Terri Ann Wiles and Terry Wiles v. West Virginia University Hospitals, Inc.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Terri Ann Wiles and Terry Wiles,
Plaintiffs Below, Petitioners FILED
July 31, 2020
vs) No. 19-0192 (Monongalia County 17-C-31) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
West Virginia University Hospitals, Inc.,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioners Terri Ann Wiles and Terry Wiles, by counsel Jacques R. Williams and Alex
Shook, appeal the January 30, 2019, order of the Circuit Court of Monongalia County that denied
their partial motions for summary judgment and granted the motion for summary judgment filed
by Respondent West Virginia University Hospitals, Inc. (“WVUH”), finding that petitioners failed
to prove that WVUH and University Health Associates (“UHA”) were engaged in a joint venture
and that, as a result, WVUH was not vicariously liable for the alleged medical negligence of a
UHA physician. Respondent WVUH, by counsel Christine S. Vaglienti, filed a response in support
of the circuit court’s order. Petitioners submitted a reply.1
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 May 20, 2015, Mrs. Wiles became permanently paralyzed during the course of spinal
surgery performed by John France, M.D. and others at Ruby Memorial Hospital in Morgantown,
West Virginia. Ruby Memorial Hospital is owned, managed, and/or operated by Respondent
WVUH. At the time, Dr. France was a member of West Virginia University Medical Corporation
1
We acknowledge the contribution of the amici curiae briefs filed with this Court by the
Defense Trial Counsel of West Virginia, by counsel Mychal S. Schulz, West Virginia University
Medical Corporation, by counsel David E. Schumacher and Michael W. Taylor, and West Virginia
University Board of Governors, by counsel Timothy R. Linkous and Margaret L. Miner. We have
considered the briefs of all of the amici curiae in conjunction with the parties’ arguments.
1
d/b/a University Health Associates (“UHA”),2 a physician practice group comprised of the faculty
of the WVU School of Medicine. As a member of the School of Medicine faculty, Dr. France was
also an employee of the West Virginia University Board of Governors (“WVUBOG”).3
On January 19, 2017, petitioners, husband and wife, filed a medical malpractice action
against Dr. France, UHA, WVUBOG, and Respondent WVUH. Petitioners alleged that Dr. France
deviated from the accepted standard of medical care and treatment of Mrs. Wiles; that, in doing
so, Dr. France acted as an agent and employee of WVUBOG and, as such, WVUBOG was liable
pursuant to the principles of agency and respondeat superior; and that, because Dr. France was a
member of UHA, which contracted with Mrs. Wiles for the surgical services performed by Dr.
France, UHA was liable for breach of contract as well as under principles of agency and respondeat
superior.
With regard to Respondent WVUH, petitioners alleged that, by virtue of a joint operating
agreement (“the agreement”) entered into on July 30, 2010, between Respondent WVUH,
WVUBOG (on behalf of the WVU School of Medicine), and UHA, these parties were engaged in
a joint venture known as WVU Healthcare4; that, pursuant to the agreement, these entities
delivered the healthcare services performed on Mrs. Wiles by Dr. France; and that, based upon
this joint venture, Respondent WVUH, along with WVUBOG and UHA, was vicariously liable
for petitioners’ injuries.
By agreed order entered on June 7, 2018, petitioners voluntarily dismissed their claims
against Dr. France. WVUBOG and UHA entered into a settlement agreement with petitioners and
were dismissed by order entered on July 23, 2018, leaving Respondent WVUH as the only
remaining defendant. Petitioners and Respondent WVUH subsequently entered into a stipulation
whereby they agreed to suspend discovery on the medical negligence issues in order to first resolve
petitioners’ claim that WVUH and UHA were engaged in a joint venture.5
Following discovery on the joint venture issue, the parties filed cross-motions for summary
2
Many of the briefs, pleadings and various documents in the appendix record refer to West
Virginia University Medical Corporation, or “WVUMC,” as simply “UHA.” Therefore, we will
also use “UHA” to avoid confusion.
3
It is undisputed that Dr. France was not an employee of Respondent WVUH.
4
West Virginia United Health System, Inc., the parent corporation of Respondent WVUH,
was also a party to the agreement but was not a named defendant in this civil action.
