*1 DAVIS, Administratrix of L. Sarina Weston, K. de
Estate Elizabeth Below, Appellant, Plaintiff
ceased CARE, INC., HEALTH
MOUND VIEW Below, Appellee.
Defendant
No. Appeals
Supreme Oct.
Submitted: 9, 2006.
Decided: Nov.
29 Jr., Humey, Thomas J. Gretchen Cal-M. las, PLLC, Kelly, Charleston, Jackson for Virginia Amicus Curiae West Mutual Insur- Company. ance BENJAMIN, Justice. challenging
In constitutionality the pre-suit provisions notice of claim in forth Virginia (2003),1 Ap- West Code pellant, Davis, Sarina L. asks this Court reverse the November order entered by County the Circuit Court of Marshаll which medical ac- dismissed her Kasserman, Ronald Wm. Kasserman & tion for failure to with man- Bowman, PLLC, Wheeling, Appellant. for light dates. longstanding of this Court’s Bailey, Martin, R. policy Charles P. addressing constitutionality Robert Jason of not the Winnell, PLLC, Bailey Wyant, Ap- A. & of necessary statutes unless for the determi- pellee. cаse,2 nation of the we decline to address Virginia ceeding. Nothing may The Medical in Liabili this subsection Professional Act, 55-7B-1, seq., et application contains construed to limit the of of rule 15 statutory prerequisites certain procedure. a medi the of civil rules code, (c) professional liability рrereq Notwithstanding cal action. Certain any provision of this relating providing counsel, a uisites notice of if a claimant or her or his believes claim to defendants are in contained subsections screening that no certificate of merit is neces- (a) (d) (2003), of W. Va.Code 55-7B-6 sary which because thе of — cause action is based state: legal theory liability a well-established of require expert testimony sup- which does not Notwithstanding any other of this porting applicable code, a the breach of standard of person may profession- no file a medical care, counsel, thе or claimant his or her any shall against pro- al action health care setting specifically file a statement forth vider with of alleged liability basis of the care of the health section. this provider (b) screening a thirty days lieu of certificate of prior At least to the of a professional liability merit. a (d) If a or has provider, claimant his or her counsel health care claimant shall serve mail, screening by insufficient time obtain a requested, certified certifi- return prior expiration cate provider of claim of merit to the notice on each health care limitations, litigation. applicable join the claimant will The statute the claimant theory claim shall shall include a statement of the of subsection (b) liability upon except or theories of which a cause of of this section that the claimant based, may a list of all his or her care health counsel shаll furnish the health providers provider provide care and health care facilities of intent with statement sent, being together screening sixty whom notices of claim are certificate of merit within screening days provider of merit. health re- certificate The of the date the care scrеening certificate of merit shall be ceives the notice claim. executed provider qualified under oath a health care expert Virginia necessary anas under the West 2. "When it in the rules of is not decision (1) particularity: question, evidence and case shall state to determine a сonstitutional expert's familiarity applicable ques The Court will not or determine such consider issue; (2) expert’s qual- Against standard of care in tion." In re Tax Assessments ifications; (3) opinion Corp., expert's as to how Pocahontas Land 158 W.Va. 210 breached; also, applicable Cogar standard оf See v. Sommer ville, expert’s opinion as to how the 180 W.Va. 379 S.E.2d 767 (1989) (same); Griffith, applicable breach standard of care re- (1981) ("It injury separate screening A sulted or death. a well provided principle generally pass certificate of merit must be for each settled that courts do not constitutionality provider against challenged health care whom a on the claim is statutes signing necessary person screening question The asserted. unless that to the decision case.”); Napple, no shall have financial in- Kolvek claim, (1975) ("Courts underlying partici- will terest but any judicial constitutionality pate expert pro- pass as an on the of a statute witness challenge herein. serve a
Appellant’s constitutional
applicable
accompanied
and law
the facts
Having reviewed
thirty days
Mound View at least
we conclude
circuit
to this
prior
filing her March
action was not im-
сourt’s
*3
55-7B-6(b).
required by
as
It
Appellant’s
failure to com-
proper in view
unambiguous
undisputed
Appellant did
statutory
is also
that
ply
clear and
together
claim
with a
malpractice
serve a notice of
state-
applicable medical
ac-
terms
invoking
ment
Appellant.
kind
filed
We
tions
(c)
a
savings
indicating
that
conclude that our
W.
further
(2001),3
required to
permits
certificate of merit was not
estab-
Appel-
§ 55-2-18
Va.Code
invoking
provisions of
compliance
her
lish
W.
lant to re-file
(d)
to obtain an addition-
mandates of W. Va.Code
55-7B-6 Va.Code
(2003). Thus,
sixty day
period
al
a
time
in which
furnish
we affirm the circuit court’s
3, 2005,
order,
Mound
screening certificate merit to
View.
