lazovic, petitioner’s treating physician, harmed petitioner after not exercising due care and not following HIPAA requirements,” the opinion says

“Additionally, petitioner states that he was injured due to subsequent medical services from other medical providers due to 'pre-existing bias' arising from the actions during his September of 2006 visit to Respondent Fairmont General’s emergency room.”

The circuit court again granted the defendant’s motion to dismiss, with prejudice, finding that the new injuries alleged by plaintiff Smallwood arose from the same events at issue in the first action and were barred by the doctrine of res judicata. The court also found the allegations, based on the 2006 emergency room visit, were barred by the statute of limitations.

On appeal, Smallwood argued that the circuit court should not have considered his earlier case and, also, that there were issues of fact that could be established at trial. Additionally, he argued that the circuit court had erred by not allowing him to amend his complaint.

The defendants argue that the elements of res judicata were satisfied because the earlier action had a final adjudication on the merits, involved the same parties, and the cause of action of the second action could have been resolved in the first action.

Defendants further argued that the statute of limitations expired pursuant to West Virginia Code § 55-2-12 and, finally, that the circuit court specifically stated that it had considered Smallwood’s amended complaint and so Smallwood was entitled to no further consideration of the amended complaint.

“The Court has carefully considered the merits of each of petitioner’s arguments as set forth in his petition for appeal. We consider a circuit court’s order granting a motion to dismiss under a de novo standard of review," the decision says.

“Petitioner does not identify any actions that respondents took subsequent to the actions at issue in the earlier civil action involving the same parties, which has already been adjudicated. Therefore, the circuit court correctly granted respondents’ motion to dismiss under the doctrine of res judicata. We affirm.”

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