IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED January 2023 Term March 31, 2023 released at 3:00 p.m. _______________ EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 21-0458 _______________
STATE EX REL. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, ALLISON TADROS, M.D., and RACHEL POLINSKI, M.D., Defendants Below, Petitioners
v.
HON. PHILLIP D. GAUJOT, Judge of the Circuit Court of Monongalia County, and REBECCA MORRIS, Administratrix of the Estate of Bryan Morris, Plaintiff Below, Respondent
WRIT GRANTED AS MOULDED
Submitted: January 11, 2023 Filed: March 31, 2023
Christine S. Vaglienti, Esq. Arden J. Curry, II, Esq. Melissa K. Oliverio, Esq. Pauly Curry, PLLC West Virginia United Health System, Inc. Charleston, West Virginia Morgantown, West Virginia Counsel for Respondent Counsel for Petitioner West Virginia University Hospitals, Inc.
Timothy R. Linkous, Esq. Linkous Law, PLLC Morgantown, West Virginia Counsel for Petitioners West Virginia University Board of Governors, Allison Tadros, M.D., and Rachel Polinski, M.D. CHIEF JUSTICE WALKER delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “ ‘[T]his Court has a responsibility sua sponte to examine the basis of
its own jurisdiction.’ Syllabus Point 1, in part, James M.B. and Lawrence E.B. v. Carolyn
M., 193 W. Va. 289, 456 S.E.2d 16 (1995).” Syllabus Point 3, Southern Environmental,
Inc. v. Bell, 244 W. Va. 465, 854 S.E.2d 285 (2020).
2. “An order denying a motion for summary judgment is merely
interlocutory, leaves the case pending for trial, and is not appealable except in special
instances in which an interlocutory order is appealable.” Syllabus Point 8, Aetna Ca. &
Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
3. “Under W. Va. Code, 58-5-1 [1998], appeals only may be taken from
final decisions of a circuit court. A case is final only when it terminates the litigation
between the parties on the merits of the case and leaves nothing to be done but to enforce
by execution what has been determined.” Syllabus Point 3, James M.B. v. Carolyn M., 193
4. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
i desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
4. “The general rule of statutory construction requires that a specific
statute be given precedence over a general statute relating to the same subject matter where
the two cannot be reconciled.” Syllabus Point 1, UMWA by Trumka v. Kingdon, 174 W.
Va. 330, 325 S.E.2d 120 (1984).
ii WALKER, Chief Justice:
West Virginia University Hospitals (WVUH) was sued by the estate of Bryan
Morris for the alleged negligence of two emergency room physicians – one resident and
one faculty physician – on a theory of ostensible agency. WVUH does not employ those
physicians; rather they are employees of the West Virginia University Board of Governors
(BOG). WVUH filed a motion to dismiss that was converted into a motion for summary
judgment, arguing that it could not be held liable on a theory of ostensible agency under
West Virginia Code § 55-7B-9(g). That code provision insulates non-employer health care
providers from ostensible agency liability if the agent maintains a requisite amount of
insurance coverage for the injury. Morris argued, and the circuit court agreed, that the
amount of coverage listed in the statute had to be independently maintained by each agent
physician-defendant. Because there were two physicians whose negligence allegedly
contributed to the death of decedent and they shared a single limit policy, the circuit court
concluded that they did not meet the coverage requirements of the statute so as to alleviate
WVUH of ostensible agency liability.
Upon review, we determine that this was an improper interlocutory appeal.
Even so, the circuit court’s reading of West Virginia Code § 55-7B-9(g) as applied to these
parties was clear error because it wholly failed to account for West Virginia Code § 55-
7H-1 to -6 (BRIM statutes). Those BRIM statutes govern the insurance coverage of the
defendant-physicians and cannot be reconciled with the circuit court’s reading of West 1 Virginia Code § 55-7B-9(g). For that reason, and in the interest of judicial economy, we
convert this interlocutory appeal to a petition for a writ of prohibition and grant that
extraordinary relief. 1
I. FACTUAL AND PROCEDURAL BACKGROUND
Decedent Bryan Morris presented to MedExpress with acute onset of chest
and neck pain on November 23, 2019. He was transferred by ambulance from MedExpress
to the emergency department at WVUH where he was seen and evaluated by Dr. Allison
Tadros, a faculty physician with the West Virginia University School of Medicine
(WVUSOM), and Dr. Rachel Polinski, a resident physician. Dr. Tadros supervised Dr.
