Cartwright v. Mccomas

• Citation: 672 S.E.2d 297
• Decision Date: 06 November 2008
• Docket Number: No. 33868.,33868.
• Court: Supreme Court of West Virginia
• Parties: Jeanne CARTWRIGHT, as Guardian and Parent of Tiffany Cartwright, a Minor Child, Plaintiff Below, Appellant v. Carl F. McCOMAS, M.D., Defendant Below, Cabell Huntington Hospital, Defendant Below, Appellee.

672 S.E.2d 297

Jeanne CARTWRIGHT, as Guardian and Parent of Tiffany Cartwright, a Minor Child, Plaintiff Below, Appellant v. Carl F. McCOMAS, M.D., Defendant Below, Cabell Huntington Hospital, Defendant Below, Appellee.

No. 33868.

Supreme Court of Appeals of West Virginia.

Submitted September 24, 2008.

Decided November 6, 2008.

Syllabus by the Court

1. "[This Court] may, sua sponte, in the interest of justice, notice plain error." Syl. Pt. 1, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).

2. "`"To trigger application of the `plain error' doctrine there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).' Syllabus Point 7, Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996)." Syl. Pt. 12, Keesee v. General Refuse Service, Inc., 216 W.Va. 199, 604 S.E.2d 449 (2004).

3. "[A]n error may be plain under existing law, which means that the plainness of the error is predicated upon legal principles that the litigants and trial court knew or should have known at the time of the prosecution [of the case]. ..." Syl. Pt. 6, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).

Brian Alan Prim, Carl E. Hostler, Prim Law Firm, PLLC, Hurricane, Anthony J. D'Amico, Savinis, D'Amico & Kane, LLC, Pittsburgh, PA, for the Appellant.

Thomas L. Craig, Rebecca C. Brown, David D. Amsbary, Bailes, Craig & Yon, Huntington, for the Appellee, Cabell Huntington Hospital, Inc.

PER CURIAM:¹

This case involves the appeal of Jeanne Cartwright (hereinafter "Appellant"), as guardian and mother of her minor daughter, Tiffany Cartwright (hereinafter referred to individually as Tiffany), from the July 3, 2007, order of the Cabell County Circuit Court granting summary judgment in a medical malpractice action for one of the defendants below² and sole appellee herein, Cabell Huntington Hospital (hereinafter "CHH"). Appellant maintains that the lower court incorrectly terminated her ostensible agency claim against CHH on the grounds that the cause of action was barred by a statutory amendment even though her daughter's right to bring suit had vested under the provisions of an earlier enacted statute. More specifically, Appellant argues that her daughter's cause of action was a vested property interest before the amendment limiting the manner in which ostensible agency suits may arise under the Medical Professional Liability Act (hereinafter "MPLA") took effect. Appellant asserts that applying the later-enacted statutory amendment so as to destroy this vested property interest violates due process guarantees of the West Virginia Constitution. Appellant further asserts that applying a later-enacted amendment of the MPLA to her daughter's ostensible agency claim is contrary to the intent of the Legislature.

Upon careful consideration of the briefs and arguments of counsel, the record accompanying the appeal, the pertinent facts and the relevant law, we reverse the order of the lower court on the basis of plain error and remand the case for reinstatement to the docket.

I. Factual and Procedural Background

On October 5, 1999, Appellant took her then four-year-old daughter to the CHH emergency room. The child was experiencing progressive weakness in her legs and torso, and was incontinent. After being seen in the CHH emergency department, Tiffany was evaluated by the on-call pediatricians at the hospital. The pediatricians suspected that Tiffany might be suffering from a neurological disorder known as Guillain-Barre Syndrome and ordered a neurological consultation with Dr. Carl McComas.

Tiffany was admitted to CHH where she was received care from Dr. McComas from October 9, 1999, through October 16, 1999. Dr. McComas did not order a Magnetic Resonance Imaging (hereinafter "MRI") study for the child during this hospitalization. It was not until Dr. McComas later saw Tiffany in his office on November 8, 1999, and he ruled out Guillain-Barre Syndrome that Dr. McComas ordered an MRI of the spine. This MRI was completed on December 17, 1999, and revealed a vascular abnormality that was compressing on Tiffany's spinal cord and causing paralysis. Dr. McComas referred Tiffany to a neurosurgeon in Huntington, West Virginia, who saw the child on December 27, 1999. After seeing the neurosurgeon, Tiffany was taken to Columbus Children's Hospital by her parents for a second opinion. A second MRI was done in Columbus and Tiffany underwent surgery at Columbus Children's Hospital on December 29, 1999, to resect a hemorrhagic mass near her spinal cord.

