858 S.E.2d 221
W. Va.2021Background
- Plaintiffs (Greg and Phyllis Shrewsbury) sued multiple health-care providers and pharmacies alleging overprescribing and pharmacist negligence related to opioid prescriptions; complaint filed Sept. 12, 2018 in Wyoming County.
- West Virginia’s Medical Professional Liability Act (MPLA) requires serving a notice of claim by certified mail at least 30 days before filing and that the notice include a screening certificate of merit (or a §55-7B-6(c) statement in lieu).
- The Shrewsburys did not serve any notice of claim before filing; their first purported notice was dated Nov. 21, 2018 (post‑filing).
- After filing, counsel submitted an Affidavit invoking §55-7B-6(c) (Jan. 9, 2019) and later provided a screening certificate of merit (March 2019); notices and statements were inconsistent and untimely.
- The circuit court denied defendants’ motions to dismiss, finding compliance with the MPLA; the Supreme Court of Appeals granted a writ of prohibition, held the circuit court lacked subject‑matter jurisdiction, vacated that order, and remanded with directions to dismiss the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to serve the MPLA pre‑suit notice before filing deprives the circuit court of subject‑matter jurisdiction | Shrewsbury argued later notices, affidavits, and certificates cured any deficiency and that the court had jurisdiction | Petitioners argued pre‑suit notice is jurisdictional and post‑filing notice cannot cure lack of jurisdiction | Court: Pre‑suit notice requirement is jurisdictional; failure to serve before filing deprives court of jurisdiction and requires dismissal |
| Whether a §55‑7B‑6(c) statement in lieu of a screening certificate may be filed after the statutory deadline or after filing suit | Shrewsbury argued counsel’s post‑filing affidavit could be treated as the required §55‑7B‑6(c) statement | Petitioners argued the §55‑7B‑6(c) statement is "in lieu of" the certificate and thus must be served no later than the deadline for the certificate (i.e., prior to filing) | Court: §55‑7B‑6(c) statement must be served by the same deadline as a certificate; it cannot be asserted for the first time after the deadline or after filing |
| Whether post‑suit service of notices or certificates can cure jurisdictional defects | Shrewsbury asserted subsequent service of notices/certificates cured defects | Petitioners maintained post‑suit service cannot cure jurisdictional failure | Court: Post‑suit notice is insufficient; courts cannot suspend MPLA pre‑suit requirements to allow post‑filing notice |
| Whether the circuit court could excuse noncompliance or rely on precedent in Hinchman/Elmore to deny dismissal | Shrewsbury relied on Hinchman/Elmore for equitable relief or to excuse technical defects | Petitioners argued Hinchman/Elmore involved pre‑suit notices actually served before filing and are distinguishable | Court: Circuit court’s reliance on Hinchman/Elmore was misplaced because those cases involved timely pre‑filing notices; here no pre‑filing notice was served |
Key Cases Cited
- State ex rel. PrimeCare Medical of West Virginia, Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (W. Va. 2019) (MPLA pre‑suit notice requirements are jurisdictional; post‑suit notice cannot cure)
- State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (W. Va. 1977) (writ of prohibition issues standard)
- Davis v. Mound View Health Care, Inc., 220 W. Va. 28, 640 S.E.2d 91 (W. Va. 2006) (statutory pre‑suit provisions are clear and applied as written)
- Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (W. Va. 2005) (addressed sufficiency/defects in pre‑suit notices)
- Elmore v. Triad Hospitals, Inc., 220 W. Va. 154, 640 S.E.2d 217 (W. Va. 2006) (addressed service of pre‑suit notices)