Polinski’s treatment of Mr. Morris. Mr. Morris was discharged from the WVUH
emergency room and died the next day of an aortic dissection.
Mr. Morris’s estate sued Dr. Tadros and Dr. Polinski, claiming that the
physicians should have recognized a potential aortic dissection, ordered imaging, and
surgically intervened to prevent Mr. Morris’s death. Dr. Tadros and Dr. Polinksi are
employed by BOG, who was made party to the suit on a theory of vicarious liability.
Despite that Dr. Tadros and Dr. Polinski were not employees or insured by WVUH, the
The Court appreciates the amici briefs submitted by the West Virginia Board of 1
Risk Management, Mountain Health Network, Inc., and CAMC Health System, Inc.
2 estate sued WVUH on a theory of ostensible agency. There are no allegations against
WVUH outside of ostensible agency. 2
WVUH filed a motion to dismiss the complaint based on West Virginia Code
§ 55-7b-9(g), which precludes liability for ostensible agency claims brought against non-
employers in medical professional liability cases, “unless the alleged agent does not
maintain professional liability insurance covering the medical injury which is the subject
of the action in the aggregate amount of at least $1 million for each occurrence.” WVUH
argued that there was only one occurrence and that a policy with $1.5 million in coverage
for the medical injury was provided through the West Virginia Board of Risk Management
(BRIM) policy that insures Dr. Tadros and Dr. Polinski as employees of the BOG. But
Morris contended that each individual ostensible agent (i.e., Dr. Tadros and Dr. Polinski)
needed to maintain $1 million in coverage each before West Virginia Code § 55-7b-9(g)
could operate to alleviate WVUH from liability for ostensible agency. Because there is a
single shared-limit policy for both physicians alleged to be at fault, Morris argued the
statute’s prerequisites were not met. The circuit court agreed with Morris and denied
WVUH’s motion to dismiss, which it converted to a motion for summary judgment and
2 In a separate lawsuit, the estate filed a claim against WVUH alleging infirmities with nursing care. That case is not before the Court and has no bearing on consideration of the merits of this case.
3 certified as a final order under Rule 54(b) of the West Virginia Rules of Civil Procedure.
This appeal followed.
II. STANDARD OF REVIEW
Applying the appropriate standard of review requires us to examine how this
case is before us. Although the parties do not raise jurisdictional concerns, “this Court has
a responsibility sua sponte to examine the basis of its own jurisdiction.” 3 The order on
direct appeal is a denial from a motion for summary judgment. 4 And, “[a]n order denying
a motion for summary judgment is merely interlocutory, leaves the case pending for trial,
and is not appealable except in special instances in which an interlocutory order is
appealable.” 5 But here, the circuit court entered the order with certification that it met the
criteria of Rule 54(b) of the West Virginia Rules of Civil Procedure.
3 Syl. Pt. 3, S. Env’t, Inc. v. Bell, 244 W. Va. 465, 854 S.E.2d 285 (2020) (quoting Syl. Pt. 1, in part, James M.B. and Lawrence E.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995)). 4 There is some question as to whether the circuit court’s order denied WVUH’s motion to dismiss or its motion for summary judgment. From the order, it appears to have converted it to summary judgment. A denial from a motion to dismiss is likewise interlocutory, so we find the distinction immaterial. See, e.g., Credit Acceptance Corp v. Front, 231 W. Va. 518, 522, 745 S.E.2d 556, 560 (2013) (quoting Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W. Va. 228, 235, 503 S.E.2d 541, 548 (1998)). 5 Syl. Pt. 8, Aetna Ca. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
4 Articulating the “rule of finality,” we have discussed that “[t]he usual
prerequisite for our appellate jurisdiction is a final judgment, final in respect that it ends
the case.” 6 We have held that “[u]nder W. Va. Code, 58-5-1 [1998], appeals only may be
taken from final decisions of a circuit court. A case is final only when it terminates the
litigation between the parties on the merits of the case and leaves nothing to be done but to
enforce by execution what has been determined.” 7 West Virginia Code § 58-5-1 (1998),
in addition to capturing the jurisdictional threshold that is a final order, also references an
exception to the rule of finality for orders entered consistent with Rule 54(b) of the West
Virginia Rules of Civil Procedure. It provides, in relevant part, that
[a] party to a civil action may appeal to the Supreme Court of Appeals from a final judgment of any circuit court or from an order of any circuit court constituting a final judgment as to one or more but fewer than all claims or parties upon an express determination by the circuit court that there is no just reason for delay and upon an express direction for the entry of judgment as to such claims or parties.[8]
6 Coleman v. Sopher, 194 W. Va. 90, 94, 459 S.E.2d 367, 371 (1995). 7 Syl. Pt. 3, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995). 8 West Virginia Code § 58-5-1 has been amended to reflect the appellate jurisdiction of the Intermediate Court of Appeals since the Rule 54(b) order was entered in this case on May 12, 2021. The operative language relating to the rule of finality has remained unchanged throughout all versions.
