Minnich v. Medexpress Urgent Care, Inc.

• Citation: 796 S.E.2d 642
• Decision Date: 09 February 2017
• Docket Number: No. 15–1148,15–1148
• Court: Supreme Court of West Virginia
• Parties: Joyce E. MINNICH, as Executrix of the Estate of Andrew A. Minnich, and Joyce E. Minnich, individually, Plaintiff Below, Petitioner v. MEDEXPRESS URGENT CARE, INC.—WEST VIRGINIA d/b/a MedExpress Urgent Care—South Charleston, Defendant Below, Respondent

796 S.E.2d 642

Joyce E. MINNICH, as Executrix of the Estate of Andrew A. Minnich, and Joyce E. Minnich, individually, Plaintiff Below, Petitioner

v.MEDEXPRESS URGENT CARE, INC.—WEST VIRGINIA d/b/a MedExpress Urgent Care—South Charleston, Defendant Below, Respondent

No. 15–1148

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2017

Filed: February 9, 2017

John H. Tinney, Jr., Esq., John K. Cecil, Esq., Hendrickson & Long, PLLC, Charleston, West Virginia, Counsel for Petitioner

Anthony C. Sunseri, Esq., Darla A. Mushet, Esq., Burns White LLC, Wheeling, West Virginia, Counsel for Respondents

LOUGHRY, Chief Justice:

The petitioner, Joyce Minnich,¹ appeals from the October 28, 2015, order of the Circuit Court of Kanawha County, denying her motion for reconsideration of an adverse summary judgment ruling issued by the circuit court on December 1, 2014. Rather than granting summary judgment as to the entirety of the petitioner's negligence claim, the circuit court simply concluded that the purported "premises liability" claim² asserted by the petitioner against the respondent, MedExpress Urgent Care, Inc. ("MedExpress"), falls within the provisions of the West Virginia Medical Professional Liability Act ("MPLA"), W.Va. Code § 55–7B–1 to –12 (2016).³ In seeking relief from this ruling, the petitioner argued that the MPLA does not apply because Mr. Minnich was not treated by a "health care provider"⁴ prior to his fall within the MedExpress facility. Given Mr. Minnich's lack of medical care before the fall, the petitioner asserts that the subject claim is not a medical malpractice claim but instead a negligence claim which stems from the respondent's failure to maintain a safe environment.⁵ Upon our examination of these contentions, we conclude that a "health care provider," as defined by the MPLA, did in fact provide "health care"⁶ related services to Mr. Minnich prior to his fall. Accordingly, we affirm the trial court's determination with regard to the applicability of the MPLA.

I. Factual and Procedural Background

On January 25, 2013, Mr. Minnich, accompanied by his wife, presented at the South Charleston MedExpress. Mr. Minnich visited MedExpress to seek medical care pertinent to his complaints of shortness of breath, weakness, and the possible development of pneumonia

. Ms. Jessica Hively, a medical assistant⁷ employed by MedExpress, spoke to the Minnichs to evaluate Mr. Minnich's condition in the triage area of the MedExpress facility. According to the petitioner, Ms. Hively was informed about Mr. Minnich's recent hip surgery and the fact that he had only recently begun to ambulate without the assistance of a walker.

After escorting the Minnichs to an examination room, Ms. Hively purportedly directed Mr. Minnich to be seated on the examination table. Ms. Hively exited the room, whereupon Mr. Minnich attempted to get onto the table using a retractable step connected to the table. During his attempt to access the examination table, Mr. Minnich fell back into Mrs. Minnich. As a result, the Minnichs both fell to the floor and sustained injuries.⁸ Mr. Minnich died ninety days later.⁹

On August 14, 2013, Mrs. Minnich filed a complaint against the respondent in which she asserted three causes of action: negligence based on premises liability; loss of consortium; and wrongful death. On March 7, 2014, a default judgment was entered against MedExpress, which was later set aside over the petitioner's objection. Through its answer and affirmative defenses filed on September 8, 2014, MedExpress asserted that this action arose under the MPLA. On October 24, 2014, the respondent again sought to invoke the MPLA in its motion for summary judgment. By order entered on December 1, 2014, the circuit court granted MedExpress summary judgment as to the premises liability claim, directing the petitioner to amend her complaint to plead a medical malpractice claim compliant with the MPLA filing requirements.¹⁰

