Woodrum v. Johnson,
No. 28857 (W. Va. Dec. 12, 2001)

Addressing an issue of first impression, the West Virginia Supreme Court recently held that a malpractice plaintiff's release of the primarily liable physician tort-feasor did not necessarily release the other parties who had been named as additional defendants in the case (such as the hospital) that may be found to be derivatively or vicariously liable based upon their relationship with the named physician. This is true even where the physician was not a hospital employee, the only negligence alleged was that of the physician, and there was no allegation of negligence against the hospital.

After an extensive review of case law, and taking note of the fact that other jurisdictions are currently split on this issue, the court noted in dicta that permitting malpractice plaintiffs to enter into partial settlements with primarily liable parties, without requiring them to give up their right to pursue further action against parties whose liability may be vicarious or derivative, encourages settlement in those instances where countervailing claims for indemnity are unlikely, and permits a negligent agent or employee who is without substantial financial resources to buy his or her peace.

The court held that the malpractice plaintiff's voluntary settlement with and release of the primarily liable physician did not operate to release the hospital which the patient had also sued based upon its relationship with the physician. When parties sign an agreement releasing one defendant, with the clearly expressed expectation that they will be able to proceed against others, that expectation should be given effect by the courts.