CHARLESTON, W.Va. — The West Virginia Supreme Court ruled that the parents of a five-week-old infant can sue Summers County for what they say was bad advice from a 911 dispatcher who advised the parents to drive the infant to a hospital instead of waiting for an ambulance to arrive.

According to Legal Newsline, a critical factor in the Court’s ruling was information recovered after filing a Freedom of Information Act request for the 911 tapes, where it was discovered the 911 operator told the ambulance driver not to go to the baby’s home because the parents were on their way to the hospital.

It is reported the court ruled that the delayed discovery of a possible reason for the baby’s death triggered the two-year statute of limitations under the state’s wrongful death statute.

In September 2019, Barbara Stine Trivett found her baby unresponsive at home and called 911 and was connected to dispatcher Carmen Cales. According to documents, Cales attempted twice to reach the Summers County Emergency Medical Services.

While on the phone, Trivett asked for advice on giving her baby CPR, but Cales allegedly refused, stating, “We don’t give directions” on CPR.

Legal Newsline says that Trivett asked if she should drive her baby to the hospital, and Cales said yes. Trivett attempted CPR while her husband drove, but due to oxygen deprivation, the baby died on September 17, 2019.

Trivett’s lawyer filed a FOIA request and received the tapes on October 14. It was then discovered that seconds after Cales told the Trivetts to drive to the hospital, she got through to EMS but told the ambulance driver “not to bother going to their house.”

According to Legal Newsline, Trivett filed a wrongful death notice against Summer County on September 10, 2021, followed by a lawsuit against the county and Cales on October 12, 2021, only to have them dismissed by a Summers County Judge. The Judge ruled that the lawsuit was filed after the two-year statute of limitations under the state Tort Claims Act had expired.

A trial court denied the motion that a minority tolling provision in the act applied, allowing minors to sue until their 12th birthday. The court’s decision was based on the fact that “Jasper regrettably will not have a 12th birthday.” Also rejected were arguments that the two-year statute of limitations began when Trivett received the audiotape of the 911 call.

Legal Newsline reports that after Trivett appealed, the West Virginia Supreme Court reversed the dismissal of her case, but for a different reason. The WVSC had to decide among three different statutes of limitations: the minority tolling provision of the Tort Claims Act, another limit under the Medical Professional Liability Act, or the two-year limit in the wrongful death statute.

It was found that the minority tolling provision would not work because of the law’s wording. A dead child cannot sue. The court said it would have to rewrite the law from “prior to the minor’s twelfth birthday’ to ‘prior to what would have been the minor’s twelfth birthday.”

Legal Newsline says that the court rejected the Medical Liability Act since 911 dispatchers couldn’t be considered medical professionals.

The court concluded that the wrongful death statute did apply, stating that the limitations on that law began to run after the plaintiff learned that the dispatch had failed to send an ambulance to her house. They said that at the time of Jasper’s death, the plaintiffs could not possibly have known the respondents had anything to do with it.

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