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Saleh v. Damron

Supreme Court of Appeals of West Virginia

November 22, 2019

MARWAN F. SALEH, M.D., Defendant Below, Petitioner
v.
ANGIE DAMRON, and ROY CHADWICK DAMRON, HER HUSBAND, and ANGIE DAMRON as the administratrix of the estate of baby Damron, Plaintiffs Below, Respondents

          Submitted: September 4, 2019

          Certified Questions from the United States District Court for the Southern District of West Virginia The Honorable Thomas E. Johnston, Chief Judge Civil Action No. 2:18-cv-00442

          D.C. Offutt, Jr. Matthew Mains Offutt Nord, PLLC Huntington, West Virginia Attorneys for the Petitioner

          Guy R. Bucci Raj A. Shah Eric R. Arnold Hendrickson & Long, PLLC Charleston, West Virginia Arnold J. Ryan Williamson, West Virginia Attorneys for the Respondents

          JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion.

         SYLLABUS BY THE COURT

         1. "A tortious injury suffered by a nonviable child en ventre sa mere who subsequently is born alive is compensable and no less meritorious than an injury inflicted upon a viable child who subsequently is born alive." Syllabus point 1, Farley v. Sartin, 195 W.Va. 671');">195 W.Va. 671, 466 S.E.2d 522 (1995).

         2. "In light of our previous interpretation of W.Va. Code, 55-7-5, and the goals and purposes of wrongful death statutes generally, the term 'person,' as used in W.Va. Code, 55-7-5 (1931) and the equivalent language in its counterpart, W.Va. Code, 55-7-6 (1992), encompasses a nonviable unborn child and, thus, permits a cause of action for the tortious death of such child." Syllabus point 2, Farley v. Sartin, 195 W.Va. 671');">195 W.Va. 671, 466 S.E.2d 522 (1995).

         3. The term "person" as used in the West Virginia Wrongful Death Statute, W.Va. Code §§ 55-7-5 and 55-7-6 (2016), does not include an ectopic embryo or an ectopic fetus.

          OPINION

          JENKINS, JUSTICE

         The United States District Court for the Southern District of West Virginia presents to this Court the following two certified questions:

A. Does West Virginia recognize a cause of action for preconception torts, [which] is an action brought by or on behalf of a person for injuries alleged to have resulted from negligent acts or omissions [that] occurred prior to the person's conception?
B. Does the term "person" as used in the West Virginia Wrongful Death Statute ( W.Va. Code §§ 55-7-5 and 55-7-6)[, ] and interpreted in the Supreme Court of Appeals of West Virginia's opinion in Farley v. Sartin, 195 W.Va. 671');">195 W.Va. 671, 466 S.E.2d 522 (1995), encompass an ectopic embryo/fetus?

         We choose to answer Question B. Upon our consideration of the parties' briefs and oral arguments, the appendix record submitted, and the relevant legal authorities, we answer Question B in the negative and conclude that the term "person" as used in W.Va. Code §§ 55-7-5 and 55-7-6 (Lexis Nexis 2016), which are provisions of the West Virginia Wrongful Death Statute, does not include an ectopic[1] embryo[2] or an ectopic fetus.[3]Our answer to this question renders Question A moot.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         The relevant facts that aid in placing the issues herein raised in the proper context are undisputed. In 2013, Angie Damron ("Mrs. Damron"), a respondent to this proceeding and a plaintiff in the related action before the United States District Court for the Southern District of West Virginia ("the District Court"), was an obstetrics patient of Dr. Marwan F. Saleh ("Dr. Saleh"), the petitioner in the instant matter and the defendant in the related District Court action. On November 13, 2013, Mrs. Damron presented to the Logan Regional Medical Center in labor with her second child. Dr. Saleh delivered the child by cesarean section. In accordance with a prior discussion between Dr. Saleh and Mrs. Damron during an office visit, and because Mrs. Damron desired to have no more children, Dr. Saleh contemporaneously performed a bilateral tubal ligation for permanent sterilization purposes.[4] Mrs. Damron and her newly born infant child subsequently were discharged from the medical center without complications.

         Just over three years later, on December 23, 2016, Mrs. Damron sought treatment from the Emergency Department of the Beckley Appalachian Regional Hospital for symptoms that included abdominal pain, diarrhea, nausea, and vomiting. Testing performed at the hospital showed that Mrs. Damron had elevated levels of human chorionic gonadotropin ("HCG"), a chemical component of urine that indicates pregnancy.[5] An ultrasound was performed but no intrauterine pregnancy was found. The radiologist recommended a close follow-up to determine whether the HCG levels were an indication of early gestation or an ectopic pregnancy.[6] Mrs. Damron was discharged in the early morning hours of December 24, 2016, with instructions to return for a repeat evaluation of her HCG level. Later that day, Mrs. Damron returned to Beckley Appalachian Regional Hospital to again have her HCG levels measured. Additional testing revealed a live ectopic pregnancy located in Mrs. Damron's left fallopian tube. The gestational age of the embryo was estimated to be between six weeks one day, and six weeks four days; a heart rate of 142 beats per minute also was noted. The parties agree that this ectopic pregnancy, which was located in Mrs. Damron's fallopian tube, had no chance of resulting in a live birth[7]and, if allowed to continue, would result in Mrs. Damron's death.[8] Due to the certainty that continuation of this pregnancy would result in Mrs. Damron's death, she was admitted to the hospital and underwent a left salpingectomy, i.e., removal of the ectopic embryo. She was discharged on December 26, 2016.

         Thereafter, Mrs. Damron, on behalf of herself and as the administratrix of the estate of her ectopic embryo, designated by her as "Baby Damron" ("the ectopic embryo"), and her husband Roy Chadwick Damron (collectively "the Damrons"), filed suit against Dr. Saleh in the District Court. Their complaint asserts two claims. In "Count I" of the complaint, Mrs. Damron asserts a claim of medical professional liability alleging that Dr. Saleh failed to provide her with sufficient information to obtain her informed consent to have a bilateral tubal ligation. Specifically, Mrs. Damron contends that Dr. Saleh was negligent and violated the standard of care by not advising her of the failure rate of the sterilization procedure and of the associated increased risk of an ectopic pregnancy.[9]This claim is not related to either of the questions certified to this Court by the District Court, and it will not be impacted by our answer.

         In "Count II" of the complaint, the Damrons assert a claim of wrongful death, pursuant to W.Va. Code §§ 55-7-5 and 55-7-6, on behalf of the ectopic embryo. Under this claim, which is directly related to the questions herein certified, the Damrons allege that Dr. Saleh's failure to properly inform Mrs. Damron of the risks that the tubal ligation procedure could fail, of the increased risk of an ectopic pregnancy following a tubal ligation, and that a tubal ectopic pregnancy would result in the certain death of the ectopic embryo, was the proximate cause of Mrs. Damron's left tubal ectopic pregnancy and the resulting death of the ectopic embryo.[10]

         Dr. Saleh filed a motion for partial dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asking the District Court to dismiss "Count II" of the complaint for failure to state a claim upon which relief can be granted. The Damrons sought leave to file an amended complaint, [11] and filed a response to Dr. Saleh's motion for partial dismissal. The District Court granted the Damrons' motion for leave to amend their complaint, took Dr. Saleh's motion for partial dismissal under advisement, and directed the parties to submit a proposal for certified questions. By order entered on December 18, 2018, the District Court certified the following two questions to this Court for resolution:

A. Does West Virginia recognize a cause of action for preconception torts, [which] is an action brought by or on behalf of a person for injuries alleged to have resulted from negligent acts or omissions [that] occurred prior to the person's conception?
B. Does the term "person" as used in the West Virginia Wrongful Death Statute ( W.Va. Code §§ 55-7-5 and 55-7-6)[, ] and interpreted in the Supreme Court of Appeals of West Virginia's opinion in Farley v. Sartin, 195 W.Va. 671');">195 W.Va. 671, 466 S.E.2d 522 (1995), encompass an ectopic embryo/fetus?

         This Court accepted the certified questions by order entered on February 7, 2019.

         II.

         STANDARD OF REVIEW

         The instant proceeding is before this Court upon questions certified by the District Court. Accordingly, we observe that "'[a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.' Syllabus Point 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998)." Syl. pt. 1, Martinez v. Asplundh Tree Expert Co., 239 W.Va. 612, 803 S.E.2d 582 (2017). Stated another way, "[t]his Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court." Syl. pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999). Following the foregoing standard for our consideration of this matter, we proceed to engage in plenary consideration of the dispositive legal issue raised by Question B.

         III.

         DISCUSSION

         Although the District Court has certified two questions to this Court for resolution, we find that question B, the question that asks this Court to interpret the West Virginia Wrongful Death Statute, is dispositive of the legal issue herein raised and provides the necessary direction to the District Court as to the application of the Wrongful Death Statute for purposes of ruling on Dr. Saleh's motion for partial dismissal of the Damrons' amended complaint. Accordingly, we elect to limit our ...


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