The Supreme Court of Appeals of West Virginia (“West Virginia Supreme Court”) stated in its November 8, 2023 opinion: “By certified question, this Court is asked whether parties who are dismissed from an action brought under the Medical Professional Liability Act (MPLA), but who did not settle their claims with the plaintiff may be considered by the jury in apportioning fault under West Virginia Code § 55-7B-9(b) (2016). That provision states that the jury “shall” consider the fault of “all alleged parties.” Though not defined, we conclude that the language of the statute and its legislative history compel a conclusion that the term “alleged parties” encompasses those originally named as a party in the complaint as having contributed to the plaintiff’s injuries irrespective of whether they remain parties to the litigation at the time of trial.”
West Virginia Code § 55-7B-9(b) of the MPLA states that “[t]he trier of fact shall, in assessing percentages of fault, consider the fault of all alleged parties, including the fault of any person who has settled a claim with the plaintiff arising out of the same medical injury.”
The West Virginia Supreme Court stated in the case it was deciding: “we conclude that Dr. Ratnani and PCS are “alleged parties” under West Virginia Code § 55-7B-9(b) because they were named by Mr. Wingett as parties in the complaint. That they were later dismissed at the election of Mr. Wingett does not alter that Mr. Wingett alleged, by verified complaint, that they contributed to his injuries. Contrary to Mr. Wingett’s assertions, West Virginia Code § 55-7B-9(b) does not require that the alleged tortfeasor either be in the litigation at the time of trial or have previously settled in order to qualify as an “alleged party” under that provision. Both the legislative history and the text of the statute itself belie that conclusion … We therefore hold that for purposes of West Virginia Code § 55-7B-9(b) (2016), a healthcare provider named in the complaint and alleged to have contributed to the plaintiff’s injuries is an “alleged party,” even if that party is later voluntarily dismissed by the plaintiff prior to trial.”
“Because West Virginia Code § 55-7B-9(b) dictates that “[t]he trier of fact shall, in assessing percentages of fault, consider the fault of all alleged parties” the jury must be permitted to consider whether, as plaintiff alleged, Dr. Ratnani and PCS were at fault for Mr. Wingett’s injuries: “[i]t is well established that the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.””
If you or your loved one suffered harm as a result of medical malpractice in West Virginia or in another U.S. state, you should promptly find a West Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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