West Virginia Lawyer Blog

The Fourth Circuit Court of Appeals recently reversed a decision by a district court in West Virginia, finding for an insurer who refused to defend an inmate against a lawsuit. Originally, the District Court of the Southern District of West Virginia had found that Ezra Lambert, an inmate at Southwestern Regional Jail, should be defended by National Union Fire Insurance Company because he met the definition of a "volunteer worker."

The incident that sparked the lawsuit took place in 2006. Lambert was working in the jail's kitchen six days a week, eight hours a day, as a cook. Betty Jean Hale, a jail employee who worked in the kitchen with Lambert, alleged that Lambert injured her while pushing a cart carrying a mixer. The mixer fell and injured Hale's foot, resulting in medical bills. Hale then filed suit in state court, naming Lambert along with the West Virginia Department of Military Affairs and Public Safety, and the West Virginia Regional Jail and Correctional Facility Authority. When National Union Fire Insurance Company -- the state's insurance company at the time -- learned that Lambert had been named a defendant, it filed a declaration stating that it had no duty to defend or provide other policy benefits to Lambert.

Both Hale and Lambert sought a court order declaring Lambert insured under state policy, which would allow Lambert to defense as well as indemnification. The district court ruled that Lambert qualified as a volunteer worker under state law, and was therefore covered by state insurance, due to Lambert's work in the kitchen without compensation. However, the Fourth Circuit ruled that Lambert could not possibly fit the definition of "volunteer worker" as defined by statute. Because Lambert was an inmate and forced to work in the jail, he could not be a volunteer. The Fourth Circuit noted that while a volunteer had the freedom to leave work if it became too onerous, when Lambert tried to protest working conditions by refusing to labor, he was put on lockdown. Lambert therefore was not entitled to be covered by the state insurer.

We at the Wolfe Law Firm think that this was probably the right decision, but an unfortunate one. Being an inmate, Lambert likely has little in the way of resources -- Hale probably knew this, which is why she sought coverage for Lambert, so that she could actually receive payment for her medical bills. Now it is unclear what will happen to either of them.

Insurance companies exist to pay out in the event of an accident or a medical issue. The point is to prevent you from going completely broke if you are responsible, or even if you're not. However, too often insurance companies are tight-fisted and refuse to pay what is owed. It often requires the work of an experienced West Virginia personal injury attorney to get insurers to agree to pay out, usually as part of a settlement. While again, the Fourth Circuit's verdict was probably correct, it was a reminder that too often, insurance companies are unwilling to help the customers they are meant to serve.

The family of a patient who died from an untreated urinary tract infection has sued the Charleston, West Virginia hospital where he sought treatment. Back in 2007, Clarence Leroy Dunnavant, who suffered from multiple sclerosis, checked into the Saint Francis Hospital with a high fever caused by a urinary tract infection. However, doctors allegedly misdiagnosed Dunnavant's urinary tract infection, resulting in Dunnavant dying in the hospital less than one day later.

Dunnavant reportedly died after a hole developed in his intestinal tract, causing air to slowly fill his abdomen. The alleged result was that Dunnavant died through slow suffocation. Now Dunnavant's family blames Saint Francis for negligent behavior. They have sued both the hospital and several of its doctors and nurses. The family's attorney argues that Dunnavant's on-call doctor never took the steps required to determine whether Dunnavant had a perforated bowel, and did not even personally examine Dunnavant until shortly before Dunnavant's death. A second doctor failed to notice that Dunnavant's X-ray showed that his abdomen was filled with air and therefore did not call for a radiologist for interpretation. Dunnavant's nurses were also accused of negligent behavior for failing to keep the on-call doctor informed of Dunnavant's symptoms and not following the doctor's instructions for his care.

The on-call doctor insists that he followed careful procedures. He claims that the symptoms relayed to him by the hospital staff throughout the evening led him to believe that Dunnavant was suffering from a less serious ailment. The on-call doctor allegedly ordered all of the treatment based on the information received. In any event, the fates of Saint Francis and its staff, the on-call doctor, and the X-ray doctor lie in the hands of a West Virginia jury.

Medical mistakes are sadly all-too-common, with more than 200,000 occurring each year nationwide. This number is higher than the number of people killed in car accidents, yet mistakes are probably still underreported. The most frequent medical mistakes tend to involve prescription drugs, surgical errors, and birth injury mistakes. Over the years, the Wolfe Law Firm has seen all of these types of cases, as well as the issue involving Dunnavant's case: misdiagnosis and poor care.

Continue reading "West Virginia Family Sues Hospital, Doctors Who Misdiagnosed a Urinary Tract Infection That Led to Patient's Death" »

The Obama administration has announced that it is expanding the FBI's definition of rape, which has been in place for eight decades. Key changes include dropping a requirement that the victim must physically resist the attacker, and expanding the definition to include male victims.

The result will be that more people would be considered rape victims in the FBI statistics, but otherwise, state and federal crime laws will not change. However, rape statistics, as part of overall crime statistics, are used to determine how much money lawmakers allocate toward prevention.

The original definition of rape was "the carnal knowledge of a female, forcibly and against her will." The revised definition states that rape is "the penetration, no matter how slight, of the vagina or anus with any body part or object," without the victim's consent of the victim. In addition, the new definition states that rape is "oral penetration by a sex organ of another person" without consent. The revised definition does not specify gender, and includes the rape of someone incapable of giving consent, either because of the influence of drugs or alcohol, or because of age. The victim no longer needs to put up resistance in order for the act to qualify as rape.

Because of the changes, the number of reported rapes will likely rise, but it is unclear exactly how much. Vice President Biden claimed that the revised definition was a victory for men and women who had suffered, but who went without justice for 80 years.

It is always helpful for a West Virginia criminal defense attorney to be aware of changes in the law -- for rape or any other crime -- when defending clients charged with crimes in this state. The new legal definition, while long overdue, will obviously pose new challenges for criminal defense attorneys. Behavior once thought to be "acceptable" would now be unacceptable, and people might find themselves charged with crimes that would not have been crimes in previous years.

Continue reading "Change in Federal Definition of Rape May Change the Way Rape Crimes Are Dealt With in West Virginia, Other States" »