Burless v. WV UNIVERSITY HOSPITALS, INC., No. 31423

• Court: Supreme Court of West Virginia
• Citation: 215 W.Va. 765,601 S.E.2d 85
• Decision Date: 30 June 2004
• Docket Number: No. 31423, No. 31424.
• Parties: Jaclyn BURLESS and Brinley Price, Individually and as Parents and Natural Guardians of Alexis Price, a Minor, Plaintiffs Below, Appellants, v. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., a West Virginia Corporation; and University of West Virginia Board of Trustees, a West Virginia Corporation, Defendants Below, Appellees. and Melony J. Pritt, Individually and as a Parent and Natural Guardian of Adam Pruitt, a Minor, Plaintiff Below, Appellant, v. West Virginia University Hospitals, Inc., a West Virginia Corporation; and University of West Virginia Board of Trustees, a West Virginia Corporation, Defendants Below, Appellees.

601 S.E.2d 85
215 W.Va. 765

Jaclyn BURLESS and Brinley Price, Individually and as Parents and Natural Guardians of Alexis Price, a Minor, Plaintiffs Below, Appellants,
v.
WEST VIRGINIA UNIVERSITY HOSPITALS, INC., a West Virginia Corporation; and University of West Virginia Board of Trustees, a West Virginia Corporation, Defendants Below, Appellees. and
Melony J. Pritt, Individually and as a Parent and Natural Guardian of Adam Pruitt, a Minor, Plaintiff Below, Appellant,
v.
West Virginia University Hospitals, Inc., a West Virginia Corporation; and University of West Virginia Board of Trustees, a West Virginia Corporation, Defendants Below, Appellees

Nos. 31423, 31424.

Supreme Court of Appeals of West Virginia.

Submitted January 13, 2004.

Decided June 30, 2004.

601 S.E.2d 88

Alex J. Shook, Hamstead, Hamstead & Williams, Morgantown, Harry S. Cohen, Douglas L. Price, Harry S. Cohen & Associates, Pittsburgh, PA, for the Appellants

Charles J. Crooks, David Z. Myerberg, Jackson Kelly, P.L.L.C., Morgantown, for the Appellees.

DAVIS, Justice:

In these two appeals from two orders of the Circuit Court of Monongalia County granting summary judgment to West Virginia University Hospitals (hereinafter referred to as "WVUH"), the Appellants ask this Court to rule that the circuit courts erred in finding that no actual or apparent agency relationship existed between physicians employed by the West Virginia University Board of Trustees (hereinafter referred to as "the BOT") and WVUH. We find no error in the circuit courts' rulings that no actual agency existed. However, we find that the courts erred in granting summary judgment on the issue of apparent agency. In reaching this conclusion, we find that for a hospital to be held liable for a physician's negligence under an apparent agency theory, a plaintiff must establish that: (1) the hospital either committed an act that would cause a reasonable person to believe that the physician in question was an agent of the hospital, or, by failing to take an action, created a circumstance that would allow a reasonable person to hold such a belief, and (2) the plaintiff relied on the apparent agency relationship.

I.

FACTUAL AND PROCEDURAL HISTORY

Each of the two cases consolidated for purposes of this opinion involve a woman who gave birth to her child at WVUH under circumstances that she alleges resulted in severe birth defects to her child. The relevant facts of each case, as developed in the pleadings, depositions, affidavits, and exhibits, follow.

A. Jaclyn Burless

In July of 1998 Jaclyn Burless learned she was pregnant and sought prenatal care at the Cornerstone Care Clinic (hereinafter referred to as "the Cornerstone Clinic" or simply "the clinic") located in Greensboro, Pennsylvania. The Cornerstone Clinic was where Ms. Burless had routinely sought her primary medical care. Similarly, Ms. Burless elected to receive her prenatal care at the clinic. She received her prenatal care from Dr. Douglas Glover for approximately seven months.¹

