State ex rel. Packard v. Perry
Citation | 655 S.E.2d 548 |
Decision Date | 21 November 2007 |
Docket Number | No. 33214.,33214. |
Parties | STATE 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. |
Court | Supreme Court of West Virginia |
Syllabus by the Court
1. Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).
2. Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
3. " Syllabus Point 5, Poling v. Bellington Bank, Inc., 207 W.Va. 145, 529 S.E.2d 856 (1999).
4. 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. 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.
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...
To continue reading
Request your trial-
Rudnicki v. Bianco
...... On this point, Alexander reasoned that HCPF, the state. administrator of Medicaid, could seek reimbursement for ... e.g. , Pressey , ¶ 26, 488 P.3d at 159;. State ex rel. Packard v. Perry , 655 S.E.2d 548, 554. (W.Va. 2007). . ......
-
Pressey v. Children's Hosp. Colo.
...... adequate health care services to the people of this state." § 13-64-102(1), C.R.S. 2016. To that end, the General ...Ct. App. 1992) (same); State ex rel. Packard v. Perry , 221 W.Va. 526, 655 S.E.2d 548, 561 ......
-
Shaffer-Doan ex rel. Doan v. Com., Dpw, 231 M.D. 2007,
......Under state law DPW is the sole agency charged with administering Medicaid. Section ... See State v. Perry, 221 W.Va. 526, 655 S.E.2d 548 (2007) (granting the writ of prohibition ......
-
Pressey v. Children's Hosp. Colo., Court of Appeals No. 15CA1372
...S.W.2d at 90 (same); Lopez v. Sw. Cmty. Health Servs., 833 P.2d 1183, 1192 (N.M. Ct. App. 1992) (same); State ex rel. Packard v. Perry, 655 S.E.2d 548, 561 (W. Va. 2007) (same).¶ 30 However, the supreme court appears to have reaffirmed the common law rule in Elgin v. Bartlett, 994 P.2d at 4......