          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2017 Term                        FILED
                                     __________                       February 9, 2017
                                                                          released at 3:00 p.m.
                                                                        RORY L. PERRY, II CLERK
                                     No. 15-1148                      SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA
                                     __________

       JOYCE E. MINNICH, as Executrix of the Estate of Andrew A. Minnich,
                   and JOYCE E. MINNICH, individually,
                         Plaintiff Below, Petitioner

                                           v.

          MEDEXPRESS URGENT CARE, INC. - WEST VIRGINIA d/b/a
            MEDEXPRESS URGENT CARE - SOUTH CHARLESTON,
                         Defendant Below, Respondent
          ______________________________________________________

                  Appeal from the Circuit Court of Kanawha County
                             Honorable Charles E. King
                            Civil Action No. 13-C-1547

                                AFFIRMED
          _______________________________________________________

                             Submitted: January 10, 2017
                               Filed: February 9, 2017


John H. Tinney, Jr., Esq.               Anthony C. Sunseri, Esq.
John K. Cecil, Esq.                     Darla A. Mushet, Esq.
Hendrickson & Long, PLLC                Burns White LLC
Charleston, West Virginia               Wheeling, West Virginia
Counsel for Petitioner                  Counsel for Respondents



CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
                                         SYLLABUS

              1. “Pursuant to W.Va. Code § 55-7B-2(e) (2006) (Supp. 2007), ‘health care’

is defined as ‘any act or treatment performed or furnished, or which should have performed

or furnished, by any health care provider for, to or on behalf of a patient during the patient’s

medical care, treatment or confinement.’” Syl. Pt. 5, Blankenship v. Ethicon, Inc., 221

W.Va. 700, 656 S.E.2d 451 (2007).



              2. “The West Virginia Medical Professional Liability Act, codified at W.Va.

Code § 55-7B-1 et seq. applies only to claims resulting from the death or injury of a person

for any tort or breach of contract based on health care services rendered, or which should

have been rendered, by a health care provider or health care facility to a patient. It does not

apply to other claims that may be contemporaneous to or related to the alleged act of medical

professional liability.” Syl. Pt. 3, Boggs v. Camden-Clark Mem’l Hosp. Corp., 216 W.Va.

656, 609 S.E.2d 917 (2004).



              3. “The failure to plead a claim as governed by the Medical Professional

Liability Act, W.Va. Code § 55-7B-1, et seq., does not preclude application of the Act.

Where the alleged tortious acts or omissions are committed by a health care provider within

the context of the rendering of ‘health care’ as defined by W.Va. Code § 55-7B-2(e) (2006)

(Supp. 2007), the Act applies regardless of how the claims have been pled.” Syl. Pt. 4,

Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E.2d 451 (2007).
LOUGHRY, Chief Justice:



              The petitioner, Joyce Minnich,1 appeals from the October 28, 2015, order of

the Circuit Court of Kanawha County, denying her motion for reconsideration of an adverse

summary judgment ruling issued by the circuit court on December 1, 2014. Rather than

granting summary judgment as to the entirety of the petitioner’s negligence claim, the circuit

court simply concluded that the purported “premises liability” claim2 asserted by the

petitioner against the respondent, Medexpress Urgent Care, Inc. (“MedExpress”), falls within

the provisions of the West Virginia Medical Professional Liability Act (“MPLA”), W.Va.

Code § 55-7B-1 to -12 (2016).3 In seeking relief from this ruling, the petitioner argued that

the MPLA does not apply because Mr. Minnich was not treated by a “health care provider”4

prior to his fall within the MedExpress facility. Given Mr. Minnich’s lack of medical care

before the fall, the petitioner asserts that the subject claim is not a medical malpractice claim

but instead a negligence claim which stems from the respondent’s failure to maintain a safe


       1
      Mrs. Minnich brings this suit as both the personal representative of her deceased
husband and in her individual capacity.
       2
       The petitioner also brought a loss of consortium claim and a claim for damages under
the wrongful death statute.
       3
       The trial court, through its summary judgment ruling, granted the petitioner a
reasonable period of time to amend her complaint to comply with the pre-suit filing
requirements of the MPLA. See W.Va. Code § 55-7B-6 (2016).
       4
       See W.Va. Code § 55-7B-2(g) (2008). The applicable version of the MPLA is
contained in the 2006 codification of the West Virginia Code.

