656 S.E.2d 451
Davis, Chief Justice:
The Appellants, plaintiffs in the action below, who received medical treatment involving the implantation of contaminated sutures as patients at two hospitals named as defendants below, appeal the dismissal of their action against the defendant hospitals for failure to provide pre-suit notices and certificates of merit as required by the Medical Professional Liability Act. See W. Va. Code § 55-7B-6(b) (2001) (Supp. 2002). (See footnote 1) The plaintiffs argue that, because they have not asserted medical malpractice claims, they are not bound to comply with the pre-suit requirements of the Medical Professional Liability Act (hereinafter referred to as the MPLA). We conclude that 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. Therefore, the circuit court was correct in finding that the plaintiffs must comply with the MPLA. However, we find the circuit court's dismissal of this action to be unduly harsh, and remand this case to afford the plaintiffs an opportunity to amend their complaint and otherwise comply with the MPLA. (See footnote 2)
On June 2, 2003, the plaintiffs filed the underlying putative class action lawsuit in the Circuit Court of Kanawha County alleging that they sustained infections, injuries and damages after improperly sterilized Vicryl sutures had been placed in their bodies. (See footnote 6) Plaintiffs asserted numerous claims against the several defendants collectively, including claims of product liability (including negligence, strict liability and breach of express and implied warranties); violations of the West Virginia Consumer Credit and Protection Act, W. Va. Code § 46-6-101 et seq.; fraud; and intentional infliction of emotional distress. (See footnote 7) Plaintiffs sought compensatory and punitive damages, as well as equitable relief. (See footnote 8)
The defendant hospitals filed a joint motion to dismiss on July 3, 2003, asserting four grounds for dismissal: (1) the MPLA constitutes the sole remedy for actions against health care providers, and plaintiffs' claims of product liability, outrage, fraud and violations of the Consumer Credit and Protection Act are not permitted under the MPLA; (2) the plaintiffs failed to comply with the MPLA's requirements for serving notices of claim and certificates of merit; (3) West Virginia common law does not permit product liability claims against health care providers as distributers or sellers of products; and (4) the plaintiffs' claims are time barred.
The plaintiffs responded by asserting the following arguments against dismissal: (1) the MPLA is not the exclusive remedy available against health care providers; (2) the MPLA does not in clear and unambiguous terms prohibit claims against health care providers for product liability, tort of outrage, fraud and violations of the Consumer Credit and Protection Act; (3) the causes of action raised in their complaint do not assert medical malpractice, and thus are not governed by the MPLA and its prerequisites to filing suit; (4) the common law does not prohibit product liability and related claims from being brought against health care providers as distributers and sellers of products; and (5) the discovery rule applies to the running of the relevant statutes of limitation.
Following a hearing on the defendant hospitals' joint motion to dismiss, the circuit court found that the MPLA applied. The circuit court then ruled that the plaintiffs' failure to provide a Notice of Claim and Screening Certificate of Merit as required by the MPLA, and their additional failure to plead mandatory elements of an MPLA action as set forth in W. Va. Code §55-7B-3 (1986) (Repl. Vol. 2000), (See footnote 9) required dismissal of their case.
On July 23, 2004, the plaintiffs' (hereinafter referred to as the Appellants) filed in this Court a petition appealing the circuit court's order grating the defendant hospitals' joint motion to dismiss. On December 9, 2004, this Court issued an order remanding the case to the circuit court for consideration of the Court's simultaneously announced opinion in Boggs v. Camden-Clark Memorial Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917 (2004). On remand, by order entered on March 14, 2006, the circuit court again granted a joint motion by the defendant hospitals' to dismiss the Appellants' complaint. Thereafter, on July 11, 2006, the Appellants filed a petition for appeal in this Court. We granted the petition and now affirm, in part, and reverse, in part, the circuit court's ruling, and we remand this case for further proceedings consistent with this opinion.
[b]y the MPLA's own terms, it applies only to medical professional liability actions, and the Legislature has provided a definition:
(i) Medical professional liability means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.
W. Va. Code § 55-7B-2(i) (2003). Thus the MPLA can only apply to health care services rendered, or that should have been rendered.
