Miller v. Am. Red Cross

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 1 of 9(cid:10)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JAMES MILLER,
Plaintiff,

v.
THE AMERICAN NATIONAL RED CROSS,
an organization chartered by Act
of Congress and
WEST VIRGINIA UNIVERSITY HOSPITALS,
INC., a West Virginia corporation,
Defendants.

Civil Action No. 1:05CV71
(STAMP)

MEMORANDUM OPINION AND ORDER
GRANTING WITHOUT PREJUDICE DEFENDANT
WEST VIRGINIA UNIVERSITY HOSPITALS, INC.’S
MOTION TO DISMISS
I. Procedural History
On March 18, 2005, the plaintiff, James Miller (“Miller”),
filed a complaint in the Circuit Court of Mongolia County, West
Virginia alleging that the defendant, West Virginia University
Hospitals, Inc. (“WVUH”), negligently provided blood tainted with
malaria during a blood transfusion at Ruby Memorial Hospital in
Morgantown, West Virginia. On April 19, 2005, WVUH removed the
action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
On November 16, 2005, this Court held a status and scheduling
conference. As agreed upon by the parties in the conference, this
Court dismissed without prejudice WVUH’s motion to dismiss that was
filed in state court and entered a briefing schedule for WVUH to
file a motion to dismiss if it deemed appropriate. WVUH filed a

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 2 of 9(cid:10)

motion to dismiss, on November 18, 2005, pursuant to Federal Rule
of Civil Procedure 21(b)(6). The plaintiff responded and WVUH
replied. WVUH’s motion is fully briefed and ripe for review.
For the reasons state below, this Court finds that defendant
WVUH’s motion to dismiss should be granted without prejudice.
II. Facts
WVUH is a health care facility pursuant to the laws of West
Virginia engaged in the business of providing health care and
medical services to the public. (Compl. ¶ 3.)
On or about March 24, 2003, the plaintiff had a blood
transfusion while undergoing a lung biopsy at WVUH. The blood used
in the transfusion was collected, screened and/or provided to WVUH
by The American National Red Cross (“Red Cross”). On or about
January 22, 2004, the plaintiff was contacted by the Red Cross and
informed, for the first time, that the blood he was given in his
transfusion was tainted with malaria. The plaintiff argues that
defendant WVUH breached its duty to properly collect, screen and/or
prepare the blood provided to patients at Ruby Memorial Hospital.
Plaintiff also argues that WVUH was negligent with respect to its
policies and procedures utilized in order to ensure that the blood
provided to the plaintiff during the blood transfusion was not
tainted with malaria or other diseases or defects.
Plaintiff seeks compensatory damages, including damages for
emotional and physical pain, humiliation, embarrassment,

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 3 of 9(cid:10)

degradation, emotional distress, mental anguish, fear, shock,
horror, annoyance, inconvenience and the loss of ability to enjoy
life, punitive damages, with pre-judgment and post-judgment
interest, and attorney’s fees.
III. Applicable Law
Defendant WVUH moves this Court to dismiss this case pursuant
to Federal Rule of Civil Procedure 12(b)(6). In assessing a motion
to dismiss for failure to state a claim under this Rule, a court
must accept the factual allegations contained in the complaint as
true. Advanced Health Care Servs., Inc. v. Radford Community
Hosp., 910 F.2d 139, 143 (4th Cir. 1990). Dismissal is appropriate
pursuant to Rule 12(b)(6) only if “‘it appears to be a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proven in support of its claim.’” Id. at
143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d
324, 325 (4th Cir. 1989).
Stated another way, it has often been said that the purpose of
a motion under Rule 12(b)(6) is to test the formal sufficiency of
the statement of the claim for relief; it is not a procedure for
resolving a contest about the facts or the merits of the case. 5A
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1356, at 294 (2d ed. 1990). The Rule 12(b)(6) motion
also must be distinguished from a motion for summary judgment under

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 4 of 9(cid:10)

Federal Rule of Civil Procedure 56, which goes to the merits of the
claim and is designed to test whether there is a genuine issue of
material fact. Id. § 1356, at 298. For purposes of the motion to
dismiss, the complaint is construed in the light most favorable to
the party making the claim and essentially the court’s inquiry is
directed to whether the allegations constitute a statement of a
claim under Federal Rule of Civil Procedure 8(a). Id. § 1357, at
304, 310.
Finally, “[a] district court’s dismissal under Rule 12(b)(6)
is, of course, with prejudice unless it specifically orders
dismissal without prejudice. That determination is within the
district court’s discretion.” Carter v. Norfolk Community Hosp.
Ass’n, 761 F.2d 970, 974 (4th Cir. 1985).
IV. Discussion
Defendant WVUH argues that this Court should dismiss the
complaint because the plaintiff has stated a cause of action for
medical professional liability but has failed to follow the
requirements set forth in the West Virginia Medical Professional
Liability Act, West Virginia Code § 55-7B-6 for bringing such a
claim.
In response, the plaintiff argues that the allegations in his
complaint do not fall within the scope of the West Virginia Medical
Professional Liability Act, W. Va. Code § 55-7B-6, et seq.