In November, 1998, Dr. Glover sent Ms. Burless to WVUH for an ultrasound. At

601 S.E.2d 89

that time, Ms. Burless signed a WVUH consent form that stated: "I understand that the faculty physicians and resident physicians who provide treatment in the hospital are not employees of the hospital." Thereafter, in February of 1999 when she was at approximately 37 weeks of gestation, Ms. Burless experienced an elevated blood pressure and edema. On February 15, 1999, Dr. Glover advised Ms. Burless to report to the WVU Emergency Department for an evaluation. On February 17, 1999, Ms. Burless presented herself at the WVUH Emergency Department as instructed and, after an evaluation, was instructed to return to the High Risk Clinic, which is located on the WVUH premises, in two days with a urine sample for testing. Ms. Burless was also advised that she would receive the remainder of her prenatal care at the High Risk Clinic. She followed the instructions to return to the High Risk Clinic in two days. She was then instructed to return in one week for further evaluation. When she returned, on February 26, 1999, she was induced into labor at 7:50 p.m. Her labor was permitted to continue throughout the remainder of February 26 and until 4:00 p.m. on February 27. She alleges that during this time, doctors, residents, and nurses at WVUH noted variable decelerations in the fetal heart rate of her unborn daughter, Alexis Price. At 4:00 p.m. on February 27 the decision was made to deliver the baby via cesarean section, and such delivery was accomplished at 4:16 p.m. The child was born with an APGAR² score of two at one minute and six at five minutes. Soon after birth the child began to experience seizures and suffered a stroke. Ms. Burless has alleged that the doctors and hospital were negligent, inter alia, in failing to monitor her labor and delivery, which negligence caused severe and permanent mental, neurological, and psychological injuries to the infant, Alexis Price

Ms. Burless later filed a negligence action, claiming breaches of the standard of care in connection with the management of her labor, against the BOT as the physicians' employer,³ and claiming vicarious liability on the part of WVUH based upon a theory of apparent agency between WVUH and the physicians who provided the allegedly negligent care.⁴ WVUH moved for summary judgment asserting, in relevant part, that there was no apparent agency relationship between it and the doctors and residents who provided care to Ms. Burless. Finding no just cause for delay, pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure, the circuit court granted summary judgment to WVUH by final order entered December 11, 2002. The circuit court found that there was nothing in the record demonstrating the creation of an apparent agency relationship between the physicians who treated Ms. Burless and WVUH. Ms. Burless appealed the order and this Court granted her petition for appeal. For purposes of rendering our decision, we consolidated her case with a similar appeal filed by Ms. Melony Pritt.

A. Melony Pritt

Melony Pritt presented to the Emergency Department of WVUH on June 2, 1998, complaining of pain in her right lower abdomen. It was determined that she was nine weeks pregnant and had a left ovarian cyst. Ms. Pritt was released from the hospital on June 3 and was instructed to follow-up at the Obstetrics and Gynecology clinic at the Physicians Office Center (hereinafter "POC") for her prenatal care and monitoring of her ovarian cyst. When Ms. Pritt arrived for her first follow-up visit, she reported to the admissions clerk at WVUH and was assigned to

601 S.E.2d 90

Dr. Aparna Kamat, a second-year resident who was supervised in treating Ms. Pritt by Drs. Brita Boyd, Millard Simmons, and Leo Brancazio. Subsequent ultrasounds revealed the continued presence of the cyst. On September 4, Ms. Pritt saw Dr. Kamat at the POC and a left ovarian cystectomy using a laproscopic procedure was scheduled. On that same date, and during her visit with Dr. Kamat at the POC, Ms. Pritt signed an informed consent for the laparotomy and left ovarian cystectomy. This consent, and three other consent forms signed by Ms. Pritt during the course of her medical care, all contained the following statement: "I understand that the faculty physicians and resident physicians who provide treatment in the hospital are not employees of the hospital." The surgery was performed by Drs. Kamat and Boyd on September 8, 1998, when Ms. Pritt was estimated to be at about twenty-three-and-one-half weeks gestation. During the surgical procedure, the cyst broke open and yellow fluid leaked into the pelvic cavity. No irrigation was performed and no antibiotics were prescribed. Ms. Pritt was discharged from the hospital on September 10, 1998. On September 12, 1998, she presented to the Emergency Department at WVUH with severe abdominal pain. She was found to have a massive abdominal infection, which infection caused premature labor. Her son, Adam Pruitt, was born on September 13, 1998. Ms. Pritt contends that, due to his prematurity at birth, Adam has suffered severe permanent mental, neurological, and psychological injuries

Ms. Pritt subsequently sued the BOT⁵ and WVUH claiming that injuries to herself and her son resulted from the negligence of the physicians in recommending and performing an elective laproscopic cystectomy procedure when she in only her twenty-third week of gestation. WVUH moved for summary judgment asserting the lack of any apparent agency relationship between it and the doctors and residents who provided care to Ms. Pritt.⁶ Finding no just cause for delay, pursuant to Rule 54(b), the circuit court granted summary judgment to WVUH by final order entered July 31, 2002. The circuit court found, inter alia, that Ms. Pritt's theory of apparent agency must fail because WVUH had not, through its actions or its conduct, held the physicians out to be its employees. Ms. Pritt appealed the order and this Court granted her petition for appeal. We consolidated her case with that of Ms. Burless for purposes of rendering our decision.

II.

STANDARD OF REVIEW

These cases are before this Court on appeal from orders granting summary judgment in favor of WVUH. "A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Thus, in undertaking our de novo review, we apply the same standard for granting summary judgment that is applied by the circuit court:

"`A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421

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