Earle et al v. City of Huntington et al

Filing 103

MEMORANDUM OPINION AND ORDER granting Defendant St. Mary's Medical Center's 17 Motion to Dismiss for Failure to Comply With the West Virginia Medical Professional Liability Act Pre-Suit Requirements; denying as moot Defendant St. Mary 9;s Medical Center's 13 Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and for Lack of Subject Matter Jurisdiction, 15 Motion to Dismiss Wrongful Death Claim and 79 Renewed Motion to Dismiss; granting Defen dants' Cabell County 911, Cabell County Commission, Ted Grant and Patrick Watkins 94 Partial Motion to Dismiss as to claims against Cabell County 911 and the Cabell County Commission to the extent any such claims are based on the alleged reckless and intentional conduct of Ted Grant or Patrick Watkins and as to all claims against Ted Grant and Patrick Watkins individually. Signed by Judge Robert C. Chambers on 9/23/2015. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

LUMUMBA EARLE, individually and
as the Personal Representative of the
ESTATE of ANNIE EARLE, deceased,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-29536

CITY OF HUNTINGTON, d/b/a CITY OF
HUNTINGTON POLICE DEPARTMENT,
a municipal corporation;
JOSH NIELD individually and in his official capacity;
ST. MARY’S MEDICAL CENTER, INC., d/b/a
ST. MARY’S MEDICAL CENTER,
CABELL COUNTY 911;
CABELL COUNTY COMMISSION;
TED GRANT, individually and in his official capacity;
PATRICK WATKINS, individually and in his official capacity,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant St. Mary’s Medical Center’s (“SMMC”) Motion to
Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and for Lack of Subject
Matter Jurisdiction (ECF No. 13), Defendant St. Mary’s Medical Center’s Motion to Dismiss
Wrongful Death Claim (ECF No. 15), Defendant St. Mary’s Medical Center’s Motion to Dismiss
for Failure to Comply With the West Virginia Medical Professional Liability Act Pre-Suit
Requirements (ECF No. 17), Defendant St. Mary’s Medical Center’s Renewed Motion to Dismiss
(ECF No. 79), and Defendants’ Cabell County 911, Cabell County Commission, Ted Grant and

Patrick Watkins Partial Motion to Dismiss (ECF No. 94).
I.

Statement of Facts

As stated in Plaintiff’s Amended Complaint (ECF No. 66), decedent Annie Earle (“Ms. Earle”)
presented at SMMC Emergency Room on January 10, 2014 for a facial laceration, sustained at the
home of her daughter Angela Earle. While being treated for her injury, the staff at SMMC began
a mental hygiene assessment, and filed a mental hygiene petition to detain Annie Earle. While the
mental hygiene order was pending, Annie Earle left the hospital. SMMC staff then contacted law
enforcement to advise them of Ms. Earle’s departure. When law enforcement subsequently brought
Ms. Earle to the SMMC emergency department, SMMC staff advised law enforcement that the
previously filed mental hygiene petition had been denied and that Ms. Earle could be discharged.
Thereafter, a physical and verbal altercation arose between Ms. Earle and Officer Neild, during
which Ms. Earle sustained fractured ribs, which punctured her heart and caused her death.
On December 12, 2014 Plaintiff, on behalf of Ms. Earle’s estate, filed an initial complaint
against the City of Huntington, the City of Huntington Police Department, and Josh Nield. Plaintiff
then filed two amended complaints in which she also named SMMC, Cabell County 911, Cabell
County Commission, Ted Grant, and Patrick Watkins as Defendants. SMMC, Cabell County 911,
Cabell County Commission, Ted Grant, and Patrick Watkins have each filed motions to dismiss.
II.

Standard of Review

To overcome a motion to dismiss under Rule 12(b)(6), a complaint must be plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007). This standard requires a plaintiff to set forth
the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotation
marks and citations omitted). To survive a motion to dismiss, a complaint must contain “sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Facial plausibility exists
when a claim contains “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citation omitted).
Accepting the factual allegations in the complaint as true (even when doubtful), the
allegations “must be enough to raise a right to relief above the speculative level . . . .” Id. (citations
omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of
entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum
expenditure of time and money by the parties and the court.” Id. at 558 (internal quotation marks
and citations omitted). Finally, “[a]lthough for the purposes of a motion to dismiss we must take
all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at 555).
III.

