655 S.E.2d 548
| Anne E. Shaffer, Esq.
Charleston, West Virginia
Mark H. Mitchell, Esq.
Williamson, West Virginia
Attorneys for Petitioner, Jeanette Packard
| Debra A. Nelson, Esq.
Mundy & Nelson
Huntington, West Virginia
Attorney for Respondent
Ramanathan Padmanaban, M.D.
In this matter, the petitioner, Jeanette Packard, seeks a writ of prohibition to prevent the enforcement of two rulings of respondent, the Circuit Court of Logan County [hereinafter, circuit court], in actions arising from the medical care provided to her son, Robert Whitt [hereinafter, Robert], by respondent, Dr. Ramanathan Padmanaban [hereinafter, Dr. Padmanaban]. In the first ruling which petitioner seeks to prohibit, the circuit court ruled, on April 5, 2006, that only the petitioner, through an independent action, may seek recovery for pre-majority medical expenses incurred in the treatment of her minor son, Robert, as a result of Dr. Padmanaban's alleged medical malpractice. By this ruling, the circuit court determined that Robert, as a minor, has no right to recover such medical expenses in an action brought on his own behalf, but rather that such medical expenses may only be recovered through an independent action maintained by petitioner, his mother. The effect of this ruling was to create a jury question as to when petitioner discovered the alleged medical malpractice involving her son and whether her separate, independent action for such pre-majority medical expenses was barred by the statute of limitations. In the second ruling which petitioner seeks to prohibit, the circuit court ruled, on June 26, 2006, that petitioner may not amend her complaint to add a cause of action for battery arising from Dr. Padmanaban's alleged failure to obtain informed consent prior to Robert's surgery.
This Court has before it the petition seeking writs of prohibition, a limited
record related to the issues raised by the petition, and the briefs and arguments of counsel.
After careful consideration, we grant the writ to prevent enforcement of the ruling that
Robert Whitt, as a minor, has no right to seek recovery of his pre-majority medical expenses
in an action brought on his behalf. We decline, however, to prohibit the circuit court below
from refusing to allow amendment of petitioner's complaint to add a cause of action for
This Court historically has adhered to the common law rule that a parent, not
a minor child, may recover a child's pre-majority medical expenses incurred as a result of
personal injury to the child. The parental right to recover expenses when a child is injured
stems from the parents' legal obligation to support a child. 67A C.J.S. Parent and Child §
331 (2002), citing Lasley v. Georgetown University, 842 F.Supp. 593 (D.D.C. 1994). Thus,
at common law, an injury to a child gave rise to two independent causes of action: one on
behalf of the child for such damages as pain and suffering, permanent injury, post-majority
impairment of earning capacity, and post-majority medical expenses; the other on behalf of
the parents for such damages as loss of services during minority and pre-majority medical
expenses. See, Barker v. Saunders, 116 W. Va. 548, 549, 182 S.E. 289, 290 (1935).
The common law rule developed because parents had a duty to support their child, and in turn were therefore obligated to pay for their child's medical expenses. In our early case of McCallam v. Hope Natural Gas, 93 W. Va. 426, 117 S.E. 148 (1923), it was held that Generally, an infant, in an action for personal injuries, cannot recover for expenses incurred for medical attendance, since such expenses fall upon the father, who is responsible for the infant's care. McCallam, Syllabus Point 2. This holding was based on
. . . the recognized principle that the responsibility for the care of the minor rests in the father[.][ (See footnote 6) ] [T]he law seems well established that save for excepted cases a minor cannot recover for medical expenses in an action for personal injury. Where the plaintiff is a minor, he cannot recover for medical expenses incurred for medical attendance unless he has actually paid them, nor can he recover at all for a medical bill paid by his father, nor where, under the circumstances of the case, the parents of the minor are primarily liable for the bill. 8 A. & E. Ency. Law, 648. . . . It is not unlike the principle that a married woman may not recover for expenses incurred for medical attendance, the responsibility therefor falling on the husband.[ (See footnote 7) ]
93 W. Va. at 433-434, 117 S.E. at 151 (internal citations omitted)(footnotes added). The
primary motivating objective of the common law rule therefore was to allow the party who
actually suffered the damages to recover the loss from the responsible tortfeasor. (See footnote 8) A
secondary rationale for the common law rule seems to have also been to prevent double
recoveries. See, Sox v. United States, 187 F.Supp. 465, 469 (E.D.S.C. 1960).
