Riggs v. University Hospitals

• Decision Date: 20 November 2007
• Docket Number: No. 33335.,33335.
• Citation: 656 S.E.2d 91
• Court: West Virginia Supreme Court
• Parties: Allison J. RIGGS, and Jack E. Riggs, M.D., Plaintiffs Below, Appellants, v. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Defendant Below, Appellee.

656 S.E.2d 91

Allison J. RIGGS, and Jack E. Riggs, M.D., Plaintiffs Below, Appellants, v. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Defendant Below, Appellee.

No. 33335.

Supreme Court of Appeals of West Virginia.

Submitted October 23, 2007.

Decided November 20, 2007.

Dissenting Opinion of Justice Albright November 28, 2007.

Dissenting Opinion of Justice Starcher December 26, 2007.

Concurring Opinion of Chief Justice Davis January 3, 2008.

Syllabus by the Court

1. "The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syllabus Point 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

2. "`When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Syllabus Point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959)." Syllabus Point 4, State v. Inscore, 219 W.Va. 443, 634 S.E.2d 389 (2006).

3. "Judicial estoppel bars a party from re-litigating an issue when: (1) the party assumed a position on the issue that is clearly inconsistent with a position taken in a previous case, or with a position taken earlier in the same case; (2) the positions were taken in proceedings involving the same adverse party; (3) the party taking the inconsistent positions received some benefit from his/her original position; and (4) the original position misled the adverse party so that allowing the estopped party to change his/her position would injuriously affect the adverse party and the integrity of the judicial process." Syllabus Point 2, West Virginia Department of Transportation, Division of Highways v. Robertson, 217 W.Va. 497, 618 S.E.2d 506 (2005).

Wesley W. Metheney Wilson, Frame, Benninger & Metheney, P.L.L.C. Morgantown, WV and Paul T. Farrell, Jr. Greene, Ketchum, Bailey, Walker Farrell & Tweel, Huntington, WV, for Appellants.

Christopher J. Regan, Bordas & Bordas, P.L.L.C., Wheeling, WV, for amicus curiae West Virginia Association for Justice.

Christina S. Vaglienti, West Virginia University Hospitals, Inc., Morgantown, WV and Rita Massie Biser, Moore & Biser, P.L.L.C., Charleston, WV, for Appellee.

Thomas J. Hurney, Jr., Jackson Kelly P.L.L.C., Charleston, WV, for amicus curiae West Virginia Mutual Insurance Company.

Michele Grinberg, J. Dustin Dillard, Flaherty, Sensabaugh & Bonasso, P.L.L.C., for amici curiae West Virginia Hospital Association and West Virginia State Medical Association.

PER CURIAM.

Appellants Allison J. Riggs and Jack E. Riggs, M.D. argue herein that the Circuit Court of Monongalia County erred by reducing a jury verdict awarding non-economic damages in the amount of $10,000,000 to $1,000,000 pursuant to the provisions of W. Va.Code § 55-7B-8 (1986).¹ According to Appellants, the non-economic damages cap contained in Section 8 of the Medical Professional Liability Act, W. Va.Code § 55-7B-1, et seq., does not apply to the jury verdict rendered below because their claims against West Virginia University Hospitals, Inc. ("WVUH") do not arise from health care rendered to Allison Riggs. Instead, Appellants maintain that their claims arise from WVUH's failure to control an environmental serratia outbreak which resulted in Allison Riggs contracting a near fatal nosocomial serratia infection during an anterior cruciate ligament ("ACL") surgical reconstruction in 1995. As such, Appellants maintain the claims asserted against WVUH do not fall within the parameters of the MPLA's non-economic damages cap. Upon a complete and thorough review of the record presented herein, it is readily apparent that Appellants pled, prosecuted and tried their claims against WVUH as claims subject to the provisions of the MPLA. Only after a jury verdict exceeding the MPLA's non-economic damages cap was rendered did Appellants begin to argue that their claims were not governed by the MPLA. Finding that Appellants may not change the theory of their case after the return of jury's verdict so as to avoid application of the MPLA's non-economic damages cap, we affirm the trial court's application of W. Va.Code § 55-7B-8 to the jury verdict rendered herein.²

