by David M. Reutter

In June 8, 2023, the Supreme Court of Appeals of West Virginia held that the Medical Professional Liability Act (MPLA), W. Va. Code §§ 55-7B-1 to 12, does not apply to the state Division of Corrections and Rehabilitation (DCR).

Before the court was a motion by DCR to dismiss a wrongful death lawsuit filed by the estate of state prisoner Deanna R. McDonald. That complaint, filed in Circuit Court for Cabell County, named DCR and its employees, as well as healthcare contractors PrimeCare Medical of West Virginia and PSIMed.

McDonald was diagnosed as suicidal and suffering from seizures upon intake as a pretrial detainee on August 20, 2017. She also exhibited fevers and vomiting, plus she admitted abusing opiates. McDonald disclosed that she had recent psychiatric issues and treatment. She was placed on “special management” status in a holding cell under full suicide watch and “detox” precautions “until cleared by a psychologist or psychiatrist.”

But follow up care or evaluation was never provided, not even a psychological or psychiatric referral. Wellness checks also were not conducted on McDonald after she was placed in a holding cell at 2:07 a.m. A fellow detainee, Heather Adkins, heard McDonald making “weird bull noises” that night. Another detainee, Markayla Stowers, later told state police investigators that McDonald aspirated. When a guard and LPN Kristin Turner entered the holding cell at 9:50 a.m. on August 21, 2017, they found McDonald face-down “in a pile of suicide smocks,” with no pulse or respiration, and she was cold to the touch.

In response to the estate’s amended complaint, DCR moved for dismissal on the grounds that claims under MPLA could not be brought against DCR since it was not a health care provider under the statute. The circuit court denied the motion, and DCR filed the writ of prohibition with the Supreme Court of Appeals.

That Court found no dispute that under the MPLA “claims for medical professional liability can only be asserted against health care providers.” MPLA was passed by the Legislature “in an effort to remedy what it perceived as a crisis in mounting lawsuits against health care providers and health care facilities that led to difficulty in procuring reasonable liability insurance for the medical community,” the Court wrote.

“DCR is not listed as a health care provider or health care facility under the MLPA nor does it fall within the ambit of any individuals or groups identified by the MPLA as health care providers or health care facilities,” the Court wrote. “[T]he MPLA is concerned with those who provide health care. It is important to recognize that DCR does not provide health care itself, but only provides access to health care through its contract with PrimeCare.”

Finding no support in the “MPLA’s plain language nor its avowed purpose to conclude “that DCR is a health care provider or health care facility,” the Court held that MPLA does not apply to DCR. It therefore denied the writ of prohibition. The estate was also allowed to proceed on its Fourteenth Amendment deliberate indifference claim. See: State ex rel. W. Va. Div. of Corr. & Rehab. v. Ferguson, 889 S.E.2d 44 (W. Va. 2023).  

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