Recently, the West Virginia Supreme Court affirmed a circuit court’s ruling that favored a medical company accused of killing a six-year-old child. The breakdown was three to two in favor of Kanawha County Circuit Court Judge Paul Zakaib’s decision that favored Pediatrix Medical Group.
The decision concerned an incident back in September 2007, when a mother took her young daughter to Raleigh General Hospital after the latter obtained multiple bug bites on her body, resulting in a headache and fever. The Hospital initially treated the child and released her, only for her to return the following day with abdominal pain, vomiting, and a nose bleed. She was taken to the Charleston Area Medical Center and diagnosed with La Crosse encephalitis, a virus transmitted by mosquitoes that causes brain inflammation. Early in the morning on September 23, the girl complained about pain at the site of her IV, suffered from seizures, and fell unconscious. A physician employed by Pediatrix was on-call and ordered several tests, including a blood gas test and a chest X-ray, as well as anti-seizure medication. The medication did not alleviate the seizures, so the physician sought to intubate the girl. It turned out that because she suffered from respiratory acidosis, she needed to be intubated immediately. The girl ended up dying the next day.
The mother filed a lawsuit, claiming that by delaying the intubation, the physician had acted negligently. A plaintiff’s expert testified on her behalf, stating that the daughter should have been intubated once the blood gas results came back. However, the expert also admitted that he did not know when the results returned, or whether the physician knew of the results when he arrived to intubate the patient. The expert had no criticism of the physician’s actions once he intubated her.
Because the expert could not pinpoint any behavior that showed the physician acted unreasonably, Judge Zakaib ruled on a summary judgment motion in favor of Pediatrix Medical Group. In the West Virginia Supreme Court decision, the majority likewise cited the failure to establish a breach of the standard of care as their reason for affirming the lower court’s decision. The judges noted that there was nothing for which a jury could infer negligence beyond “abject speculation.”
When injured parties file lawsuits against employees, they will typically also file a suit against their employers under the doctrine of vicarious liability. For the employer to be liable for the actions of an employee, the injured party must show: (1) the accident/injury occurred during the employee’s work hours, (2) while the employee was acting within the scope of his/her duties. If the accident occurred during working hours, but while the employee was on a “frolic” — an activity completely unrelated to work, the employer will not be held liable. Contact a West Virginia personal injury attorney to find out more.
The Wolfe Law Firm has been providing legal services for nearly 25 years. Located in Elkins, West Virginia, the firm provides services in the areas of personal injury, criminal defense, bankruptcy, and mediation. If you are looking for an experienced West Virginia attorney, contact us today.