State of West Virginia ex rel. Morgantown Oper. Co. LLC v. Judge Gaujot ( 2021 )

No. 20-0940 State ex rel. Morgantown Operating Company, LLC v. Hon. Philip D.
Gaujot, Judge
FILED
June 11, 2021
Jenkins, Chief Justice, dissenting: released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In this original jurisdiction proceeding, the majority has denied the writ of
prohibition sought by Morgantown Operating Co., LLC, and concluded that the two-year
filing period established for wrongful death actions, set out in West Virginia Code section
55-7-6(d) (eff. 1992), applies to medical professional liability actions against a nursing
home where the alleged injury resulted in death. The majority reached this conclusion
despite the fact that such actions are governed by the West Virginia Medical Professional
Liability Act (“MPLA”), found at West Virginia Code sections 55-7B-1 to 12, and despite
the fact that the MPLA has its own governing statute of limitations for such actions, which
is set out at West Virginia Code section 55-7B-4(b) (eff. 2017). Because I believe the
Legislature intended the MPLA limitations period to control an action such as this, I would
grant the requested writ of prohibition. Accordingly, I respectfully dissent.
To the extent that the Legislature has not expressly stated which statute of
limitations properly applies, resolution of this question is a matter of statutory construction.
See Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992) (“A statute that
is ambiguous must be construed before it can be applied.”). It is well established that “[t]he
primary object in construing a statute is to ascertain and give effect to the intent of the
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Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219
S.E.2d 361 (1975). As such, “[t]he basic and cardinal princip[le], governing the
interpretation and application of a statute, is that the Court should ascertain the intent of
the Legislature at the time the statute was enacted, and in the light of the circumstances
prevailing at the time of the enactment.” Syl. pt. 1, Pond Creek Pocahontas Co. v.
Alexander, 137 W. Va. 864, 74 S.E.2d 590 (1953). I believe that a proper examination of
the current version of the relevant MPLA provisions demonstrates that the Legislature
intended that the one-year statute of limitations set out in the MPLA be applied to actions
alleging medical professional liability against a nursing home, and other similar entities set
out in West Virginia Code section 55-7B-4(b), when the alleged injury resulted in death.
I recognize that in 1991 this Court commented, but did not hold, that the
filing period for wrongful death actions applied to a claim of death arising under the
MPLA:
while we concede that the Act (MPLA) addresses both
malpractice and actions involving death, it does not supplant
the two-year filing period for wrongful death found in W. Va.
Code § 55-7-6. Nothing in W. Va. Code § 55-7B-4, which sets
forth the limitations for actions brought for “Health care
injuries,” provides for circumstances involving death cases,
although both “injury” and “death” are discussed throughout
the rest of the Act[.]
Miller v. Romero, 186 W. Va. 523, 527, 413 S.E.2d 178, 182 (1991), overruled on other
grounds by Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d 681 (2001). This conclusion
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by the Miller Court was based upon the absence of the word “death” from the MPLA statute
of limitations provision then in effect: “the omission of the word ‘death’ from W. Va.
Code § 55-7B-4 must mean that the section applies only to injury cases and the legislature
intended W. Va. Code § 55-7-6 to remain the applicable provision for limitations of actions
involving wrongful death.” Id. 1
Notably, however, the version of the MPLA in effect when Miller was
decided, which was the 1986 version, referred to the term “injury” in conjunction with the
statute of limitations but did not include a definition of that term. 2 After the Miller decision
was handed down, the MPLA was amended in 2003, and the following definition for the
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The portion of West Virginia Code section 55-7B-4 being interpreted by
the Miller Court stated:
“(a) A cause of action for injury to a person alleging
medical professional liability against a health care provider
arises as of the date of injury, except as provided in subsection
(b) of this section, and must be commenced within two years
of the date of such injury, or within two years of the date when
such person discovers, or with the exercise of reasonable
diligence, should have discovered such injury, whichever last
occurs: Provided, That in no event shall any such action be
commenced more than ten years after the date of injury.”
Miller v. Romero, 186 W. Va. 523, 527, 413 S.E.2d 178, 182 (1991), overruled on other
grounds by Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d 681 (2001) (quoting W. Va.
Code § 55-7B-4 (eff. 1986)).
See note 1, supra, for the relevant text of the 1986 version of West Virginia
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Code section 55-7B-4.
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term “medical injury” was added: “‘Medical injury’ means injury or death to a patient
arising or resulting from the rendering of or failure to render health care.” W. Va.
Code § 55-7B-2(h) (eff. 2003) (emphasis added). See also W. Va. Code § 55-7B-2(h) (eff.
2017) (same). Based upon this post-Miller definition, I believe the language “injury to a
person alleging medical professional liability,” as used in the subject MPLA statute of
limitations provision, West Virginia Code section 55-7B-4(b), now reflects a legislative
intent that the MPLA, as opposed to the wrongful death statute, provides the appropriate
limitations period for a cause of action for medical professional liability where the alleged
harm is death:
A cause of action for injury to a person alleging medical
professional liability against a nursing home, assisted living
facility, their related entities or employees or a distinct part of
an acute care hospital providing intermediate care or skilled
nursing care or its employees arises as of the date of injury,
except as provided in subsection (c) of this section, and must
be commenced within one year of the date of such injury, or
within one year of the date when such person discovers, or with
the exercise of reasonable diligence, should have discovered
such injury, whichever last occurs: Provided, That in no event
shall any such action be commenced more than ten years after
the date of injury.
W. Va. Code Ann. § 55-7B-4(b) (eff. 2017) (emphasis added). I am unpersuaded by any
effort to interpret the term “injury” in section 55-7B-4(b) as anything other than “medical
injury.” The MPLA was enacted to govern medical professional liability actions, in other
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words, medical injuries, 3 which has been defined in the MPLA to include death. See
W. Va. Code § 55-7B-2(h). Moreover, section 55-7B-4(b) establishes the statute of
limitations for “[a] cause of action for injury to a person alleging medical professional
liability against a nursing home . . . .” (Emphasis added). The MPLA’s definition of
“medical professional liability” also includes death resulting from health care:
“Medical professional liability” means any liability for
damages 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 also means other
claims that may be contemporaneous to or related to the alleged
tort or breach of contract or otherwise provided, all in the
context of rendering health care services.
W. Va. Code § 55-7B-2(i) (emphasis added). Therefore, as used in W. Va. Code 55-7B-
4(b), the term “injury” was clearly intended by the Legislature to include death that resulted
from “the rendering of or failure to render health care,” W. Va. Code § 55-7B-2(h), and,
therefore, is synonymous with the term “medical injury.” For these reasons, I would apply
the one-year limitations period provided by the MPLA, and, because the complaint in this
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Indeed, the Legislature has expressly declared its purpose to balance the
needs of West Virginia citizens to the best medical care available and to compensation for
injuries caused by negligent and incompetent acts of health care providers with the needs
of health care providers to adequate and affordable liability insurance coverage. See
W. Va. Code § 55-7B-1 (eff. 2015) (“It is the duty and responsibility of the Legislature to
balance the rights of our individual citizens to adequate and reasonable compensation with
the broad public interest in the provision of services by qualified health care providers and
health care facilities who can themselves obtain the protection of reasonably priced and
extensive liability coverage.”).
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matter was filed outside of that limitations period, I would grant the writ of prohibition. I
am authorized to state that Justice Armstead joins me in this dissent.
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