November
Likewise,
undisputed
Appellant
Appellant
properly
it is
re-file her
leave
attempt
complaint upon
to serve her
claim.
time
Mound
at the
it
filed.
View
was
I.
2005,
17,
original
On
Appellant’s
June
counsel
matter
to current
transferred this
AND PROCEDURAL
FACTUAL
original
discontinuing
counsel as
counsel was
HISTORY
15, 2005,
July
practice.
her
On
current
law
Appel
arises from the death of
This action
complaint adding
counsel filed an
a
amended
year
grandmother,
eighty-three
old
lant’s
original
declaratory judgment
to the
count
2005,
21,
K. Weston. On March
Elizabeth
complaint seeking
expеrt
a declaration that
initiated
current
mal
Appellant
testimony
necessary
was not
to establish the
practice
complaint
a
appropriate
Appellant
standard of care.
(hereinafter
Mound View Health Care
immediately
copy of
thereafter
a
served
View”),
nursing
a
“Mound
home/continuous
original complaint and the amended com-
facility,
Circuit Court of
Marshall
letter,
plaint
together
View
with a
on Mound
23, 2003,
County,
On March
West
14, 2005,
July
indicating
dated
that a screen-
Weston was transferred from Mound
Ms.
ing
provided
would
Reynolds
Hospital
Memorial
View to
where
sixty days
receipt
within
after
of the letter.6
surgery for a
she underwent
fractured fe
later, by
July
One
letter
week
dated
day.4
mur. She died
same
Prior to her
Appellant
requested copies of Ms.
first
Wes-
death,
a
Ms. Weston had been
bed-ridden
ton’s medical records from Mound View.
patient at Mound View where she had resid
12,1999.5
October
ed since
On August
Appellant’s March
al- notice
bona fide
from Mound
defense
View,
femur,
that Ms.
fractured
leges
Weston’s
invoked Rule 34
resulting
Virginia
a
surgery and
death were
result of
Rules
Civil Procedure
served,
Mail,
negligence.
undisputed
request
It is
Mound View’s
via United States
a
necessary
post]
absolutely
open
it is
for the determi-
tus
reduction” with a "fractured fe-
unless
case").
significant contributing
nation of
mur”
condition.
(2001), provides,
per-
3. W.
Va.Code 55-2-18
5.
It
before
unclear from limited record
part:
tinent
Court whether Ms. Weston was bed-ridden
period
year
For a
one
from
date of
year stay
throughout her three and one-half
at
dismissing
reversing
an order
an action or
View.
Mound
party may
judgment,
re-file
action if the
(i)
pleading
timely filed
initial
6.
before
There is no indication on the record
any
action was
rea-
attempt
notify
any
Mound View of
not based
the merits of the
actionf.]
son
prior
the instant claim was made
to service of
deаth
the cause
Her
certificate listed
of death
Complaint
July
Amended
respiratory
hypotension
as "acute
embolism, s/p
pulmonary
[sta-
acute
aedema/fal
“
production
‘Appellate
of Weston’s medical
sites.
Ms.
records
review of
circuit court’s
granting
Mound View.
counsel re-
order
a motion
com-
to dismiss a
copies
plaint
of Ms.
Syllabus
ceived
Weston’s medical rec-
is de novo.’
Point
ex
ords, totaling
pages, from
Runyan
Mound View rel.
v. Scott
McGraw
Pontiac-
Buick,
(1995).”
