W. Va. SC OKs first med mal class-action suit

By Steve Korris | Oct 26, 2007


CHARLESTON, W. Va. - Kanawha Circuit Judge Charles King will preside over West Virginia's first medical malpractice class-action lawsuit.

He didn't want to do it. For that matter, neither did the attorneys.

Last year, King dismissed a class claim that Marvin Masters of Charleston filed on behalf of everyone with harmful remains of Vicryl sutures inside their bodies.

The West Virginia Supreme Court of Appeals reversed King Oct. 12 and directed him to let Masters proceed under the Medical Professional Liability Act.

Masters didn't plan it this way. His suit against Vicryl manufacturer Ethicon asserted claims of assault, battery, product liability and fraud.

Masters sued Ethicon, a New Jersey corporation, in 2003. He claimed contamination in Vicryl sutures harmed patients.

Surgeons who close incisions and wounds with Vicryl sutures do not have to remove them. The sutures dissolve and the body absorbs them.

Along with Ethicon, Masters sued several Vicryl sellers and distributors. He also sued Charleston Area Medical Center and Herbert J. Thomas Memorial Hospital.

He moved to certify Donna Blankensip as representative of the plaintiff class.

Ethicon removed the suit to U. S. District Court in Charleston, claiming Blankenship fraudulently sued the hospitals to defeat federal jurisdiction.

U. S. District Judge Joseph Goodwin remanded the suit to Kanawha County.

Defendants moved to dismiss, arguing that the Medical Professional Liability Act provided the sole remedy for Blankenship.

Judge King held a hearing and agreed that the act applied. Because Masters had not served notice before suing, as the act requires, King dismissed the suit.

Masters appealed.

The Supreme Court of Appeals sent the case back to King in 2004, but not because the Justices thought he committed an error.

They told King to review the case in light of their simultaneous decision in Boggs v. Camden-Clark Memorial Hospital.

In Boggs, the Justices held that a patient could sue a medical provider outside the malpractice act if the suit involved acts that did not relate to health care.

King reviewed Blankenship's suit in that light, and he didn't change his mind. Last year he again dismissed the suit.

Again, Masters appealed.

Again, the Justices sent it back to King without finding any error on his part.

They declared he was correct in deciding the claims involved health care and the malpractice act offered the only remedy.

They declared he was correct in finding that Masters did not file notice before suing as the act requires.

Nevertheless, they granted Masters a fresh start.

"Under the particular circumstances of this case, dismissal appears to be a disproportionately harsh sanction," Chief Justice Robin Jean Davis wrote.

She wrote that Blankenship and Masters made a legitimate judgment in good faith to frame the case as assault and battery rather than malpractice.

She wrote that failure to plead a claim under the malpractice act does not preclude application of the act.

To distinguish a Boggs suit outside the act from a malpractice claim under the act, she defined health care 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."

She wrote that defendants should ask for compliance with the act and King should require compliance. She wrote that King should give Masters 30 days to comply.

Justices Joseph Albright, Brent Benjamin and Spike Maynard concurred. Justice Larry Starcher dissented in part and reserved the right to file a separate opinion.

Richard Jones and Amy Humphreys, of Jackson Kelly in Charleston, represented Charleston Area Medical Center.

Thomas Hurney Jr. and Laurie Miller, of Flaherty, Sensabaugh and Bonasso in Charleston, represented Thomas Memorial Hospital.

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