Initially, the dividing line between parent and child actions was clear and deep. The actions were seen as being so separate and distinct that the actions were procedurally and substantively independent of each other. (See footnote 9) In Syllabus Point 1 of Barker, supra, this Court held that Where a minor child is injured by the wrongful act or omission of another, the natural guardian may recover from such other the necessary hospital expenses incurred in consequence of such injury. The Court explained in Barker that,
It is well settled in this country that where a minor child is injured by the wrongful act or omission of another, the father, or mother, if she be the natural guardian, may recover for the loss of such child's services and for medical or surgical attendance, nursing, and other expenses incurred by such parent in consequence of the injury.
116 W. Va. at 549, 182 S.E. at 290 (citations omitted). More recently, we held in Syllabus Point 3 of Glover v. Narick, 184 W. Va. 381, 400 S.E.2d 816 (1990), that,
A personal injury to a minor child gives rise to two causes of action: (1) an action on behalf of the child for pain and suffering, permanent injury, and impairment of earning capacity after majority; and (2) an action by the parent for consequential damages including the loss of services and earnings during minority and expenses incurred for necessary medical treatment for the child's injuries.
As noted by Dr. Padmanaban, the majority of states continue to adhere, in some form, to the common law rule that [w]here a minor child is injured by the wrongful act or omission of another, the parent, and only the parent, ordinarily has a right of action for loss of services of the child and other pecuniary damages sustained in consequence of such injury. 67A C.J.S. Parent and Child § 331 (2002) (footnote omitted). See, e.g., Blue Cross and Blue Shield of Alabama v. Bolding, 465 So.2d 409, 412 (Ala.Civ.App. 1984) (Ordinarily, the father may recover in a separate suit for the loss of his child's services and for medical expenses incurred in treating his child. The minor is not entitled to such a recovery.) (internal citation omitted); National Bank of Commerce v. Quirk, 918 S.W.2d 138, 151 (Ark. 1996) (a child does not have an independent right to recover medical expenses); Brent v. Hin, 561 S.E.2d 212, 215 (Ga. Ct. App. 2002) (the right to recover a minor's medical expenses in a tort action is vested solely in the child's parents)(quoting Mitchell v. Hamilton, 493 S.E.2d 41 (Ga. Ct. App. 1997)); Primax Recoveries, Inc. v. Atherton, 851 N.E.2d 639, 642 (Ind. Ct. App. 2006) (any claim for medical expenses incurred in treating a minor for injuries sustained due to a tortfeasor's negligence belongs to the parents, rather than the child.); Betz v. Farm Bureau Mutual Ins. Agency, 8 P.3d 756, 760 (Kan. 2000) (Generally, the right to seek medical expense damages for an injured child belongs to the parent.); Palmore v. Kirkman Laboratories, Inc., 527 P.2d 391, 396 (Ore. 1974) (It is generally held that medical expenses incurred due to the negligent injury of a minor unemancipated child are damages suffered by the parent and not the child.). (See footnote 10)
Although the common law vested the cause of action for pre-majority medical
expenses in the parents, a number of exceptions to the common law rule have been
recognized, such as where,
(1) the minor child has paid or agreed to pay the expenses; (2) the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his or her parents; (3) the parents have waived or assigned their right of recovery in favor of the minor child; or (4) recovery of expenses is permitted by statute.