5 We have discussed that “[b]y limiting appellate consideration to final
judgments, the finality rule serves to avoid piecemeal review of trial court rulings which
do not end litigation regarding all or some claims or parties in a case.” 9 The circuit court
here certified that its decision was a final order under Rule 54(b). That rule tracks the
language of West Virginia Code § 58-5-1 and states:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. – When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross- claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Rule 54(b), therefore, permits the circuit court to certify, in multiparty or
multiclaim litigation, that its ruling is an approximation of a final order as to one or more
parties or one or more claims, despite that the overall action remains pending.
9 Vaughan v. Greater Huntington Park and Rec. Dist., 223 W. Va. 583, 587, 678 S.E.2d 316, 320 (2009).
6 But by certifying its order under Rule 54(b), the circuit court does not render
it immediately appealable if it does not otherwise meet the criteria of the rule. 10 This order,
while it may be the circuit court’s final say on one of WVUH’s defenses, does not dispose
of any claim or any party, and so does not meet Rule 54(b)’s approximation of finality.
Neither the circuit court nor the parties have authority to acquiesce to a Rule 54(b)
interlocutory review because they cannot confer on this Court appellate jurisdiction:
“[w]ith rare exception, the ‘finality rule’ is mandatory and jurisdictional.” 11 Because the
order on appeal disposes neither of a party to the litigation nor a claim, we conclude that it
is a non-appealable interlocutory order unless some other exception to the rule of finality
may be applied.
We have recognized that, in addition to Rule 54(b) orders, matters in
prohibition, certified questions, and rulings appealable under the collateral order doctrine
are exceptions to the rule of finality. 12 WVUH contends appellate review is also
appropriate under the collateral order doctrine. Constituting a narrow exception to the rule
of finality, “[a]n interlocutory order would be subject to appeal under the [collateral order]
10 See S. Env’t, 244 W. Va. at 475, 854 S.E.2d at 295 (“[T]he circuit court’s declaration ‘by itself does not satisfy the requirements of finality.’”) (citation omitted)). 11 James M.B., 193 W. Va. at 292, 456 S.E.2d at 19. 12 Adkins v. Capehart, 202 W. Va. 460, 463, 504 S.E.2d 923, 926 (1998).
7 doctrine if it (1) conclusively determines the disputed controversy, (2) resolves an
important issue completely separate from the merits of the action, and (3) is effectively
unreviewable on appeal from a final judgment.” 13 The collateral order doctrine has most
frequently been applied in granting review of denials of governmental immunity but has
also been applied in the context of an order denying a motion to compel arbitration. 14 In
refusing to review this order under the collateral order doctrine, we are mindful both that
the doctrine’s principal characteristic is its narrow application and that WVUH’s defense
to liability for the ostensible agency claim does not become an “immunity” simply by
dubbing it so.