Boggs v. Camden-Clark Mem'l Hosp. Corp., 216 W. Va. at 662, 609 S.E.2d at 923 (footnote omitted) (emphasis added). (See footnote 10) This Court went on to explain that
Fraud, spoliation of evidence, or negligent hiring are no more related to medical professional liability or health care services than battery, larceny, or libel. There is simply no way to apply the MPLA to such claims. The Legislature has granted special protection to medical professionals, while they are acting as such. This protection does not extend to intentional torts or acts outside the scope of health care services. If for some reason a doctor or nurse intentionally assaulted a patient, stole their possessions, or defamed them, such actions would not require application of the MPLA any more than if the doctor or nurse committed such acts outside of the health care context.
Id. at 662-63, 609 S.E.2d at 923-24 (emphasis added). This Court then held
The West Virginia Medical Professional Liability Act, codified at W. Va. Code § 55-7B-1 et seq., applies only to claims resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It does not apply to other claims that may be contemporaneous to or related to the alleged act of medical professional liability.
Syl. pt. 3, Boggs, 216 W. Va. 656, 609 S.E.2d 917 (emphasis added).
This Court again addressed whether a claim fell within the MPLA in Gray v. Mena, 218 W. Va. 564, 625 S.E.2d 326 (2005). The plaintiff in Gray had been admitted to [the hospital] with swelling in her lower extremities, abdominal pain, high blood sugar, a hormone deficiency, and Addison's disease. Id. at 567, 625 S.E.2d at 329 (footnote omitted). The physician who examined her did so in a hospital room behind a closed curtain in the absence of a nurse or other staff member. Id. During the examination, and without Ms. Gray's consent, the doctor inserted his non-gloved finger into her vagina. Id. Ms. Gray contended that the procedure was not medically necessary and constituted an assault and battery. Id. She brought a civil action against the physician, his practice group, and the hospital, asserting claims for assault and battery, sexual assault and/or sexual abuse, outrage, intentional infliction of emotional and mental distress, and/or negligent infliction of emotional or mental distress. Id. at 567 n.3, 625 S.E.2d at 329 n.3. The lower court granted the defendants' motion to dismiss based upon Ms. Gray's failure to comply with the pre-suit provisions of the MPLA. The Gray Court ultimately concluded that Ms. Gray was required to comply with the MPLA, but nevertheless reversed the dismissal of her action in order to allow such compliance.
In deciding Gray, this Court reviewed the Boggs opinion and noted that it was not strictly on point with the claims asserted by Ms. Gray in that the claims of fraud, destruction of records, and spoliation of evidence asserted in Boggs did not arise within the course of an actual physical examination, while Ms. Gray's claims did arise from the action of the physician in the context of an ostensible examination. Gray at 568 n.7, 625 S.E.2d at 330 n.7.
Expressing concern that the Court's earlier decision in Boggs might be misconstrued as holding that intentional torts would always fall outside the MPLA, the Gray Court held:
This Court's opinion in Boggs v. Camden-Clark Memorial Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917 (2004), is clarified by recognizing that the West Virginia Legislature's definition of medical professional liability, found in West Virginia Code § 55-7B-2(i) (2003) (Supp. 2005), includes liability for damages resulting from the death or injury of a person for any tort based upon health care services rendered or which should have been rendered. To the extent that Boggs suggested otherwise, it is modified.Syl. pt. 4, 218 W. Va. 564, 625 S.E.2d 326. (See footnote 11)
Of particular relevance to the instant case, the Gray Court observed that the determination of whether the Medical Professional Liability Act, W. Va. Code § 55-7B-1 et seq., applies to certain claims is a fact-driven question. (See footnote 12) Thus,
the particular facts [of a case] will impact the applicability of [the Act]. For instance, where the allegedly offensive action was committed within the context of the rendering of [health care,] the statute applies. Where, however, the action in question was outside the realm of the provision of [health care,] the statute does not apply.
Gray at 570, 625 S.E.2d at 332. Accordingly, we now hold that the failure to plead a claim as governed by the Medical Professional Liability Act, W. Va. Code § 55-7B-1, et seq., does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of health care as defined by W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies regardless of how the claims have been pled.
