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Kruse v. Farid

Supreme Court of Appeals of West Virginia

November 8, 2019

MISTY KRUSE, Petitioner
v.
TOURAJ FARID, M.D., Respondent

          Submitted: October 2, 2019

          Appeal 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.

          JUDGE REEDER, sitting by temporary assignment.

         SYLLABUS BY THE COURT

         1. "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).

         2. "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).

         3. "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).

         4. "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 649 (1994).

          OPINION

          JENKINS, JUSTICE:

         The 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.

         I.

         FACTS AND PROCEDURAL HISTORY

         The 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 ...

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