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 4, 1995, Appellant Allison J. Riggs ("Ms. Riggs"), then 14 years of age, underwent an ACL reconstruction surgery in her right knee at WVUH's Ruby Memorial Hospital. During the surgery, Ms. Riggs allegedly contracted a serratia bacterial infection in the femoral tunnel of the ACL reconstruction surgical site. Ms. Riggs experienced a number of complications after the surgery and underwent a number of subsequent procedures, including surgeries, during the years 1995 and 1996 allegedly as a result of these complications.³ The infection at issue in this litigation, however, was apparently not discovered nor diagnosed until 1999.⁴

Appellants filed their Complaint in the Circuit Court of Monongalia County in March 2001, against WVUH, University of West Virginia Board of Trustees and West Virginia University Medical Corporation.⁵ In their Complaint, Appellants alleged that at the time of Ms. Riggs' surgery in April 1995, Ruby Memorial Hospital was experiencing a serratia bacterial outbreak in certain areas of the hospital, including the operating rooms and surgical intensive care unit. All allegations in the Complaint were phrased in terms of proof required under the MPLA.⁶ For example, the Complaint alleged that the Defendants negligently failed to exercise that degree of care, skill and learning required of or expected of reasonably careful healthcare providers acting in the same or similar circumstances in treating Plaintiff, Allison J. Riggs, and such negligence was the proximate cause of Plaintiff, Allison J. Riggs', exposure to the serratia bacteria and resulting complications.

More specific acts of negligence specified in the Complaint include: the failure to adequately and properly obtain informed consent; the failure to inform physicians, employees, agents and representatives of the serratia bacteria outbreak at Ruby Memorial Hospital; the failure to conduct proper testing, monitoring and preventive control of the serratia bacterial outbreak; and the failure to consult with health care providers with knowledge and experience in the field of bacterial infections, outbreaks, control and containment. Additionally, the Complaint alleged the Defendants negligently "failed to diagnose, detect and/or discover that the complications suffered by Plaintiff, Allison J. Riggs, were proximately caused by a serratia bacterial infection in the femoral tunnel of the anterior cruciate ligament reconstruction surgical site" and "failed to perform adequate and proper diagnostic testing to determine the source and/or origins of" Ms. Riggs' complications. Finally, the Complaint asserted that the alleged damages were caused "as a direct and proximate result of the negligent failure of the Defendants to exercise the proper degree of skill, care and learning required of reasonably prudent healthcare providers." (Emphasis added).

Continuing with the theme that the MPLA applied to their claims, Appellants summarized their allegations in their pre-trial memorandum stating:

On or about April 4, 1995, the Robert C. Byrd Health Sciences Center of West Virginia University and Ruby Memorial Hospital w[ere] experiencing a serratia bacterial outbreak in certain areas of the health care facility including operating rooms and surgical intensive care units. The physicians, employees, agents and representatives of the Defendants hereinbefore named negligently monitored the serratia outbreak, negligently disclosed its inherent dangers and committed other acts of negligence which proximately caused Plaintiffs to suffer significant personal injuries and damages.

As a direct and proximate result of the negligent failure of the Defendants to exercise the proper degree of skill, care and learning required of reasonable prudent healthcare providers, Plaintiff, Allison J. Riggs, was required to incur medical bills and suffer agonizing physical pain and suffering, mental anguish and anxiety and permanent physical injury. As a direct and proximate result of the negligent failure of the defendants to exercise the proper degree of skill, care and learning required of reasonable prudent healthcare providers, Plaintiff, Jack E. Riggs, incurred expenses and costs which were unnecessary and burdensome.

(Emphasis added). These allegations were then incorporated verbatim into the Pre-Trial/Scheduling Order entered by the trial court.

Appellants' acknowledgment that their claims against WVUH were subject to the provisions of the MPLA continued during the course of discovery as evidenced by their expert witness disclosures. In supplemental disclosures filed on June 14, 2002, Appellants disclosed the expert witness opinion of Grant O. Westenfelder, M.D., FACP, ("Dr. Westenfelder") relating to WVUH's Department of Infection Control "in this medical professional negligence case." Therein, Appellants disclosed that Dr. Westenfelder would "testify to a reasonable degree of medical probability" that WVUH "deviated from the standard of care" by failing to adequately inform and warn physicians, staff and patients regarding an "ongoing endemic/epidemic Serratia problem" and by failing to seek assistance from the West Virginia Department of Health and the Centers for Disease Control. According to the disclosure, these "deviations from the standard of care were a proximate cause of Plaintiffs' ultimate injuries and damages." On September 3, 2004, Appellants again supplemented their expert witness disclosures....