No. 15-1148 -         Joyce Minnich, as Executrix of the Estate of Andrew A. Minnich, and
                      Joyce E. Minnich, individually v. MedExpress Urgent Care, Inc. –
                      West Virginia d/b/a MedExpress Urgent Care – South Charleston

                                                                                  FILED
                                                                             February 14, 2017
                                                                                  released at 3:00 p.m.
                                                                                RORY L. PERRY, II CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                   OF WEST VIRGINIA


Davis, Justice, dissenting:

               I respectfully dissent in this matter as I believe that the majority opinion ignores

the facts of record in favor of a narrow construction of the allegations set forth in the

complaint. This is a tragic case involving, in part, a serious head injury sustained by a

seventy-one-year-old man as a result of a fall while on MedExpress premises. It is alleged,

and experts have opined, the resulting head injury substantially contributed to his rapid

decline and ultimate death.



               The majority found that Mr. Minnich’s fall occurred while he was attempting

to comply with the directive of a health care provider to sit on an examination table, and thus,

the injuries sustained as a result of the fall occurred in the course of evaluation at

MedExpress. My review of the record suggests that this characterization of the underlying

events is factually inaccurate and wrongly portrays what actually transpired.1




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          I am also concerned that the circuit court’s order emphasizing “continuity of care” and
fall risk potential improperly focused on these medical terms of art rather than on the overarching
facts indicative of simple negligence in this case.

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              The complaint alleged that a MedExpress employee took Mr. and Mrs. Minnich

to an exam room, instructed Mr. Minnich to get on the exam table, and then left the room.

The complaint adroitly avoided pleading a medical professional liability claim. Instead, the

action was framed as a simple negligence or premises liability claim. If the matter were

before this Court on review of a motion to dismiss pursuant to Rule 12(b)(6) of the West

Virginia Rules of Civil Procedure, we would properly consider only the allegations of the

complaint and closely parse whether it was well-pled. However, this appeal arises out of a

summary judgment determination following extensive factual development. I cannot place

blinders on so as to ignore the facts of record.



              The factual development through requests for admissions and depositions

reveals that MedExpress has, at every stage of the litigation, denied that Mr. Minnich was

directed by a medical assistant to get on the exam table. MedExpress, in its Answer, denied

any staff member directed Mr. Minnich to get on the exam table. MedExpress asserted that

it was not foreseeable that Mr. Minnich would get on the exam table without direction or

assistance. In response to requests for admission, MedExpress repeatedly stated that it

objected to any representation that Mr. Minnich was directed to get on the exam table. The

staff person who escorted Mr. and Mrs. Minnich to the exam room testified at deposition that

she walked into the room, “flipped on” the light, and instructed Mr. Minnich to have a seat.

Not only did she not tell Mr. Minnich to get on the exam table, in accordance with her


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MedExpress training, she has never instructed any patient to get on an exam table.



              The non-employee Incident Report completed by Stephani Vealey, the

MedExpress Manager, characterized the incident type as “slip and fall”. (Emphasis added).

She further indicated that Mr. and Mrs. Minnich were taken to the exam room, and the staff

person told Mr. Minnich to “have a seat.” According to Ms. Vealey, “Next thing we know

the patient’s wife is on the floor screaming for help.” Ms. Vealey further indicated: “No

faulty equipment – however, the foot stool on the exam room table was not completely pull

out (sic) when patient went to step on it.” Ms. Vealy stated at deposition that she observed

the exam table step had not been fully extended.



              The remarks of Ms. Vealey on the Incident Report are critical when considered

in connection with examination room requirements. The staff person testified in deposition

regarding MedExpress requirements for exam room preparation. According to the medical

assistant, in order to prepare the room for a patient, “you clean the exam table, wipe it down,

put down new paper, make sure the foot stool is out.” At deposition, the medical assistant

conceded that the failure to have the footstool fully extended constituted a safety hazard.



              This Court has held,

                     “The West Virginia Medial Professional Liability Act,
              codified at W. Va. Code § 55-7B-1 et seq., applies only to

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             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 healthcare 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.” Syllabus point 3, Boggs v.
             Camden-Clark Memorial Hospital Corp., 216 W. Va. 656, 609
             S.E.2d 917 (2004).