67A C.J.S. Parent and Child § 331 (footnotes omitted). Indeed, several courts have abandoned the common law rule altogether in favor of a rule that recognizes a right to maintain an action to recover medical expenses in both a minor child and his or her parents, as long as a double recovery is not permitted. In White v. Moreno Valley Unified Sch. Dist., 226 Cal. Rptr. 742 (Cal. Ct. App. 1986), the California Court of Appeals held that a cause of action to recover medical expenses incurred on account of a minor's personal injuries belongs to both the parents and the minor. The court explained:
As stated by the court in Faitz v. Ruegg (1981) 114 Cal.App.3d 967, 971, 171 Cal.Rptr. 149: The applicable rules were summarized in Bauman v. San Francisco (1940) 42 Cal.App.2d 144 [108 P.2d 989], . . . at pages 162-163, as follows: 'The parents of a minor are normally responsible for medical and hospital care furnished the minor, and the cause of action to recover these items normally rests with the parents. But the child is also liable for the reasonable value of these expenses. Moreover, where the parents bring the action as guardians ad litem, and the bills have not been paid, and these expenses are pleaded, this constitutes a waiver of the parents' rights, and at least where contributory negligence of the parents is not asserted as a defense, the child may properly recover these items. In such cases the parents would be estopped from recovering these expenses on their own behalf'. . . . (See also Morningred v. Golden State Co. (1961) 196 Cal.App.2d 130, 138-139 [16 Cal.rptr. 219]; Shriver v. Silva (1944) 65 Cal.App.2d 753, 768 [151 P.2d 528]). (Emphasis deleted.)
Thus, strictly speaking, the cause of action to recover medical expenses incurred on account of a minor's personal injuries does not belong exclusively to the parents; in reality it belongs to both the parents and the minor. (See Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 161, 108 P.2d 989.) Otherwise it would be legally impossible for a parent to waive his or her claim in favor of the minor by instituting an action to recover such expenses as guardian ad litem for the minor. If the minor was not an owner of the right of action in the first place, no waiver on the part of the parent could serve to transfer it to the minor.
226 Cal.Rptr. at 745-746.
In Lopez v. Southwest Community Health Services, 833 P.2d 1183 (N.M. Ct.App. 1992), the Court of Appeals of New Mexico concurred with the reasoning of the Moreno Court. The defendant hospital in Lopez argued that future medical and non-medical expenses were not recoverable by the minor because as a matter of law such expenses are the legal responsibility of the minor's parents. The court framed the issue as whether an injured child may recover damages for future medical and non-medical expenses to be incurred by his parents. 833 P.2d at 1192. In discussing this issue, the court reasoned that,
We reject the view of those jurisdictions which would prohibit a minor from recovering his or her own medical expenses.
We can think of no principled reason why the right to recover a minor's future medical expenses should lie exclusively with the parents, as long as defendants are protected against double recovery. We recognize that generally contracts entered into by minors are voidable,[ (See footnote 11) ] however, minors are usually liable for the value of necessaries furnished to them.[ (See footnote 12) ] Both the parent and child have been found liable for medical expenses upon a suit by a medical health care provider; therefore, it follows that either should have the right to be compensated for the reasonable value of such medical expenses. . . .
We find most persuasive the logic and rationale behind the practice adopted by California courts. California follows the rule that the cause of action to recover a minor's medical expenses belongs to both the minor and the parents. In addition, we agree with California's finding of fault with a rule providing that the right to recover a minor's medical expenses belongs to the parent but can be waived in favor of the minor. . . . . The question of waiver should only arise if the parent also seeks to recover for the minor's medical expenses. In a situation where the minor has sued to recover his or her future medical expenses, the parent may be held to have waived his or her right to recover such damages and be estopped from seeking double recovery. For the reasons stated, we hold that New Mexico allows a minor, in these circumstances, to recover for his or her future medical and non-medical expenses.
