Justices say medical professional liability law applies in MedExpress appeal

By Kyla Asbury | Feb 17, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that the Medical Professional Liability Act applies in an appeal in a lawsuit against MedExpress for injuries.

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that the Medical Professional Liability Act applies in an appeal in a lawsuit against MedExpress for injuries.

Chief Justice Allen Loughry authored the majority opinion. Justice Robin Jean Davis dissented.

“Rather than granting summary judgment as to the entirety of the petitioner’s negligence claim, the circuit court simply concluded that the purported ‘premises liability’ claim asserted by the petitioner against the respondent … falls within the provisions of the West Virginia Medical Professional Liability Act,” the Feb. 9 opinion states.

In seeking relief from this ruling, Joyce Minnich argued that the MPLA does not apply because her late husband was not treated by a health care provider prior to his fall within the MedExpress facility.

“Given Mr. Minnich’s lack of medical care before the fall, the petitioner asserts that the subject claim is not a medical malpractice claim but instead a negligence claim which stems from the respondent’s failure to maintain a safe environment,” the opinion states. “Upon out examination of these contentions, we conclude that a ‘health care provider,’ as defined by the MPLA, did in fact provide ‘health care’ related services to Mr. Minnich prior to his fall. Accordingly, we affirm the trial court’s determination with regard to the applicability of the MPLA.”

On Jan. 25, 2013, Andrew Minnich, accompanied by his wife, presented to MedExpress in South Charleston with complaints of shortness of breath, weakness and the possible development of pneumonia.

Jessica Hively, a medical assistance employed by MedExpress, spoke with the couple to evaluate Andrew Minnich’s condition in the triage area of the facility, according to the opinion.

After escorting the petitioner and her late husband to an examination room, Hively purportedly directed Andrew Minnich to be seating on the examination table and exited the room. When Andrew Minnich attempted to get onto the table, he fell back into his wife and they both fell to the floor and sustained injuries. Andrew Minnich died 90 days later.

Joyce Minnich filed a complaint against MedExpress on Aug. 14, 2013, alleging negligence, loss of consortium and wrongful death. A default judgment was entered against MedExpress on March 7, 2014, which was later set aside over the petitioner’s objection.

On Sept. 8, 2014, MedExpress asserted that the action arose under the MPLA and, again, sought to invoke the MPLA in its motion for summary judgment on Oct. 24, 2014.

On Dec. 1, 2014, the circuit court granted MedExpress summary judgment as to the premises liability claim, directing the petitioner to amend her complaint to please a medical malpractice claim compliant with the MPLA filing requirements.

Joyce Minnich filed a motion seeking reconsideration of the summary judgment ruling and the circuit court denied the request. Minnich then appealed.

“The petitioner urges that the fall did not occur during receipt of health care services inasmuch as Mr. Minnich experienced the fall prior to his receipt of any health care services,” the opinion states. “While the petitioner would have us believe that the fact that a licensed health professional, such as a nurse or doctor, had not yet undertaken a physical examination of Mr. Minnich controls whether this case falls under the MPLA, we are not persuaded.”

Integral to the diagnosis and examination of a patient by a medical professional is the component of the health care visit that customarily precedes the actual physical examination, according to the opinion.

“Absent the intake aspect of a patient’s visit to a health care provider, the examination would not be as properly focused or as likely to result in a correct diagnosis,” the opinion states. “Consequently, we have little difficulty viewing the questioning by Ms. Hively of the Minnichs and the taking of vital signs that occurred prior to the fall as transpiring during the course of or ‘within the context of the rendering of medical services.’”

The petitioner’s attempt to exclude any injuries sustained by a patient before a doctor or nurse enters the examination room, but after a medical history and intake have been taken, from the reach of the MPLA is unavailing.

“We simply cannot accept the petitioner’s attempt to frame the injuries Mr. Minnich sustained in this case as being unrelated to the provision of health care services,” the opinion states.

Andrew Minnich’s fall occurred while attempting to comply with the directive of Hively to sit on the examination table and this, the injuries he sustained as a result of the fall were sustained in the course of his evaluation at MedExpress, according to the opinion.

“In pleading this case, the petitioner alleged that a MedExpress employee, after being informed of his medical history, failed to properly assist Mr. Minnich to gain access to the examination table,” the opinion states. “Through this allegation, the petitioner injected the issue of whether Ms. Hively, armed with the knowledge of Mr. Minnich’s recent medical history, complied with the standard of care expected of a health care services provider. Thus, the petitioner specifically raised the issue of Ms. Hively’s professional training and judgment by relying on the awareness MedExpress had regarding Mr. Minnich’s weakened condition and his ambulatory restrictions.”

Accordingly, the Supreme Court affirmed the trial court’s ruling.

Joyce Minnich was represented by John H. Tinney Jr. and John K. Cecil of Hendrickson & Long.

MedExpress was represented by Anthony C. Sunseri and Darla A. Mushet of Burns White.

W.Va. Supreme Court of Appeals case number: 15-1148

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Burns White, LLC Hendrickson & Long, PLLC West Virginia Supreme Court of Appeals

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