As they say, " April showers bring May flowers," so too do they provide even more opportunities for the attorneys at Bailey & Wyant PLLC to bloom. The month of April has come and gone but not without our attorneys making their mark. Please continue to read the latest news for you, and as always we thank you for your continued support.

Bailey & Wyant PLLC is proud to announce it's newest equity member, Jennifer E. Tully. Jennifer E. Tully practices in Bailey & Wyant, PLLC’s Charleston office, and is a lifelong West Virginia resident. She is a 2000 graduate of Emory & Henry College in Emory, VA with a Bachelor of Science Degree in Business Management with a Concentration in Accounting. At Emory & Henry, she was actively involved in the Blue & Gold Society, where she served as an ambassador of the college and met with prospective students and their parents. Jennifer graduated from West Virginia University College of Law in 2003. While attending WVU College of Law, she was actively involved in the student life and received a CALI award. 

Member Jordan K. Herrick, and Associate Adam K. Strider obtained summary judgment on behalf of various medical care providers at Mount Olive Correctional Complex. The plaintiff alleged that his Eighth Amendment rights were being violated by not being prescribed a Direct-Acting Antiviral drugs to treat his chronic Hepatitis C.

The United States District Court for the Southern District of West Virginia found that the plaintiff was not significantly injured at the hands of the Defendants and that the Defendants had not acted with deliberate indifference so as to violate the plaintiff’s Eighth Amendment rights.

The 2023 YWCA's Race to End Racism was held on Saturday, April 29th in Charleston. It was a beautiful day to walk or run with the Charleston Community for a great cause.

Pictured from Left to Right are: Marketing Director, Tracey Wilson, Member David Mincer, Jack and Jenny Sizemore, Associate Celeste Webb and Brooks Crislip.

Several members at Bailey & Wyant PLLC, and Bailey & Slotnick PLLC attended the 2023 West Virginia State University Black & Gold Gala. The event was the University's 9th Annual Gala, and held at the Charleston Coliseum and Convention Center.

Pictured from Left to Right: Charles and Peggy Bailey, Samuel and Juliet Bloom, Heather Hutchens, Ariana Velasquez, Adam Strider, Marc and Ellen Slotnick, Tracey Wilson.

The article this month focuses on the recent decision of the West Virginia Supreme Court of Appeals in the matter of State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot (Mar. 31, 2023). West Virginia University Hospitals (WVUH) was sued by the estate of an individual who passed away, alleging that two emergency room physicians were negligent and that WVUH could be held liable under a theory of ostensible agency liability. WVUH filed a motion to dismiss that was converted into a motion for summary judgment based upon West Virginia Code § 55-7B-9(g). This code section specifically provides that health care providers may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency unless the alleged agent does not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least $1 million for each occurrence. Here, WVUH argued that there was only occurrence and that a policy with $1.5 million in coverage was provided through a BRIM policy that insured the two physicians as employees of the West Virginia University Board of Governors. The Plaintiff argued that this statutory provision only applied if each physician had $1 million in coverage. Ultimately, the Circuit Court agreed with Plaintiff and denied the motion.

On interlocutory appeal, which the Supreme Court of Appeals sua sponte converted to a petition for writ of prohibition (which could be the subject of its own newsletter article), the West Virginia Supreme Court of Appeals reversed the lower court. In finding the lower court erred, the Supreme Court of Appeals found that it was improper for the lower court not reconciling its reading of West Virginia Code § 55-7B-9(g) with the BRIM statutes. Specifically, the Supreme Court of Appeals examined the language in relevant portions of the West Virginia Code and found that the defendant-physicians are insured per occurrence in an amount in excess of $1 million dollars – an amount that the Legislature has deemed adequate to cover damages resulting from a single medical injury, up to and including death. When reading the BRIM statutes in their entirety, The Court found that it is clear that the BRIM statutes dictate coverage by occurrence, not by individual defendant. Therefore, the Court held “the BRIM statutes preclude a reading of West Virginia Code § 55-7B-9(g) that requires BRIM to write separate policies in excess of $1 million dollars for these defendant-physicians. The agents have the requisite coverage by legislative design, and under the facts of this case WVUH is properly insulated from ostensible agency liability.” Thus, the Supreme Court of Appeals reversed the lower court’s decision and held that WVUH was “properly insulated from ostensible agency liability.” 

Click the link to view: DTCWV Defender Spring 2023

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.