Darrell Wingett and Carol Wingett v. Kishore K. Challa, M.D. ( 2023 )

FILED
No. 22-567, Wingett v. Challa November 8, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Armstead, Justice, concurring: OF WEST VIRGINIA
In this matter, the Court is requested by the Circuit Court of Kanawha County
to answer a certified question which asks, “[s]hould the jury be allowed to consider the
fault of a party who was originally named as a defendant but voluntarily dismissed by the
plaintiff pursuant to either West Virginia Code § 55-7B-9, West Virginia Code § 55-[7]-
13c, and/or West Virginia Code § 55-7-13d under the specific facts set forth in the instant
case?” Although the question posed inquires as to the ability of the finder of fact to
consider the fault of a third party under multiple statutes, namely West Virginia Code § 55-
7B-9, West Virginia Code § 55-[7]-13c, and/or West Virginia Code § 55-7-13d, the
majority has reformulated the certified question to consider only West Virginia Code § 55-
7B-9, which forms a portion of the Medical Professional Liability Act (“MPLA”). The
reformulated certified question asks: whether a healthcare provider who was named in the
complaint but voluntarily dismissed as a party is an “alleged party” for purposes of West
Virginia Code § 55-7B-9(b)?
Undoubtedly, it is within our discretion to reformulate a certified question
posed to us but, as the majority recognizes in footnote 12 of the majority opinion, such
reformulation is generally exercised when answering the question or questions posed
would result in the Court issuing an advisory opinion. Here, both the question of (1)
whether the fault of a non-party may be considered pursuant to the MPLA “and/or” (2)
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whether the filing of a notice of non-party fault permits the consideration of such person
or entity’s fault in assessing the degree of fault, if any, assessed to the named defendant(s).
Because both such questions may be determinative of issues pending before the circuit
court, I do not believe this court’s consideration and determination of the certified question
as posed would result in an advisory opinion.
I concur with the majority’s decision insofar as it requires the fault of Dr.
Ratnani and PCS to be considered by the jury. Further, I concur with the majority’s
analysis that Dr. Ratnani and PCS are “alleged parties” under West Virginia Code § 55-
7B-9(b). However, by reformulating the certified question, the majority does not address
whether Dr. Ratnani and PCS may also be considered “non-parties” for purposes of West
Virginia Code § 55-7-13d. I write separately to address this argument as it was asserted
by Dr. Challa.
My position on this issue has not changed since the filing of my dissent in
State ex rel. Chalifoux v. Cramer, No. 20-0929, 2021 WL 2420196 (W. Va. June 14, 2021)
(memorandum decision). I do not believe that the Legislature intended to deny defendants
in medical malpractice cases the same ability to identify and apportion fault to non-parties
as it has provided to defendants in all other types of actions.
After being informed by the Wingetts’ counsel that there was a service issue
with Dr. Ratnani and that a voluntary dismissal of Dr. Ratnani and PCS may be
forthcoming, Dr. Challa filed a notice of nonparty fault pursuant to West Virginia Code §
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55-7-13d. 1 Dr. Challa argued that the jury should also be allowed to consider the fault of
Dr. Ratnani and PCS pursuant to West Virginia Code § 55-7-13d, which permits the trier
of fact to consider the fault of all parties and nonparties who contributed to the alleged
damages. Because he believes that his claims fall within the scope of the MPLA, Dr. Challa
questioned whether he was required to give the notice of non-party fault required by West
Virginia Code § 55-7-13d, but he did so out of an abundance of caution. For this reason,
he argues that he is also entitled to the protections and privileges allowed under West
Virginia Code § 55-7-13d, and I agree.
The Wingetts disagree and assert that since the MPLA applies, “the
allocation of fault and/or non-party fault provisions contained in West Virginia Code § 55-
7-13c and/or West Virginia Code § 55-7-13d do not apply.” Because West Virginia Code
§ 55-7B-9 and West Virginia Code §55-7-13d impose a statutory scheme imposing several
liability rather than joint and several liability, the two sections should be read in para
materia. 2
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West Virginia Code § 55-7-13d provides, in part, “[f]ault of a nonparty shall be considered
… if a defending party gives notice no later than one hundred eighty days after service of
process upon said defendant that a nonparty was wholly or partially at fault.”
