CHARLESTON – West Virginia Supreme Court Justice Robin Jean Davis issued a dissenting opinion in an appeal, saying that she believes the majority opinion ignores facts of record in favor of a “narrow construction of allegations set forth in the complaint.”

“This is a tragic case involving, in part, a serious head injury sustained by a seventy-one-year-old man as a result of a fall while on MedExpress premises,” she wrote in the Feb. 14 dissenting opinion. “It is alleged, and experts have opined, the resulting head injury substantially contributed to his rapid decline and ultimate death.”

The majority found that Andrew A. Minnich’s fall occurred while he was attempting to comply with the directive of a healthcare provider to sit on an examination table, and thus, the injuries sustained as a result of the fall occurred in the court of evaluation at MedExpress, Davis wrote.

“My review of the record suggests that this characterization of the underlying events is factually inaccurate and wrongly portrays what actually transpired,” she wrote.

The MedExpress employee took Joyce Minnich and Andrew Minnich to an exam room and instructed Andrew Minnich to get on an exam table and then left the room, according to the complaint.

The complaint, Davis wrote, adroitly avoided pleading a medical professional liability claim and, instead, was framed as a simple negligence or premises liability claim.

“If the matter were before this court on review of a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, we would properly consider only the allegations of the complaint and closely parse whether it was well-pled,” she wrote. “However, this appeal arises out of a summary judgment determination following extensive factual development. I cannot place blinders on so as to ignore the facts of record.”

Davis wrote that her review of the record compels her to conclude that the conduct that forms the basis of the litigation is not rooted in the provision of medical care and, instead, is in ordinary negligence.

“Because I do not agree with the majority’s interpretation and application of the law and the facts of record, I dissent,” she wrote.

The Supreme Court of Appeals ruled on Feb. 9 that the Medical Professional Liability Act applied in the appeal in the lawsuit against MedExpress for injuries.

Chief Justice Allen Loughry authored the majority opinion.

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 majority 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. 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’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, according to the majority opinion.

“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.

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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