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648 S.E.2d 1
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
R. E. HAMRICK, JR., M.D.,
Plaintiff Below, Appellant
CHARLESTON AREA MEDICAL CENTER, INC.,
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Hon. James C. Stucky, Judge
Case No. 05-C-472
REVERSED AND REMANDED
Submitted: January 24, 2007
Filed: March 1, 2007
Karen H. Miller, Esq.
James S. Crockett, Jr., Esq.
Mark S. Weiler, Esq.
Spilman, Thomas & Battle
Richard W. Walters, Esq. Charleston, West Virginia
Miller, Weiler, Walters & Elswick Attorney for Appellee
Charleston, West Virginia
Attorneys for Appellant
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. A circuit court's entry of summary judgment is reviewed de novo
Syllabus Point 1, Painter v. Peavy
, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. The application of the term governing body in the Open Hospital
Proceedings Act, W.Va. Code, 16-5G-2(3) , is not limited to a single, ultimate, or top
decision-making body in a hospital's governance structure. Rather, the term must be given
a flexible and common-sense functional application to accomplish the Legislative purpose
set forth in W.Va. Code, 16-5G-1  that all proceedings of the boards of directors or
other governing bodies of such hospitals be conducted in an open and public manner so that
the people can remain informed of the decisions and decision making processes affecting the
health services on which they so vitally depend and which they help support, subject to the
exceptions contained in W.Va. Code, 16-5G-4 .
In this case we hold that meetings of a hospital's Medical Staff Executive
Committee are not immune from the purview of the Open Hospital Proceedings Act, W.Va.
Code, 16-5G-1 to -7 .
Facts & Background
In the instant case, the Circuit Court of Kanawha County concluded, in an order
dated February 24, 2006, that only meetings of the Board of Trustees of the Charleston Area
Medical Center, Inc. (CAMC), the appellee and defendant below, could fall within the
purview of the Open Hospital Proceedings Act (the Hospital Act), W.Va. Code, 16-5G-1
to -7 . The Hospital Act generally provides that meetings covered by the Act are open
to the public.
Based on this conclusion, the circuit court granted summary judgment for
CAMC against a group of doctors, the plaintiffs below, who in March of 2005 had filed a
complaint alleging that CAMC was illegally denying them the right to attend meetings of
CAMC's Medical Staff Executive Committee (MSEC). The plaintiffs asserted in their
complaint that the meetings of the MSEC in question fell within the purview of the Hospital
Both sides filed cross-motions for summary judgment in the circuit court, and
stipulated that the record before the circuit court permitted the court to decide the case for
one side or the other. After the circuit court ruled for CAMC, the appellant Dr. Hamrick
appealed the circuit court's ruling. The following-recited facts, taken from the briefs and
based on the record established by the cross-motions for summary judgment, appear to be
CAMC has a Board of Trustees that bears the ultimate legal responsibility for
CAMC and its actions. The Board of Trustees' meetings are held in compliance with the
Hospital Act's open meetings requirements.
CAMC also has a Medical Staff, comprised of more than 600 doctors who
are divided into fourteen departments. The Medical Staff's governing documents are
approved by the Board of Trustees. The Medical Staff is responsible for the quality of
patient care at CAMC. CAMC's bylaws provide for the creation of a Medical Staff
Executive Committee (MSEC). The MSEC is not a committee of CAMC's Board of
Trustees; it is a distinct and separate body.
The MSEC exercises primary authority over activities related to the functions
of the Medical Staff, and over performance improvement activities regarding the professional
services provided by individuals with hospital clinical privileges. The MSEC makes reports
and recommendations to the Board of Trustees regarding the structure of the Medical Staff,
the appointment and termination of appointments to the Medical Staff, and medical care
improvement initiatives. The MSEC also consults with CAMC's administration regarding
the quality of medical care; acts on reports and recommendations of the Medical Staff
committees and departments; reviews its own governing documents; and performs other
duties. The Board of Trustees reserves the authority to appoint individuals to the Medical
Staff, to grant clinical privileges, and to withdraw such appointment and privileges.