Syl. pt. 1, Manor Care, Inc. v. Douglas, 234 W. Va. 57, 763 S.E.2d 73 (2014). In Manor

Care, we rejected the argument of nursing home entities that the Medical Professional

Liability Act (“MPLA”) provided the exclusive remedy for claims brought arising in

connection with nursing home care. In discussing that the MPLA applies only to actions

based upon health care services rendered or which should have been rendered we remarked,

                            [i]t has been correctly observed that “[t]he
                    fact that the alleged misconduct occurs in a
                    healthcare facility does not, by itself, make the
                    claim one for malpractice. Nor does the fact that
                    the injured party was a patient at the facility or of
                    the provider, create such a claim.” Madison Ctr.,
                    Inc. v. R.R.K., 853 N.E.2d 1286, 1288
                    (Ind.Ct.App.2006). See also Atlanta Women’s
                    Health Group v. Clemons, 287 Ga. App. 426, 651
                    S.E.2d 762 (2007) (“Of course, not every suit
                    which calls into question the conduct of one who
                    happens to be a medical professional is a medical
                    malpractice action. We must look to the
                    substance of an action against a medical
                    professional in determining whether the action is
                    one for professional or simple negligence.”);
                    Perkins v. Susan B. Allen Mem’l Hosp., 36
                    Kan.App.2d 885, 146 P.3d 1102, 1107 (2006)
                    (“Not every claim for negligence against a
                    healthcare provider constitutes malpractice.”);
                    Draper v. Westerfield, 181 S.W.3d 283, 290

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                     (Tenn.2005) (“Cases involving health or medical
                     entities do not automatically fall within the
                     medical malpractice statute.”) Thus, “when the
                     complaint does not allege negligence in
                     furnishing medical treatment to a patient, but
                     rather the failure of a medical provider in
                     fulfilling a different duty, the claim sounds in
                     negligence.” Rodriquez v. Saal, 43 A.D.3d 272,
                     841 N.Y.S.2d 232, 235 (2007).

              Riggs v. West Virginia Univ. Hosps., Inc., 221 W. Va. 646, 665­
              66, 656 S.E.2d 91, 110-11 (2007) (per curiam) (Davis, C.J.,
              concurring).

234 W. Va. at 73, 763 S.E.2d at 89. (footnote and additional citation omitted).


              Significantly, the complaint in the case sub judice contains no allegations that

MedExpress breached the standard of care in providing health care services to Mr. Minnich.

Indeed, there are no allegations that any health care services were provided to Mr. Minnich.

The clear import of the complaint is that, following intake, Mr. Minnich was escorted to an

exam room to await a provider who would render health care services to him. There are no

claims asserted against any physicians, nurses, or medical assistants, nor are there any

assertions that health care services were improperly provided to Mr. Minnich.



              Unfortunately, the majority avoids the facts when it stresses, “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.” (Emphasis supplied in

majority opinion). The majority proceeds to focus on a narrow reading of the allegations of

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the complaint. Where the majority falls short is in their lack of consideration of the

voluminous discovery conducted in this case and the factual circumstances developed in the

cause of discovery.



              The issue in this case as pled, and as developed, is whether the fall sustained

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

My review of the record compels me to conclude that the conduct that forms the basis for this

litigation is not rooted in the provision of medical care. Rather, the core of the claim sounds

in ordinary negligence – specifically, premises liability. The claim simply does not turn on

medical questions. Even the MedExpress Center Manager applied basic common sense when

she referred to the incident as a “slip and fall.” Surely, no specialized medical skill or

training is required to fully extend a footstool on an exam table. It confounds common sense

to suggest that a physician expert is required to opine on the medical professional standard

of care for extending a footstool–a matter wholly unrelated to specialized medical skill or

training. A jury should be fully capable, without the assistance of a medical professional

expert, of considering whether there was negligence in the failure to have the exam table

footstool fully extended prior to escorting a patient into an exam room. The basis for the

Minniches’ claim is the failure of MedExpress to maintain a safe environment by exposing

its customer to defectively maintained equipment in the form of a dangerous, partially

extended footstool. Here, the medical assistant plainly testified there was no rendering of


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medical services with respect to escorting Mr. Minnich to an exam room to await the

rendering of health care services. She simply showed Mr. and Mrs. Minnich to the exam

room, “flipped on the light,” and told Mr. Minnich to have a seat. Such acts do not constitute

the delivery of medical services. I view this setting no differently than if Mr. Minnich was

seated in the exam room chair and was injured when the chair collapsed.



              Because I do not agree with the majority’s interpretation and application of the

law and the facts of record, I dissent.




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