Discussion

A. Claims against SMMC
The West Virginia Medical Professional Liability Act (“MPLA”), West Virginia Code
§ 55-7B-1, et seq., applies to any claim involving “medical professional liability.” W. Va. Code
§ 55-7B-6(a). “Medical professional liability” is defined under the MPLA as “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). “Health care” is defined, for purposes
of the MPLA, 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.” W. Va. Code § 55-7B-2(e). “The failure to plead
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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.” Blankenship v. Ethicon, Inc., 656 S.E.2d 451, 453 (W.
Va. 2007). Rather, “[w]here 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 § 55-7B2(e) (2006) (Supp.2007), the Act applies regardless of how the claims have been pled.” Id. “While
the applicability of the Medical Professional Liability Act, W. Va. Code § 55-7B-1, et seq., is
based upon the facts of a given case, the determination of whether a particular cause of action is
governed by the Act is a legal question to be decided by the trial court.” Syl. Pt. 3, Manor Care
Inc. v. Douglas, 763 S.E.2d 73 (W. Va. 2014).
In this case, SMMC staff evaluated Ms. Earle and determined that she was an appropriate
candidate for a mental hygiene petition. When Ms. Earle left SMMC with the mental hygiene
petition pending, SMMC staff called 911 “based upon, and consistent with, the clinical assessment
of Ms. Earle’s mental status, as part and parcel of its good faith efforts to provide appropriate
intervention and care for Ms. Earle.” ECF No. 18. Their decision to call 911 was “directly premised
upon the healthcare providers’ assessment and concern that Ms. Earle was mentally ill and that,
due to such illness, she presented a risk of harm to herself or others.” ECF No. 18. See W.Va. Code
§ 27-5-2(a); W. Va. Code § 27-3-1(b)(5).
Plaintiff argues that the only basis upon which SMMC would have or could have contacted
911 to report Ms. Earle’s departure from SMMC was Ms. Earle’s pending mental hygiene petition.
However, West Virginia Code § 27-3-1(b)(5) expressly authorizes disclosure of patient
information of mentally ill persons “[t]o protect against a clear and substantial danger of imminent
injury by a patient or client to himself, herself or another[.]” As such, SMMC’s authority to call
911 is not solely pursuant to the pendency of a mental hygiene petition. Rather, the determination
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of whether SMMC’s call to 911 was negligent hinges on SMMC’s clinical assessment of Ms.
Earle’s mental status and its determination of the extent to which her mental status presented a risk
of harm to herself or others.
If SMMC staff reasonably concluded that Ms. Earle’s departure from SMMC, “alone and
on foot,” (ECF No. 37), presented a clear and substantial danger of imminent injury by Ms. Earle
to herself or to another person, in light of the clinical assessment of Ms. Earle’s mental status, that
call was appropriate and within standards of care. As such, to the extent that the Plaintiff’s claims
arise from SMMC’s assessment of Ms. Earle’s mental health status and the subsequent 911 call,
Plaintiff’s claims fall within the scope of and are subject to the requirements of the MPLA.
Additionally, to the extent Plaintiff characterizes SMMC’s actions as an intentional tort,
such alleged conduct is also subject to the requirements of the MPLA. In Mena v. Gray, 625 S.E.2d
326, 329 (W. Va. 2005), Plaintiff brought claims of alleged battery and assault against a physician
due to conduct that occurred during an examination. Although a previous case had failed to extend
the MPLA to intentional torts, Mena remedied this inconsistency, noting “[i]n Boggs . . . this Court
stated that the Act’s protection does not extend to intentional torts; yet the Act itself states that it
applies to ‘any tort,’ thus encompassing intentional torts.” Id. at 330. The court went further to
explain “we recognize that a good faith argument may be made that because the alleged assault
and battery occurred in the course of an ostensible medical examination, the Appellant’s claim is
subject to the presuit requirements at issue.” Id. As such, the court ultimately dismissed the case
concluding that the MPLA applied and that the defendant physician would “most certainly argue
that his actions were necessary to a complete diagnosis and investigation of the complaints
presented to him by [Plaintiff].” Id. at 232.

