                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Lisa Clark,                                                                       FILED
Plaintiff Below, Petitioner                                                    April 10, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0431 (Cabell County 12-C-785)
                                                                               OF WEST VIRGINIA


St. Mary’s Medical Center, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Lisa Clark, by counsel Guy R. Bucci and Mark A. Barney, appeals the Circuit
Court of Cabell County’s order granting summary judgment entered on April 3, 2014, in favor of
Respondent St. Mary’s Medical Center, Inc., and dismissing her deliberate intent suit.
Respondent, by counsel Ancil G. Ramey, Anders W. Linberg, and Gregory P. Neil, filed a
response. Petitioner filed a reply.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                                 Facts and Procedural History

        This appeal stems from the summary judgment dismissal of petitioner’s deliberate intent1
suit against her employer, Respondent St. Mary’s Hospital. Petitioner is an experienced intensive

       1
        An employer’s immunity from suit provided under the worker’s compensation system
may be lost if the plaintiff employee establishes all of the following elements:

       (A) That a specific unsafe working condition existed in the workplace which
       presented a high degree of risk and a strong probability of serious injury or death;

       (B) That the employer, prior to the injury, had actual knowledge of the existence of
       the specific unsafe working condition and of the high degree of risk and the strong
       probability of serious injury or death presented by the specific unsafe working
       condition;

       (C) That the specific unsafe working condition was a violation of a state or federal
       safety statute, rule or regulation, whether cited or not, or of a commonly accepted
                                                1
care unit (“ICU”) nurse. She filed suit after she was allegedly injured by a patient at St. Mary’s
Hospital who was assigned to her on August 5, 2011. The circuit court granted respondent’s
motion for summary judgment by order entered on April 3, 2014.

        The patient who allegedly injured petitioner arrived at respondent’s cardio vascular
intensive care unit on August 4, 2011, and was suffering from Rocky Mountain Fever. The
patient’s condition caused him to suffer confusion and an altered mental state. However, the
nurses and doctors who had cared for him during his hospital stay testified that he was neither
violent nor dangerous, and had not attacked or injured anyone prior to the alleged incident with
petitioner.

        On August 5, 2011, shortly after petitioner arrived on the unit for the start of her shift, the
patient was confused, got out of bed, and urinated on the floor, as he had done periodically the
previous night. Petitioner states that, because of the patient’s size, she asked not to be assigned to
care for him, but the request was refused by respondent.2 Petitioner and a male nurse who had
cared for the patient during the shift prior to petitioner’s shift attempted to direct the patient back
to his bed.3 Deposition testimony revealed that the male nurse interlaced his arm around one of
the patient’s arms and petitioner allowed the patient to place his arm around her shoulders.
Petitioner claims that, as they were directing the patient back to his bed, the patient suddenly
used both of his arms to put her in a headlock and violently twisted her neck and shoulders. The


       and well-known safety standard within the industry or business of the employer, as
       demonstrated by competent evidence of written standards or guidelines which
       reflect a consensus safety standard in the industry or business, which statute, rule,
       regulation or standard was specifically applicable to the particular work and
       working condition involved, as contrasted with a statute, rule, regulation or
       standard generally requiring safe workplaces, equipment or working conditions;

       (D) That notwithstanding the existence of the facts set forth in subparagraphs (A)
       through (C), inclusive, of this paragraph, the employer nevertheless intentionally
       thereafter exposed an employee to the specific unsafe working condition; and

       (E) That the employee exposed suffered serious compensable injury or
       compensable death as defined in section one [§ 23-4-1], article four, chapter
       twenty-three whether a claim for benefits under this chapter is filed or not as a
       direct and proximate result of the specific unsafe working condition.

W.Va. Code § 23-4-2(d)(2)(ii).
       2
           Petitioner states that she is 5’4’’ and the patient was 6’3” and weighed 350 pounds.
       3
         The male nurse’s report indicated that the patient was confused and resisted returning to
his bed until the patient finished urinating. The nurse’s report also stated that during these
episodes, the patient’s “arms would flay and often he would grab in attempt to maintain
balance[.]”


                                                  2

other nurses in the room heard petitioner exclaim, “you hurt my neck,” but no one saw the
patient exhibit any violent action toward petitioner. In fact, the male nurse testified that, because
he had his arm interlaced with the patient’s arm the entire time, it would have been impossible
for the patient to use both of his arms to twist petitioner as she claimed. Another nurse testified
that she observed the entire scenario and that the patient simply pulled his arm away from
petitioner, then petitioner “screamed ‘ow’” and “smacked the patient in the head.”