Following this Court's refusal to issue a rule to show cause in response to the petitioner's request for a writ of prohibition,¹¹ Mrs. Minnich filed a motion seeking reconsideration of the circuit court's summary judgment ruling. By ruling entered on October 28, 2015, the circuit court denied the request for reconsideration and affirmed its previous grant of summary judgment with regard to the premises liability claim. The circuit court further ruled that its October 28, 2015, order was a final judgment with regard to the premises liability claim which was subject to immediate appeal pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure. It is from this ruling that the petitioner now appeals.

II. Standard of Review

Our review of this matter is plenary as we set forth in syllabus point one of 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 ."). Because we must decide whether the trial court was correct in applying the MPLA to this matter, our review is further guided by this Court's recognition in syllabus point one of Chrystal R.M. v. Charl i e A.L. , 194 W.Va. 138, 459 S.E.2d 415 (1995), that "[w]here 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." With these standards in mind, we proceed to determine whether the circuit court committed error.

III. Discussion

At the center of this case is the question of whether the services received by Mr. Minnich prior to his fall constitute "health care" within the meaning of the MPLA. The petitioner argues that Mr. Minnich did not receive any medical care prior to his fall sufficient to invoke the provisions of the MPLA. Conversely, MedExpress argues that the MPLA is applicable because the petitioner has expressly averred that MedExpress failed to exercise proper clinical judgment after evaluating Mr. Minnich in connection with the health care services he expressly sought from MedExpress.

To support her contention that Mr. Minnich never received medical services before the injury-causing fall, the petitioner posits that Ms. Hively—the MedExpress medical assistant—does not qualify as a "health care provider" under the MPLA. As a result, the confabulation with Ms. Hively cannot constitute "health care"—a predicate necessary to bring this case within the parameters of the MPLA. The definition of "health care" provided by the MPLA specifically refers to acts or treatment either actually performed or which should have been performed by a "health care provider." See W.Va. Code § 55–7B–2(e) (2006). As we held in syllabus point five of Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E.2d 451 (2007) :

Pursuant to W.Va. Code § 55–7B–2(e) (2006) (Supp. 2007), "health care" is defined as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement."

The pertinent definition of "health care provider"¹² under the MPLA is:

a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by, or certified in, this State or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, emergency medical services authority or agency, or an officer, employee, or agent thereof acting in the course and scope of such officer's, employee's or agent's employment.

W.Va. Code § 55–7B–2(g) (2008) (emphasis supplied).

In trying to convince this Court that Ms. Hively—a medical assistant who is not subject to licensure—does not come within the list of entities specifically demarcated as a "health care provider," the petitioner overlooks the legislative decision to include employees of any of the statutorily-delineated entities within the definition of a "health care provider." Because the status of MedExpress as a health care facility¹³ is not disputed, Ms. Hively, as respondent's employee, qualifies as a "health care provider" for purposes of the MPLA.¹⁴

Given that Ms. Hively is a "health care provider" under the MPLA, we must proceed to determine whether the discourse between Ms. Hively and Mr. Minnich comes within the ambit of "health care" for purposes of the MPLA. As we held in syllabus point three of Boggs v. Camden – Clark Memorial Hospital Corp. , 216 W.Va. 656, 609 S.E.2d 917 (2004) :

The West Virginia Medical Professional Liability Act, codified at W.Va. Code § 55–7B–1 et seq. applies only to claims resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It does not apply to other claims that may be contemporaneous to or related to the alleged act of medical professional liability.

The petitioner contends that the services Mr. Minnich received from Ms. Hively preceding his fall do not qualify as "health care." In addition, she asserts that her failure to bring suit against any individual provider of health care services is proof that her action does not sound in medical malpractice.

We quickly dispense with the petitioner's attempt to rely on her decision to file what she characterized as a "premises liability" claim and not a medical malpractice claim. As we explained in syllabus point four of Ethicon :

The failure to plead a claim as governed by the Medical Professional Liability Act, W.Va. Code § 55–7B–1, et seq. , does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of "health care" as defined by W.Va. Code § 55–7B–2(e) (2

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