When Tiffany was released from the Columbus Hospital on January 15, 2000, she continued to be paralyzed and incontinent. According to the deposition of Appellant's experts, the delay in diagnosis and treatment of the child's spinal problem negated the possibility of a complete recovery, and Tiffany likely would be paralyzed and incontinent for the rest of her life.

Appellant instituted a medical malpractice action pursuant to the Medical Professional Liability Act (hereinafter "MPLA") against Dr. McComas on April 23, 2003, asserting that he deviated from the standard of care by failing to order an MRI of Tiffany's spine while she was hospitalized at CHH. She further alleged that his negligence delayed the diagnosis and treatment of the abnormality in the child's spine. On June 15, 2005, Appellant was granted leave to file an amended complaint to add CHH as a defendant. The hospital moved for summary judgment on June 4, 2007, asserting that the 2003 amendments to West Virginia Code § 55-7B-9,³ which took effect on July 1, 2003, precluded Appellant from pursuing an ostensible agency claim against CHH under the circumstances present in this case.⁴

On July 3, 2007, the circuit court entered an order granting summary judgment in favor of CHH. The order reflects the following findings of the lower court:

5. No witness or treating physician named by any party to this cause of action has opined that an employee of Cabell Huntington Hospital deviated from the acceptable standard of care causing harm to Tiffany Cartwright.

6. Plaintiff has offered no evidence that employees of Cabell Huntington Hospital were negligent in the care of Tiffany Cartwright.

7. Section § 55-7B-9(g) of the MPLA III,⁵ states that a health care provider may not be held vicariously liable for the acts of a non-employee pursuant to a theory of ostensible agency unless the alleged agent does not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least one million dollars.

8. Carl McComas, M.D. is an employee of Tri-State Neuroscience Center and not an employee of Cabell Huntington Hospital.

9. Carl McComas maintained professional liability insurance covering the medical injury which is the subject of the Cartwright litigation in the aggregate amount of one million dollars. Therefore Cabell Huntington Hospital is not vicariously liable for the actions or omissions of Dr. McComas in this cause of action.

Appellant appealed to this Court for review of the summary judgment order, which request was granted by order dated February 28, 2008.

II. Standard of Review

This case requires us not only to examine the propriety of a summary judgment decision but also to analyze a lower court's interpretation of a statute upon which the summary judgment was based. The standard of review in both instances is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo."); Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.").

III. Discussion

Appellant raises three assignments of error. The first of these is that the trial court erred when it granted CHH's motion for summary judgment because it failed to recognize that Appellant's ostensible agency claim against CHH in a medical malpractice action is a protected property interest under the due process clause of the West Virginia Constitution. Building on this premise, Appellant's second assertion is that the decision to retroactively apply the 2003 amendments to West Virginia Code § 55-7B-9 to this case is unconstitutional because Tiffany's ostensible agency claim against CHH is a vested property interest subject to due process safeguards. The third alleged error is that the trial court's application of the 2003 version of West Virginia Code § 55-7B-9 to Tiffany's ostensible agency claim is contrary to legislative intent.

Based upon the facts and record before us, we find it unnecessary to venture into a constitutional analysis in order to resolve the matter presented. Instead we find that the lower court's summary judgment ruling represents plain error and warrants reversal on that ground. We reach this conclusion fully aware that plain error was not raised by Appellant on appeal. However, it is within the authority of this Court to "sua sponte, in the interest of justice, notice plain error." Syl. Pt. 1, in part, State v. Myers. 204 W.Va. 449, 513 S.E.2d 676 (1998); accord W.Va. R. Evid. 103(d) ("Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court."). See also 2A Fed. Proc., L.Ed. § 3:860 (acknowledging the power of federal courts to apply the plain error doctrine in appeals of civil as well as criminal cases).

The necessary elements of plain error are present in this case. As we reiterated in syllabus point twelve of Keesee v. General Refuse Service, Inc., 216 W.Va. 199, 604 S.E.2d 449 (2004), in order

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