                                               1
environment.5 Upon our examination of these contentions, we conclude that a “health care

provider,” as defined by the MPLA, did in fact provide “health care”6 related services to Mr.

Minnich prior to his fall. Accordingly, we affirm the trial court’s determination with regard

to the applicability of the MPLA.



                        I. Factual and Procedural Background

               On January 25, 2013, Mr. Minnich, accompanied by his wife, presented at the

South Charleston MedExpress. Mr. Minnich visited MedExpress to seek medical care

pertinent to his complaints of shortness of breath, weakness, and the possible development

of pneumonia. Ms. Jessica Hively, a medical assistant7 employed by MedExpress, spoke to

the Minnichs to evaluate Mr. Minnich’s condition in the triage area of the MedExpress

facility. According to the petitioner, Ms. Hively was informed about Mr. Minnich’s recent

hip surgery and the fact that he had only recently begun to ambulate without the assistance

of a walker.



       5
        The petitioner relies upon the respondent’s exposure of Mr. Minnich to allegedly
unsafe equipment–specifically, the partially extended footstool used by the decedent in his
attempt to access the examination table.
       6
        See W.Va. Code § 55-7B-2(e) (2008) (defining “health care”).
       7
        Though the trial court refers to Ms. Hively as a “certified” medical assistant, this
state does not license or regulate medical assistants. Because the “certification” reference
pertains only to the completion of academic course work, we do not place any significance
on that term for purposes of determining whether Ms. Hively was a “health care provider”
under the MPLA.

                                             2
              After escorting the Minnichs to an examination room, Ms. Hively purportedly

directed Mr. Minnich to be seated on the examination table. Ms. Hively exited the room,

whereupon Mr. Minnich attempted to get onto the table using a retractable step connected

to the table. During his attempt to access the examination table, Mr. Minnich fell back into

Mrs. Minnich. As a result, the Minnichs both fell to the floor and sustained injuries.8 Mr.

Minnich died ninety days later.9



              On August 14, 2013, Mrs. Minnich filed a complaint against the respondent

in which she asserted three causes of action: negligence based on premises liability; loss of

consortium; and wrongful death. On March 7, 2014, a default judgment was entered against

MedExpress, which was later set aside over the petitioner’s objection. Through its answer

and affirmative defenses filed on September 8, 2014, MedExpress asserted that this action

arose under the MPLA. On October 24, 2014, the respondent again sought to invoke the

MPLA in its motion for summary judgment. By order entered on December 1, 2014, the

circuit court granted MedExpress summary judgment as to the premises liability claim,




       8
        The MedExpress staff dressed and treated a skin tear on Mr. Minnich’s left forearm,
wrist, and hand. The petitioner alleges that, as a result of the fall, Mr. Minnich suffered a
subarachnoid hematoma (brain bleed) and a laceration of his forearm, while she sustained
a periorbital hematoma and a knot on the back of her head.
       9
       The petitioner asserts that the brain bleed Mr. Minnich suffered as a result of the fall
substantially contributed to his physical demise and ultimately to his death.

                                              3
directing the petitioner to amend her complaint to plead a medical malpractice claim

compliant with the MPLA filing requirements.10



              Following this Court’s refusal to issue a rule to show cause in response to the

petitioner’s request for a writ of prohibition,11 Mrs. Minnich filed a motion seeking

reconsideration of the circuit court’s summary judgment ruling. By ruling entered on

October 28, 2015, the circuit court denied the request for reconsideration and affirmed its

previous grant of summary judgment with regard to the premises liability claim. The circuit

court further ruled that its October 28, 2015, order was a final judgment with regard to the

premises liability claim which was subject to immediate appeal pursuant to Rule 54(b) of the

West Virginia Rules of Civil Procedure. It is from this ruling that the petitioner now appeals.



