“This case has followed a tortured path,” West Virginia Supreme Court Justice Moats wrote in the Court’s latest opinion to deny West Virginia University Hospitals (WVUH) and West Virginia United Health Services’ (WVUHS) third petition for writ of prohibition regarding a class action civil suit certified by Monongalia County Circuit Court Judge Phillip D. Gaujot. The opinion was filed April 26.
That tortured path began 10 years ago in 2012 when Christopher Thomack and Joseph Michael Jenkins, who were treated at J.W. Ruby Memorial Hospital for separate accidents, believed they (or their attorneys) were charged fees that were illegal in order to obtain copies of their medical records.
Thomack alleges he was charged over $514 for his medical records and Jenkins stated he paid over $655 for his. The hospital claimed they arrived at these fees by charging .40 cents per page plus an additional $10 fee for processing.
However, Thomack and Jenkins both claimed to have received their records on a computer disc containing copies of already-existing computerized medical records, even though they were charged per page.
In 2013, both individually, and as the (would be) representative of a class of similarly situated persons, Thomack and Jenkins filed separate lawsuits against WVUH and WVUHS.
The cases were consolidated and the pair filed a “consolidated amendment complaint” asserting a putative class action in January 2014. Monongalia County Circuit Court Judge Phillip D. Gaujot granted the class certification.
After the circuit court granted class certification, WVUH filed their first petition seeking a writ of prohibition in the state Supreme Court in June 2014. The petition was refused in an unpublished order.
More than two and a half years later, an opinion handed down by the state Supreme Court found a patient lacked standing to pursue a claim against a medical provider for excessive charges that were paid solely by the patient’s lawyer.
Based on that decision, WVUH filed a motion in the circuit court to decertify the class – their motion was denied.
In July 2018, Gaujot entered an order amending the class definition to include authorized agents or representatives of the patient through legal representation.
A second petition for writ of prohibition was then filed by WVUH in October 2018 asking the state Supreme Court “to prohibit [the circuit court judge] from conducting any further proceedings until he has vacated his order denying their motion to decertify the class.”
WVUH argued that the class was improperly certified because the features of commonality and ascertainability, required by Rule 23 of the West Virginia Rules of Civil Procedure, were absent, and the class included people who lacked standing.
Addressing only the commonality aspect, a Supreme Court opinion filed June 2019, “granted the writ of prohibition as moulded, and vacated the circuit court’s order denying WVUH motion to decertify the class.”
After the 2019 opinion, additional discovery was found by the class representatives, and the circuit court subsequently found evidence of commonality. Once again, WVUH filed a renewed motion to decertify the class – which the circuit court denied, but redefined the class once again regarding the inclusion of certain lawyers.
For the third time, WVUH petitioned the West Virginia Supreme Court for an extraordinary writ of prohibition in relation to the class action litigation.
According to the Court opinion filed April 26, 2022, WVUH argued that the circuit court failed to follow the express mandate of the Supreme Court.
Specifically, the hospitals claim the circuit court failed to conduct a thorough analysis of the commonality, ascertainability, and predominance factors required under Rule 23 of civil procedure.
Additionally, they contend the circuit court failed to give consideration to ethical issues pertaining to the inclusion of lawyers.
Justice Moats wrote in the opinion that a writ of prohibition is an extraordinary remedy and the Court does not grant such relief lightly.
The Court found no grounds warranting the writ based on the inclusion of attorney’s in the circuit court’s definition of class members. Moats wrote that further tweaks of the definition should be “accomplished in circuit court” and not by repeated petitions encouraging the Supreme Court to “micromanage litigation.”
The Justice went on to say the Court found “no inadequacy in the circuit court’s findings of commonality and ascertainability” and further concluded that the circuit court was “under no obligation to revisit its predominance analysis or the class definition under the Court’s prior mandate [from 2019].”
The Court denied the requested writ of prohibition.
On Friday, Justice Armstead, who delivered the Court’s 2019 majority opinion on the issue, filed a separate opinion concurring, in part, and dissenting, in part, to the majority’s opinion.
Armstead agreed with the majority opinion’s refusal to grant relief on the ethical issues raised by including attorney’s in the class.
However, the Justice stated they believed the circuit court “has yet to conduct a sufficiently thorough analysis of commonality or ascertainability under Rule 23(a) or of predominance for purposes of Rule 23(b) pursuant to the West Virginia Rules of Civil Procedure.
“I respectfully dissent from those portions of the majority opinion that find no error on these issues, and I would grant the writ of prohibition,” Armstead wrote.
