1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Elizabeth Musick,

Petitioner, Plaintiff Below

vs.) No. 19-0880 (Mercer County 17-C-429)

Robert C. Pennington, M.D.,

Respondent, Defendant Below

MEMORANDUM DECISION

Petitioner Elizabeth Musick, by counsel Mark R. Staun, appeals the August 7, 2019, and 

August 29, 2019, orders of the Circuit Court of Mercer County in which the court, respectively, 

found that petitioner suffered only one occurrence of medical negligence and dismissed

petitioner’s claim for medical malpractice against respondent. Respondent Robert C. Pennington, 

M.D., by counsel Robby J. Aliff, filed a response in support of the circuit court’s orders. Petitioner

filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of 

the Rules of Appellate Procedure.

On August 11, 2015, petitioner underwent a total left knee arthroplasty, also known as a 

total knee replacement, performed by respondent at Princeton Community Hospital (“PCH”). In 

October of 2015, petitioner presented at respondent’s office with left knee pain and was diagnosed 

with an infection of the left knee. Over the course of the following two weeks, petitioner was seen 

multiple times by respondent for treatment of the infection. Ultimately, on November 4, 2015, 

respondent performed an “incision and drainage” procedure on petitioner’s left knee to treat the 

infection.

On November 21, 2015, petitioner presented at Bluefield Regional Medical Center 

(“BRMC”), complaining of pain and swelling of her left knee, and was seen by Dr. Walid H. Azzo. 

On November 30, 2015, Dr, Azzo performed an “irrigation and debridement” procedure on

petitioner’s left knee and “aspiration of the left knee joint.”

FILED

April 26, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

Petitioner’s left knee infection persisted, and on January 6, 2016, Dr. Azzo performed 

surgery to remove petitioner’s left knee prosthesis and insert an antibiotic spacer. A revision 

surgery, removing the antibiotic spacer and inserting a new left knee prosthesis, was performed by 

Dr. Azzo on March 7, 2016. Thereafter, petitioner continued to experience left knee pain and, in 

2017, sought medical treatment at Virginia Commonwealth University (“VCU”), where she 

contends that she was, finally, appropriately diagnosed and properly treated. 

On December 8, 2017, petitioner filed the underlying medical malpractice action against 

respondent and PCH, pursuant to the West Virginia Medical Professional Liability Act (“MPLA”).

See West Virginia Code ⸹⸹ 55-7B-1 through -12 (2015). On December 27, 2017, petitioner 

amended her complaint to include Dr. Azzo as a defendant. In her amended complaint, petitioner 

alleged that during the initial arthroplasty surgery performed by respondent, she contracted a 

bacterial infection in her left knee. She further alleged that respondent “fell below the applicable 

standard of care by failing to provide adequate procedures or a sufficiently sterile environment” 

for the initial surgery. Petitioner averred that, as a result of respondent’s negligence, she suffered 

a distinct medical injury, which necessitated a subsequent revision arthroplasty surgery. As to Dr. 

Azzo, petitioner argued that Dr. Azzo breached the applicable standard of care by failing to 

“apprise himself of the [petitioner’s laboratory] results that came back” positive for the presence 

of a bacterial infection. Petitioner suggested that, due to this failure, Dr. Azzo never “had 

[petitioner] on the appropriate antibiotic regimen” and caused her medical injury. 

On July 29, 2019, at a pre-trial hearing, petitioner advised the circuit court that she had 

entered into confidential settlements with Dr. Azzo and PCH and that the total amount of the 

settlements exceeded the amount petitioner could possibly recover for a single occurrence of 

medical negligence. See West Virginia Code ⸹ 55-7B-8(a) (2015). Thereafter, both parties moved 

the court to issue a finding as to whether petitioner’s claims constituted one or multiple occurrences 

of medical negligence. The circuit court ordered both parties to submit written briefs addressing 

this issue, and after considering the briefs and oral arguments presented, the court found “that the 

case sub judice involved only one occurrence” of medical negligence. 

In its August 7, 2019, order, the circuit court cited this Court’s ruling in Pennington v. 