                                  II. Standard of Review

              Our review of this matter is plenary as we set forth in syllabus point one of

Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of

summary judgment is reviewed de novo.”). Because we must decide whether the trial court



       10
         The circuit court viewed the originally-pled “premises liability” claim and the claim
for professional negligence under the MPLA as two separate claims and therefore viewed
his ruling regarding the applicability of the MPLA as requiring outright dismissal of the
premises liability claim, rather than simple amendment of the claim to be MPLA compliant.
Accordingly, the circuit court entered summary judgment on the premises liability claim.
       11
        The petition was refused by this Court on March 11, 2015.

                                              4
was correct in applying the MPLA to this matter, our review is further guided by this Court’s

recognition in syllabus point one of Chrystal R.M. v. Charles A.L., 194 W.Va. 138, 459

S.E.2d 415 (1995), that “[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.” With these standards in mind, we proceed to determine whether the circuit court

committed error.



                                       III. Discussion

              At the center of this case is the question of whether the services received by

Mr. Minnich prior to his fall constitute “health care” within the meaning of the MPLA. The

petitioner argues that Mr. Minnich did not receive any medical care prior to his fall sufficient

to invoke the provisions of the MPLA. Conversely, MedExpress argues that the MPLA is

applicable because the petitioner has expressly averred that MedExpress failed to exercise

proper clinical judgment after evaluating Mr. Minnich in connection with the health care

services he expressly sought from MedExpress.



              To support her contention that Mr. Minnich never received medical services

before the injury-causing fall, the petitioner posits that Ms. Hively–the MedExpress medical

assistant–does not qualify as a “health care provider” under the MPLA. As a result, the

confabulation with Ms. Hively cannot constitute “health care”–a predicate necessary to bring



                                               5
this case within the parameters of the MPLA. The definition of “health care” provided by

the MPLA specifically refers to acts or treatment either actually performed or which should

have been performed by a “health care provider.” See W.Va. Code § 55-7B-2(e) (2006).

As we held in syllabus point five of Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E.2d

451 (2007):

                     Pursuant to W.Va. Code § 55-7B-2(e) (2006) (Supp.
              2007), “health care” is defined as “any act or treatment
              performed or furnished, or which should have performed or
              furnished, by any health care provider for, to or on behalf of a
              patient during the patient’s medical care, treatment or
              confinement.”

The pertinent definition of “health care provider”12 under the MPLA is:

              a person, partnership, corporation, professional limited liability
              company, health care facility or institution licensed by, or
              certified in, this State or another state, to provide health care or
              professional health care services, including, but not limited to,
              a physician, osteopathic physician, hospital, dentist, registered
              or licensed practical nurse, optometrist, podiatrist, chiropractor,
              physical therapist, psychologist, emergency medical services
              authority or agency, or an officer, employee, or agent thereof
              acting in the course and scope of such officer’s, employee’s or
              agent’s employment.

W.Va. Code § 55-7B-2(g) (2008) (emphasis supplied).


       12
         As part of the legislative amendments to the MPLA in 2015, the definition of a
“health care provider” was expanded to include additional entities such as a speech-language
pathologist; audiologist, occupational therapist, pharmacist, technician, certified nursing
assistant; the scope of such providers was also broadened to include “any person supervised
by or acting under the direction of a licensed professional, any person taking actions or
providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a
health care facility’s plan of care, medical diagnosis or treatment.” However, as noted
above, those definitions do not apply to this case. See supra note 4.

                                               6
               In trying to convince this Court that Ms. Hively–a medical assistant who is not

subject to licensure–does not come within the list of entities specifically demarcated as a

“health care provider,” the petitioner overlooks the legislative decision to include employees

of any of the statutorily-delineated entities within the definition of a “health care provider.”

