Musick v. Pennington ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS April 26, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Elizabeth Musick,
Petitioner, Plaintiff Below
vs.) No. 19-0880 (Mercer County 17-C-429)
Robert C. Pennington, M.D.,
Respondent, Defendant Below
MEMORANDUM DECISION
Petitioner Elizabeth Musick, by counsel Mark R. Staun, appeals the August 7, 2019, and
August 29, 2019, orders of the Circuit Court of Mercer County in which the court, respectively,
found that petitioner suffered only one occurrence of medical negligence and dismissed
petitioner’s claim for medical malpractice against respondent. Respondent Robert C. Pennington,
M.D., by counsel Robby J. Aliff, filed a response in support of the circuit court’s orders. Petitioner
filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
On August 11, 2015, petitioner underwent a total left knee arthroplasty, also known as a
total knee replacement, performed by respondent at Princeton Community Hospital (“PCH”). In
October of 2015, petitioner presented at respondent’s office with left knee pain and was diagnosed
with an infection of the left knee. Over the course of the following two weeks, petitioner was seen
multiple times by respondent for treatment of the infection. Ultimately, on November 4, 2015,
respondent performed an “incision and drainage” procedure on petitioner’s left knee to treat the
infection.
On November 21, 2015, petitioner presented at Bluefield Regional Medical Center
(“BRMC”), complaining of pain and swelling of her left knee, and was seen by Dr. Walid H. Azzo.
On November 30, 2015, Dr, Azzo performed an “irrigation and debridement” procedure on
petitioner’s left knee and “aspiration of the left knee joint.”
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Petitioner’s left knee infection persisted, and on January 6, 2016, Dr. Azzo performed
surgery to remove petitioner’s left knee prosthesis and insert an antibiotic spacer. A revision
surgery, removing the antibiotic spacer and inserting a new left knee prosthesis, was performed by
Dr. Azzo on March 7, 2016. Thereafter, petitioner continued to experience left knee pain and, in
2017, sought medical treatment at Virginia Commonwealth University (“VCU”), where she
contends that she was, finally, appropriately diagnosed and properly treated.
On December 8, 2017, petitioner filed the underlying medical malpractice action against
respondent and PCH, pursuant to the West Virginia Medical Professional Liability Act (“MPLA”).
See West Virginia Code ⸹⸹ 55-7B-1 through -12 (2015). On December 27, 2017, petitioner
amended her complaint to include Dr. Azzo as a defendant. In her amended complaint, petitioner
alleged that during the initial arthroplasty surgery performed by respondent, she contracted a
bacterial infection in her left knee. She further alleged that respondent “fell below the applicable
standard of care by failing to provide adequate procedures or a sufficiently sterile environment”
for the initial surgery. Petitioner averred that, as a result of respondent’s negligence, she suffered
a distinct medical injury, which necessitated a subsequent revision arthroplasty surgery. As to Dr.
Azzo, petitioner argued that Dr. Azzo breached the applicable standard of care by failing to
“apprise himself of the [petitioner’s laboratory] results that came back” positive for the presence
of a bacterial infection. Petitioner suggested that, due to this failure, Dr. Azzo never “had
[petitioner] on the appropriate antibiotic regimen” and caused her medical injury.
On July 29, 2019, at a pre-trial hearing, petitioner advised the circuit court that she had
entered into confidential settlements with Dr. Azzo and PCH and that the total amount of the
settlements exceeded the amount petitioner could possibly recover for a single occurrence of
medical negligence. See West Virginia Code ⸹ 55-7B-8(a) (2015). Thereafter, both parties moved
the court to issue a finding as to whether petitioner’s claims constituted one or multiple occurrences
of medical negligence. The circuit court ordered both parties to submit written briefs addressing
this issue, and after considering the briefs and oral arguments presented, the court found “that the
case sub judice involved only one occurrence” of medical negligence.
In its August 7, 2019, order, the circuit court cited this Court’s ruling in Pennington v.
Bluefield Orthopedics, 187 W. Va. 344, 419 S.E.2d 8 (1992). In Pennington, this Court found, in
part, that
[w]here there is a single indivisible loss arising from the actions of multiple
parties who have contributed to the loss, the fact that different theories of liability
have been asserted against them does not foreclose their right of contribution inter
se or prevent them from obtaining a verdict credit for settlements made with the
plaintiff by one or more of those jointly responsible.
[a]s the law regards the negligence of the one who caused the original injury
as the proximate cause of the aggravated injuries occurring by reason of the
negligence of the treating physician or hospital, the original tort-feasor is liable for
all damages, including the successive damages inflicted by the physician or
hospital.
2
Id. at Syl. Pts. 4 and 5 (internal citations omitted). The circuit court reasoned that, here, neither
party disputed that “the initial, alleged injury was an infection contracted and/or introduced at the
time of [petitioner’s] total knee arthroplasty performed by [respondent].” The court found that the
contraction of the infection represented a “single indivisible loss” and any and all alleged actions
of other parties that may have contributed to that loss do not break the proximate causal link
between the actions taken by respondent during the initial surgery.
On August 19, 2019, as the court determined there was only one occurrence of medical
negligence, and as the settlements with Dr. Azzo and PCH exceeded the amount that petitioner
could recover at trial against respondent, pursuant to West Virginia Code ⸹ 55-7B-8 (2015), the
circuit court dismissed, with prejudice, petitioner’s claims against respondent. It is from the circuit
court’s August 7, 2019, and August 19, 2019, orders that petitioner now appeals.
In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Further, “[a]ppellate review of
a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). Guided
by these standards, we now turn to petitioner’s arguments on appeal.