Bluefield Orthopedics, 187 W. Va. 344, 419 S.E.2d 8 (1992). In Pennington, this Court found, in 

part, that 

[w]here there is a single indivisible loss arising from the actions of multiple 

parties who have contributed to the loss, the fact that different theories of liability 

have been asserted against them does not foreclose their right of contribution inter 

se or prevent them from obtaining a verdict credit for settlements made with the 

plaintiff by one or more of those jointly responsible.

[a]s the law regards the negligence of the one who caused the original injury 

as the proximate cause of the aggravated injuries occurring by reason of the 

negligence of the treating physician or hospital, the original tort-feasor is liable for 

all damages, including the successive damages inflicted by the physician or 

hospital. 
3

Id. at Syl. Pts. 4 and 5 (internal citations omitted). The circuit court reasoned that, here, neither 

party disputed that “the initial, alleged injury was an infection contracted and/or introduced at the 

time of [petitioner’s] total knee arthroplasty performed by [respondent].” The court found that the 

contraction of the infection represented a “single indivisible loss” and any and all alleged actions

of other parties that may have contributed to that loss do not break the proximate causal link 

between the actions taken by respondent during the initial surgery.

On August 19, 2019, as the court determined there was only one occurrence of medical 

negligence, and as the settlements with Dr. Azzo and PCH exceeded the amount that petitioner 

could recover at trial against respondent, pursuant to West Virginia Code ⸹ 55-7B-8 (2015), the 

circuit court dismissed, with prejudice, petitioner’s claims against respondent. It is from the circuit 

court’s August 7, 2019, and August 19, 2019, orders that petitioner now appeals. 

In reviewing challenges to findings and rulings made by a circuit court, we 

apply a two-pronged deferential standard of review. We review the rulings of the 

circuit court concerning a new trial and its conclusion as to the existence of 

reversible error under an abuse of discretion standard, and we review the circuit 

court’s underlying factual findings under a clearly erroneous standard. Questions 

of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Further, “[a]ppellate review of 

a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. 

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). Guided 

by these standards, we now turn to petitioner’s arguments on appeal. 

On appeal, petitioner raises three assignments of error. Each of the assignments of error 

relate, in part, to the propriety of the circuit court’s determination that petitioner suffered only one 

occurrence of medical negligence. In her first and second assignments of error, petitioner alleges 

that the circuit court erred in concluding that she suffered a single occurrence of medical 

negligence, as the court did not apply or interpret the provisions of the MPLA but applied 

“inapplicable common law principles.” In her third assignment of error, petitioner argues that the 

circuit court invaded the province of the jury in finding that she suffered only one occurrence of 

medical negligence.

To address petitioner’s first and second assignments of error, we must first discuss the thenapplicable law. The parties do not dispute that West Virginia Code ⸹⸹ 55-7B-1 through -12 (2015)

is the version of the MPLA that applies to petitioner’s instant claims. West Virginia Code ⸹ 55-

7B-8(a) (2015), “Limit on liability for noneconomic loss,” provides, in pertinent part, that 

[i]n any professional liability action brought against a health care provider pursuant 

to this article, the maximum amount recoverable as compensatory damages for 

noneconomic loss may not exceed $250,000 for each occurrence, regardless of the 

number of plaintiffs or the number of defendants[.]
4

“Occurrence” was not defined in the 2015 version of the MPLA.1 In Phillips v. Larry’s 

Drive-In Pharmacy, Inc., 220 W. Va. 484, 491, 647 S.E.2d 920, 927 (2007), this Court 

acknowledged that its “examination of any portion of the MPLA is guided, at all times, by the 

recognition that the [MPLA] alters the ‘common law and statutory rights of our citizens to 

compensation for injury and death’” and is, by its own terms, “an act designed to be in derogation 

of the common law.” The Phillips Court noted that “where there is any doubt about the meaning 

or intent of a statute in derogation of the common law, the statute is to be interpreted in the manner 

that makes the least rather than the most change in the common law” and must “generally be given 

a narrow construction.” Id. at 492, 647 S.E.2d at 928. 