Under different circumstances, we would dismiss the case as improvidently
granted. But here, extraordinary relief in prohibition is an exception to the rule of finality
that may be properly applied. We have previously converted a direct appeal to a petition
for a writ of prohibition, and, conversely, a writ of prohibition into an appeal, under Rule
2 of the West Virginia Rules of Appellate Procedure. 15 We conclude that in this case,
13 Durm v. Heck’s, Inc., 184 W. Va. 562, 566 n.2, 401 S.E.2d 908, 912 n.2 (1991) (internal quotations and citation omitted). 14 See, e.g., Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009); Syl. Pt. 1, Credit Acceptance Corp., 231 W. Va. 518, 745 S.E2d 556. 15 See CMS Mine Repair & Maint., Inc. v. Miklos, 238 W. Va. 707, 711, 798 S.E.2d 833, 837 (2017) (converting appeal to prohibition); State ex rel. Lloyd v. Zakaib, 216 W. Va. 704, 705 n.1, 613 S.E.2d 71, 72 n.1 (2005) (converting prohibition to appeal); State ex
8 judicial economy outweighs the parties’ procedural failure to bring the case as one invoking
our original jurisdiction for three reasons.
First, we have a suitable order for review with sufficient findings of fact and
conclusions of law; the circuit court was clearly contemplating that the order would be
subject to appellate review in certifying its ruling for immediate appeal under Rule 54(b). 16
Second, the order on appeal was entered in May 2021 and bypassed review by the
Intermediate Court of Appeals by a matter of weeks. By converting our review of this
order to one of prohibition, rather than dismissing the case as an interlocutory appeal, we
hold the merits to a higher standard of proof and merely change the basis of our jurisdiction
rel. Register-Herald v. Canterbury, 192 W. Va. 18, 19 n.1, 449 S.E.2d 272, 273 n.1 (1994) (converting appeal to prohibition); see also Cabell Cnty. Comm’n v. Whitt, 242 W. Va. 382, 391, 836 S.E.2d 33, 42 (2019) (recognizing availability of converting appeal to prohibition); Walker v. Option One Mortg. Corp., 220 W. Va. 660, 668, 649 S.E.2d 233, 241 (2007) (Davis, C.J., dissenting) (“To the extent that the majority felt compelled to address the merits of the issues presented, they should have done so, as urged in the plaintiff’s brief, by treating the appeal as a request for a writ of prohibition and reviewed the case under the standard for that writ.”). 16 In State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998), this Court addressed the circuit court’s duty to render findings sufficient for appellate review in non-appealable interlocutory rulings, such as a denial of a motion to dismiss. In concluding the circuit courts were under no such duty, at syllabus point 6, Gaughan established a procedure requiring the party intending to seek extraordinary relief to request an order with sufficient findings to permit appellate review. See State ex rel. Vanderra Res. v. Hummel, 242 W. Va. 35, 44-45, 829 S.E.2d 35, 44-45 (2019) (concluding rule to show cause improvidently granted for failure to request an order detailing findings of fact and conclusions of law consistent with Gaughan).
9 to avoid perfunctory dismissal. If WVUH were to refile seeking a writ of prohibition, those
matters are reviewable by this Court alone, so there is no concern of circumventing review
of the Intermediate Court of Appeals. In a similar vein, we note that the significant delays
to the underlying litigation as well as the second pending matter between WVUH and
Morris – consolidation of which may bear on the issues decided in this case – both weigh
in favor of conversion as a simple matter of judicial economy.
Third, we acknowledge that extraordinary relief is not a substitute for
appeal. 17 In this case, however, we find clear error of law meeting the heightened writ
standard in the circuit court’s failure to reconcile the BRIM statutes with its reading of
West Virginia Code § 55-7B-9(g). 18 Having ample briefing both from the parties and amici
on this singular issue, we exercise our discretion to view the parties’ arguments under the
lens of prohibition.
Our standard of review for extraordinary relief in prohibition is as follows:
17 See Syl. Pt. 3, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (“Prohibition . . . may not be used as a substitute for [a petition for appeal] or certiorari.”) (internal quotations and citation omitted)); Handley v. Cook, 162 W. Va. 629, 631, 252 S.E.2d 147, 148 (1979) (“It is well established that prohibition does not lie to correct mere errors and cannot be allowed to usurp the functions of appeal, writ of error, or certiorari.”) (citations omitted). 18 See Whitt, 242 W. Va. at 391, 836 S.E.2d at 42 (refusing to convert appeal to prohibition because errors raised did not meet standard for issuance of writ).