5
While petitioners’ complaint also alleged that the agreement created a joint venture with
WVUBOG, a named defendant below, petitioners proceeded under a joint venture theory only as
between Respondent WVUH and UHA.
2
judgment and a hearing thereon was conducted on January 8, 2019.6 By order entered on January
30, 2019, the circuit court granted Respondent WVUH’s motion, finding that petitioners failed to
present sufficient evidence to show that WVUH and UHA were engaged in a joint venture so as
to make WVUH vicariously liable for the alleged negligence of Dr. France, a UHA physician. The
court’s order also denied petitioners’ motions for partial summary judgment and dismissed their
claims against WVUH with prejudice. It is from this order that petitioners now appeal.
Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment
should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Thus, “[a] motion for
summary judgment should be granted only when it is clear that there is no genuine issue of fact to
be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl.
Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
On appeal, this Court accords a plenary review to the circuit court’s order granting summary
judgment: “[a] circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter
v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
On appeal, petitioners argue that the agreement created a joint venture between Respondent
WVUH and UHA such that WVUH was vicariously liable for the alleged negligent treatment of
Mrs. Wiles by Dr. France, a UHA physician.
The parties to the agreement included WVUBOG, UHA, and Respondent WVUH.7
WVUBOG is the governing board of WVU, see W. Va. Code § 18B-2A-1(b), and, as such, has
the power and duty to “[d]etermine, control, supervise and manage the financial, business and
education policies and affairs of [WVU,]” W. Va. Code § 18B-2A-4(a), employ faculty members
of the School of Medicine, including Dr. France, see W. Va. Code § 18B-2A-4(p), and “acquire
legal services . . ., including representation of the governing board, its institution, employees and
officers before any court or administrative body.” W.Va. Code § 18B-2A-4(z), in part.
Prior to 1984, the State of West Virginia owned, and WVUBOG operated, the then-existing
WVU hospital. See generally W. Va. Code §§ 18-11C-1 and -2. However, in 1984, the Legislature
created Respondent WVUH, a nonstock, not-for-profit corporation to which the operations of the
then-existing hospital would be transferred, having determined that
6
Petitioners filed a motion for partial summary judgment against WVUH and, even though
Dr. France is no longer a party to the action, they also filed a motion for partial summary judgment
regarding Dr. France’s status as a “member of [UHA].” Petitioners’ motions sought “partial”
summary judgment because, if granted, the underlying medical negligence issues would still need
to be resolved.
7
As previously noted, West Virginia United Health System, Inc., was also a signatory to
the agreement but was not a named defendant in this civil action.
3
[i]t is unnecessarily costly and administratively cumbersome for [WVUBOG]
to finance, manage and carry out the patient care activities of an academic
institution within the existing framework of a state agency. The patient care
operations are more efficiently served by contemporary legal, management and
procedural structures utilized by similarly situated private entities throughout
the nation; [and]
It is fiscally desirable that the state separate the business and service functions
of the hospital from the educational functions of the health science schools, that
[WVUBOG] cease operation of the existing facilities, that [WVUBOG] transfer
the operations to [WVUH], that [WVUBOG] pay certain existing sums and
assign the assets and certain leasehold interests to [WVUH] in order to acquire
[WVUH’s] agreement to provide certain space and services and to assume the
liabilities, that the agreement and certain other contractual relationships
between [WVUBOG] and [WVUH] be authorized, and that the existing
facilities operated by [WVUH], and subsequently the new facilities owned and
operated by [WVUH], be self-sufficient and serve to remove the tax burden of
operating the existing facilities from the state[.]
W. Va. Code §§ 18-11C-2(a)(3) and (4).8 See Queen v. West Virginia Univ. Hosp., Inc., 179 W.
Va. 95, 100, 365 S.E.2d 375, 380 (1987) (“Drawing on its substantial experience with statutory
8
Additional legislative findings with regard to the creation of WVUH include:
(1) The purposes of the existing facilities are to facilitate the clinical education and
research of the health science schools and to provide patient care, including
specialized services not widely available elsewhere in West Virginia. The
eventual termination of the services in lieu of replacement or modernization
would create an unreasonable hardship on patients in the area and throughout
the state;
(2) These purposes separately and collectively serve the highest public interest and
are essential to the public health and welfare, but must be realized in the most
efficient manner and at the lowest cost practicable and consistent with these
purposes;
....