Because the status of MedExpress as a health care facility13 is not disputed, Ms. Hively, as

respondent’s employee, qualifies as a “health care provider” for purposes of the MPLA.14



               Given that Ms. Hively is a “health care provider” under the MPLA, we must

proceed to determine whether the discourse between Ms. Hively and Mr. Minnich comes

within the ambit of “health care” for purposes of the MPLA. As we held in syllabus point

three of Boggs v. Camden-Clark Memorial Hospital Corp., 216 W.Va. 656, 609 S.E.2d 917

(2004):

                       The West Virginia Medical Professional Liability Act,
               codified at W.Va. Code § 55-7B-1 et seq. applies only to claims
               resulting from the death or injury of a person for any tort or
               breach of contract based on health care services rendered, or


       13
          See W.Va. Code § 55-7B-2(f) (2008).
       14
         To qualify under the subject definition of a “health care provider,” Ms. Hively had
to be acting in the course and scope of her employment. See W.Va. Code § 55-7B-2(g). The
health care services nature of her position at MedExpress, rather than just the fact of her
employment, is what brings Ms. Hively within the definition of “health care provider.” See
Boggs v. Camden-Clark Mem’l Hosp. Corp., 216 W.Va. 656, 662-63, 609 S.E.2d 917, 923-
24 (2004) (“The Legislature has granted special protection to medical professionals, while
they are acting as such.).

                                               7
              which should have been rendered, by a health care provider or
              health care facility to a patient. It does not apply to other claims
              that may be contemporaneous to or related to the alleged act of
              medical professional liability.

The petitioner contends that the services Mr. Minnich received from Ms. Hively preceding

his fall do not qualify as “health care.” In addition, she asserts that her failure to bring suit

against any individual provider of health care services is proof that her action does not sound

in medical malpractice.



              We quickly dispense with the petitioner’s attempt to rely on her decision to file

what she characterized as a “premises liability” claim and not a medical malpractice claim.

As we explained in syllabus point four of Ethicon:

                      The failure to plead a claim as governed by the Medical
              Professional Liability Act, W.Va. Code § 55-7B-1, et seq., does
              not preclude application of the Act. Where the alleged tortious
              acts or omissions are committed by a health care provider within
              the context of the rendering of “health care” as defined by
              W.Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies
              regardless of how the claims have been pled.

221 W.Va. at 702, 656 S.E.2d at 453; accord Shirley v. Hosp. Auth. of Valdosta/Lowndes

Cty., 587 S.E.2d 873, 874-75 (Ga. App. 2003), overruled on other grounds as stated in

Chandler v. Opensided MRI of Atlanta, LLC, 682 S.E.2d 165 (Ga. App. 2009) (recognizing

that plaintiffs’ characterization of claim as professional or ordinary negligence is not

controlling). As Ethicon makes clear, a plaintiff cannot avoid the MPLA by virtue of failing

to expressly allege a malpractice claim. If a claim falls squarely under the MPLA, the


                                               8
manner in which a complaint is drafted will not prevent the invocation of the MPLA. See,

e.g., Ethicon, 221 W.Va. at 707, 656 S.E.2d at 458 (approving circuit court’s analysis that

plaintiffs’ labeling “as ‘products’ claims does not change the fundamental [MPLA] basis of

this tort action”); Gray v. Mena, 218 W.Va. 564, 570, 625 S.E.2d 326, 332 (2005)

(permitting plaintiff who opted not to bring MPLA action opportunity to amend complaint

and comply with MPLA requirements rather than upholding dismissal for non-compliance

with MPLA filing requirements). As we stressed in Ethicon, “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.” 221 W.Va. at 702-03, 656 S.E.2d at

453-54 (emphasis supplied).



              Turning to the crux of this case, we address the ultimate issue of whether the

fall sustained by Mr. Minnich occurred in the course of his receipt of health care services at

MedExpress. The petitioner urges that the fall did not occur during receipt of health care

services inasmuch as Mr. Minnich experienced the fall prior to his receipt of any health care

services. While the petitioner would have us believe that the fact that a licensed health

professional, such as a nurse or doctor, had not yet undertaken a physical examination of Mr.

