In November of 2023, the Intermediate Court of Appeals of West Virginia (“ICA”) found that urine collection during a random, employer-mandated drug screening was not “health care” under the West Virginia Medical Professional Liability Act (“MPLA”). The ICA’s decision, albeit limited by the facts of the case, represents a slight departure in the trend of West Virginia courts broadly defining “health care” under the MPLA. It remains to be seen whether the nuances of this analysis will affect other healthcare providers facing the prospect of litigation for activities arguably on the periphery of direct patient care.
In Atkinson v. NCI Nursing Corps. and MedTox Laboratories, Inc., No. 22-ICA-233, Nov. 15, 2023, Plaintiff Atkinson, a coal mine belt supervisor, was randomly selected to submit to a drug and alcohol screening, which was administered by NCI Nursing Corps. (“NCI”). Analysis of Plaintiff’s urine sample showed the presence of marijuana (THC) metabolite. Upon receipt of the test results, Plaintiff’s employer suspended him without pay and eventually terminated his employment. Plaintiff Atkinson denied ingesting any illegal drugs and voluntarily submitted to two subsequent hair follicle tests, each of which returned negative results for all tested drugs, including marijuana.
Plaintiff sued defendants, making claims for professional negligence, negligence, and statutory violations. NCI moved to dismiss Plaintiff’s complaint, arguing that his claims related to and stemming from the urine collection fell under the MPLA and were therefore subject to the pre-suit notice requirements of West Virginia Code § 55-7B-6. The trial court granted NCI’s motion to dismiss because, as it reasoned, the MPLA applied to Plaintiff’s claims, and he failed to comply with its pre-suit notice requirements. In so concluding, the trial court found that NCI was a “health care provider” under the MPLA and the services it rendered to Plaintiff during the urine sample collection qualified as “health care” under the same.
Plaintiff Atkinson appealed the trial court’s decision to the ICA. On appeal, the ICA analyzed whether NCI’s actions and services were “health care” under the MPLA, thereby triggering its application to Plaintiff’s claims and subjecting them to the Act’s pre-suit requirements. To make this determination, the ICA examined the applicable statutory definitions in the MPLA. The ICA’s analysis, it explained, turned on whether NCI provided “health care,” as that term is defined in the MPLA, when it collected the urine sample for a drug screen. As the ICA aptly stated, “[w]here the alleged offensive action was committed within the context of rendering ‘health care,’ the statute applies.” And, “[w]here the action is made outside the realm of the provision of ‘health care,’ the statute does not apply.”
The ICA concluded that NCI’s urine collection efforts were not “health care.” The ICA explained that the drug screen was not done in furtherance of a physician or healthcare facility’s plan of care and that the collection of the urine sample and subsequent urinalysis was not done pursuant to or in furtherance of a medical diagnosis. Further, the ICA stated that no physician gave Plaintiff serious attention, and that no medical care was provided to Plaintiff by anyone at NCI. In particular, the ICA emphasized that “NCI simply acted as an agent assisting the collection of the urine sample, preservation of the sample, and transport of that sample to the appropriate housing laboratory for testing.” Thus, the ICA ultimately found that “in submitting to a urinalysis, not ordered by any physician for diagnosis and/or treatment, and not performed at a health care facility, Mr. Atkinson did not receive ‘health care’ from NCI[,]” and “the application of the MPLA was not triggered.” Accordingly, the ICA reversed the trial court’s decision and remanded the case for Plaintiff to proceed with its case against defendants.
This is a significant development in the West Virginia Courts’ analysis as to what claims fall within the framework of the MPLA and the important protections it provides to healthcare providers. With that in mind, if you need assistance with navigating the MPLA, you should know that Bowles Rice LLP maintains experienced Health Care and Litigation practice groups that can assist with your needs.