(5) A not-for-profit corporate structure with appropriate governance consistent
with the delivery of health care to the patient and academic need of the
university is the best means of assuring prudent financial management and the
future economy of operation under rapidly changing market conditions,
regulation and reimbursement; and
4
corporations, the Legislature has provided that WVUH will discharge an important educational
support function.”) Thus, Respondent WVUH was organized
for the stated purposes of (1) facilitating health sciences education and research, (2)
providing patient care, including specialized services not widely available
elsewhere in West Virginia, in the most efficient manner and at the lowest
practicable cost, and (3) providing independence and flexibility of management and
funding and assuring future economy of operation under changing conditions by
separating the business and service functions of the corporation’s facilities from the
educational functions, and by providing that such facilities will be self-sufficient,
removing the tax burden from the state.
Queen, 179 W. Va. at 96-97, 365 S.E.2d at 376, syl. pt.1, in part. See also W.Va. Code §§ 18-11C-
2(b)(1) and (4) (noting in additional legislative findings that the best interests of the citizens of this
State “will be best served by ensuring the continued vitality and viability of the West Virginia
based health care institutions which are devoted to addressing the state’s tertiary health care and
health science education needs[,]” and creating “a coordinated, integrated, efficient and effective
health science and health care delivery system which is . . . responsive to the health care and health
science education needs of the citizens . . . and responsive to the financial pressures of a dynamic
health care environment”).
According to its Amended and Restated Articles of Incorporation that were adopted in
2004, UHA9 was
organized exclusively for charitable, scientific, and educational purposes. More
specifically the following:
To enable [UHA], through its physician members, to make available
medical services to patients referred to the West Virginia University
Medical Center and its satellite facilities for care; to collect fees for such
medical services through a professional fees office established by [UHA] to
provide appropriate financial and administrative support for the clinical
practice of the faculty physicians of the West Virginia University School of
Medicine; to be responsible for the financial management of those support
activities including holding and maintaining real and personal property,
(6) The interests of the citizens of the state will be best met by [WVUBOG’s]
entering into and carrying out the provisions of the agreement as soon as
possible, to provide independence and flexibility of management and funding
while enabling the state’s tertiary health care and health science education needs
to be better served.
W. Va. Code §§ 18-11C-2(a)(1), (2), (5), and (6).
9
According to Respondent WVUH, UHA was formed in 1971.
5
bank accounts, investments, and such other assets as necessary to provide
for such support and reasonably foreseeable contingencies; and to disburse
revenues in excess of what is determined by its Board of Directors to be
required for the proper functioning of [UHA] to the West Virginia
University School of Medicine or its subdivisions.10
(Footnote added).
West Virginia Code § 18-11C-4 authorized the WVUBOG to enter into the agreement with
Respondent WVUH, “which agreement shall contain the following provisions, subject to further
specification as shall be mutually agreed upon by [WVUBOG] and [WVUH][,]” 11 including that
WVUH shall have
(a) [A] leasehold interest in the proposed site for the new facilities . . . .
(b) [WVUH] shall lease, manage and operate the existing facilities, subject to the
provisions of this article, and shall construct, own and operate the new facilities,
and shall have the power to encumber and otherwise deal with the assets,
without limitation or regard to their sources: Provided, that [WVUH] shall have
no power to mortgage or otherwise encumber the real property constituting a
part of the existing facilities.
(c) [T]he new facilities will serve as the primary clinical setting for health science
school students to receive educational and research experiences. The university
faculty shall have exclusive medical and dental staff privileges . . . at the new
facilities.
(d) [WVUH] may utilize both corporation employees and university personnel. . .
. each university employee working in the hospital shall elect to be either a
corporation employee or a part of university personnel. . . . All university
personnel are university employees in all respects.
(Emphasis and footnote added).
10
We note that, although not applicable to the present matter, in 2015, after the events
herein transpired, legislation was enacted to give immunity from civil liability to clinical practice
plans and personnel associated with medical and dental schools. See W. Va. Code §§ 55-7H-1
through -6. Specifically, pursuant to West Virginia Code § 55-7H-3, “all clinical practice plans . .
