WVSCA Holds County Commissions Owning Public Hospitals are not "Employers" under WV Human Rights Act or Whistle-Blower Law, nor "Health Care Entities" under the Patient Safety Act
March 24, 2021
By: Wendy G. Adkins, Justin M. Harrison, and Curtiss R. Boggs
The Supreme Court of Appeals of West Virginia, in a decision important to healthcare employers, recently held that county commissions that own public hospitals are not “employers” under the West Virginia Human Rights Act or Whistle-Blower Law, nor are they “health care entities” for purposes of the Patient Safety Act.
In State of West Virginia Ex Rel. Grant County Commission v. Lynn Nelson et al., Plaintiff was a former chief nursing officer at a county-owned hospital. She claimed unlawful termination based on discrimination/retaliation under the Whistle-Blower Law, the West Virginia Human Rights Act, and the Patient Safety Act. At the circuit court, the Grant County Commission (“the Commission”) argued that it was not an employer under the Whistle-Blower Law, Human Rights Act, and not a “health care entity” under the Patient Safety Act. The Commission’s arguments were rejected by the circuit court, which prompted a writ of prohibition to the Supreme Court of Appeals of West Virginia.
On appeal, the Supreme Court of Appeals placed emphasis on the fact that county commissions are authorized by W. Va. Code § 7-3-14 “to acquire by purchase or construction and to thereafter own…” public hospitals. It further noted that, administration and management of said hospital, including employment decisions, is vested with the board of trustees under W. Va. Code § 7-3-15 which states that the “board of trustees shall provide for the employment of and shall fix the compensation for and remove at pleasure all professional, technical and other employees, skilled or unskilled, as it may deem necessary for the operation and maintenance of the hospital, clinic…”
Based on its interpretation of the express language in § 7-3-15 and § 7-3-14, the Court concluded that it was “clear that the administration and management of a county public hospital is vested with a hospital board of trustees, not a county commission.” Therefore, the Court held, where a county commission owns a public hospital pursuant to § 7-3-14, it will not be deemed an employer for purposes of discrimination/retaliation suits under the Whistle-Blower Act or the West Virginia Human Rights Act.
Plaintiff also claimed retaliation under the Patient Safety Act, which authorizes civil suits against “health care entities.” Under the Patient Safety Act, a “health care entity” is defined as “a health care facility, such as a hospital, clinic, nursing facility, or other provider of health care services.” W. Va. Code § 16-39-3(6) (eff. 2001). The Court held that county commissions that own hospitals pursuant to § 7-3-14 are not “health care entities” by virtue of ownership so long as they “do[] not otherwise provide health care services.” Thus, the Commission was held to be an improper defendant for a retaliation claim brought under the Patient Safety Act as well.
In short, County Commissions that own public hospitals are not “employers” under the West Virginia Human Rights Act or Whistle-Blower Law, nor are they “health care entities” for purposes of the Patient Safety Act.