The Health Care Defender

In Hernandez v. City Hospital, Inc. d/b/a WVU Medicine/Berkeley Medical Center, the Intermediate Court of Appeals of West Virginia (ICA) reversed summary judgment in favor of the hospital and remanded a medical professional liability case for further proceedings. The plaintiffs alleged that hospital nursing, therapy, and other non-physician staff failed to escalate a post-surgical patient’s deteriorating neurological condition through the hospital’s chain of command before discharge. They claimed that escalation would have led to additional imaging, a second opinion, further decompressive surgery, and a better neurologic outcome.

The circuit court had granted summary judgment to the hospital, finding the plaintiffs’ causation theory too speculative. The trial court focused on the plaintiffs’ chain reaction theory, namely, that if staff had escalated concerns, hospital leadership or another physician would have intervened, ordered additional studies, and pursued additional surgery. The circuit court concluded that the record lacked evidence showing what actually would have happened had escalation occurred.

The ICA disagreed. It held that the plaintiffs’ experts supplied enough causation testimony to reach a jury. One expert opined that escalation through the chain of command more likely than not would have triggered further physician evaluation. Another opined that, once evaluated, the standard of care required additional MRI imaging and decompressive surgery, which would have created a greater than 25% chance of improved recovery under West Virginia’s loss-of-chance framework. The court emphasized that the hospital had not moved to exclude the experts’ opinions and that, at the summary judgment stage, perceived weaknesses in those opinions went to weight rather than sufficiency.

For health care professionals, the decision is a cautionary reminder that summary judgment may be difficult where plaintiffs can connect institutional policies, staff escalation duties, and physician causation opinions into a coherent expert narrative. Even where the causation theory depends on multiple steps and the actions of other providers, the ICA held that those steps may be left to the jury if supported by admissible expert testimony framed in terms of reasonable medical probability. The opinion also highlights an important defense takeaway: challenges to speculative expert causation opinions should be raised directly and early through appropriate pretrial motions. The ICA expressly noted that its ruling did not prevent the hospital from later seeking to exclude portions of the plaintiffs’ expert testimony. In other words, the defense issue may have been less about the ultimate viability of the causation theory and more about the procedural posture in which it was tested.

Practically, health care providers should expect plaintiffs to use internal escalation policies, chain-of-command procedures, and advocacy language as building blocks for institutional liability theories. Defense counsel should carefully evaluate whether the plaintiff’s experts are merely assuming that escalation would have changed care or whether they have a reliable basis to opine that the applicable standard of care required each step in the alleged causal chain.

The decision does not mean every alleged failure to escalate creates jury-triable causation. It does reinforce that, in West Virginia Medical Professionals Liability Act (MPLA) cases, once plaintiffs present admissible expert testimony tying escalation failures to a probable improved outcome, courts may treat disputes about intervening decisions, competing physician testimony, and uncertainty in the causal sequence as jury questions rather than grounds for summary judgment.

At Bowles Rice, our Medical Malpractice Defense team continues to monitor developments in West Virginia medical negligence law and to advise providers on litigation strategy, risk management, and compliance with evolving legal standards. This decision highlights the importance of early case evaluation, expert-witness strategy, and careful attention to institutional policies that may become central to causation disputes. If you have questions about this decision or other developments under the MPLA, contact our Medical Malpractice Defense team for further guidance.