. are only liable up to the limits of insurance coverage procured through the State Board of Risk
and Insurance Management” for claims of medical negligence of employees.
11
See W. Va. Code § 18-11C-1(a) (defining “the agreement” as used in article 11C as “the
long-term lease and agreement to be entered into between [WVUBOG] and [WVUH] pursuant to
[West Virginia Code § 18-11C-4]”)
6
At issue in this appeal is whether the agreement created a joint venture between Respondent
WVUH and UHA such that WVUH was vicariously liable for the alleged negligent treatment of
Mrs. Wiles by Dr. France, a UHA physician.
“A joint venture or, as it is sometimes referred to, a joint adventure, is an
association of two or more persons to carry out a single business enterprise for
profit, for which purpose they combine their property, money, effects, skill, and
knowledge. It arises out of a contractual relationship between the parties. The
contract may be oral or written, express or implied.” Syl. pt. 2, Price v. Halstead,
177 W. Va. 592, 355 S.E.2d 380 (1987).
Syl. Pt. 5, Armor v. Lantz, 207 W. Va. 672, 535 S.E.2d 737 (2000). This Court has emphasized
that a distinguishing feature of a joint venture is an agreement to share in the profits and losses of
the enterprise. See id. at 743, 535 S.E.2d at 678 (citing Pownall v. Cearfoss, 129 W. Va. 487, 497-
98, 40 S.E.2d 886, 893-94 (1946). See also Pyles v. Mason County Fair, Inc., 239 W. Va. 882,
888, 806 S.E.2d 806, 812 (2017) (declaring that “the focus on the ‘presence or absence of an
agreement to share in the profits and losses of an enterprise’ remains a critical component of the
joint venture analysis today”).
To establish a joint venture, we have also observed the necessity that “joint venturers hav[e]
equal control over the common commercial pursuit.” Armor, 207 W. Va. at 745, 535 S.E.2d at
680. “‘Possibly the most important criterion of a joint venture is joint control and management of
the property used in accomplishing its aims.’” Id. (quoting Barton v. Evanston Hosp., 513 N.E.2d
65, 67 (Ill. 1987). This Court has recognized that “‘[t]he control required for imputing negligence
under a joint enterprise theory is not actual physical control, but the legal right to control the
conduct of the other with respect to the prosecution of the common purpose.’” Id. (quoting
Slaughter v. Slaughter, 379 S.E.2d 98, 101 (1989)).
Finally, this Court has likened a joint venture to a partnership, explaining that they “‘are
governed generally by the same basic legal principles.’” Pyles, 239 W. Va. at 887, 806 S.E.2d at
811 (quoting Armor, 207 W. Va. at 678, 535 S.E.2d at 743). “‘Thus, since all partners are jointly
liable for all debts and obligations of a partnership, see W. Va. Code 47B-3-6(a) (1996), members
of a joint venture are likewise jointly and severally liable for all obligations pertaining to the
venture.’” Id.12
In its order granting summary judgment in favor of WVUH, the circuit court found that
“[t]he agreement, by its own terms, is ‘designed to improve the health of the residents of West
Virginia through the accomplishments of the integrated missions of teaching, research, care, and
service’”[;] that, pursuant to the agreement, Respondent WVUH and UHA “cooperate on a daily
12
WVUBOG, though not a party to this appeal, is a signatory to the agreement. Pursuant
to West Virginia Code § 18-11C-8, “[o]bligations of [WVUH] . . . shall not constitute debts or
obligations of the University, [WVUBOG] or the state.” In its amicus curiae brief, WVUBOG
argues that, pursuant to this statute, it “can never be held legally liable for WVUH’s debts or
liabilities, which would include liabilities for medical negligence claims. . . . [D]etermining that a
joint venture exists would inevitably contravene the statutory prohibition of WVUBOG being
obligated for the debts of WVUH.”
7
basis to run a hospital and to provide medical services to patients”; and that WVUH and UHA “are
separate legal entities.” The court concluded that petitioners failed to prove that Respondent
WVUH “had the right to control Dr. France’s practice of medicine with respect to his care and
treatment of M[r]s. Wiles[,]” and, likewise,
there is no evidence that UHA, WVUBOG, or Dr. France had the right to control
WVUH’s practices with respect to the day-to-day operation of the hospital. . . .
