# State ex rel. West Virginia University Hospitals, Inc, West Virginia University Board of Governors, Allison Tadros, M.D. and Rachel Polinski, M.D. v. Hon. Phillip D. Gaujot, Judge of the Circuit Court of Monongalia County, and Rebecca Morris, Administratrix of the Estate of Bryan Morris

> West Virginia Supreme Court · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/9384113

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** March 31, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Tort, Contract, and Real Property
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9384113

## How later opinions describe it (automated extraction)

- concluding MPLA is in derogation of the common law
- concluding rule to show cause improvidently granted for failure to request an order detailing findings of fact and conclusions of law consistent with Gaughan

## Opinion text

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

W. Va. 289, 456 S.E.2d 16 (1995).

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

W. Va. 12, 483 S.E.2d 12 (1996).

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.

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9384113. Public record. Not legal advice.