No. 33194 -
Phillips v. Larry's Drive-In Pharmacy, Inc.
Maynard, Justice, concurring:
I agree with the majority's decision in this case that a pharmacy is not a “health
care provider” as defined by W.Va. Code § 55-7B-2(c) (1986) of the Medical Professional
Liability Act. Pharmacies are not enumerated in the statute, and in accordance with this
Court's long standing rules of statutory interpretation, we cannot add words that the
Legislature purposely omitted
(See footnote 1) as is clearly the case here. I am writing separately because
I would have gone further than the majority and considered the affidavits of the former
legislators.
In this case, the best evidence of legislative intent, which this Court is required
to consider when construing a statute,
(See footnote 2) is the affidavits of the legislators who were
responsible for formulating the final content of the Medical Professional Liability Act. The
affiants were members of the Conferee's Committee that dealt with Senate Bill 714 known
as the Medical Professional Liability Act of 1986 and included the Chairman of that
Committee as well as the Chairman of the House Judiciary Committee. All of these affiants
stated that “pharmacists and pharmacies were never included in the original definitions” set
forth in the statute. The affidavits do not detail each legislator's opinion but, rather, prove
that the Legislature intentionally excluded pharmacies from the definition of “health care
provider” under the statute. I do not see how these affidavits, which are powerful and
persuasive evidence of legislative intent, can be ignored. Other courts have considered
affidavits from joint conference committee members when ascertaining legislative intent with
regard to ambiguous legislation, and I would have done so in this case.
See Silver v. Brown,
63 Cal.2d 841, 48 Cal.Rptr. 609, 409 P.2d 689 (1966).
In the end, absent the evidence provided by the former legislators, the
majority still reached the proper decision in this case. Accordingly, I concur.
Footnote: 1 Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996).
Footnote: 2