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We have long acknowledged that statutes should be read in pari materia and that “[o]ur
rules of statutory construction require us to give meaning to all provisions in a statutory
scheme, if at all possible.’” Community Antenna Services, Inc. v. Charter Communications
VI, LLC, 227 W. Va. 595, 604, 712 S.E.2d 504, 513 (2011). “A statute should be so read
and applied as to make it accord with the spirit, purposes and objects of the general system
of law of which it is intended to form a part, . . .” Id.3
West Virginia Code § 55-7-13c(i)(3) provides, “[t]his section does not apply
to the following statutes … (3) Article seven-b [§§ 55-7b-1 et seq.], chapter fifty-five of
this code [the MPLA].” (Emphasis added). Clearly, such language exempting its
application to actions filed within the scope of the MPLA refers only to that “section,”
namely section 13c. The Wingetts urge us to apply such exemption to all sections of
Chapter 55, Article 7, including section 17d. I believe we should reject such argument and
affirmatively find that West Virginia Code § 55-7-13d does apply to MPLA actions. West
Virginia Code § 55-7-13d states, in pertinent part:
(a) Determination of fault of parties and nonparties. —
(1) In assessing percentages of fault, the trier of fact shall
consider the fault of all persons who contributed to the alleged
damages regardless of whether the person was or could have
been named as a party to the suit;
***
(3) In all instances where a nonparty is assessed a percentage
of fault, any recovery by a plaintiff shall be reduced in
proportion to the percentage of fault chargeable to such
nonparty. Where a plaintiff has settled with a party or nonparty
before verdict, that plaintiff’s recovery will be reduced in
proportion to the percentage of fault assigned to the settling
party or nonparty, rather than by the amount of the nonparty’s
or party’s settlement;
***
(5) Assessments of percentages of fault for nonparties are used
only as a vehicle for accurately determining the fault of named
parties. Where fault is assessed against nonparties, findings of
such fault do not subject any nonparty to liability in that or any
other action, or may not be introduced as evidence of liability
or for any other purpose in any other action; and
(6) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
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shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating the percentage
of the total fault that is allocated to each party and nonparty
pursuant to this article. For this purpose, the court may
determine that two or more persons are to be treated as a single
person.
***
(e) Damages. – For purposes of this section, “damages”
includes all damages which may be recoverable for personal
injury, death, or loss of or damage to property, including those
recoverable in a wrongful death action.
***
(h) Applicability. – This section applies to all causes of action
arising or accruing on or after the effective date of its
enactment. The amendments to this section enacted during the
2016 regular session of the Legislature shall apply to all causes
of action accruing on or after the effective date of those
amendments.
(Emphasis added). Unlike West Virginia Code § 55-7-13c, West Virginia Code § 55-7-
13d does not state that it is inapplicable to MPLA cases. Indeed, the Wingetts did not cite
any statutory authority or case law which expressly prohibits the provisions of W. Va. Code
§ 55-7-13d from applying in an MPLA case. Section 13d could not be more clear – it
“applies to all causes of action.”
Moreover, this Court has held that the applicable version of W. Va. Code §
55-7-13d comprises a “series of new statutes which in fact do purport to fully occupy the
field of comparative fault and the consideration of ‘the fault of parties and nonparties to a
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civil action[.]’” Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474,
486 n.12, 774 S.E.2d 555, 567 n. 12 (2015) (Emphasis added). 3
For the reasons stated herein, I concur with the majority’s ultimate
conclusion that the fault of Dr. Ratnani and PCS should be considered by the jury, but I
believe that this conclusion is supported by both the MPLA and West Virginia Code § 55-
7-13d.
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In addition to the factors set forth above, I am also concerned that, by declining to
determine whether the provisions of West Virginia Code §55-7-13d also apply, the
majority has also failed to determine whether the detailed processes set forth in West
Virginia Code §55-7-13d govern such apportionment of fault in this case. The majority’s
opinion leaves this question unanswered. Because I believe that section 13d does, in fact,
also apply here, this Court should find that both West Virginia Code § 55-7B-9 and West
Virginia Code § 55-7-13d entitle the fault of Dr. Ratnani and PCS to be considered by the
jury and the two statutes should be applied in pari materia. Such a determination would
provide added clarity to the circuit court upon remand.
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