Donna Joan Blankenship, individual, et al. v. Ethicon, Inc., et al.

The Appellants, plaintiffs in the action below, who received medical treatment involving the implantation of contaminated sutures as patients at two hospitals named as defendants below, appeal the dismissal of their action against the defendant hospitals for failure to provide pre-suit notices and certificates of merit as required by the Medical Professional Liability Act. See W. Va. Code § 55-7B-6(b) (2001) (Supp. 2002). (See footnote 1) The plaintiffs argue that, because they have not asserted medical malpractice claims, they are not bound to comply with the pre-suit requirements of the Medical Professional Liability Act (hereinafter referred to as "the MPLA"). We conclude that the determination of whether a cause of action falls within the MPLA is based upon the factual circumstances giving rise to the cause of action, not the type of claim asserted. Therefore, the circuit court was correct in finding that the plaintiffs must comply with the MPLA. However, we find the circuit court's dismissal of this action to be unduly harsh, and remand this case to afford the plaintiffs an opportunity to amend their complaint and otherwise comply with the MPLA.

I.

FACTUAL AND PROCEDURAL HISTORY

Charleston Area Medical Center, Inc. (See footnote 3) and Herbert J. Thomas Memorial Hospital Association, (See footnote 4) defendants below and appellees before this Court (hereinafter collectively referred to as "the defendant hospitals"), purchased Vicryl sutures (See footnote 5) "for use by surgeons and other health care providers to close wounds or incisions or to join tissue."

On June 2, 2003, the plaintiffs filed the underlying putative class action lawsuit in the Circuit Court of Kanawha County alleging that they sustained infections, injuries and damages after improperly sterilized Vicryl sutures had been placed in their bodies. (See footnote 6) Plaintiffs asserted numerous claims against the several defendants collectively, including claims of product liability (including negligence, strict liability and breach of express and implied warranties); violations of the West Virginia Consumer Credit and Protection Act, W. Va. Code § 46-6-101 et seq.; fraud; and intentional infliction of emotional distress. (See footnote 7) Plaintiffs sought compensatory and punitive damages, as well as equitable relief. (See footnote 8)

The defendant hospitals filed a joint motion to dismiss on July 3, 2003, asserting four grounds for dismissal: (1) the MPLA constitutes the sole remedy for actions against health care providers, and plaintiffs' claims of product liability, outrage, fraud and violations of the Consumer Credit and Protection Act are not permitted under the MPLA; (2) the plaintiffs failed to comply with the MPLA's requirements for serving notices of claim and certificates of merit; (3) West Virginia common law does not permit product liability claims against health care providers as distributers or sellers of products; and (4) the plaintiffs' claims are time barred.

The plaintiffs responded by asserting the following arguments against dismissal: (1) the MPLA is not the exclusive remedy available against health care providers; (2) the MPLA does not in clear and unambiguous terms prohibit claims against health care providers for product liability, tort of outrage, fraud and violations of the Consumer Credit and Protection Act; (3) the causes of action raised in their complaint do not assert medical malpractice, and thus are not governed by the MPLA and its prerequisites to filing suit; (4) the common law does not prohibit product liability and related claims from being brought against health care providers as distributers and sellers of products; and (5) the discovery rule applies to the running of the relevant statutes of limitation.

Following a hearing on the defendant hospitals' joint motion to dismiss, the circuit court found that the MPLA applied. The circuit court then ruled that the plaintiffs' failure to provide a "Notice of Claim" and "Screening Certificate of Merit" as required by the MPLA, and their additional failure to plead mandatory elements of an MPLA action as set forth in W. Va. Code §55-7B-3 (1986) (Repl. Vol. 2000), (See footnote 9) required dismissal of their case.

On July 23, 2004, the plaintiffs' (hereinafter referred to as "the Appellants") filed in this Court a petition appealing the circuit court's order grating the defendant hospitals' joint motion to dismiss. On December 9, 2004, this Court issued an order remanding the case to the circuit court for consideration of the Court's simultaneously announced opinion in Boggs v. Camden-Clark Memorial Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917 (2004). On remand, by order entered on March 14, 2006, the circuit court again granted a joint motion by the defendant hospitals' to dismiss the Appellants' complaint. Thereafter, on July 11, 2006, the Appellants filed a petition for appeal in this Court. We granted the petition and now affirm, in part, and reverse, in part, the circuit court's ruling, and we remand this case for further proceedings consistent with this opinion.

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http://www.state.wv.us/wvsca/docs/fall07/33224.htm

Affirmed in part, reversed in part, and remanded.