State ex rel. Packard v. Perry

Decision Date21 November 2007
Docket NumberNo. 33214.,33214.
Citation655 S.E.2d 548
PartiesSTATE of West Virginia ex rel. Jeanette PACKARD, Petitioner, v. The Honorable Roger L. PERRY, Judge of the Circuit Court of Logan County, and Ramanathan Padmanaban, M.D., Respondents.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code 53-1-1." Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

2. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

3. "`A trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should be freely given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court's discretion in ruling upon a motion for leave to amend.' Syllabus Point 6, Perdue v. S.J. Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968)" Syllabus Point 5, Poling v. Bellington Bank, Inc., 207 W.Va. 145, 529 S.E.2d 856 (1999).

4. "While the rule is established that a father is primarily responsible for expenses necessarily incurred in the treatment of his injured infant, yet when the father is dead, leaving no estate, the rule can have no application. In such a case, the infant himself is liable for the expenses, and may recover them from the person causing the injury, if it was tortious." Syllabus Point 2 of Grim v. Moore, 121 W.Va. 299, 3 S.E.2d 448 (1939).

5. The right to maintain an action to recover pre-majority medical expenses incurred as a result of a minor's personal injuries belongs to both the minor and the minor's parents, but under no circumstances will double recovery be allowed. Thus, a procedural bar that prevents the parents from maintaining an action will not affect their minor child's right to recover. To the extent that McCallam v. Hope Natural Gas, 93 W.Va. 426, 117 S.E. 148 (1923); Barker v. Saunders, 116 W.Va. 548, 182 S.E. 289 (1935); Glover v. Narick, 184 W.Va. 381, 400 S.E.2d 816 (1990), and other cases are inconsistent with this holding, they are overruled.

6. "The liberality allowed in the amendment of pleadings pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure does not entitle a party to be dilatory in asserting claims or to neglect his or her case for a long period of time. Lack of diligence is justification for a denial of leave to amend where the delay is unreasonable, and places the burden on the moving party to demonstrate some valid reason for his or her neglect and delay." Syllabus Point 3, Vedder v. Zakaib, 217 W.Va. 528, 618 S.E.2d 537 (2005).

Anne E. Shaffer, Esq., Charleston, and Mark H. Mitchell, Esq., Williamson, for Petitioner, Jeanette Packard.

Debra A. Nelson, Esq., Mundy & Nelson, Huntington, for Respondent, Ramanathan Padmanaban, M.D.

BENJAMIN, Justice:

In this matter, the petitioner, Jeanette Packard, seeks a writ of prohibition to prevent the enforcement of two rulings of respondent, the Circuit Court of Logan County [hereinafter, "circuit court"], in actions arising from the medical care provided to her son, Robert Whitt [hereinafter, "Robert"], by respondent, Dr. Ramanathan Padmanaban [hereinafter, "Dr. Padmanaban"]. In the first ruling which petitioner seeks to prohibit, the circuit court ruled, on April 5, 2006, that only the petitioner, through an independent action, may seek recovery for pre-majority medical expenses incurred in the treatment of her minor son, Robert, as a result of Dr. Padmanaban's alleged medical malpractice. By this ruling, the circuit court determined that Robert, as a minor, has no right to recover such medical expenses in an action brought on his own behalf, but rather that such medical expenses may only be recovered through an independent action maintained by petitioner, his mother. The effect of this ruling was to create a jury question as to when petitioner discovered the alleged medical malpractice involving her son and whether her separate, independent action for such pre-majority medical expenses was barred by the statute of limitations. In the second ruling which petitioner seeks to prohibit, the circuit court ruled, on June 26, 2006, that petitioner may not amend her complaint to add a cause of action for battery arising from Dr. Padmanaban's alleged failure to obtain informed consent prior to Robert's surgery.

This Court has before it the petition seeking writs of prohibition, a limited record related to the issues raised by the petition, and the briefs and arguments of counsel. After careful consideration, we grant the writ to prevent enforcement of the ruling that Robert Whitt, as a minor, has no right to seek recovery of his pre-majority medical expenses in an action brought on his behalf. We decline, however, to prohibit the circuit court below from refusing to allow amendment of petitioner's complaint to add a cause of action for battery.


On or about November 21, 1994, respondent Dr. Ramanathan Padmanaban, an orthopedist at Logan General Hospital, reduced a fracture of two-year-old Robert Whitt's elbow. Because Robert's mother, the petitioner, was unavailable at the time,1 Dr. Padmanaban obtained the consent of Robert's grandparents to perform surgery on Robert.

On June 27, 2003, the petitioner, both individually, and as parent, guardian, and next friend of Robert, who was still a minor,2 filed a medical malpractice action against Dr. Padmanaban in which she alleged that Dr. Padmanaban's negligent medical treatment of Robert's fractured elbow left him with a deformity of his forearm. The petitioner's complaint specifically asked that Robert be compensated for his past medical expenses.

On December 22, 2003, Dr. Padmanaban filed a motion to dismiss the petitioner's claim for medical expenses alleging that medical expenses incurred prior to Robert's eighteenth birthday are not recoverable by Robert, but are recoverable only individually by the petitioner through an independent action. Therefore, Dr. Padmanaban asserted, petitioner's individual claim for such medical expenses was barred by the two-year statute of limitations applicable to her, rather than the longer statute of limitations applicable to Robert.

In support of his motion, Dr. Padmanaban asserted that subsection (a) of W. Va.Code § 55-7B-4(a) (1986), provides that, except as provided in subsection (b), a medical malpractice action must be brought within two years of the date of injury or of the date when the person discovers or, with the exercise of reasonable diligence, should have discovered the injury, whichever last occurs. Subsection (b) provides that "[a] cause of action for [a health care case] injury to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years of the date of such injury, or prior to the minor's twelfth birthday, whichever provides the longer period." Because the injury to Robert allegedly occurred in 1994, and the petitioner did not bring the action until 2003, there is a potential statute of limitations problem as to the petitioner's independent individual claims. However, since Robert was injured in 1994 when he was under the age of ten, and the action was brought on his behalf in 2003, prior to his twelfth birthday in 2004, there is no potential statute of limitations problem with respect to claims brought on Robert's behalf. Thus, there is considerable significance that attaches to which independent claims belong to the petitioner individually, and which claims belong to Robert, because those independent claims that belong only to the petitioner individually may be time-barred.

By order of April 5, 2006, the circuit court denied Dr. Padmanaban's motion to dismiss the petitioner's individual claims based on the statute of limitations after finding that it is a jury question as to when the petitioner discovered the alleged malpractice. However, the circuit court agreed with Dr. Padmanaban that only the petitioner, not Robert, has the right through an independent action to recover Robert's medical expenses incurred during his infancy as a result of the alleged malpractice.

Additionally, in May 2006, the petitioner orally moved the circuit court for leave to amend her complaint to add a cause of action for battery arising from Dr. Padmanaban's failure to obtain informed consent prior to Robert's surgery.3 By order entered June 26, 2006, the circuit court denied the...

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