10 In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.[19]
III. ANALYSIS
Under the title of “Several Liability,” West Virginia Code § 55-7B-9(g)
(2016) creates the defense to liability for medical professional liability at issue in the case,
and provides:
Nothing in this article is meant to preclude a health care provider from being held responsible for the portion of fault attributed by the trier of fact to any person acting as the health care provider’s agent or servant or to preclude imposition of fault otherwise imputable or attributable to the health care provider under claims of vicarious liability. A health care provider may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency unless
19 Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12.
11 the alleged agent does not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least $1 million for each occurrence.
Relying on the second sentence above, WVUH argues that it may not be held
liable for the alleged negligence of Drs. Tadros and Polinski because it is not their employer
and because there is $1.5 million dollars in insurance coverage for the single occurrence
provided by BRIM. Morris responds that the statute contemplates a single “agent” and
requires Dr. Tadros and Dr. Polinksi to have individual policies in excess of $1 million
dollars each before WVUH meets the requirements of the statute. Because Drs. Tadros
and Polinksi have a single, shared-policy limit of $1.5 million, Morris argues WVUH is
not relieved of liability for ostensible agency under the plain terms of the statute.
In analyzing the statute, the circuit court agreed with Morris that the focus is
on the word “agent” rather than the “occurrence.” And, the circuit court found that there
was no statement in the statute that the minimum insurance limits apply “without respect
to the number of physicians involved” as do other provisions of the MPLA. 20 Because the
20 We note that the references to other provisions of the MPLA containing this language relate to caps on damages, not to insurance coverage and that WVUH relies on these provisions for a different reason – to show that the term “occurrence” is consistently applied throughout the MPLA without regard to the number of defendants.
12 MPLA is in derogation of the common law, 21 the circuit court determined it should read
the statute to effectuate the least change to the common law 22 and concluded that the statute
required individual policies in excess of $1 million dollars for the single injury.
We resist the urge to generally interpret West Virginia Code § 55-7B-9(g)
beyond its application to these defendant-physicians because the circuit court’s
interpretation cannot be reconciled with the other, more specific statutory provisions to
which they (and WVUH as nonemployer) are bound. 23 The circuit court’s failure to
reconcile its reading of West Virginia Code § 55-7B-9(g) with the BRIM statutes that set
forth specific coverage requirements for the defendant-physicians and the correlating
provisions setting statutory parameters on WVUH’s employment of those defendant-
physicians is a clear error of law and we issue a writ of prohibition consistent with that
finding.
21 Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W. Va. 484, 492, 647 S.E.2d 920, 928 (2007) (concluding MPLA is in derogation of the common law). 22 Id. at Syl. Pt. 5 (“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.”). 23 Though the parties deny the existence of ambiguity and argue for “plain language” application, they rely on principles of statutory construction and legislative intent that first require a finding of ambiguity. We would encourage the Legislature to resolve the ambiguity in the statute as applied to multi-agent cases.
13 The primary flaw in Morris’s argument is the faulty premise that WVUH is
“legally no different than any other 70+ private hospitals operating in the State of West
Virginia.” To the contrary, WVUH is materially different. We recognized in Queen v.
West Virginia University Hospitals that the Legislature, in West Virginia Code § 18-11C-
1 to -10, mandated the creation of WVUH as a nonstock, not-for-profit corporation under
the general corporation laws of the state, it previously being owned and operated by the
State of West Virginia. 24 Under the provisions of its creation, WVUH may extend
privileges exclusively to WVUSOM faculty who are employed by the BOG. 25 This is an
important distinction for purposes of examining West Virginia Code § 55-7B-9(g) because
that statute examines the insurance coverage of the “agent,” not the non-employer. Bound
as it is to choose its medical staff from WVUSOM faculty, WVUH does not control the
insurance coverage of its ostensible agents, statute does.
Drs. Tadros and Polinksi, as employees of the BOG, are insured by BRIM.
Under West Virginia Code § 55-7H-4,
The State Board of Risk and Insurance Management shall provide medical professional liability insurance to all of the state’s medical and dental schools, state medical school, all of their clinical practice plans and all of their directors, officers,
24 179 W. Va. 95, 365 S.E.2d 375 (1987). 25 W. Va. Code § 18-11C-4(c) (“The university faculty shall have exclusive medical and dental staff privileges at the existing facilities and, subsequently, at the new facilities.”).