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In contrast, R.K. v. St. Mary’s Medical Center, Inc., 735 S.E.2d 715, 717 (W. Va. 2012)
found that the MPLA did not apply to a hospital’s unauthorized disclosure of confidential medical
and psychiatric information to Plaintiff’s estranged wife and her divorce lawyer. The court in R.K.
reached this decision by concluding that such conduct was not related to any acts of medical
professional liability, and as such, the MPLA did not apply. Id. at 725. Here, Ms. Earle’s situation
is more similar to Mena, largely due to the fact that 911 call resulted from conduct that occurred
immediately following, and as a result of, Plaintiff’s examination. Furthermore, as in Mena,
SMMC argued that its actions were necessary to provide the appropriate standard of care to Ms.
Earle, by attempting to prevent her from harming herself or others. As such, unlike in R.K.,
SMMC’s alleged conduct was related to acts of medical professional liability. Therefore, to the
extent Plaintiff alleges SMMC’s alleged conduct constitutes an intentional tort, it is still covered
under the MPLA.
Under the MPLA, “no person may file a medical professional liability action against any
health care provider without complying with the provisions of this section.” W. Va. Code § 557B-6(a).1 Section 55-7B-6(b) further provides that “[a]t least thirty days prior to the filing of a
medical professional liability action against a health care provider, the claimant shall serve by
certified mail, return receipt requested, a notice of claim on each health care provider the claimant
will join in litigation.” W. Va. Code § 55-7B-6(b). The notice of claim “shall include a statement
of the theory or theories of liability upon which a cause of action may be based, and a list of all

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Courts that have considered the MPLA and specifically W. Va. Code § 55–7B–6(b), have
determined it applies to actions brought in federal court as substantive law. Stanley v. U.S., 321
F.Supp.2d 805, 807 (N.D.W.Va. 2004).
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health care facilities to whom notices of claim are being sent, together with a screening certificate
of merit.” Id.2
Here, Plaintiff filed and served its Amended Complaint on SMMC without first providing
a notice of claim and a screening certificate of merit. Therefore, Plaintiff has failed to comply with
the notice requirements of W. Va. Code § 55-7B-6 and has denied SMMC the rights afforded to it
by the provisions of the MPLA. As such, dismissal is proper for the Plaintiffs’ failure to comply
with the statutory pre-suit notification requirements. Stanley v. United States, 321 F.Supp.2d 805,
806–07 (N.D.W.Va. 2004). Defendant SMMC’s Motion to Dismiss is GRANTED.3 However,
the Court notes that Plaintiff is still within the two year statute of limitations provided by W. Va.
Code § 55-7B-4(a). As such, SMMC is dismissed from this case without prejudice and Plaintiff,
if it chooses to do so, may file a medical professional liability action in compliance with the
requirements of the MPLA.
B. Claims against Cabell County 911 and Cabell County Commission
The West Virginia Governmental Tort Claims and Insurance Reform Act (“WVTCIRA”),
W. Va. Code § 29-12A-4(c)(2), provides that a political subdivision is generally immune from
civil liability except for claims arising from the negligence of a political subdivision’s employee