833 P.2d at 1191-1193 (citations omitted) (footnotes added).
In Boley v. Knowles, 905 S.W.2d 86 (Mo. 1995), a case with facts similar to the instant one, a minor, by her mother as next friend, filed an action alleging medical malpractice. The minor's mother also joined the action in her individual capacity alleging that, as the minor's parent, she incurred medical expenses for her daughter's treatment necessitated by the negligence. Subsequently, the mother's claim was dismissed as time- barred. Thereafter, the minor sought leave of the court to amend her complaint to seek damages for medical expenses incurred as a result of the malpractice. The trial court denied the motion, finding that to grant the motion would effectively extend the statute of limitations that barred the mother's claim. The minor appealed.
In its discussion, the Supreme Court of Missouri first reviewed several instances in which it has been held that a minor can recover for medical expenses incurred as a result of negligence. These include situations where the parents waived their claim in favor of the child; where the parents are for some reason estopped from asserting their claim; where the minor is emancipated; where the minor has actually paid the medical expenses; and where courts have permitted creditors to hold minors liable for their medical expenses. Boley, 905 S.W.2d at 89. The Boley court then addressed the specific issue of whether the minor has an independent and concurrent right to bring an action to recover medical expenses when the parental cause of action is barred by the applicable statute of limitations:
A number of courts that have addressed the issue have
permitted the minor to recover medical expenses in a separate
action. See, e.g., Myer v. Dyer, 643 A.2d 1382, 1387
(Del.Super.1993) (by not presenting timely claim, parents
waived medical expense claim and separate claim existed on
behalf of child for such expenses); Davis v. Drackett Prods. Co., 536 F.Supp. 694, 697 (S.D.Ohio 1982) (under Ohio law, statute
of limitations may bar parents' claim for medical expenses
incurred for treatment of minor, but minor may recover the full
amount to which parents would be entitled); McNeill v. United
States, 519 F.Supp. 283, 291 (D.S.C. 1981) (statute of
limitations barred parents' claim for medical expenses paid on
behalf of minor, but minor may maintain the claim in his
separate action); Sox [v. United States], 187 F.Supp.  at
469 [(E.D.S.C. 1960)] (same). It is apparent from these
decisions that the courts viewed the cause of action as a joint
right available to the parents and the child. The child's right
was recognized, at least implicitly, so as to avoid the bar of the
statute of limitations.
Other courts, however, have considered the claim for medical expenses as belonging exclusively to the parents; thus,
if the parents' action for medical expenses is barred by the
applicable statute of limitations, the claim for medical expenses
is also barred when asserted by the child. See, e.g., Hutto v. BIC
Corp., 800 F.Supp. 1367, 1372 (E.D.Va. 1992) (assignment of
parents' claim for medical expenses to minor does not extend
the limitations period); Vaughn v. Moore, 89 N.C.App. 566,
366 S.E.2d 518, 520 (1988) ([I]n order to give effect to the
waiver, we would essentially extend the parent's claim beyond
its three-year statute of limitations.); Rose v. Hamilton Medical
Ctr., Inc., 184 Ga.App. 182, 361 S.E.2d 1, 2 (1987) (action to
recover medical expenses of a minor is vested exclusively in the
Review of the decisions of this state and those of other jurisdictions reveals that the primary underlying concern of the courts has been to avoid multiple judgments for recovery of medical expenses. See, e.g., Sox, 187 F.Supp. at 469. Courts, therefore, allowed minors to maintain an action to recover medical expenses, if at all, only when the parents could not bring the claim themselves. Apparently attempting to work within the framework of the common law, some courts held that the parents waived their claim for medical expenses in favor of their child by not asserting the claim within the limitations period. In this context, use of the term waiver is but a fiction, apparently employed to ensure that a claim for recovery of medical expense damages would be available to someone. The law has evolved, therefore, to permit recovery but has done so without meaningful analysis and by application of a vague theory of waiver, employing a contortion of that term as it is commonly understood.
There is no persuasive reason to retain the common law rule that conferred upon the parents the primary right to recover medical expenses. The factors and concerns that gave rise to the common law ruling limiting the child's action in this respect are often illusory or can be otherwise addressed. This Court holds, therefore, that the right to maintain an action to recover medical expenses related to a child's treatment is vested jointly in the child and the parents. Either the parents or the minor may maintain an action, although under no circumstances will a double recovery be allowed. A procedural bar that prevents the parents from maintaining an action will not affect the child's right to recover.