        As a result of the incident, petitioner claimed that she suffered from “thoracic outlet
syndrome,” or “TOS,” which allegedly caused her to have pain, numbness, and tingling in her
left fingers, hand, wrist, elbow, shoulder, and neck, which subsequently migrated to her right
arm. Petitioner states that her injuries required surgery and left her disabled and unable to work
full-time.

        According to the medical testimony and records below,4 the circuit court found that TOS
is a controversial and obscure medical condition, the symptoms of which can be mimicked by
numerous other conditions, such as carpal tunnel syndrome, cubital tunnel syndrome, Reynaud’s
disease, degenerative disc disease, and other nerve and vascular disorders. Petitioner’s medical
records indicated that she had complained of symptoms similar to those she complained were
caused by the patient with Rocky Mountain Fever since at least 1994. Petitioner’s medical
records indicated multiple past reports of pain and/or numbness and tingling in her hands, feet,
arms, neck, and back, as well as insomnia and anxiety. Petitioner also underwent gastric bypass
surgery in 2004 due to numerous problems, including degenerative joint disease. She underwent
carpal and cubital tunnel surgery in 2009. Petitioner had been previously diagnosed with
Reynaud’s disease in both hands and both feet. She had been treated regularly for the above-
mentioned injuries, as well as depression and migraine headaches, prior to 2011. Additionally,
petitioner admitted that, in the past, she was injured after being thrown from a horse and after a
snowboarding accident. Ultimately, after being made aware of petitioner’s past medical history,
petitioner’s surgeon, who diagnosed her with TOS, admitted that he could not tell whether
petitioner’s injuries occurred in 2007, 2008, or 2011.

        By order entered April 3, 2014, the circuit court granted respondent’s motion for
summary judgment. Specifically, the court first concluded, as a matter of law, that petitioner
failed to establish that the patient, who despite being anxious and confused, constituted “a
specific unsafe working condition . . . in the workplace which presented a high degree of risk and
a strong probability of serious injury or death.” W.Va. Code § 23-4-2(d)(2)(ii)(A). Next, the
court concluded that petitioner failed to establish a genuine issue of fact with regard to whether
respondent had “actual knowledge” of the alleged unsafe condition as required by West Virginia
Code § 23-4-2(d)(2)(ii)(B). As to these first two elements, the court noted that no hospital staff
member would testify that the patient was violent or that he was likely to cause serious injury or
death. Prior to the incident, the patient had not been responsible for any type of injury, let alone
serious injury or death. Third, the circuit court concluded that, having failed to establish a

       4
         It appears that disclosure of petitioner’s medical records was a subject of dispute before
the circuit court. Certain records were produced only after the circuit court granted respondent’s
motion to compel, a ruling in which the court also required that petitioner pay respondent’s
attorney’s fees incurred as a result of the dispute.
                                                 3

specific unsafe working condition or respondent’s actual knowledge thereof, petitioner could not
demonstrate that respondent intentionally exposed her to such a condition as required by West
Virginia Code § 23-4-2(d)(2)(ii)(D). Finally, the circuit court ruled that, because of petitioner’s
long history of similar medical problems and the obscure nature of TOS, it was necessary for
petitioner to present medical evidence to establish causation. On this point, the circuit court
found that none of petitioner’s physicians were able to state that petitioner’s injuries were
proximately caused by the incident on August 5, 2011. Accordingly, the circuit court found that
petitioner failed to establish West Virginia Code § 23-4-2(d)(2)(ii)(E) as well.5 Petitioner now
appeals to this Court.