The voting members of the MSEC are the elected officers of the Medical Staff,
the Immediate Past Chief of Staff, the Chief of each Department of the Medical Staff, and
the Associate Vice-President of West Virginia University Health Sciences Center _
Charleston Division. The MSEC conducts its meetings only when a quorum is present.
Notice of MSEC meetings is posted, meeting minutes are prepared, and Robert's Rules of
Order are followed. The MSEC on occasion goes into executive session.
CAMC's Board of Trustees has seventeen voting members, and the MSEC has
nineteen voting members. Two persons are voting members of both the MSEC and the
Board of Trustees: the current Chief of Staff and the Immediate Past Chief of Staff. These
two doctors sit on the CAMC Board of Trustees ex officio. Apparently MSEC meetings are
at times attended by other persons associated with CAMC's administration who are not
voting members of the MSEC.
The MSEC's meetings are officially closed to the public and to members of
the Medical Staff _ unless they are members of the MSEC. The appellant asserts, without
dispute, that on some occasions doctors like the appellant who practice at CAMC but who
are not members of the MSEC have requested and been denied an opportunity to attend an
The appellant also contends in his brief, and it is not disputed by the appellee,
that MSEC recommendations on a wide range of issues are routinely approved by the CAMC
Board of Trustees without change and with little or no discussion; and that all or almost all
of the substantive discussion, debate, deliberation, and decision-making regarding these
issues takes place at the meetings of the MSEC, and not at Board of Trustees meetings. The
record supports these contentions; we list some examples in a footnote. (See footnote 1)
As discussed further at Part III, infra, the Hospital Act provides that meetings
of a governing body of a nonprofit hospital are open to the public, subject to a number of
exceptions not relevant to the instant appeal. The Hospital Act at W.Va. Code, 16-5G-2(3)
 defines a governing body as the board of directors or other group of persons
having the authority to make decisions for or recommendations on policy or administration
to a hospital . . ..
The appellant contended in the circuit court that the holding of closed meetings
by the MSEC _ meetings where facts, opinions, and alternative approaches are presented and
discussed, and where significant choices are effectively made regarding important hospital-
related issues _ is contrary to the Hospital Act.
The circuit court, while acknowledging that the statute is facially unclear on
this issue, concluded that as a matter of law there could only be one single governing body
for a hospital; and that in CAMC's case, that single governing body was CAMC's top or
ultimate decision-making body, the Board of Trustees. This conclusion was the sole basis
for the circuit court's grant of summary judgment for CAMC _ the decision that we review
in the instant appeal.
Standard of Review
We review a circuit court's grant of summary judgment de novo. Syllabus
Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
In 1982, the West Virginia Legislature first enacted the Hospital Act _ in the
form of two statutory sections, W.Va. Code, 16-5G-1 and -2.
W.Va. Code 16-5G-1 , which is unchanged since its enactment, reads
The legislature hereby finds and declares that hospitals owned
or operated by nonprofit corporations, nonprofit associations or
local governmental units are relied on by the citizens of this
State for services essential to their health and well-being. The
legislature further finds and declares that public funds from
various sources and by various means contribute significantly to
the revenues and operations of such institutions. Therefore, it is
in the best interest of the people of this State for all proceedings
of the boards of directors or other governing bodies of such
hospitals to be conducted in an open and public manner so that
the people can remain informed of the decisions and decision
making processes affecting the health services on which they so
vitally depend and which they help support through tax
exemptions, public funding and other means.
The second of the two sections of the Hospital Act, W.Va. Code, 16-5G-2
, as originally enacted in 1982, read (in its entirety) as follows:
Every board of directors or other governing body of any
hospital owned or operated by a nonprofit corporation, non-
profit association or local governmental unit shall be open to the
public in the same manner and to the same extent as required of
public bodies in article nine-a, chapter six of this code. [W.Va.
Code, 6-9A-1 et seq.].
