Cline v. Kresa-Reahl

728 S.E.2d 87, 229 W. Va. 203, 2012 WL 1987137, 2012 W. Va. LEXIS 287
CourtWest Virginia Supreme Court
DecidedMay 29, 2012
DocketNo. 11-0351
StatusPublished
Cited by13 cases

This text of 728 S.E.2d 87 (Cline v. Kresa-Reahl) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cline v. Kresa-Reahl, 728 S.E.2d 87, 229 W. Va. 203, 2012 WL 1987137, 2012 W. Va. LEXIS 287 (W. Va. 2012).

Opinion

WORKMAN, Justice:

Petitioner, Loretta Cline, Executrix of the Estate of Henry Cline, appeals from the circuit court’s dismissal of her complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(1) and 12(b)(6). In her complaint, petitioner alleges, in part, that respondent, Dr. Kiren Jean Kresa-Reahl, negligently failed to advise her decedent of the availability of certain medications to treat his stroke. Prior to filing her complaint, petitioner refused to provide a presuit screening certificate of merit pursuant to the pre-suit requirements of the Medical Professional Liability Act, W. Va.Code §§ 55-7B-1 to -12 (2003) [hereinafter “the MPLA”], asserting that her claim fell within the exception to such requirements set forth in W. Va.Code § 55-7B-6(c) (2003)(Repl. Vol. 2008) as an “informed consent” claim. The circuit court disagreed, ruling that petitioner’s complaint did not state a recognized informed consent claim and that therefore, her failure to provide a screening certificate of merit warranted dismissal without prejudice. For the reasons set forth below, we find no reversible error and affirm the ruling of the lower court.

I. FACTS AND PROCEDURAL HISTORY

On February 21, 2009, petitioner’s decedent, Henry Cline [hereinafter “Mr. Cline”], presented to Charleston Area Medical Center, General Division, just before 10:00 p.m. with complaints of headache, one-sided weakness, and difficulty speaking. The emergency room physician contacted respondent Dr. Kiren Kresa-Reahl, the neurologist on call, to review Mr. Cline’s condition. Petitioner contends that Mr. Cline had suffered a [206]*206stroke and that there are two recognized “methods of treatment” for a stroke: conservative measures (bedrest, medications, and observation) and thrombolytic therapy (administration of “clot-busting” medication). Petitioner alleges that upon speaking with the emergency room physician, respondent determined that given Mr. Cline’s history of prostate cancer, thrombolytic therapy was not appropriate and admitted him to the ICU.1 Mr. Cline died the following morning. Petitioner contends that respondent never spoke directly with either Mr. Cline or petitioner; Dr. Kresa-Reahl appears not to dispute this contention.

On July 6, 2009, petitioner sent respondent a “Notice of Claim” as required by the MPLA, but did not provide a screening certificate of merit.2 The Notice of Claim was entitled “Notice of Claim and Statement Pursuant to West Virginia Code § 55-7B-6(c)”3 and stated simply that petitioner intended to file a lawsuit against her and that “[n]o expert witness is needed as Mr. Cline did not receive adequate information regarding treatment options during the latter part of the night of February 22, 2009 through the morning of February 23, 2009, specifically you failed to advise Mr. Cline of the option of thrombolytic treatment of his stroke, resulting in his death[.]” On August 4, 2009, respondent’s attorney wrote to petitioner’s attorney and specifically objected to the absence of a screening certificate of merit and requested a more definite statement, including answers to thirteen specific inquiries about Mr. Cline’s condition and how petitioner intended to establish liability. The next day, petitioner’s counsel responded in writing and addressed the absence of the certificate of merit stating: “We feel we have fully complied with the statutory and ease law requirements for the filing of our claim.” Petitioner filed suit on October 29, 2009, alleging that respondent was negligent in “failing to properly and appropriately advise Henry Cline that thrombolytics were a treatment option[.]” Notably, however, petitioner also alleged that respondent was negligent in “failing to properly and appropriately administer and/or order the administration of thrombolytic medications to Henry Cline[.]” Despite the allegation of this standard medical negligence claim, petitioner likewise provided no screening certificate of merit in support of this claim, nor even referenced this allegation in her pre-suit notice.4

Respondent answered and filed a Motion to Dismiss on the basis that petitioner failed to provide a screening certificate of merit. In response, petitioner argued that she had pled an “informed consent” cause of action, i.e., for respondent’s failure to advise petitioner’s decedent of the “option” of thrombo[207]*207lytics, and that, as such, an expert was not needed under the common law to establish the scope of a physician’s duty to disclose medical information or breach thereof. Accordingly, petitioner argued that W. Va.Code § 55-7B-6(c)’s exception to the necessity of a certificate of merit for “well-established legal theories] of liability which do[ ] not require expert testimony supporting a breach of the applicable standard of care” applied.5 The circuit court disagreed, concluding that the duty to obtain informed consent applies only to “recommended treatments] or procedures]” and that, since respondent did not recommend thrombolytic therapy, the case did not constitute an informed consent case. Therefore, petitioner’s claim sounded in pure medical negligence and a screening certificate of merit was required under the MPLA. Moreover, the court refused to permit petitioner an opportunity to correct her deficient pre-suit compliance by finding that plaintiff had a fair opportunity to address the insufficiency in response to counsel’s pre-suit request and failed to do so. Notably, however, the circuit court dismissed petitioner’s complaint without prejudice. This appeal followed.

II. STANDARD OF REVIEW

In general, “ ‘[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).” Syl. Pt. 1, Gray v. Mena, 218 W.Va. 564, 625 S.E.2d 326 (2005). Likewise, ‘“[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.’ Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 2, Gray.

III. DISCUSSION A.

We first address the issue of whether petitioner has alleged a recognized cause of action under the doctrine of informed consent. Petitioner argues that to the extent she has alleged an informed consent claim, well-established precedent holds that an expert is unnecessary to establish a breach of the standard of care. As such, she claims that no screening certificate of merit is required per W. Va.Code § 55-7B-6(c).

This Court first articulated a physician’s duty of disclosure, violation of which may form the basis of an informed consent cause of action, in 1982. In Syllabus Point 2 of Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982), the Court held:

A physician has a duty to disclose information to his or her patient in order that the patient may give to the physician an informed consent to a particular medical procedure such as surgery.

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Bluebook (online)
728 S.E.2d 87, 229 W. Va. 203, 2012 WL 1987137, 2012 W. Va. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cline-v-kresa-reahl-wva-2012.