“The screening certificate of merit shall be executed under oath by a health care provider
qualified as an expert under the West Virginia Rules of Evidence, and shall state with particularity:
(1) The experts familiarity with the applicable standard of care in issue; (2) the expert’s
qualification; (3) the expert’s opinion as to how the applicable standard of care was breached; and
(4) the expert’s opinion as to how the breach of the applicable standard of care resulted in injury
or death.” W. Va. Code § 55-7B-6(b).
3
Because Defendant SMMC’s Motion to Dismiss for Failure to Comply With the West
Virginia Medical Professional Liability Act Pre-Suit Requirements (ECF No. 17) has been
GRANTED, Defendant SMMC’s Motion to Dismiss for Failure to State a Claim Upon Which
Relief Can Be Granted and for Lack of Subject Matter Jurisdiction (ECF No. 13), Motion to
Dismiss Wrongful Death Claim (ECF No. 15), and Renewed Motion to Dismiss (ECF No. 79) are
DENIED AS MOOT.
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occurring within the scope of employment. In the same regards, by only specifying that a political
subdivision is liable for an employee’s negligent acts, the WVTCIRA excludes liability for a
political subdivision based on an employee’s intentional acts. W. Va. Code § 29-12A-4(b)(1),
(c)(2).
As such, to the extent that plaintiff characterizes the conduct of Mr. Grant and/or Mr.
Watkins as “reckless and intentional,” Cabell County 911 and Cabell County Commission are
immune from claims arising from such alleged conduct. Plaintiff argues in its Response that the
conduct alleged in the second Amended Complaint is “willful or wanton,” thereby imposing
potential liability on the Cabell County Defendants. However, the Cabell County Commission and
Cabell County 911 are immune from its employees’ intentional acts. Therefore, to the extent
Plaintiff asserts a claim for false imprisonment against these political subdivisions, Cabell County
911 and the Cabell County Commission are immune, as these political subdivisions are only liable
for the negligent conduct of their employees committed within the scope of employment. W. Va.
Code § 29-12A-4(c)(2). As such, Defendants’ Motion to Dismiss as to claims against Cabell
County 911 and the Cabell County Commission to the extent any such claims are based on the
alleged “reckless and intentional” conduct of Ted Grant or Patrick Watkins is GRANTED.
C. Claims against Ted Grant and Patrick Watkins
The WVTCIRA also provides that employees of political subdivisions are immune from
personal tort liability unless “(1) [h]is or her acts or omissions were manifestly outside the scope
of employment or official responsibilities; (2) [h]is or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; or (3) [l]iability is expressly imposed
upon the employee by a provision of this code.” W. Va. Code § 29-12A-5(b).

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The allegations contained in Plaintiff’s second Amended Complaint establish that either
Ted Grant or Patrick Watkins was working as a 911 dispatcher on the evening of January 11, 2014.
ECF No. 66. During that shift, a Huntington police officer radioed Cabell County 911 to inquire
as to whether a mental hygiene order was in effect for Ms. Earle. Id. Either Ted Grant or Patrick
Watkins then advised the officer that a mental hygiene order was in effect for Ms. Earle, even
though such petition had been denied. Id. Plaintiff characterized this as “reckless and intentional
behavior.” Id.
Although the rules for pleading are liberal, a party must still state sufficient facts to support
a claim “that are beyond mere labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Simply identifying conduct as “willful,” “wanton,” “intentional,” or “reckless,”
with little factual enhancement or support is insufficient. As Defendants note in their response “the
alleged conveyance of erroneous information by Mr. Grant and/or Mr. Watkins does not rise to
the level of ‘willful and wanton’ conduct within the meaning of W.Va. Code § 24-6-8. At best
Plaintiff’s allegation establish that Mr. Grant and/or Mr. Watkins erred.” ECF. No. 100. The Court
agrees with this statement.
As such, the described conduct of Ted Grant or Patrick Watkins cannot be classified as
anything but allegedly negligent. The WVTCIRA bestows immunity on employees of a political
subdivision for allegedly negligent acts committed within their scope of employment. As such,
Ted Grant and Patrick Watkins are immune from liability. Therefore, Defendants’ Motion to
Dismiss as to claims against Ted Grant and Patrick Watkins is GRANTED.
IV.

Conclusion

For the foregoing reasons, Defendant St. Mary’s Medical Center’s Motion to Dismiss for
Failure to Comply With the West Virginia Medical Professional Liability Act Pre-Suit
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Requirements (ECF No. 17) is GRANTED; Defendant St. Mary’s Medical Center’s (“SMMC”)
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and for Lack
of Subject Matter Jurisdiction (ECF No. 13), Defendant St. Mary’s Medical Center’s Motion to
Dismiss Wrongful Death Claim (ECF No. 15), and Defendant St. Mary’s Medical Center’s
Renewed Motion to Dismiss (ECF No. 79) are DENIED AS MOOT; and Defendants’ Cabell
County 911, Cabell County Commission, Ted Grant and Patrick Watkins Partial Motion to Dismiss
(ECF No. 94) is GRANTED as to claims against Cabell County 911 and the Cabell County
Commission to the extent any such claims are based on the alleged “reckless and intentional”
conduct of Ted Grant or Patrick Watkins and as to all claims against Ted Grant and Patrick Watkins
individually.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.

ENTER: September 23, 2015

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