W.Va. Code, 6-9A-1 et seq., referenced in the above-quoted text of W.Va.
Code, 16-5G-2 , is the Open Governmental Proceedings Act (the Open Meetings
What the Hospital Act did in 1982, therefore, was to extend to non-profit
hospitals the same open meetings requirements that were applied to public agencies and
public bodies under the then-existing provisions of the Open Meetings Act.
In 1982, as may be seen in the foregoing-quoted text, the Hospital Act did not
have its own separate definition of the term governing body. However, in 1982, the Open
Meetings Act, the substantive provisions of which were incorporated by reference in the
Hospital Act, defined the term governing body (for public agencies and public bodies) as
Governing body means the members of any public body having the authority to make decisions for or recommendations
to a public body on policy or administration
. . .
, 6-9A-3  (emphasis added).
In 1999, the Legislature made substantial changes to both the Hospital Act and
the Open Meetings Act. The 1999 amendments to both Acts are discussed in an article by
Dr. Brian T. Caveny, More Sunshine in the Mountain State: The 1999 Amendments to the
Open Governmental Proceedings Act and the Open Hospital Proceedings Act, 102 W.Va.L.Rev.
131 (Fall 1999). (See footnote 2)
Among these changes, the 1999 Legislature gave the Hospital Act its own
definitional section, which inter alia provides that a
[g]overning body means the board of directors or other group
of persons having the authority to make decisions for or
recommendations on policy or administration to a hospital owned or operated by a nonprofit corporation, nonprofit
association or local governmental unit, the membership of which
governing body consists of two or more members;
W.Va. Code, 16-5G-2(3)  (emphasis added).
It may be seen, therefore, that the definition of governing body that was
added to the Hospital Act in 1999 closely tracks the definition used in the 1982 Open
Meetings Act _ with the word hospital substituted for the words public body. (See footnote 3)
It may also be seen that the statutory language in the Hospital Act's 1999
definition of governing body does not clearly establish that a hospital's board of directors
is the single body associated with a hospital to which the Act may apply.
The statute does not say that the Hospital Act only applies to a [single] board
of directors or [if there is no board of directors,] other [similar single] group of persons
having the authority to make decisions for  a hospital _ which is the reading that CAMC
would have us adopt.
To the contrary, the statute may be quite reasonably read to include the
possibility that another group, in addition to a hospital's board of directors, may function as
a governing body for purposes of the purview of the Hospital Act.
As previously noted, the circuit court concluded that despite the lack of clarity
in the statutory language, CAMC's Board of Trustees is as a matter of law the only body to
which the Hospital Act may apply. However, a number of considerations cast doubt on the
circuit court's conclusion that there may only be one single governing body connected with
a hospital to which the Act may apply.
We first turn to the legislative policy expressed in the Hospital Act itself. In
his treatise Administrative Law in West Virginia, Michie's, 1982, Professor Alfred S.
Neely discussed the proper role and import of the legislatively-stated public policy language
in the Open Meetings Act, at W.Va. Code, 16-5G-1.
Professor Neely stated: If the language of a provision interpreting the Open
Meetings Act is plainly inconsistent with the language of the [statute's] declaration [of public
policy], the language of the specific provision should prevail. On the other hand, if the
language of the statute is ambiguous and susceptible to more than one reasonable
interpretation, a court should turn to the declaration of legislative policy for guidance. This
should lead to an interpretation that is most consistent with the policy of openness. Id. at
In Syllabus Point 4 of McComas v. Board of Education, 197 W.Va. 188, 475
S.E.2d 280 (1996), this Court endorsed Professor Neely's recommended approach of giving
consideration and weight to the legislatively-expressed purpose that underlies open meetings
In drawing the line between those conversations outside the
requirements of the Open Governmental Proceedings Act,
W.Va.Code, 6-9A-1, et seq
., and those meetings that are within
it, a common sense approach is required; one that focuses on the
question of whether allowing a governing body to exclude the
public from a particular meeting would undermine the Act's
[emphasis added]. (See footnote 4)
The legislative declaration of public policy in the Hospital Act, W.Va. Code,
16-5G-1 , quoted in full supra, states that
it is in the best interest of the people of this State for all proceedings of the boards of directors or other governing bodies
of such hospitals to be conducted in an open and public manner so that the people can remain informed of the decisions and
decision making processes affecting the health services on
which they so vitally depend and which they help support . . ..
