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Estate of Burns v. Cohen

United States District Court, S.D. West Virginia, Beckley Division

September 17, 2019

ESTATE OF LORA MAE BURNS, by and through REBECCA VANCE, as Administratrix of the Estate of Lora Mae Burns, Plaintiffs,
v.
DR. STEPHEN M. COHEN, M.D., Defendant.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE

         The Court has reviewed Stephen M. Cohen, M.D.'s Notice of Consideration of Fault of Nonparties (Document 21), the Plaintiff's Motion to Dismiss Defendant's Notice of Consideration of Fault of Nonparty Pursuant to WV Code § 55-7-13d (Document 24), the Plaintiff's Brief in Support of Its Motion to Dismiss Defendant's Motion in Consideration of Fault of Nonparties (Document 25), and Stephen M. Cohen, M.D.'s Response in Opposition to Plaintiff's Motion to Dismiss Defendant's Notice of Consideration of Fault of Nonparties (Document 28). For the reasons stated herein, the Court finds that the Plaintiff's Motion to Dismiss Defendant's Notice of Consideration of Fault of Nonparty should be denied.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Plaintiff's complaint alleges that on December 15, 2015, Dr. Cohen performed a procedure on Ms. Burns at Greenbrier Valley Medical Center (“GVMC”), which involved the placement of a percutaneous endoscopic gastrostomy (“PEG”) tube. Following the procedure, Ms. Burns was transferred to White Sulphur Springs Medical Center. The complaint further alleges that the staff at White Sulphur Springs Medical Center discovered on December 15, 2015, that Ms. Burns had pulled the PEG tube out. Ms. Burns was transported to GVMC to treat the pulled PEG tube on December 16, 2015. Ms. Burns died on the same day, due at least in part to the pulled PEG tube.

         The Defendant filed his answer to the Plaintiff's complaint on May 9, 2018. As a defense, the Defendant asserted that “[i]f, as the Plaintiff alleges, the Plaintiff suffered injuries and damages as a proximate result of negligence, such negligence was that of persons, firms, or corporations other than this Defendant.” (Answer at 6.)

         On February 1, 2019, the Defendant filed notice of consideration of fault of nonparties, pursuant to W.Va. Code § 55-7-13d (a)(2). In the notice, the Defendant asserted that White Sulphur Springs Medical Center and/or Dorris Ragsdale, M.D. “may be wholly or partially at fault for the alleged claims, injuries and/or damages set forth by Plaintiff in this civil action.” (Def.'s Notice at 2.) Specifically, the Defendant argues that he was not informed that Ms. Burns' PEG tube had been pulled out on December 15, 2015. Instead, the actions and omissions of the named nonparties “caused Ms. Burns to not receive timely and proper treatment for a dislodged PEG tube, which may have contributed to her death.” (Def.'s Notice at 2-3.) The Defendant also stated in the notice that he does not believe that notice of nonparty fault is actually required since this “lawsuit involves a medical malpractice claim that is governed by and subject to the West Virginia Medical Professional Liability Act (“MPLA”), W.Va. Code § 55-7B-1 et. seq.” (Def.'s Notice at 1.)

         On February 12, 2019, the Plaintiff filed a motion to dismiss the Defendant's notice of consideration of fault of nonparties on the grounds that the notice failed to comply with W.Va. Code § 55-7-13d. In the supporting brief, the Plaintiff argues that the Defendant failed to provide notice of nonparty fault within the time requirement set by the statute. Specifically, the Plaintiff asserts that the statute requires notice of consideration of nonparty fault to be filed within 180 days of “service of process.” That means that the Defendant should have filed notice of consideration of nonparties by October 10, 2018, or 180 days after the Complaint was filed on April 12, 2018. Instead, the Defendant filed notice of consideration of nonparty fault on February 1, 2019. Because the Defendant missed the 180-day deadline, commencing with the service of the Complaint, the Plaintiff argues that the Defendant failed to satisfy the notice requirements for nonparty fault, and as such, the notice of nonparty fault should be dismissed by the Court.

         On February 22, 2019, the Defendant filed a response in opposition to the motion to dismiss notice of consideration of fault of nonparties. In the response, the Defendant states that on June 5, 2018, the Defendant served his first set of interrogatories and requests for production of documents to the Plaintiff. On August 7, 2018, the Plaintiff served her responses to the Defendant's first set of interrogatories and requests for production of documents. Through that exchange, the Plaintiff notified the Defendant of a pending civil lawsuit in the Circuit Court of Greenbrier County, West Virginia. The Plaintiff did not, however, identify the parties to the lawsuit in response to the interrogatory. Instead, the Defendant had to obtain a copy of the complaint from the Circuit Court to learn about the details of the Plaintiff's other lawsuit.

         The complaint obtained from the Circuit Court revealed that the Plaintiff had filed a parallel lawsuit against Dr. Ragsdale, the Medical Director of White Sulphur Springs Medical Center, alleging that Dr. Ragsdale was negligent in providing medical care to Ms. Burns. In the Defendant's response, he argues that allegations contained in that complaint “are directly related” to the Plaintiff's claims against the Defendant in this case. (Def.'s Response at 4.)

         Review of the complaint against Dr. Ragsdale reveals that the Plaintiff has alleged that Dr. Ragsdale failed to communicate with or inform the Defendant on issues related to the care of Ms. Burns, and that Dr. Ragsdale failed to follow the standard of care and the discharge instructions prescribed by the Defendant. Additionally, the Plaintiff alleges that the Defendant was not timely informed that Ms. Burns' PEG tube had been pulled out.

         These allegations form the basis of the Defendant's argument that the claims against Dr. Ragsdale are directly related to the Plaintiff's claims against the Defendant. The Defendant further argues that if the Plaintiff's allegations against Dr. Ragsdale are taken as true, then the Defendant cannot be held responsible for various claims asserted against him by the Plaintiff in this case. (Def.'s Response at 4.) The Defendant filed notice of consideration of fault of nonparties “on February 1, 2019-178 days after the Plaintiff's discovery responses were served and [the] Plaintiff formally identified the pending action against Dr. Ragsdale.” (Def.'s Response at 4.) Because the Defendant filed notice of consideration of fault of nonparties, identifying Dr. Ragsdale and White Sulphur Springs Medical Center, within 180 days of the Plaintiff's discovery responses, the Defendant argues that the motion to dismiss notice of consideration of fault of nonparties should be denied.

         DISCUSSION

         West Virginia Code § 55-7-13d(a)(2) provides:

Fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice no later than one hundred eighty days after service of process upon said defendant that a nonparty was wholly or partially at fault. Notice shall be filed with the court and served upon all parties to the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is ...

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