                                            Discussion

         Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is
proper when the record demonstrates “that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” W.Va.R.Civ.P. 56(c).
“Summary judgment is appropriate if, from the totality of the evidence presented, the record
could not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element of the case that
it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d
329 (1995). With respect to deliberate intent claims, this Court has held that

       a court shall dismiss a deliberate intention action “upon motion for summary
       judgment if it finds . . . that one or more of the facts required to be proved by the
       provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this
       subdivision do not exist.” W.Va. Code § 23–4–2(d)(iii)(B). Each of the five
       statutory factors “is an essential element of a ‘deliberate intention’ cause of
       action, which a plaintiff has the ultimate burden to prove. Therefore, at the
       summary judgment stage, if a defendant should establish that no material issue of
       fact is in dispute on any one of the factors, and such a finding is in favor of the
       defendant, summary judgment must be granted to the defendant.” Mumaw v. U.S.
       Silica Co., 204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998). Finally, “‘in order to
       withstand a motion for summary judgment, a plaintiff must make a prima facie
       showing of dispute on each of the five factors.’” Marcus v. Holley, 217 W.Va.
       508, 520, 618 S.E.2d 517, 529 (2005) (citation omitted) (footnote omitted).

Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 628, 741 S.E.2d 845, 853 (2013). “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, petitioner raises six assignments of error, the first four of which challenge the
circuit court’s conclusions with respect to subsections (A), (B), (D), and (E) of the deliberate
intent statute, West Virginia Code § 23-4-2(d)(2)(ii). First, she contends that the circuit court



       5
         The circuit court stated that it was unnecessary to address the safety regulations/industry
standard requirements in West Virginia Code § 23-4-2(d)(2)(ii)(C).
                                                 4

erred in finding no genuine issue of material fact with respect to whether the patient constituted
“a specific unsafe working condition existed in the workplace which presented a high degree of
risk and a strong probability of serious injury or death.” W.Va. Code § 23-4-2(d)(2)(ii)(A). As
the circuit court found, all of the medical professionals who cared for the patient testified,
contrary to petitioner’s repeated unfounded assertions throughout her brief that the patient was
violent, that the patient was in fact neither violent nor dangerous, let alone likely to cause serious
injury or death. Moreover, petitioner admits that she had been in the unit for only fifteen minutes
when the alleged attack occurred and she had “no idea” whether the patient had acted violently
prior to her arrival. Despite the size difference between the patient and petitioner, we cannot find
that she has raised a genuine issue of fact with respect to subsection (A) of the statute.
Accordingly, summary judgment for respondent was proper.6

        Second, petitioner argues that she presented sufficient evidence to overcome summary
judgment as to whether respondent had “actual knowledge” of the specific unsafe working
condition, as required by West Virginia Code § 23-4-2(d)(2)(ii)(B). The “actual knowledge”
requirement “is not satisfied merely by evidence that the employer reasonably should have
known of the specific unsafe working condition and of the strong probability of serious injury or
death presented by that condition. Instead, it must be shown that the employer actually possessed
such knowledge.” Syl. Pt. 3, in part, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408
S.E.2d 385 (1991). As noted above, the record demonstrates that the patient had not acted
violently prior to petitioner’s arrival on the unit, and none of respondent’s staff believed him to
pose a danger. There was also nothing established in the record below to show that respondent
knew that the patient would likely cause serious injury or death. Accordingly, we see no error
with respect to petitioner’s second assignment of error.

        Third, petitioner argues that the circuit court erred in concluding that she failed to
establish that respondent “intentionally exposed” her to the unsafe working condition, as
required by West Virginia Code § 23-4-2(d)(2)(ii)(D). Petitioner contends that she advised her
supervisor of her concerns about caring for such a large patient, but was forced to do so anyway.
In her brief to this Court, petitioner states that in 2011, there were fourteen incidents of patient
violence at respondent’s hospital, and in 2010, there were ten such incidents. She adds that the
safety manual adopted by respondent states that one occurrence is average and three is high, yet,
respondent still took no additional action to protect its employees. However, petitioner’s
assertions regarding the “intentional exposure” element find insufficient support in the record to
overcome summary judgment. As respondent points out, at the time petitioner alleges she was
injured, she was being assisted by the male nurse who had just come off his shift. Additionally,
there was no fewer than four of respondent’s staff members present at the time. Merely because
respondent did not excuse petitioner from attending to the patient because of his size does not
mean that respondent intentionally exposed her to an unsafe condition in the deliberate intent
context. Moreover, the “intentional exposure” element of West Virginia Code § 23-4­
2(d)(2)(ii)(D) is premised on the first two elements, which are not present in this case. This Court