Thus, the stated purpose of the Hospital Act is to ensure that the public may
observe in a meaningful fashion the decision-making processes of nonprofit hospitals. The
resolution of any uncertainty about the Hospital Act's application in a given instance should
be in accord with this principle. Dr. Caveny's article put it well: . . . when in doubt . . . take
the advice of Justice Cleckley [in McComas, supra] to heart and err on the side of openness.
For the good of all of its citizens, let the sun shine brighter in the Mountain State. Caveny, supra, at 175.
Applying the legislative purpose in the instant case, we see that the inclusion
of an entity like the MSEC within the Hospital Act's purview is consistent with the
Legislature's stated purpose in enacting the Act _ so that the people can remain informed
of the decisions and decision making processes . . . of a hospital. (Emphasis added.) To
permit public access only to CAMC Board of Trustees meetings, when the undisputed record
indicates that many decisions that are thrashed out in the MSEC are ratified pro forma by the
Board, would be contrary to the Hospital Act's legislatively-stated purpose.
On the general issue of whether an entity may have more than one governing
body to which an open meetings law may apply, Professor Neely stated that the application
of the term governing body could be guided by an institutional and structural approach,
or by a functional approach. Id. at sec. 8.03, Scope of the Act.
Professor Neely criticized the notion that an entity could have only one single,
top governing body _ because such an institutional and structural approach would make
a nullity of the language in the Act including bodies that make recommendations to a public
body . . .. Id. at 576, quoting W.Va. Code, 6-9A-2(3). [U]nder the single governing body
analysis, the possibility of the existence of . . . auxiliary 'governing bodies' goes wholly
unrecognized and, instead the anomaly arises of [bodies] making recommendations to
themselves. Id. at 577. Professor Neely continued, It seems unlikely that the Legislature
intended this . . .. Id. at 579.
Dr. Caveny's article, see n.2 supra, similarly opines that the inclusion of
groups that make recommendations within the definition of governing body suggests
that the Open Meetings Act covers a broad range of 'bodies.' Id. at 166. Thus, the
scholarly consensus with respect to West Virginia is that there may be more than one
governing body associated with an entity to which an open meetings law may apply; and
weighs against the conclusion that CAMC has only one single governing body _ its Board
of Trustees _ to which the Hospital Act may apply.
As previously discussed, the original version of the Hospital Act simply
incorporated the Open Meetings Act, which included groups that make recommendations . . . on policy or administration within its definition of governing bodies. W.Va. Code,
6-9A-3  (emphasis added). The 1999 amendments to the Hospital Act continued to
specifically include groups that make recommendations to a hospital on policy or
administration . . . within the Act's new definition of governing body. W.Va. Code, 16-
5G-2(3)  (emphasis added).
While it is clear that many (if not most or even all) of the MSEC's decisions
may be technically in the form of recommendations to the CAMC Board of Trustees, it is
also clear that the Hospital Act has from its inception included within its purview groups that
make recommendations that are given an ultimate imprimatur of finality by some other body
or entity associated with a hospital. This fact strongly argues in favor of finding that
meetings of the MSEC may fall within the Hospital Act's purview.
Finally, looking at how this issue has been addressed in other jurisdictions, we
find that a rigid, structural, single governing body approach to the application of open
meeting laws has been rejected in a number of similar cases.