14 employees, agents and contractors in an amount to be determined by [BRIM], but in no event less than $1.5 million for each occurrence after July 1, 2015, to increase to account for inflation by an amount equal to the Consumer Price Index published by the United States Department of Labor, up to $2 million for each occurrence.
That provision further states that
Any judgment obtained for a medical injury to a patient as a result of health care performed or furnished, or which should have been performed or furnished, by any employee or contractor of a state’s medical and dental school, state medical school or clinical practice plan shall not exceed the limits of medical professional liability insurance coverage provided by the State Board of Risk and Insurance Management pursuant to this section.
(emphasis added). Stated differently, the defendant-physicians are insured
per occurrence in an amount in excess of $1 million dollars – an amount that the Legislature
has deemed adequate to cover damages resulting from a single medical injury, up to and
including death. 26 Any judgment beyond that amount may not be enforced.
West Virginia Code § 55-7H-3, provides in relevant part that
all . . . employees . . . of a state’s medical . . . school[] . . . are only liable up to the limits of insurance coverage procured through [BRIM] in accordance with [§55-7H-4] . . . arising from a medical injury to a patient, including death resulting, in whole or in part, from the medical injury, either through act or
26 See W. Va. Code § 55-7H-1 (“The Legislature finds and declares . . . That it is further reasonable and appropriate to require the state’s medical and dental schools to maintain a level of medical professional liability insurance to adequately and fairly compensate patients who suffer medical injuries or death.”).
15 omission, or whether actual or imputed, while acting within the scope of their authority or employment for a state’s medical . . . school[]. . . .
And,
The provisions of this article apply to the acts and omissions of all full-time, part-time, visiting and volunteer directors, officers, faculty members, residents, fellows, students, employees, agents and contractors of a state’s medical . . . school[] . . . regardless of whether the persons are engaged in teaching, research, clinical, administrative or other duties giving rise to the medical injury . . . .
The BRIM statutes dictate coverage by occurrence, not by individual
defendant. The BRIM statutes further contemplate that “each occurrence” means a single
medical injury (here, death), and that any judgment, regardless of the number of
defendants, may not be in excess of the BRIM policy limits.
The BRIM statutes cannot be reconciled with the circuit court’s reading of
West Virginia Code § 55-7B-9(g), and, as the more specific, control the analysis: “[t]he
general rule of statutory construction requires that a specific statute be given precedence
over a general statute relating to the same subject matter where the two cannot be
reconciled.” 27 The only reading of West Virginia Code § 55-7B-9(g) that is reconcilable
with the BRIM statutes is to read it with emphasis on “medical injury,” “occurrence,” and
27 Syl. Pt. 1, UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984).
16 “aggregate,” and to apply the definition of “occurrence” in the MPLA. 28 That is, that
“occurrence” means a medical injury, including death, and regardless of the number of
defendants, these agents are insured and may be held liable only up to a single shared-limit
policy of $1.5 million dollars by mandate of the Legislature.
Crucially, the allegations of negligence in this case are shared in that they are
superimposed based on the resident-to-attending relationship in a teaching hospital setting.
We are not operating under the hypothetical set of doomsday facts set forth by Morris
where there are separate acts of negligence or physicians who have separate insurance
policies where the hospital is scrambling to aggregate $1 million in coverage to avoid
ostensible agency liability. Instead, we have physicians whose relationship to one another,
relationship to WVUH, and insurance coverage is set by clearly defined statutes. Morris
has made no responsive argument to the inability to reconcile its reading of West Virginia
Code § 55-7B-9(g) and the BRIM statutes, content to ignore their existence, relevance, and
controlling nature. We conclude that the BRIM statutes preclude a reading of West
Virginia Code § 55-7B-9(g) that requires BRIM to write separate policies in excess of $1
28 Under West Virginia Code § 55-7B-2, “ ‘Occurrence’ means any and all injuries to a patient arising from the 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.”
17 million dollars for these defendant-physicians. The agents have the requisite coverage by
legislative design, and under the facts of this case WVUH is properly insulated from
ostensible agency liability. We therefore find that the circuit court’s denial of WVUH’s
motion for summary judgment was clear legal error.
Writ granted as moulded.