[B]ecause each entity has retained its separate identity and separate responsibilities
with respect to its role, [Petitioners] cannot establish the essential elements of a
joint venture so as to make WVUH liable for the alleged negligence of Dr. France.
On appeal, petitioners contend that the circuit court’s order failed to address whether
WVUH and UHA “combine[d] their property, money, effects, skill and knowledge” and that, in
fact, they have done so pursuant to the agreement “so as to carry out a single business enterprise
known as WVU Healthcare.” Petitioners argue that WVUH provides “a hospital and nursing staff”
while “UHA, through its members, provide[s] the physicians to treat patients at WVUH’s
hospital[,]” and that each has contributed “something promotive of the enterprise.” Further,
petitioners argue, the circuit court’s finding that “[t]here is no evidence that WVUH had the right
to control Dr. France’s practice of medicine with respect to his care and treatment of M[r]s. Wiles”
is an analysis more appropriate as to whether Dr. France was an employee or independent
contractor rather than if a joint venture existed between WVUH and UHA. According to
petitioners, to the extent “control” is important to establishing the existence of a joint venture,
“what matters is the shared right to control the venture, not individual members of each venture,
such as Dr. France.” We find no error.
As a threshold matter, we note that neither party contends that the agreement is ambiguous.
“A valid written instrument which expresses the intent of the parties in plain and unambiguous
language is not subject to judicial construction or interpret[at]ion but will be applied and enforced
according to such intent.” Syl. Pt. 1, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128
S.E.2d 626 (1962). Thus,
“‘[i]n construing a . . . written instrument, it is the duty of the court to construe it
as a whole, taking and considering all the parts together, and giving effect to the
intention of the parties wherever that is reasonably clear and free from doubt, unless
to do so will violate some principle of law inconsistent therewith.’ Pt. 1, syllabus,
Maddy v. Maddy, 87 W. Va. 581[, 105 S.E. 803 (1921)].” Syllabus point 5, Hall v.
Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961).
Syl. Pt. 5, Zimmerer v. Romano, 223 W. Va. 769, 679 S.E.2d 601 (2009).
In support of their argument on appeal, petitioners reference numerous carefully selected
excerpts of the agreement that, they contend, establish the essential elements of a joint venture
8
between Respondent WVUH and UHA.13 Suffice it to say, in relying on carefully chosen portions
of the agreement that suit their purpose, petitioners necessarily omit relevant language that does
not. Further, petitioners fail to acknowledge anywhere in their brief the statutory mandate and
obligations of the parties that we have outlined above, such as the requirements that WVUH “shall
own and operate the new facilities,” W. Va. Code § 18-11C-4(b), in part, which “will serve as the
primary clinical setting for health science school students to receive educational and research
experiences. The university faculty [i.e., UHA physicians] shall have exclusive medical and dental
staff privileges . . . at the new facilities.” W. Va. Code § 18-11C-4(c), in part. Additionally, “[a]ll
university personnel are university employees in all respects.” W. Va. Code § 18-11C-4(d), in part.
Further, consistent with the legislative mandate, through the agreement,
WVUH and UHA seek to integrate their mission and purpose, management,
clinical activities, and economic and financial activities, while preserving the
identity and values of WVUH and UHA, in order to better support the education,
service and research missions of [the School of Medicine] and to more efficiently
and effectively provide better care to patients.
....
[T]he parties declare their commitment to better support the missions of the
[School of Medicine]. In particular, the parties intend to strengthen their support
of the [School of Medicine] and its faculty in their pursuit of educating and training
the next generation of physicians and of conducting research that advances the
science of medicine and its benefit to patients, the State of West Virginia, and the
nation. At its core, this agreement is designed to improve the health of the residents
of West Virginia through the accomplishments of the integrated missions of
teaching, research, care, and service.
UHA and WVUH therefore enter into this [a]greement in order to further
integrate their mission and purpose, management, clinical activities, economic and
financial activities, and identities, so as to function as a single strategic and
economic unit, to be known as WVU Healthcare. UHA and WVUH believe that
greater integration will lead to a more complete and timely consideration of the
best interests of the patients, students, and education programs in the decision-
making process and provide a comprehensive understanding of the financial impact
of decisions across all departments and activities associated with WVU Healthcare.