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 5 of 9(cid:10)

In reply, defendant WVUH argues that the plaintiff was a
patient at West Virginia University Hospitals, Inc. and received an
allegedly tainted blood as part of a blood transfusion given to
him, and thus, is covered under the West Virginia Medical
Professional Liability Act.
West Virginia Medical Professional Liability Act
A.
According to the West Virginia Medical Professional Liability
Act, West Virginia Code § 55-7b-2(d), et seq, medical professional
liability is defined as “any liability for damages resulting from
the death or injury of a person for any tort or breach of contract
based on health care services rendered . . . by a health care
provider or health care facility to a patient.”
1.
Public Policy
In his complaint, plaintiff alleges the tort of negligence
against WVUH for improper screening policies and handling of blood
provided to the plaintiff while he undergoing a blood transfusion
as a patient at WVUH. The plaintiff argues that his alleged injury
is not a tort of negligence based on health care services rendered
during a blood transfusion. Plaintiff asserts that he does not
maintain that the blood transfusion was performed negligently.
This Court finds that the plaintiff is claiming that the
collecting, screening and/or preparation of blood provided during
the blood transfusion to the plaintiff was performed negligently.
While the plaintiff is not arguing that the actual blood

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 6 of 9(cid:10)

transfusion was negligently performed, he is arguing that the
procedure for screening the blood that was provided as part of a
health care service rendered to a patient was negligently screened,
collected and/or prepared. Further, the plaintiff states that the
defendant WVUH owes a duty not only to him but to “others similarly
situated . . .” (Pl.’s Resp. at 5.)
The public policy of the Medical Professional Liability Act
states that, “as in every human endeavor the possibility of injury
or death from negligent conduct commands that protection of the
public served by health care providers be recognized as an
important state interest.” W. Va. Code § 55-7B-1. It is an
important state interest to properly collect, screen and/or prepare
blood that is used at a health care facility. Accordingly,
plaintiff’s complaint falls within the public policy interests of
the West Virginia Professional Liability Act.
2.
Ordinary Negligence
Plaintiff argues that his claim is one of ordinary negligence
because it regards the “duties of a hospital with respect to the
handling of blood and blood related products.” (Pl.’s Resp. at 4.)
Plaintiff states that the court in Gray v. Mena, West Virginia
Supreme Court of Appeals Opinion No. 32507 (2005), found that there
are many causes of action that do not amount to medical
malpractice, such as fraud, spoilation of evidence, negligent
hiring, battery, larceny or libel. Further, plaintiff argues that

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 7 of 9(cid:10)

this civil action is similar to the action in Doe v. American
National Red Cross, 848 F. Supp. 1228 (1994), which related to the
human immunodeficiency virus (“HIV”) and the duties that the Red
Cross and the hospital have in providing blood to patients.
On the other hand, defendant WVUH argues that Doe is not
applicable because it applies to injuries that occurred before June
6, 1986. Plaintiff does note in his response that the analysis in
Doe was related to the law prior to the enactment of the West
Virginia Medical Professional Liability Act. Id. The plaintiff
asserts that this does not affect its reasoning and the medical
malpractice claim in this civil action should be treated the same
as the claim in Doe. Defendant WVUH argues that the court in Doe
acknowledged that the “clear and growing consensus of jurisdictions
. . . view the production and safeguarding of the nation’s blood
supply as a professional activity entitled to a professional
standard of care.” Doe, 848 F. Supp. at 1231. Accordingly,
defendant WVUH argues that the hospital is required to provide a
special standard of care, which has been codified in the West
Virginia Medical Professional Liability Act. Thus, defendant WVUH
asserts that the West Virginia Medical Professional Liability Act
reflects the standard set forth in Doe. Id.
This Court finds that the plaintiff’s analysis of Doe is not
applicable to this civil action because: (1) the Doe case applies
to injuries that occurred before June 6, 1986 and (2) since Doe,

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 8 of 9(cid:10)

the legislature has enacted the West Virginia Medical Professional
Liability Act, which clearly covers the plaintiff’s claim in this
civil action. Id. This Court also finds that this case is not a
claim of ordinary negligence, such as fraud, spoilation of
evidence, negligent hiring, battery, larceny or libel. See Gray,
West Virginia Supreme Court of Appeals Opinion No. 32507.
Accordingly, plaintiff’s complaint falls within the parameters
of the Medical Professional Liability Act.
B.
Requirements for a Medical Professional Liability Action
Pursuant to West Virginia Code § 55-7B-6(a), a claimant must
follow the prerequisites for filing an action against a health care
provider. “At least thirty days prior to the filing of a medical
professional liability action against a health care provider, the
claimant shall serve . . . a notice of claim on each health care
provider the claimant will join in litigation.” W. Va. Code
§ 55-7B-6(b). The notice shall include the theory or theories of
liability, a list of all health care providers and facilities who
will be receiving a claim and a screening certificate of merit
executed by a qualified expert health care provider. Id. If the
plaintiff believes that no screening certificate is necessary, then
he or she must provide a statement setting forth the alleged legal
theory that does not require supporting expert testimony. W. Va.
Code § 55-7B-6(c).

Case 1:05-cv-00071-FPS-JES Document 51 Filed 02/28/2006 Page 9 of 9(cid:10)

In this civil action, the plaintiff has not followed the
required procedures for filing an action against a health care
provider under the Medical Professional Liability Act. The
plaintiff has brought a claim alleging the tort of negligence but
has not provided a screening certificate or, in lieu of the
screening certificate, filed a statement regarding the reason why
none is required. See W. Va. Code § 55-7B-6(b)(c). Thus, this
case must be dismissed without prejudice and the plaintiff can
bring his claim according to the above-stated requirements.
V. Conclusion
For the reasons stated herein, the defendant West Virginia
University Hospital, Inc.’s motion to dismiss plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) is hereby
GRANTED WITHOUT PREJUDICE.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
February 28, 2006

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE