I fully
concur with the majority's Opinion in this case. Nevertheless, I feel compelled
to write separately to clarify the intent and meaning of the Court's prior opinion
in Boggs v. Camden-Clark Memorial Hospital Corp., 216 W. Va. 656,
609 S.E.2d 917 (2004), upon which opinion the Court relies in rendering its decision
in the case sub judice.
In new
Syllabus point 4 of the majority's opinion, the Court held that
[t]his
Court's opinion in Boggs v. Camden-Clark Memorial Hospital Corp., 216
W. Va. 656, 609 S.E.2d 917 (2004), is clarified by recognizing that the
West Virginia Legislature's definition of medical professional liability, found
in West Virginia Code § 55-7B-2(i) (2003) (Supp. 2005), includes liability
for damages resulting from the death or injury of a person for any tort
based upon health care services rendered or which should have been rendered.
To the extent that Boggs suggested otherwise, it is modified.
Despite the majority's assertion and ultimate conclusion that our prior opinion
in Boggs is unclear and in need of clarification, I do not share this
assessment of Boggs. Rather, I think the dicta language relied upon
by the majority in reaching this determination speaks for itself:
Fraud,
spoliation of evidence, or negligent hiring are no more related to “medical
professional liability” or “health care
services” than battery, larceny, or libel. There is simply no way to apply
the MPLA to such claims. The Legislature has granted special protection to
medical professionals, while they are acting as such. This protection does
not extent to intentional torts or acts outside the scope of “health care
services.” If for some reason a doctor or nurse intentionally assaulted
a patient, stole their possessions, or defamed them, such actions would not
require application of the MPLA any more than if the doctor or nurse committed
such acts outside of the health care context.
Boggs, 216 W. Va. at ___, 609 S.E.2d at 923-24 (emphasis added).
The difficulty
apparently arises with the phrase “intentional torts or acts.” In its
analysis of this language, the majority suggests that the reference to “intentional
torts” implies that Boggs' interpretation of the MPLA was that it
did not apply to intentional torts despite the MPLA's express language stating
that it applies to “any tort.” See W. Va. Code § 55-7B-2(i)
(2003) (Supp. 2005). Reading the entire sentence from Boggs containing
this phrase, however, demonstrates that such was not the construction intended
by the Boggs Court.
In full,
the relevant sentence provides: “This protection does not extend to intentional
torts or acts outside the scope of 'health care services.'” Boggs,
216 W. Va. at ___, 609 S.E.2d at 924. From this language, it is clear that Boggs did
not exclude intentional torts from the protections of the MPLA. The phrase “intentional
torts” is modified by the phrase “outside the scope of 'health care
services'”. Id. Thus, it is clear that the only type
of intentional torts the Boggs Court found to be outside the rubric
of the MPLA were those intentional torts that do not pertain to the rendering
of “health care services”.
Arguably,
the language relied upon by the majority could have been more artfully stated
by the Boggs Court, but, be that as it may, it is not so lacking as to
warrant the creation of a new syllabus point to clarify that which is not facially
unclear.
For the
foregoing reasons, I respectfully concur with the Opinion of the Court. I am
authorized to state that Justice Maynard joins me in this concurring opinion.