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Untimely transfer of patient suit reinstated

Where a hospital was granted summary judgment on a claim that it breached the standard of care by failing to timely transfer a patient to another hospital, but the district court erred in its interpretation of West Virginia’s Medical Professional Liability Act, or MPLA, the summary judgment ruling was vacated.

Background

On March 10, 2016, Edna McNeely was admitted to Bluefield Regional Medical Center or BRMC, to undergo a medical procedure. After the procedure, McNeely developed a retroperitoneal bleed. As her condition deteriorated, the decision was made to transfer McNeely to Carilion Roanoke Memorial Hospital. Medical records exchanged during discovery reveal that the decision to transfer McNeely was made at 9:35 p.m. on March 11. But McNeely did not arrive at Carilion Roanoke until 12:53 a.m. on March 12. She died the next day from septic shock due to the retroperitoneal bleed.

Janet Graham, administratrix of McNeely’s estate, sued, alleging that BRMC breached its duty of care by failing to timely transfer McNeely to Carilion Roanoke. BRMC moved for summary judgment, contending that Graham had failed to adduce evidence that BRMC’s alleged breach of the standard of care was a proximate cause of McNeely’s death, as required by the MPLA.

The district interpreted the law “as requiring a 25% change in outcome between the chance of survival had the standard of care been followed and the chance of survival experienced due to the breach of the standard of care.” Because Graham could show only a “23%” “change in outcome” for McNeely’s chances of survival, the court concluded that she had failed to prove an essential element of her case and summary judgment was warranted.

Analysis

West Virginia’s Supreme Court of Appeals has not interpreted the “loss of chance” provision of West Virginia’s MPLA. The grammar and syntax of the relevant provision reveals that it requires two distinct evidentiary showings.

The plaintiff must prove that the defendant’s failure to follow the standard of care “deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury.” And the plaintiff “must also prove” that following the standard of care “would have resulted in a greater than 25% chance that the patient would have had an improved recovery or would have survived.”

The first clause codifies the Supreme Court of Appeals’ adoption of the “value of a chance” theory of medical malpractice. The second clause sets an additional bar that a plaintiff proceeding on this theory must cross: she must show that the patient had a “greater than 25% chance” of survival (or improved recovery) if the defendant had followed the standard of care. This additional requirement forecloses liability for patients who were unlikely to survive or recover even if the defendant had done everything right.

Nowhere does the statute require a plaintiff to prove that the malpractice caused a greater than 25% change in outcome. The district court erroneously formulated such

a requirement by merging the “substantial factor” element with the “greater than 25% chance” element. That reading fails to accord significance to “every” “word or part” of the statute, both by collapsing distinct elements and by discounting the adverb “also” as used in the provision.

The district court believed its construction was necessary to avoid the “irrational result” of allowing liability when “the chance of survival without breach was 25.01% and the chance of survival due to negligence was 24.99%,” a difference that “cannot plausibly be considered substantial.” But there is no inconsistency or irrational result if one reads the statute’s two distinct requirements as written.

Proving that the patient had a greater than 25% chance of survival if the defendant had followed the standard of care is necessary but not sufficient to impose liability. The plaintiff must also prove that the defendant’s failure to follow the standard of care deprived the patient of a chance of recovery or increased the risk of harm, which was “a substantial factor in bringing about the ultimate injury.” The statute requires a plaintiff to establish both. None of the cases on which the district court relied—three unpublished decisions from federal district courts—counsels a different result.

Vacated and remanded.

Graham v. Dhar, Case No. 20-1793, May 2, 2022. 4th Cir. (Rushing), from SDWVA at Bluefield (Faber). Andrew David Byrd for Appellant. WE Sam Fox II for Appellees. VLW 022-2-115. 11 pp.

VLW 022-2-115

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