We further hold that, pursuant to W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), health care is defined as any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement. (See footnote 13)
In the instant case, all of the Appellants' claims against the defendant hospitals arise from the same factual event, the implantation of contaminated sutures into the various Appellants. The implantation of sutures is a classic example of health care. Sutures, by their very nature, are implanted during the course of and in furtherance of medical treatment, i.e., surgery or wound repair. Both Boggs and Gray identified examples of the types of conduct that would be outside the scope of the MPLA. The examples given in those cases reflect conduct that is unrelated to providing medical care. See, e.g., Gray v. Mena, 218 W. Va. at 568, 625 S.E.2d at 330 ('Fraud, spoliation of evidence, or negligent hiring are no more related to medical professional liability or health care services than battery, larceny, or libel.' (quoting Boggs, 216 W. Va. at 662, 609 S.E.2d at 923)); (See footnote 14) Boggs 216 W. Va. at 663, 609 S.E.2d at 924 (If for some reason a doctor or nurse intentionally assaulted a patient, stole their possessions, or defamed them, such actions would not require application of the MPLA any more than if the doctor or nurse committed such acts outside of the health care context.).
In reaching its decision that the MPLA applied to the Appellants' claims against the defendant hospitals in the case sub judice, the circuit court explained:
Where the allegations of a complaint fall within its provisions, the MPLA governs. There is no dispute that the plaintiffs are patients, and both hospital defendants in this matter are health care providers and facilities. There is no dispute that the plaintiffs received health care services and the complaint revolves around an integral part of the health care services rendered. The core allegations of the complaint center upon the performance of surgical procedures and the use of unsterile sutures during the procedures. Surgeries and the sutures used during surgery fit squarely within the definition of health care which includes treatment furnished to a patient. Moreover, the MPLA expressly applies to any liability for damages . . . for any tort or breach of contract based on health care services rendered . . . . W. Va. Code § 55-7B-2(d). The plaintiffs seek recovery against defendants on a variety of tort and quasi- contractual theories. The fact they label them as products claims does not change the fundamental basis of this tort action. The court finds, therefore, that this action is governed by the MPLA, and the plaintiffs are bound by its requirements.
(Footnotes omitted). We find no error in the circuit court's conclusions, and therefore affirm that portion of the circuit court's order finding that the Appellants' claims against the defendant hospitals must be brought under the MPLA. Accordingly, the Appellants' claims must be asserted so as to comport with the elements of proof set out in W. Va. Code § 55-7B-
3 (1986) (Repl. Vol. 2000). (See footnote 15)
in the present case, the plaintiff filed the civil action and did not
characterize the action as one falling within the realm of the
Medical Professional Liability Act. Thus, under the particular
circumstances of this case, dismissal appears to be a
disproportionately harsh sanction. Given the newness of the
statute and the approach taken by the Florida courts, as reviewed
above, we do not believe that the Appellant's case should have
been dismissed. We find that the Appellant and her counsel, in
good faith, made a legitimate judgment that this case should be
framed as an assault and battery civil action, rather than a
medical malpractice action. The Appellant therefore filed her
civil action without adherence to West Virginia Code § 55-7B-6.
In this situation, the defendants should be permitted to request
compliance with the statutory requirements. The lower court
should thereafter examine the issues raised by the defendants
and require the Appellant to comply with the statute. The
statute of limitations for bringing an action under West Virginia
Code § 55-7B-6 should be tolled during this court assessment,
and the Appellant should be provided with an additional thirty
days after the court decision to comply with the provisions of
218 W. Va. at 570, 625 S.E.2d at 332.
The hospital defendants draw our attention to further comments made in the Gray opinion warning the bar to be diligent in complying with the MPLA even in cases where its application may be subject to some doubt. Therefore, they argue that the circuit court's dismissal of the appellants' claims was proper. Indeed, in Gray this Court commented that
[t]he resolution of this matter of whether the allegedly offensive
action occurred within the context of rendering medical services
is exceedingly fact-driven. We caution all litigants preparing a
complaint in such matters to be diligent in adhering to the
requirements of the Medical Professional Liability Act where
the healthcare provider's action could possibly be construed as
having occurred within the context of the rendering of health
care services.Gray, 218 W. Va. at 570, 625 S.E.2d at 332. Notably, however, the complaint in the instant
action was filed on June 2, 2003, while this Court's opinion in Gray, warning plaintiffs to
adhere to the MPLA in close cases, was not handed down until November 30, 2005.
Obviously, then, the Appellants in the instant case could not have been guided by the Gray
(See footnote 18)
Additionally, we note that when this case was considered by the circuit court on
remand following the prior appeal, the Appellants requested that they be given the
opportunity to comply with the MPLA in the event that the circuit court found that their
claims were subject thereto. Accordingly, we remand this case to afford the Appellants the
opportunity to amend their complaint and otherwise comply with the MPLA.