September
on
2005.7
194 W.Va.
STANDARD OF REVIEW legislative interpreted by not intent will This presеnted given matter is the courts but full will force and effect.”); upon appeal Court of the circuit Kennedy, court’s No DeVane 205 W.Va. (1999) (“Where granting vember order Mound language statutory View’s motion to dismiss fail plain, is its statutory requi- ure to adhere pre-filing applied terms should be as written and not place Aрpel- Court copies This does not credence in Civil Procedure to obtain of the medical argument lant’s View Mound somehow and records she received the same within the prevented complying statutory her from production time frame for forth within those requirements by delaying of merit certificаte Rules. production of the medical records. The record clearly Appel- before lant indicates that acknowledges 8. Mound View’s motion that a requested copies Ms. of Weston’s med- first statutorily is ical records from Mound View months four af- required to be filed with a notice of claim all filing original complaint ter her and after such, Moreover, instances. As the motion focused complaint. immediately an amended receiving failure serve Mound View's notice of claim. notice bona fide our invoked Rules defense. construed.”). Zakaib, The rel. Kaufman omitted). (b) (2000) (citations (a) unambig are clear and and above, as uous, applied written. and thus should be As circuit court did noted (a) provides that “no specify W. Va.Code in its November order wheth- professional liabili person file a medical it to be with or er intended provider any health prejudice. Our Rules Civil Proce- without [of actiоn is provide dure that where civil § 55- dismissed, 55-7B-6].” voluntarily the dismissal is with- 7B-6(b) part, clearly provides, pertinent prejudice specified out unless otherwise days prior to thirty least “[a]t R. P. the dismissal order. W. Va. Civ. professional of a medical 41(a)(2). pro- specifically The Rules do not provider, the claimant against а health care presumption an action is vide such where mail, return shall serve certified a defendant’s Reading requested, sub claim[.]” a notice plaintiffs for a motion (b) para materia sections pre-filing requirements. mandatory acknowledging the nature specification The a dismissal is whether “shall,” court that the circuit term we find significant. prejudice with or without applying the terms not err prejudice, our Where a dismissal without *5 dismissing Appellant’s as written and statute statute, 55-2-18, § may savings W. Va.Code comply the notice of for failure to with suit permit re-filing be to of a medical utilized the in W. provision claim cоntained Va.Code malpractice for action dismissed Arneault, (b). See, § Arneault 55-7B-6 comply failure to with the mandates of W. (Oct. 2006) W.Va. 639 S.E.2d § Va.Code 55-7B-6 because such dismissal statutoiy mandatory (noting connotation be on the merits. would not a dismissal “shall”). term light pronouncement In our However, dismissing Appellant’s § Hinchmаn that W. Va.Code 55-7B-6’s action, to consider this the circuit court failed pre-suit notice of claim and certificate of pre pronouncement that the Court’s recent provisions merit are to not intended restrict suit notice of claim and certificate of courts, deny to or a citizen’s аccess our we § are “not of Va.Code W. malpractice now hold that where a medical deny to citizens’ access intended restrict or action is dismissed failure to Syl. 2, in part, Pt. Hinchman the courts.” pre-suit the claim Gillette, 55-7B-6(b) forth in the W. Va.Code and (2005). prin that a We noted Hinchman specify order does the dismissal dismissal determining cipal a court in consideration for prejudice, to be the deemed sufficiency the of a notice “should whether case, prejudice. In such a the without party challenging defending suffi the malpractice may medical be re-filed has ciency of a demon notice and 55-2-18, pursuant after good faith reasonable effort strated and compliance pre-suit the “prevent statutory purposes” further and ing making filing and of frivolous medical ease, 55-7B-6. In this lawsuits; promot claims and Appellant may savings utilize the ing pre-suit resolution of non-frivolous 55-2-18, pre Va. within the time thеrein malpractice claims.” our scribed this Court’s decision Notwithstanding, part, Hinchman. whatev herein. may er circuit have commit error the court dismissing Appellant’s ted in action without IV. undertaking analysis an of the considerations Hinchman, possible set forth such error CONCLUSION language circuit harmless due County The Circuit Court of Marshall 3, 2005, order. court’s November properly dismissed medical mal- practice with W. previously have that “a court We stated 55-7B-6(b)’s speaks only through ex notice re- its orders.” State Any possible error the circuit quirements. harmless be- have committed was
court to be
cause the dismissal is deemed
prejudice right has the to re- comрliance claim after the no-
file her require-
tice of claim and certificate of merit
ments of W. Va.Code
AFFIRMED
DAVIS, C.J., dissenting. ease, plaintiffs complaint
In this solely upon grounds that she
did not serve notice of claim on the defen- action,
dant, thirty days before
required the Medical Professional Liabili- Court, appeal plaintiff Act. On to this
challenged complaint the dismissal of her on grounds pre-suit requirements resolving
the Act were unconstitutional. majority opinion decided the constitutional issue raised
address Instead, majority
plaintiff. affirmed the plaintiff
dismissal on the basis that the could
refile her with the
Act. *6 Hinchman, I
As stated
requirements of the Act encroach authority promul constitutional
Court’s litigating in
gate procedural rules for Consequently,
courts of this State. and for fully my more set out in concur
the reasons Gillette,
ring opinion in Hinchman v.
(Davis, J., concurring), respectfully I dissent. CARTER,
In re The Petition of Blake A. A
Minor, by M. Christina Karawan
Change of Name to Blake A. Karawan.
No. 33064.
Supreme Appeals Court of Sept.
Submitted: 9, 2006.
Decided: Nov.
Dissenting Opinion of Justice
Benjamin Dec.