Boley, 905 S.W.2d at 89-90.
Since our early case in McCallam, which recognized the common law rule, exceptions have been recognized. For example, we have permitted a minor to recover medical expenses where the minor's father was deceased and the minor was liable for his or her own medical expenses. In Syllabus Point 2 of Grim v. Moore, 121 W. Va. 299, 3 S.E.2d 448 (1939), this Court held:
While the rule is established that a father is primarily responsible for expenses necessarily incurred in the treatment of his injured infant, yet when the father is dead, leaving no estate, the rule can have no application. In such a case, the infant himself is liable for the expenses, and may recover them from the person causing the injury, if it was tortious.
See also, Syllabus Point 2, Nugen v. Hildebrand, 145 W. Va. 420, 114 S.E.2d 896 (1960) (A plaintiff in an action to recover damages for personal injury inflicted previous to his attaining the age of twenty-one years, may recover . . . hospital and medical expenses incurred by reason of such injury during the plaintiff's minority, where it appears that plaintiff's father was deceased at the time the injury was inflicted.).
Our holdings in Grim and Nugen demonstrate that the common law rule, in its
original form, no longer exists in West Virginia. Application of the common law doctrine
of necessaries confirms that in West Virginia, a minor may be responsible for his or her own
medical expenses. (See footnote 13) Indeed, when considered with W. Va. Code § 48-29-303 (2001), which
statutorily makes a husband and wife responsible for the reasonable and necessary services of a physician rendered to their minor child, we believe it appropriate to revisit the policy considerations which underlie the common law rule as it applies to a minor's standing to seek recovery for all medical expenses, pre- and post-majority, in his or her suit for injuries caused by tortious conduct. In doing so, we observe that the Legislature seems to have limited the application of W. Va. Code § 48-29-303 (2001) only to physician services. No mention is made regarding other potential medical expenses, such as hospital expenses, physical and occupational therapy, diagnostic testing, and so on.
Initially, we observe that two fundamental policies are of paramount concern
to the issues raised in this appeal. First, a tortfeasor should be responsible for the harm
caused by his or her conduct. This policy consideration is a bedrock principle of our system
of jurisprudence. To the extent that tortfeasors are not responsible for the harm they cause,
or are insulated from such responsibility by procedural machinations, the costs for such harm
is shifted to others, whether that be to the victim, to someone responsible for the victim, or
to the state. This first policy concern, therefore, is of primacy to our consideration _
particularly, where as here, the ability to seek healthcare for a child who may be fault free
is implicated. In doing so, we should endeavor to ensure that the true payor of such medical
expenses is appropriately compensated without the potential for overpayment by the
We believe another important factor needs to also be considered. It is, frankly, absurd that two separate actions for a child's medical expenses (pre- and post-majority) now arise from the same allegedly tortious conduct. Under the scenario argued by Dr. Padmanaban, we would sanction a system requiring two distinct actions having two different potential statutes of limitations; a parent's lawsuit arguably needing to be pled and tried at one time, and a minor's suit being pled and tried later, perhaps as long as a decade later, all on the same facts, with the same witnesses. The responsibility for the first jury would be to carefully identify only pre-majority medical expenses, while the responsibility of the second jury would be to carefully identify only post-majority medical expenses _ all for a child who may be at most 12 years old or younger. (See footnote 14) Coupled with the potential for inconsistent results, we believe the need for the maintenance of two separate law suits seeking damages arising from the same tortious conduct to the same alleged victim to be ridiculous from the standpoint of judicial resources. More to the point, it is difficult for us to fathom a legal system in which a child could be responsible for his or her pre-majority medical expenses, but that he or she, simply by reason of infancy, is unable to pursue such damages in his or her lawsuit.