(Emphasis added). Importantly,
13
Petitioners also reference WVU Healthcare’s Strategic Plan for 2012-2017; a published
article entitled “Achieving Alignment in an Academic Health Science System: Creating WVU
Healthcare; and the deposition testimony of Dr. Judie Charlton, the Chief Medical Officer for
UHA, Respondent WVUH, and WVU Healthcare.
9
UHA and WVUH commit to function as a single clinical enterprise, while
retaining their separate corporate identities. UHA and WVUH agree to establish
and maintain a common mission, vision, and strategic plan. UHA and WVUH
commit to develop integrated strategic, operating, and financial plans to better grow
the clinical enterprise in service to the missions of the [School of Medicine].
....
The respective Parties to this document will retain all existing authorities
and responsibilities and will seek to coordinate their efforts through greater
transparency, including the sharing of agenda and Board minutes, and such other
steps as may be recommended by senior leadership and approved by the Boards
respectively. Notwithstanding anything to the contrary contained herein, this
[a]greement does not change the existing Bylaws or Articles of Incorporation of
the parties.
....
The parties acknowledge and agree that each party has certain obligations
and responsibilities which pre-exist the execution of this [agreement] . . . . These
include, but are not limited to, the following:
....
UHA. The powers reserved to UHA as a medical corporation including the
right to be free from influence regarding the exercise of the faculty physicians’
judgment or discretion with respect to the activities which constitute the practice
of medicine. Nothing contained in this [a]greement is meant or intended in any way
to alter the rights, duties privileges, responsibilities and liabilities incident to the
physician-patient relationship nor is any provision hereof meant or intended to
change in any way the personal character of the physician-patient relationship.
(Emphasis added).
When considered fully in context and in its entirety, and particularly in light of the
statutory provisions previously addressed, the agreement reflects the signatories’ execution of the
legislative goal of removing the tax, administrative, and other burdens from the state with regard
to operating medical facilities in support of the education, training, and research functions of the
School of Medicine and better serving the health care needs of the citizens of this state. We thus
conclude that the unique collaboration of the parties to the agreement, which expressly preserves
the separate identities of Respondent WVUH and UHA, as well as their pre-existing obligations
and responsibilities, does not amount to a combination of “property, money, effects, skill and
knowledge” for the purpose of “carry[ing] out a single business enterprise for profit[,]” and, thus,
does not satisfy the basic elements of a joint venture. Armor, 207 W. Va. at 674, 535 S.E.2d at
739, syl. pt. 5, in part (citation omitted). Therefore, the circuit court did not err in granting
10
Respondent WVUH’s motion for summary judgment.14
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: July 31, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Evan H. Jenkins
DISSENTING AND WRITING SEPARATELY:
Justice John A. Hutchison
NOT PARTICIPATING:
Justice Margaret L. Workman
DISQUALIFIED:
Justice Elizabeth D. Walker
Hutchison, J., dissenting:
The question of whether WVU Hospitals, Inc. and University Health Associates are
engaged in a joint venture for purposes of medical malpractice liability has implications beyond
just the lawsuit filed by these particular plaintiffs. In my opinion, the issue warrants oral argument,
consideration by a full panel of justices, and a formal opinion of this Court—not a memorandum
decision. Moreover, because this appeal is decided on a vote of two to one, the memorandum
decision lacks binding precedential value. The West Virginia Constitution dictates that “[n]o
decision rendered by the court shall be considered as binding authority upon any court, except in
the particular case decided, unless a majority of the justices of the court concur in such decision.”
W.Va. Const. art. VIII, § 4. See e.g., Syl. Pt. 4, Owens-Illinois Glass Co. v. Battle, 151 W.Va. 655,
154 S.E.2d 854 (1967) (recognizing that under W.Va. Const. art. VIII, § 4, an opinion of this Court
rendered by only two justices is not binding precedent). Accordingly, I respectfully dissent.
14
Given our conclusion that the circuit court did not err in granting summary judgment in
favor of Respondent WVUH, we need not address petitioners’ remaining assignments of error that
(1) the court erred in denying their partial motion for summary judgment regarding Dr. France’s
status as a member of UHA and (2) the court’s order failed to include findings of fact sufficient
for meaningful appellate review.
11