Minnich controls whether this case falls under the MPLA, we are not persuaded. Integral

to the diagnosis and examination of a patient by a medical professional is the component of

the health care visit that customarily precedes the actual physical examination. Absent the



                                              9
intake aspect of a patient’s visit to a health care provider, the examination would not be as

properly focused or as likely to result in a correct diagnosis. Consequently, we have little

difficulty viewing the questioning by Ms. Hively of the Minnichs and the taking of vital

signs that occurred prior to the fall as transpiring during the course of or “within the context

of the rendering of medical services.” Gray, 218 W.Va. at 570, 625 S.E.2d at 332. The

petitioner’s attempt to exclude any injuries sustained by a patient before a doctor or nurse

enters the examination room, but after a medical history and intake have been taken, from

the reach of the MPLA is unavailing.15



              The critical inquiry is whether the subject conduct that forms the basis of the

lawsuit is conduct related to the provision of medical care. See Ethicon, 221 W.Va. at 707,

656 S.E.2d at 458 (discussing this Court’s recognition in Boggs and Gray of actions falling

outside MPLA’s scope as “conduct that is unrelated to providing medical care”); see also

Manor Care, Inc. v. Douglas, 234 W.Va. 57, 75, 763 S.E.2d 73, 91 (2014) (concluding that

negligence-based claims predicated on corporate budgeting and staffing decisions do not fall



       15
         To be clear, this is not a case where a patient is injured independent of any provision
of health care services, such as an incident that might occur in the waiting area of the facility
independent of any interaction with a “health care provider.” See, e.g., Dawkins v. Union
Hosp. Dist., 758 S.E.2d 501, 504-05 (S.C. 2014) (holding that injury sustained from fall in
hospital’s waiting area restroom before receipt of medical care was not subject to medical
malpractice filing requirements); see also Pitt-Hart, MD v. Sanford USD Med. Ctr., 878
N.W.2d 406, 412 (S.D. 2016) (contrasting nonpatient slipping on icy sidewalk outside
hospital’s premises with dropping of post-operative knee replacement patient by healthcare
technician).

                                               10
under the MPLA). We simply cannot accept the petitioner’s attempt to frame the injuries

Mr. Minnich sustained in this case as being unrelated to the provision of health care services.



              As support for this conclusion, we rely upon the following allegation set forth

in the complaint: “Despite the fact that the employee was instructed that Mr. Minnich was

feeling weak and had just stopped using a walker to get around because of hip surgery, the

MedExpress South Charleston staff member did not assist Mr. Minnich onto the exam table

or examine the table to make certain that it was in good working order.” From the record

in this case, it is abundantly clear that Mr. Minnich was physically in the examination room

at the time of the fall after having completed the necessary disclosure of his condition and

concerns to a “health care provider.” This fall occurred while attempting to comply with the

directive of that “health care provider” to sit on the examination table–a piece of medical

equipment routinely used to examine a patient. Thus, the injuries sustained by Mr. Minnich

as a result of the fall were sustained in the course of his evaluation at MedExpress. That

evaluation, an essential aspect of Mr. Minnich’s medical diagnosis and/or treatment which

involved usage of the examination table as medical equipment, was necessarily part of the

health care services MedExpress undertook to provide Mr. Minnich.



              In pleading this case, the petitioner alleged that a MedExpress employee, after

being informed of his medical history, failed to properly assist Mr. Minnich to gain access



                                              11
to the examination table. Through this allegation, the petitioner injected the issue of whether

Ms. Hively, armed with the knowledge of Mr. Minnich’s recent medical history, complied

with the standard of care expected of a health care services provider. Thus, the petitioner

specifically raised the issue of Ms. Hively’s professional training and judgment by relying

on the awareness MedExpress had regarding Mr. Minnich’s weakened condition and his

ambulatory restrictions. In Bardo v. Liss, 614 S.E.2d 101 (Ga. App. 2015), the appellate

court determined that allegations of the physician’s failure to assist a patient as she stepped

off the examination table was rooted in professional rather than ordinary negligence

“because the degree of physical assistance needed by a patient to prevent a fall in light of the

patient’s medical condition required the exercise of expert medical judgment.” Id. at 103-04.