In News-Press Publishing Co., Inc. v. Carlson, 410 So.2d 546 (Fla. 1982), the
board of a public hospital delegated the preparation of the annual budget to an ad hoc committee composed of four hospital vice-presidents and the hospital's CEO. [T]he board
of directors of the hospital is the governing body of the hospital and is responsible for
adopting the annual budget. Id., 410 So.2d at 547. The Florida court said that where the
hospital authorities had delegate[d] de facto authority on their behalf in the formulation,
preparation, and promulgation of plans in which foreseeable action will be taken . . . those
delegated that authority stand in the shoes of such public officials insofar as the application
of the Government in Sunshine Law is concerned. Id.
The Florida court further stated that [a] very complex budget . . . was
conceived during a several month period but approved by ceremonial acceptance of the board
with very little discussion. One purpose of the Government in the Sunshine Law is to
prevent at nonpublic meetings the crystallization of secret decisions to a point just short of
ceremonial acceptance. Id. at 548. Cf. also Stegall v. Joint Township District Memorial
Hospital, 484 N.E.2d 1381 (Ohio Ct. App. 1985) (where hospital trustees had overall
decisional authority but a Board of Governors had authority to handle daily activities of the
hospital, open meetings law applied to the Board of Governors).
In Sonder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn. App. 1998), the
court found that a health care organization's Board of Trustees' ratification and confirmation
of decisions made in
meetings that were not held in accord with open meetings laws was
merely a perfunctory rubber stamp . . .[,] a perfunctory crystallization . . . a mere ratification
of the previous actions . . .. 997 S.W.2d at 151. The court held that the Board of Trustees'
subsequent ratification of the decisions had no curative effect, even though the public had
been given proper notice of the subject matter of the subsequent meeting of the Trustees. Cf.
also Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.B.2d 257 (1983)
(student court was governing body that was delegated responsibility by Board of Regents).
The foregoing cases thus follow the common-sense, functional approach of McComas, supra, and apply that approach to conclude that more than one governing body
may be associated with a hospital or other entity for the purpose of an open meetings law.
Based on the foregoing discussion, this Court holds that the application of the
term governing body in the Open Hospital Proceedings Act, W.Va. Code, 16-5G-2(3)
, is not limited to a single, ultimate, or top decision-making body in a hospital's
governance structure. Rather, the term must be given a flexible and common-sense
functional application to accomplish the legislative purpose set forth in W.Va. Code, 16-5G-1
 that all proceedings of the boards of directors or other governing bodies of such
hospitals be conducted in an open and public manner so that the people can remain informed
of the decisions and decision making processes affecting the health services on which they
so vitally depend and which they help support, subject to the exceptions contained in W.Va.
Code, 16-5G-4 . (Emphasis added.)
As applied to the undisputed facts of the instant case, the foregoing holding
requires that the Circuit Court of Kanawha County's summary judgment for CAMC,
premised on the conclusion that CAMC may have only one single governing body for
purposes of the Hospital Act, must be reversed.
Moreover, taking a common-sense, functional approach guided by the
Legislative purpose, the record is undisputed that with respect to many issues, the
deliberative and decision-making process at CAMC takes place at MSEC meetings. The
MSEC at these meetings is therefore a governing body for purposes of the Hospital Act; (See footnote 5)
and an award of summary judgment for the appellant on the issue of the applicability of the
Hospital Act to the meetings of the CAMC Medical Staff Executive Committee is
appropriate; and this Court so directs. (See footnote 6)
The circuit court's summary judgment order is reversed and the instant case is
remanded for proceedings consistent with this opinion.
Reversed and Remanded.
In August of 2004, CAMC's Chief of Staff presented to the Board of Trustees the
following recommendations of the MSEC: (1) Hospital Plan for the Provision of Patient
Care, and (2) Flu Vaccines & Immunization Protocol. The Board of Trustees adopted these
recommendations without making any changes. In September of 2004, the Chief of Staff,
on behalf of the MSEC, presented to the Board of Trustees changes to the Medical Staff
Rules and Regulations and the Medical Staff Governing Documents. This included changes
to the Medical Staff Organization and Functions Manual, the Medical Staff Bylaws, and the
Credentials Policy. These changes were designed to bring CAMC into compliance with
current standards of the Joint Commission on Accreditation of Health Care Organizations.