On appeal, petitioner raises three assignments of error. Each of the assignments of error
relate, in part, to the propriety of the circuit court’s determination that petitioner suffered only one
occurrence of medical negligence. In her first and second assignments of error, petitioner alleges
that the circuit court erred in concluding that she suffered a single occurrence of medical
negligence, as the court did not apply or interpret the provisions of the MPLA but applied
“inapplicable common law principles.” In her third assignment of error, petitioner argues that the
circuit court invaded the province of the jury in finding that she suffered only one occurrence of
medical negligence.
To address petitioner’s first and second assignments of error, we must first discuss the then-
applicable law. The parties do not dispute that West Virginia Code ⸹⸹ 55-7B-1 through -12 (2015)
is the version of the MPLA that applies to petitioner’s instant claims. West Virginia Code ⸹ 55-
7B-8(a) (2015), “Limit on liability for noneconomic loss,” provides, in pertinent part, that
[i]n any professional liability action brought against a health care provider pursuant
to this article, the maximum amount recoverable as compensatory damages for
noneconomic loss may not exceed $250,000 for each occurrence, regardless of the
number of plaintiffs or the number of defendants[.]
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“Occurrence” was not defined in the 2015 version of the MPLA. 1 In Phillips v. Larry’s
Drive-In Pharmacy, Inc., 220 W. Va. 484, 491, 647 S.E.2d 920, 927 (2007), this Court
acknowledged that its “examination of any portion of the MPLA is guided, at all times, by the
recognition that the [MPLA] alters the ‘common law and statutory rights of our citizens to
compensation for injury and death’” and is, by its own terms, “an act designed to be in derogation
of the common law.” The Phillips Court noted that “where there is any doubt about the meaning
or intent of a statute in derogation of the common law, the statute is to be interpreted in the manner
that makes the least rather than the most change in the common law” and must “generally be given
a narrow construction.” Id. at 492, 647 S.E.2d at 928.
Taking that narrow view, we are not persuaded by petitioner’s contention that the circuit
court failed to interpret the meaning of “occurrence” within the “framework of the MPLA” or her
argument that the circuit court erroneously relied on Syllabus Points 4 and 5 of Pennington v.
Bluefield Orthopedics, a case that pre-dated the MPLA. Given our recognition in Phillips that the
MPLA is an act in derogation of common law, we see no error in the circuit court’s consideration
of Pennington under the narrow facts and circumstances of this case.
Petitioner suggests that this Court look to the United States District Court for the Northern
District of West Virginia’s ruling in Dawson v. United States, No. 1:11-cv-114, 2013 WL 3187078(N.D.W.Va. June 20, 2013), for a proper consideration of the definition of occurrence in the
context of the 2015 version of the MPLA. 2
However, even when considering petitioner’s claims under the Dawson lens, we are not
persuaded by petitioner’s arguments and find that under the particular facts and unique
circumstances of this case, the circuit court did not err in finding that there was but one occurrence
of medical negligence. Here, the circuit court reasoned that, based upon the consideration of the
facts before it, the injuries complained of by petitioner resulted from a “single indivisible loss[:]”
the infection petitioner developed following her initial left knee arthroplasty in August of 2015.
1
As amended in 2017, the MPLA now defines “occurrence” as
any and all injuries to a patient arising from health care rendered by a health care
facility or a health care provider and includes any continuing, additional or follow-
up care provided to that patient for reasons relating to the original health care
provided, regardless if the injuries arise during a single date or multiple dates of
treatment, single or multiple patient encounters, or a single admission or a series of
admissions.
West Virginia Code ⸹ 55-7B-2(l) (2017).
2
In Dawson, the United States District Court for the Northern District of West Virginia
adopted the definition of occurrence of medical negligence adopted by the Court of Appeals of
Indiana in Medical Assurance of Indiana v. McCarty, 808 N.E.2d 737 (Ind.Ct.App.2004), which
defined occurrence as “the negligent act itself plus the resulting injury, with a health care
provider’s liability limited to the lowest common denominator between act and injury.” Id. at 745.
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Each injury complained of by petitioner involved the same leg and the same infection.
Accordingly, we find no issue with the circuit court’s determination that there was one occurrence
of medical negligence involving petitioner. Additionally, we note that as the court found that
petitioner sustained a single occurrence of medical negligence, there was no error in the court’s
dismissal of the remainder of petitioner’s claims.
In her third assignment of error, petitioner argues that in determining that there was one
occurrence of medical negligence, the circuit court improperly invaded the province of the jury.
However, it is undisputed that in the proceedings below petitioner and opposing counsel
specifically requested that the circuit court make a determination as to the number of occurrences
of medical negligence. As noted by the circuit court in its August 7, 2019, order, “both parties
moved for the [c]ourt to issue a finding as to whether this case involve[d] one or two [separate]
occurrences” of medical negligence. Accordingly, under the limited facts and unique
circumstances of this case, we find that any error in the circuit court’s “invasion” of the province
of the jury in determining the number of occurrences of medical negligence in petitioner’s
underlying case constitutes invited error. Syl. Pt. 2, Hopkins v. DC Chapman Ventures, Inc., 228
W. Va. 213, 719 S.E.2d 381 (2011) (“A litigant may not silently acquiesce to an alleged error, or
actively contribute to such error, and then raise that error as a reason for reversal on appeal.”) As
such, petitioner is entitled to no relief as to this issue on appeal.
For the foregoing reasons, we find no error in the decisions of the circuit court and its
August 7, 2019, and August 29, 2019, orders are hereby affirmed.
Affirmed.
ISSUED: April 26, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
NOT PARTICIPATING:
Justice William R. Wooton
DISSENTING:
Hutchison, Justice, dissenting:
I dissent to the majority’s resolution of this case. I would have set this case for oral
argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’
briefs and the issues raised therein, I believe a formal opinion of this Court was warranted—not a
memorandum decision. Accordingly, I respectfully dissent.
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