We agree with the rationale of those courts that permit both minors and parents to seek recovery of a minor victim's pre-majority medical expenses. Significantly, recognizing a right of recovery in both minors and parents negates the difficulties that arise when different statutes of limitation apply to claims brought by parents and minors. Judicial economy and consistency of results is preserved. Moreover, in this way, a child is no longer dependent on his or her parent to timely seek expenses for needed medical treatment by separate suit. (See footnote 15) We do not believe that tortfeasors are unfairly disadvantaged by this new rule.
However parent and child divide their claim for medical expenses, that division is of no
consequence to the tortfeasor, as long as he [or she] is not subject to pay twice for the same
expenses. Scott Co. School Dist. 1 v. Asher, 324 N.E.2d 496, 499 (Ind. 1975). Finally, we
are not inclined to retain the common law rule for the sole reason that it is accepted by a
majority of courts. Rather, we are,
more concerned with the persuasiveness of precedent than with the weight of precedent. . . . Whether we are the first state _ or the fiftieth state _ to adopt a specific legal proposition, our decision inevitably will be based upon what we deem to be in the best interests of justice and of the citizens of this State at the time the question is presented to us.
Belcher v. Goins, 184 W. Va. 395, 402, 400 S.E.2d 830, 837 (1990) (internal citations, brackets, quotations, and punctuation omitted). In sum, we find no compelling reasons to retain the common law rule, and several persuasive reasons for adoption of a new rule.
Therefore, we now hold that the right to maintain an action to recover pre- majority medical expenses incurred as a result of a minor's personal injuries belongs to both the minor and the minor's parents, but under no circumstances will double recovery be allowed. Thus, a procedural bar that prevents the parents from maintaining an action will not affect their minor child's right to recover. To the extent that McCallam v. Hope Natural Gas, 93 W. Va. 426, 117 S.E. 148 (1923); Barker v. Saunders, 116 W. Va. 548, 182 S.E. 289 (1935); Glover v. Narick, 184 W. Va. 381, 400 S.E.2d 816 (1990), and other cases are inconsistent with this holding, those cases are overruled.
As a result of our holding, we find that the circuit court's ruling that only the petitioner, Jeanette Packard, and not her minor son, Robert, has the right to recover medical expenses incurred during Robert's minority is clear error. When determining whether to issue a writ of prohibition, this Court gives substantial weight to the existence of clear legal error. In addition, we find that the circuit court's ruling raises the new and important issue of whether a child may recover for medical expenses incurred during minority where the parents' claim for such damages is time-barred. The existence of a new and important issue of law is another factor that weighs in favor of granting the writ. Accordingly, we grant the writ of prohibition sought by the petitioner to prevent the enforcement of the circuit court's ruling that denies the minor plaintiff, Robert Whitt, the right to recover medical expenses incurred during his minority.
The liberality allowed in the amendment of pleadings
pursuant to Rule 15(a)[ (See footnote 16) ] of the West Virginia Rules of Civil
Procedure does not entitle a party to be dilatory in asserting
claims or to neglect his or her case for a long period of time.
Lack of diligence is justification for a denial of leave to amend
where the delay is unreasonable, and places the burden on the
moving party to demonstrate some valid reason for his or her
neglect and delay.
(Footnote added.). The petitioner knew that Robert's grandparents, and not she, signed the surgical consent form for Robert's surgery before her complaint was filed. Nevertheless, the petitioner did not include a cause of action for battery based on these facts in her complaint. Instead, the petitioner waited for approximately two years and nine months before bringing the issue of consent to the circuit court's attention. Moreover, the petitioner has failed to identify a valid reason for her dilatory behavior. In light of the petitioner's inexcusable delay, we find that the circuit court did not abuse its discretion in denying the petitioner leave to amend her complaint. Because we find no clear error as a matter of law on the circuit court's part, we deny the writ of prohibition prayed for by the petitioner in her challenge to the circuit court's denial of leave to permit the petitioner to amend her complaint.