Gooch v. West Virginia Dept. of Public Safety

Citation465 S.E.2d 628,195 W.Va. 357
Decision Date17 November 1995
Docket NumberNo. 22806,22806
CourtSupreme Court of West Virginia
PartiesOsa GOOCH, Executrix of the Estate of John Earl Gooch, and Osa Gooch, Individually, Plaintiff Below, Appellant v. WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY; Trooper S.B. Lake; and Raleigh General Hospital, a West Virginia Corporation, Defendants Below, Appellees.

7. To establish a hospital-patient relationship, unless otherwise imposed by law, there must be a natural person who receives or should have received health care from a licensed hospital under a contract, expressed or implied. W.Va.Code, 55-7B-2(e) (1986).

[195 W.Va. 360] As a matter of law, a hospital-patient relationship cannot be created merely by virtue of an arrestee being presented to a hospital for a drug and alcohol blood test. To avoid summary judgment, a plaintiff must show sufficient additional evidence beyond the presentation for a driving under the influence blood test to demonstrate either an expressed or implied contract between the parties was created.

8. W.Va.Code, 17C-5-6 (1981), specifically provides civil immunity to institutions and individuals who draw blood at the direction of a police officer unless there is gross negligence or willful or wanton injury.

Monty L. Preiser, Robert P. Welsh, Preiser Law Firm, Charleston, for appellant.

Steve McGowan, Luci R. Wellborn, Joanna Tabit, Steptoe & Johnson, Charleston, for appellees West Virginia Department of Public Safety and Trooper S.B. Lake.

W.H. File, Jr., File, Payne, Scherer & File, Beckley, for appellee Raleigh General Hospital.

CLECKLEY, Justice:

The plaintiff below and appellant herein, Osa Gooch, as Executrix of the Estate of John Earl Gooch and individually, appeals the August 1, 1994, order of the Circuit Court of Raleigh County that denied her motion to reconsider the circuit court's prior order dated April 19, 1994, to the extent that order ruled on the motion for summary judgment made by Raleigh General Hospital (hospital), one of the defendants below and an appellee herein. The April 19, 1994, order granted the hospital's motion for summary judgment and dismissed the plaintiff's action against it. The April 19, 1994, order also denied a motion for summary judgment made on behalf of the other defendants below and appellees herein, Trooper S.B. Lake and the West Virginia Department of Public Safety (DPS). The plaintiff asserts that the circuit court erroneously granted summary judgment in favor of the hospital because she presented a genuine issue of fact to be resolved by a jury. In their brief, Trooper Lake and the DPS make a cross-assignment of error alleging the circuit court wrongfully denied their motion for summary judgment in the April 19, 1994, order.

I. FACTS AND PROCEDURAL BACKGROUND

On June 12, 1992, the plaintiff filed a wrongful death action 1 against the defendants. Mr. Gooch died on June 17, 1990, of strep pneumonia. Four days prior to his death, on June 13, 1990, Mr. Gooch went to Dr. William Stout's office in Hopewell, Virginia, for treatment of a respiratory illness. In his deposition, Dr. Stout stated Mr. Gooch complained of a persistent cold and cough. After examining him, Dr. Stout found Mr. Gooch had a temperature of 101.4 degrees, "rhonchi on both sides [of his lungs], and some rales in the lower part of his lungs[.]" 2 Dr. Stout testified that rales indicate the "beginning of an infection in the chest and the lungs.... You get that sometimes in early pneumonia[.]" From his records, Dr. Stout believed Mr. Gooch suffered from severe bronchitis and was probably on the verge of developing pneumonia. Dr. Stout gave Mr. Gooch an injection of penicillin and vitamin B12 and a prescription for penicillin tablets. On a scale of one to ten, with one being least severe and ten being most severe, Dr. Stout rated Mr. Gooch's condition as a three.

The next day, June 14, 1990, Mr. Gooch was driving on Interstate 77 in Raleigh County, West Virginia, towards his home in Kentucky. Trooper Lake was operating radar on Interstate 77 that day when a motorist stopped and told him that he passed Mr. Gooch's vehicle and it was "all over the road." Around that time, Trooper Lake also was notified by radio that Mr. Gooch's driving was observed as being erratic at a toll In his deposition, Trooper Lake stated Mr. Gooch was traveling 45 miles per hour in a 65 miles per hour zone and was weaving. Upon stopping Mr. Gooch's vehicle, Trooper Lake observed that Mr. Gooch exited his vehicle through the passenger's side, he had thrown up and urinated upon himself, he had slurred speech, and he had difficulty with balance and coordination. Recognizing these characteristics as indicators of an impaired driver, Trooper Lake administered a field sobriety test which Mr. Gooch failed. In the criminal complaint, Trooper Lake wrote "[t]he defendant stated he had not been drinking but was taking several types of medication." Trooper Lake stated he did not find any evidence in Mr. Gooch's vehicle that he was taking a prescription medication, but he did find an open container of whiskey in the front seat with half of an inch to an inch missing from it and also found another bottle of alcohol which remained sealed.

[195 W.Va. 361] booth. Trooper Lake detected Mr. Gooch's vehicle and observed his driving.

Based upon Trooper Lake's belief that Mr. Gooch was driving under the influence of drugs or alcohol (DUI), Mr. Gooch was arrested. Trooper Lake testified he asked Mr. Gooch whether he preferred to have a breathalyzer or a blood test. Trooper Lake wrote in the criminal complaint that Mr. Gooch "stated he had a lung disorder [and] would prefer a blood test." Trooper Lake took Mr. Gooch to Raleigh General Hospital to have his blood drawn.

In its brief, the hospital states Mr. Gooch's name was listed in the emergency room log book. However, the hospital maintains that Mr. Gooch was not admitted as a patient and no referral was made for him to see a physician because Mr. Gooch only was there to have blood drawn for a test to determine if he was DUI. At a deposition, Kimberly Ann Abbott, a medical technologist at the hospital, testified that when the police bring an individual to the hospital for a blood test, the police officer provides the medical technician with a kit that contains everything necessary to perform a blood test except for a tourniquet. Once the blood is drawn, the technician completes a form contained in the kit for the officer and gives both the form and the kit with the blood back to the officer. Ms. Abbott stated the hospital does not perform any type of analysis on the blood and it does not receive the test results. She further explained that her job duties do not include making a patient assessment for medical treatment, but she probably would get someone to check a patient in obvious need. Ms. Abbott had no recollection of Mr. Gooch. 3

Trooper Lake testified that while they were at the hospital, he was not asked by Mr. Gooch to get him medical treatment. After the blood was drawn, Trooper Lake took Mr. Gooch to magistrate court to be arraigned. Trooper Lake said Mr. Gooch did not complain about leaving the hospital without seeing a physician. Trooper Lake...

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