Submitted: October 2, 2019
from the Circuit Court of Raleigh County The Honorable John
A. Hutchison, Judge Civil Action No. 15-C-1036
Timothy P. Lupardus Lupardus Law Office Pineville, West
Virginia Attorney for the Petitioner
Richard D. Jones Amy R. Humphreys Shereen C. McDaniel
Flaherty Sensabaugh Bonasso PLLC Charleston, West Virginia
Attorneys for the Respondent
JUSTICE HUTCHISON, deeming himself disqualified, did not
participate in the decision of this case.
REEDER, sitting by temporary assignment.
BY THE COURT
"Summary judgment is appropriate where the record taken
as a whole could not lead a rational trier of fact to find
for the nonmoving party, such as where the nonmoving party
has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove."
Syllabus point 4, Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994).
"In order to establish a prima facie case of negligence
in West Virginia, it must be shown that the defendant has
been guilty of some act or omission in violation of a duty
owed to the plaintiff. No action for negligence will lie
without a duty broken." Syllabus point 1, Parsley v.
General Motors Acceptance Corp., 167 W.Va. 866, 280
S.E.2d 703 (1981).
"When a statute imposes a standard of conduct, a clause
in an agreement purporting to exempt a party from tort
liability to a member of the protected class for the failure
to conform to that statutory standard is unenforceable."
Syllabus point 1, Murphy v. North American River Runners,
Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991).
"Generally, in the absence of an applicable safety
statute, a plaintiff who expressly and, under the
circumstances, clearly agrees to accept a risk of
harm arising from the defendant's negligent or reckless
conduct may not recover for such harm, unless the agreement
is invalid as contrary to public policy. When an express
agreement is freely and fairly made, between parties who are
in an equal bargaining position, and there is no public
interest with which the agreement interferes, it generally
will be upheld." Syllabus point 1, Kyriazis v.
University of West Virginia, 192 W.Va. 60, 450 S.E.2d
petitioner herein and plaintiff below, Misty Kruse ("Ms.
Kruse"), appeals from the April 24, 2018 order entered
by the Circuit Court of Raleigh County. By that order, the
circuit court granted the summary judgment motion of the
respondent herein and defendant below, Touraj Farid, M.D.
("Dr. Farid"), finding that Dr. Farid did not have
a duty to provide follow-up medical care after Ms. Kruse left
Raleigh General Hospital against medical advice
("AMA"). On appeal to this Court, Ms. Kruse assigns
error to the circuit court's ruling. Upon a review of the
parties' arguments and briefs, the appendix record and
addendum thereto, and the pertinent authorities, we conclude
that the circuit court did not err by granting summary
judgment to Dr. Farid in this case. Accordingly, we affirm
the April 24, 2018 order of the Raleigh County Circuit Court.
AND PROCEDURAL HISTORY
facts giving rise to the instant appeal began in July 2009
when Ms. Kruse had her gallbladder removed at Raleigh General
Hospital. After being discharged, Ms. Kruse returned to
Raleigh General Hospital a few days later, and Dr. Farid
performed an endoscopic retrograde cholangiopancreatography,
during which procedure he inserted temporary stents into Ms.
Kruse's common bile duct and pancreatic duct. The day
after the surgery, Ms. Kruse left the hospital AMA, at which
time she signed and dated a form entitled "Leaving the
Hospital Against Medical Advice," which provided that
I, Kruse, Misty, a patient in Raleigh General Hospital of
Beckley have determined that I am leaving the hospital and I
acknowledge and understand this action of so leaving the
hospital is against the advice of the attending physician and
of hospital authorities.
I further acknowledge that I have been informed of the
possible dangers and risks to my health and the health of
others by my so leaving the hospital at this time, and I have
been given full explanation of the consequences of my ...