The Board of Trustees adopted the recommendations of the MSEC without making any
changes. In October of 2004, the Board of Trustees approved a recommendation from the
MSEC amending the CAMC Medical Staff Bylaws. The Board of Trustees also adopted
recommendations concerning appointment, reappointment, clinical privileges, and staff status
changes. The Board adopted the recommendations without change. In November of 2004,
the MSEC recommended Chiefs and Vice Chiefs for each medical department and these
recommendations were adopted by the Board of Trustees without change. In January of
2005, the MSEC recommended department sections heads and amendments to the CAMC
Organization and Functions Manual. The Board of Trustees adopted the recommendations
without change. In March of 2005, the Board of Trustees adopted a variety of
recommendations concerning amendments to the CAMC Organization and Functions
Manual, Informed Consent Form, Reconciliation of Home Medications Form, Arrhythmia
Protocol, and Reflex Testing. Again the CAMC Board adopted the recommendations
without change or discussion. In April of 2005, the Board of Trustees adopted, without
change or discussion, recommendations from the MSEC concerning the care of unassigned
medical patients and recommendations concerning the total formulary review for 2005. In
July of 2005, the Board of Trustees adopted all of the recommendations made by the MSEC.
The same occurred in August of 2005, when the Board of Trustees adopted the MSEC's
recommendation that thoracic surgeons were to be exempted from vascular call coverage.
Dr. Caveny, who was a student at the West Virginia University College of Law in
1999 when this article was written, is a dual medical/law graduate of West Virginia
University and holds an M.P.H. from the University of North Carolina. His article surveys
the full range of 1999 Legislative changes to the Hospital Act, including the adding of new
sections at W.Va. Code
16-5G-3 to -7. These new sections, while not relevant to the issue
in the instant appeal, set forth with specificity the open meetings requirements of the Hospital
Act _ instead of simply referencing the provisions of the Open Meetings Act, W.Va. Code
6-9A-1, et seq
, as the pre-1999 version of the Hospital Act did.
The 1999 changes to the definitional section of the Open Government Act changed
the term public body to public agency; this change does not seem to have made any
substantive difference. The new definitional section in the 1999 amendments to the Hospital
Act includes a provision at W.Va. Code
, 16-5G-2(5)  stating: 'Meeting' means the
convening of a governing body of a hospital for which a quorum is required in order to make
a decision or to deliberate toward a decision on any matter: Provided, That a medical staff
conference is not a meeting
. . .. Id.
(emphasis added). It appears that this provision, which
modifies the definition of meeting and not of governing body, may refer in the case of
CAMC to a meeting of the entire Medical Staff, and not to regular meetings of the MSEC.
The parties do not treat this statutory provision as dispositive of the issue in the instant
In the context of the Open Meetings Act, McComas
looked at the declaration of
public policy set forth in the statute, and concluded that the Legislature clearly intended [the
Open Meetings Act] to apply to those assemblies where discussions leading up to a decision
. 197 W.Va. at 195, 475 S.E.2d at 287 (emphasis added). Current W.Va. Code
6-9A-1 (1999), has been somewhat amended from the language in the statute at the time of
case, but not in a fashion relevant to the instant appeal. Dr. Caveny's article
states that this Court's decisions relating to the Open Meetings Act have endorsed a
common sense approach and suggest a trend toward an expectation of greater openness
. . .. Id
. at 140.
CAMC points to the use of the term governing body in various national hospital
regulations as exclusively referring to a hospital's top or ultimate decision-making body.
These regulations, however, have nothing to do with open meetings law or its applicability.
We note, however, that the finding of the applicability of the Hospital Act to
meetings of the MSEC does not negate or obviate the applicability of any specific
exemptions and protections that are afforded by the Hospital Act to the MSEC for particular
aspects of the conduct of its business. See W.Va. Code, 16-5G-4 .