The court noted that “[w]here the professional’s alleged negligence requires the exercise of

professional skill and judgment to comply with a standard of conduct within the

professional’s area of expertise, the action states professional negligence.” Id. at 103; accord

Holloway v. Northside Hosp, 496 S.E.2d 510, 511 (Ga. App. 1998) (rejecting claim that

allegations concerning nurses’ failure to properly assist plaintiff to prevent fall sounded in

ordinary negligence, based on conclusion that expert testimony was required to determine

whether hospital employees’ actions deviated from applicable standard of care).




                                              12
              Like this Court,16 other courts have recognized that the occurrence of an injury

or an action taken by a health care professional within or on the premises of a health care

facility is not what determines the applicability of a state’s medical malpractice schema. See

Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 504 (S.C. 2014) (stating that “not every

action taken by a medical professional in a hospital or doctor’s office necessarily implicates

medical malpractice”); see, e.g. Toledo v. Mercy Hosp. of Buffalo, 994 N.Y.S.2d 298,

303–04 (N.Y. Sup. Ct. 2014) (holding that malpractice statute did not govern hospital

patient’s fall caused by slipping on urine while walking to restroom). As an additional basis

for deciding whether an action falls subject to a state’s medical malpractice laws, many states

look to “whether expert testimony is necessary to aid the jury’s determination of fault,

particularly with respect to the ‘duty’ and ‘causation’ elements of the claim.” Dawkins, 758

S.E.2d at 504; see also Shirley, 587 S.E.2d at 874-75 (discussing existence of “medical

question” and application of medical judgments as indicia of whether expert testimony is

required to address allegations of ordinary versus professional negligence). The petitioner

addresses the issue of whether expert testimony is required in this case in an overly narrow

fashion. Omitting the impact of Ms. Lively’s knowledge of Mr. Minnich’s weakened

condition, she suggests that the precautions required to ensure that a footstool is fully



       16
         See Manor Care, 234 W.Va. at 72, 763 S.E.2d at 88 (stating that Boggs stands for
the proposition that some claims that may be brought against a health care provider simply
do not involve health care services and, therefore, are not subject to the MPLA”); Boggs,
216 W.Va. at 662-63, 609 S.E.2d at 923-24 (discussing non-applicability of MPLA to claims
of fraud, spoliation of evidence, and negligent hiring).

                                              13
extended and “safe to use does not require specialized knowledge.” But the issue of

negligence, as pled in the complaint, links Ms. Lively’s decision not to assist Mr. Minnich

onto the examination table with her awareness of his condition and frailties.



              Despite the petitioner’s protestations to the contrary, she has pled her case in

a manner that requires the introduction of expert evidence to address whether Mr. Minnich

should have been permitted to climb onto the examination table unassisted. In framing her

complaint, the petitioner expressly made an issue of Ms. Hively’s clinical judgment in

leaving Mr. Minnich to access the examination table with no supervision or assistance after

being advised of his recent hip surgery, his current weakness, and his limited ambulatory

status. We agree with the trial court’s assessment that the petitioner has raised the issue of

whether proper clinical judgment was exercised in the course of Mr. Minnich’s health care

evaluation. Absent expert witness’ testimony, the jury will be unable to determine whether

Ms. Hively breached the duty of care she owed as a “health care provider” to Mr. Minnich

in connection with his receipt of health care at MedExpress. Accordingly, we find no error

in the circuit court’s decision that the MPLA applies to this case.




                                             14
                                    IV. Conclusion

              Based on the foregoing, the October 28, 2015, order of the Circuit Court of

Kanawha County is affirmed, which expressly incorporates the specific directive set forth

in the December 1, 2014, summary judgment ruling that the petitioner shall be granted a

reasonable period of time to amend her complaint to assert a claim under the Medical

Professional Liability Act.

                                                                              Affirmed.




                                           15
