CHARLESTON, W.Va. (Legal Newsline) - The parents of a five-week-old infant can sue a West Virginia county for what they claim is a 911 dispatcher’s bad advice to drive the baby to a hospital instead of waiting for an ambulance to arrive.
Key to the decision by the West Virginia Supreme Court is the fact the parents only discovered the alleged wrongdoing after filing a Freedom of Information Act request for the 911 tapes, revealing the dispatcher told an ambulance driver not to go to the baby’s home because the parents were already on their way to the hospital.
That delayed discovery of a possible reason for the baby’s death triggered the two-year statute of limitations under West Virginia’s wrongful-death statute, the court ruled.
Barbara Stine Trivett found her baby unresponsive at home in September 2019 and called 911 and was connected to dispatcher Carmen Cales. While they were on the phone, Cales tried twice to reach Summers County Emergency Medical Services. Trivett asked for advice on giving her baby cardiopulmonary resuscitation but Cales refused, saying "we don’t give directions” on CPR.
Trivett then asked if she should drive the baby the hospital and Cales said yes. Trivett’s husband drove while she attempted CPR but the baby had been deprived of oxygen and died on Sept. 17, 2019.
A week later, Trivett filed a FOIA request for the 911 audiotapes with the county, which her lawyer received on Oct. 14. The tape revealed that seconds after telling the Trivetts to drive their baby to the hospital the dispatcher got through to EMS but told the ambulance driver not to bother going to their house.
Trivett filed a wrongful death notice against Summers County on Sept. 10, 2021, and followed up with a lawsuit against the county and Cales on Oct. 12, 2021. A Summers County judge dismissed the case, finding the lawsuit was filed after the two-year statute of limitations under the state Tort Claims Act had expired.
The plaintiffs argued a minority tolling provision in the Tort Claims Act applied, allowing minors to sue up until their 12th birthday. The trial court denied the motion, however, “as Jasper regrettably will not have a twelfth birthday.” The judge also rejected arguments the two-year statute of limitations began when Trivett received the audiotape of the 911 call, saying that may have formed the legal basis for her suit but she was aware of the factual basis the day Jasper died.
Trivett appealed, and the West Virginia Supreme Court reversed the dismissal of her case in a Nov. 8 decision, but for a different reason.
On appeal, the court had to decide among three different statutes of limitation: the minority tolling provision of the Tort Claims Act, another limit under the Medical Professional Liability Act or the two-year limit in the wrongful death statute.
The court rejected the minority tolling provision, agreeing with the trial judge that it would be absurd to read the law as allowing a dead child to sue until 12th birthday. The court said it would have to rewrite the law from “`prior to the minor’s twelfth birthday’ to `prior to what would have been the minor’s twelfth birthday.’”
The tolling statute was “enacted to allow time for the full scope of a child’s injury to become apparent, to enable the child to become competent to testify, or to allow the child to act for himself after the disability has been removed,” the court said. “Clearly, none these reasons are applicable when the minor dies.”
The court also rejected the argument the medical liability act applied, since 911 dispatchers couldn’t be considered medical professionals or employees working under the direction of a licensed professional.
The wrongful death statute does apply, the court concluded. And the statute of limitations on that law only began to run after the plaintiff learned that the dispatch had failed to send an ambulance to her house, the court said.
“At the time of baby Jasper’s death she did not know, and could not reasonably have known, that these respondents had anything to do with it,” the court wrote. “To the contrary, the petitioner alleges that at the time her telephone conversation with respondent Cales ended, respondent Cales had still not been able to reach EMS.”
The plaintiff was represented by John J. Mize, while Summers County was represented by Pullin, Fowler, Flanagan, Brown & Poe.