       6
        As discussed above, in order to establish deliberate intent, petitioner must show all five
elements set forth in the statute; the failure to establish any single element is fatal to her claim.
Nevertheless, we will address petitioner’s remaining arguments related to her deliberate intent
claim.
                                                  5

has held that “with respect to the intentional exposure requirement, we have recognized that
‘there . . . must be some evidence that, with conscious awareness of the unsafe working condition
. . . an employee was directed to continue working in that same harmful environment.’” Coleman
Estate ex rel. Coleman v. R.M. Logging, Inc., 226 W.Va. 199, 208, 700 S.E.2d 168, 177 (2010)
(quoting Tolley v. ACF Industries, Inc., 212 W.Va. 548, 558, 575 S.E.2d 158, 168 (2002)).
Therefore, petitioner failed as a matter of law to establish that respondent intentionally exposed
her to an unsafe working condition as required by West Virginia Code § 23-4-2(d)(2)(ii)(D).

         Fourth, petitioner contends that the circuit court erred in finding no genuine issue of
material fact with regard to whether her injuries were proximately caused by the alleged unsafe
condition, as required by West Virginia Code § 23-4-2(d)(2)(ii)(E). We have held that in cases
where the claimed injury is “obscure” and not clearly apparent to a lay person, the plaintiff must
offer expert medical testimony that the serious injury was the direct and proximate result of the
specific unsafe working condition. See Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197
(2004); Addair v. Litwar Processing Co., LLC, No. 11-0397, 2012 WL 2914980 (W.Va. Feb. 9,
2012) (memorandum decision). In the present case, there is no question that petitioner’s TOS
diagnosis constitutes an “obscure” injury requiring expert testimony to establish causation. And,
while true that petitioner’s physician had previously testified her injuries were compensable,
important medical facts regarding petitioner’s prior medical history were discovered after her
physician made the TOS diagnosis. The record before this Court demonstrates that none of
petitioner’s physicians, when made aware of petitioner’s medical history, could testify to a
reasonable degree of medical probability that petitioner’s TOS was caused by the alleged
incident with the patient. Accordingly, we find no error in (1) the circuit court’s refusal to accept
petitioner’s workers’ compensation compensability determination as dispositive on this issue and
(2) in its conclusion that without the required expert testimony to establish causation, petitioner
cannot overcome summary judgment on element (E).

        In her fifth assignment of error, petitioner challenges the circuit court’s refusal to allow
her additional time to secure an affidavit from one of her treating physicians regarding her
injuries prior to granting summary judgment to respondent. Petitioner states that, at the February
13, 2014, hearing on respondent’s motion for summary judgment, the circuit court required that
petitioner submit an affidavit from one her physicians stating that her injury was “to a reasonable
degree of certainty” related to the incident with the patient in question. Petitioner states that the
court required her to submit the affidavit in short order – by Monday, February 17, 2014.
Petitioner states that she moved for a continuance on February 14, 2014, after learning that her
physician was out of his office.

        Rule 56(f) of the West Virginia Rules of Civil Procedure requires that “[t]he party
seeking a continuance must show due diligence both in pursuing discovery before the summary
judgment initiative surfaced and in pursuing an extension of time thereafter.” F. Cleckley, R.
Davis & L. Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure 4th at §
56(f)[2] (2014). We note that the physician at issue in petitioner’s continuance request was her
treating physician from whom she had years to secure whatever evidence she needed to support
her deliberate intent claim. Additionally, as respondent notes, the circuit court did not enter its
summary judgment order until April 3, 2014, at which time petitioner still had not submitted the



                                                 6

affidavit. We see no error in the court’s refusal to allow additional time for the submission of the
affidavit.

        Finally, petitioner argues that the circuit court abused its discretion in imposing sanctions
for her refusal to provide requested medical records. Respondent states that it knew from
petitioner’s personnel file that she had a long history of the same symptoms that she attributed to
the alleged incident in this case. Respondent further states that because petitioner was seeking
three million dollars in economic damages, it was merely doing its due diligence in determining
whether the diagnosis of TOS was the result of the incident with the patient. The record in this
case demonstrates an unwillingness by petitioner to disclose her medical records, as evidenced
by respondent having to file four motions to compel such disclosure. In her response to the final
motion to compel, petitioner offered no substantive justification for her failure to comply with
the court’s prior directives to disclose her medical records. Therefore, upon our review, we
cannot conclude that the circuit court abused its discretion in awarding respondent its attorney’s
fees in the amount of $3,467.40.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: April 10, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISQUALIFIED:

Justice Menis E. Ketchum




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