CHARLESTON — The West Virginia Supreme Court of Appeals ruled by certified question that the parties voluntarily dismissed from a medical malpractice case are still considered alleged parties.
The court was asked whether parties who are dismissed from an action brought under the Medical Professional Liability Act (MPLA), but who did not settle their claims with the plaintiff may be considered by the jury in apportioning fault under certain West Virginia Code, according to the Nov. 8 majority opinion.
That provision stated that the jury "shall" consider the fault of "all alleged parties" and though not defined, the court concluded that the language of the statute and its legislative history compel a conclusion that the term "alleged parties" encompasses those originally named as a party in the complaint as having contributed to the plaintiff’s injuries irrespective of whether they remain parties to the litigation at the time of trial.
The underlying case centers around the implantation of Darrell Wingett's permanent pacemaker. Dr. Kishore Challa, a cardiologist, and Dr. M. Salim Ratnani, a cardiothoracic surgeon, were involved in the medical treatment. Wingett later developed complications, leading to the removal of the pacemaker. He filed a medical malpractice lawsuit naming Challa, Ratnani, South Charleston Cardiology Associates (SCCA) and Professional Cardiothoracic Surgery (PCS) as defendants.
During the legal proceedings, Wingett voluntarily dismissed Ratnani and PCS, citing difficulties in serving Ratnani and PCS's revoked license to do business in West Virginia. Wingett argued that Ratnani and PCS were not necessary parties at the time of dismissal. Subsequently, Challa filed a notice of non-party fault, asserting that Ratnani and PCS should still be considered in apportioning fault under West Virginia Code § 55-7B-9(b).
Wingett filed a motion in limine to preclude Challa from presenting evidence or arguing that Ratnani or PCS were responsible for the damages.
The motion claimed that Challa had not filed a notice of claim or retained an expert to support claims against Ratnani, making consideration of their fault inappropriate. The court received conflicting arguments, with Challa contending that Ratnani and PCS were "alleged parties" according to the MPLA.
The court, in answering the certified question, concludes that the term "alleged parties" in West Virginia Code § 55-7B-9(b) encompasses those originally named as defendants in the complaint, regardless of whether they remain parties at the time of trial.
This interpretation is based on the language of the statute and its legislative history. The court rejected the notion that Challa needed to file a third-party complaint or present expert testimony critical of Ratnani before considering them as "alleged parties."
The court emphasizes that the plaintiff's allegations in the verified complaint are sufficient to consider fault, aligning with the treatment of settling defendants or those who settle before becoming a party.
The decision avoids placing Challa in the difficult position of criticizing Ratnani for a recommended course of treatment that Challa himself endorsed earlier.
The court answers the certified question in the affirmative, affirming that healthcare providers initially named in the complaint but later voluntarily dismissed can still be considered "alleged parties" for the purpose of apportioning fault under West Virginia Code § 55-7B-9(b).
The case is remanded to the Kanawha Circuit Court for further proceedings.
In his concurring opinion, Justice Tim Armstead states that while he concurs with the majority's ultimate conclusion, he wanted to write separately to note that he believes the conclusion is supported by both the MPLA and West Virginia code.
"I concur with the majority’s decision insofar as it requires the fault of Dr. Ratnani and PCS to be considered by the jury," Armstead wrote. "Further, I concur with the majority’s analysis that Dr. Ratnani and PCS are 'alleged parties' under West Virginia Code § 557B-9(b)."
Neither party's attorneys would comment on the record of the case.
West Virginia Supreme Court of Appeals case number: 22-567