Taking that narrow view, we are not persuaded by petitioner’s contention that the circuit 

court failed to interpret the meaning of “occurrence” within the “framework of the MPLA” or her

argument that the circuit court erroneously relied on Syllabus Points 4 and 5 of Pennington v. 

Bluefield Orthopedics, a case that pre-dated the MPLA. Given our recognition in Phillips that the 

MPLA is an act in derogation of common law, we see no error in the circuit court’s consideration 

of Pennington under the narrow facts and circumstances of this case. 

Petitioner suggests that this Court look to the United States District Court for the Northern

District of West Virginia’s ruling in Dawson v. United States, No. 1:11-cv-114, 2013 WL 3187078 

(N.D.W.Va. June 20, 2013), for a proper consideration of the definition of occurrence in the 

context of the 2015 version of the MPLA.2

However, even when considering petitioner’s claims under the Dawson lens, we are not 

persuaded by petitioner’s arguments and find that under the particular facts and unique 

circumstances of this case, the circuit court did not err in finding that there was but one occurrence

of medical negligence. Here, the circuit court reasoned that, based upon the consideration of the 

facts before it, the injuries complained of by petitioner resulted from a “single indivisible loss[:]” 

the infection petitioner developed following her initial left knee arthroplasty in August of 2015. 

1 As amended in 2017, the MPLA now defines “occurrence” as 

any and all injuries to a patient arising from health care rendered by a health care 

facility or a health care provider and includes any continuing, additional or followup care provided to that patient for reasons relating to the original health care 

provided, regardless if the injuries arise during a single date or multiple dates of 

treatment, single or multiple patient encounters, or a single admission or a series of 

admissions. 

West Virginia Code ⸹ 55-7B-2(l) (2017).

2 In Dawson, the United States District Court for the Northern District of West Virginia

adopted the definition of occurrence of medical negligence adopted by the Court of Appeals of 

Indiana in Medical Assurance of Indiana v. McCarty, 808 N.E.2d 737 (Ind.Ct.App.2004), which 

defined occurrence as “the negligent act itself plus the resulting injury, with a health care 

provider’s liability limited to the lowest common denominator between act and injury.” Id. at 745. 
5

Each injury complained of by petitioner involved the same leg and the same infection. 

Accordingly, we find no issue with the circuit court’s determination that there was one occurrence 

of medical negligence involving petitioner. Additionally, we note that as the court found that 

petitioner sustained a single occurrence of medical negligence, there was no error in the court’s 

dismissal of the remainder of petitioner’s claims.

In her third assignment of error, petitioner argues that in determining that there was one 

occurrence of medical negligence, the circuit court improperly invaded the province of the jury. 

However, it is undisputed that in the proceedings below petitioner and opposing counsel 

specifically requested that the circuit court make a determination as to the number of occurrences

of medical negligence. As noted by the circuit court in its August 7, 2019, order, “both parties 

moved for the [c]ourt to issue a finding as to whether this case involve[d] one or two [separate] 

occurrences” of medical negligence. Accordingly, under the limited facts and unique 

circumstances of this case, we find that any error in the circuit court’s “invasion” of the province 

of the jury in determining the number of occurrences of medical negligence in petitioner’s 

underlying case constitutes invited error. Syl. Pt. 2, Hopkins v. DC Chapman Ventures, Inc., 228

W. Va. 213, 719 S.E.2d 381 (2011) (“A litigant may not silently acquiesce to an alleged error, or 

actively contribute to such error, and then raise that error as a reason for reversal on appeal.”) As 

such, petitioner is entitled to no relief as to this issue on appeal. 

For the foregoing reasons, we find no error in the decisions of the circuit court and its

August 7, 2019, and August 29, 2019, orders are hereby affirmed. 

Affirmed.

ISSUED: April 26, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins 

Justice Elizabeth D. Walker

Justice Tim Armstead

NOT PARTICIPATING:

Justice William R. Wooton

DISSENTING:

Hutchison, Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral 

argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ 

briefs and the issues raised therein, I believe a formal opinion of this Court was warranted—not a 

memorandum decision. Accordingly, I respectfully dissent.