1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Elizabeth Musick

, Petitioner

, Plaintiff Below

v s .) No. 1 9

- 0880 ( Mercer County 1 7

- C

- 429 )

Robert C. Pennington, M.D.

, Respondent

, Defendant B elow



### MEMORANDUM DECISION

Petitioner Elizabeth Musick , by counsel Mark R. Staun

, appeals the August 7, 2019

, and August 29, 2019, order s of the Circuit Court of Mercer County in which the court, respectively,

found that petitioner suffered only one occurrence of medical negligence and dismiss ed 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 order s

. 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 memoran dum 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, petitione r 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 VIRGINIA2 Petitioner’s left knee infection persisted

, an d o n 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, p etitione r 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 , p ursuant to the West Virginia Medical Professional Liability Act (“MPLA”)

. See West Virginia Code ⸹⸹ 55

- 7B

- 1 through

- 12 (2015) . On Decembe r 27, 2017, petitioner amended her complaint to include Dr. Azzo as a defendant

. In her amended complaint , p etitioner allege d that duri n g 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 pr ocedures or a sufficiently sterile environment”

for the initial surgery. P etitioner a verred 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

. P etitioner suggest ed that , due to this fai lure, 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 f inding 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 presente d, th e 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 Penni n gton 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 citation s 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

contrac tion of the infection represented a “single indivisible loss” and any and all alleged action s of other parties that may have contributed to that loss do not break the proximate cau s al 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 revi ew 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 petitio ner’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 t he circuit court erred in concluding tha t she suffered a single occurrence of medical negligence

, as the court did not apply or interpret the provisions of the MPLA but applied “inapp licable 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 then

applicable l aw. 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 cla ims. 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 recoverab le 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 “ O ccurrence” was not defined in the 2015 version of the MPLA. 1 I n Phillips v. Larry’s

Drive

- In Pharmacy, Inc. , 220 W. Va. 484, 49 1 , 647 S.E.2d 920, 92 7 (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. ” T he 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 tha t the circuit

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

argu ment that the circuit court erroneously relied on Syllabus Points 4 and 5 of Pennington v. Bluefield Orthopedics , a case that pre

- dated the MPL A. 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 consideratio n 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 Norther n District of West Virginia’s ruling in Dawson v. United States

, No. 1:11

- cv

- 114, 2013 WL 3 187078 (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, e ven when considering petitioner’s claims under th e Dawson lens, we are not persuaded by petitioner’s a rgument s 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 o f 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 follow

up care provided to that pa tient 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 Appeal s of

Indiana in Medical Assurance of Indi ana 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 a s the court found that petitioner sustained a s ingle occurrence of medical negligence, the re 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 r equested 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, u nder 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 occurr ences 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

DISSENT ING :

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.