Lead Opinion
This case involves the appeal by Larry D. Elmore (hereinafter referred to as “Appellant”), individually and as administrator of the estate of Dorothy Mae Elmore, of the June 16, 2005, order of the Circuit Court of Greenbrier County by which his medical malpractice complaint against John M. Johnson, D.O. (hereinafter referred to as “Appellee”)
I. Factual and Procedural Background
Appellant’s complaint alleged that Appellee committed medical malpractice by failing to diagnose Appellant’s wife, Dorothy Mae El-more, as suffering from sepsis and thus causing her death. Appellee had treated Mrs. Elmore on February 16, 2002, in the emergency room of the Greenbrier Valley Medical Center (hereinafter referred to as “GVMC”). Appellee works at GVMC pursuant to a contract with BJSM Med, Inc. (hereinafter referred to as “BJSM”); Appellee is both an employee of BJSM and the president of the company.
On May 30, 2003, Appellant sent the pre-suit notification and screening certificate of merit as required by West Virginia Code § 55-7B-6 (2001)
Appellee filed a motion to dismiss the complaint pursuant to Rule 12, subsections (b)(1) and (b)(6), of the West Virginia Rules of Civil Procedure,
Appellant then filed his appeal from the June 16, 2005, order of dismissal without prejudice with this Court on December 27, 2005.
II. Standard of Review
This appeal involves the lower court’s ruling regarding dismissal of a claim, without prejudice, pursuant to subsections (b)(1) and (b)(6) of Rule 12 of the West Virginia Rules of Civil Procedure.
III. Discussion
This appeal is one in a series of eases in which we have been called upon to clarify what constitutes adherence to the presuit notice of claim and screening certifícate of merit requirements legislatively prescribed in the MPLA at West Virginia Code § 55-7B-6. The instant case presents the principal issue of determining when the thirty-day pre-suit period begins to run in order to satisfy statutory intent.
Appellant maintains that the lower court erred in determining when service is accomplished pursuant to West Virginia Code § 55-7B-6. The requirements involving service of the pre-suit notice are addressed in subsection (b) in the following way:
At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together ■with a screening certificate of merit. The screening certifícate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia Rules of Evidence and shall state with particularity: (1) The expert’s familiarity with the applicable standard of care in issue; (2) the expert’s qualifications; (3) the expert’s opinion as to how the applicable standard of care was breached; and (4) the expert’s opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of Rule 15 of the Rules of Civil Procedure.
(e) Any health care provider who receives a notice of claim pursuant to the provisions of this section may respond, in writing, to the claimant or his or her counsel within thirty days of receipt of the claim or within thirty days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d)9 of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider’s counsel, if any.
(f) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) of this section, the health care provider is entitled to pre-litigation mediation before a qualified mediator upon written demand to the claimant.
In reliance on these provisions the lower court concluded, as reflected in the June 16, 2005, order, that:
7.The statutory language of § 55-7B-6, when read as a whole, demonstrated the West Virginia Legislature’s intent that thirty (30) days elapse after a health care provider has received a Notice of Claim and Screening Certificate via certified mail before an action may be commenced. The statute required a claimant to afford the health care provider adequate time to evaluate the claim and to choose to pursue pre-litigation mediation after being served and in receipt of a proper Notice of Claim and Screening Certificate. See West Virginia Code § 55-7B-6(e) and (f); State ex rel. Miller v. Stone at 490. Thus, a health care provider would be denied the full opportunity to respond to a notice of claim prescribed by the Legislature prior to a lawsuit being filed if the mailing date, rather than the date of receipt, controlled.
8. Service of the Notice of Claim and Screening Certificate of Merit upon a health care provider is perfected upon actual receipt of the same by the health care provider or his authorized agent for service of process. W.Va.Code § 55-7B-6(e) and (f).
9. Further, service of the Notice of Claim and Screening Certificate of Merit is not perfected upon mailing or upon receipt by an individual who is not an authorized agent of the healthcare provider.
The trial court’s order highlights the practical problems with the structure of the pre-suit notice provisions of the MPLA in relation to the problem raised in the present case. The provisions of West Virginia Code § 55-7B-6 at issue separately address the rights and duties of claimants in subsection (b) and the rights and duties of health care providers in subsections (e) and (f). All of these subsections refer to a thirty-day period, but the point at which the periods begin to run are inconsistent between claimants and health care providers. In subsection (b), the measurement of the thirty-day period begins on the date the notice of intent is served by ceHified mail, and in subsections (e) and (f), the measurement of the time periods therein begins on the date the notice is received by the health care provider. The lower court attempted to resolve this inconsistency by doing that which the Legislature neglected to do — define the term “serve.” In so doing, the court below imposed the term-of-art definition of serve adopted for judicial proceedings and thus balanced the equities in favor of the health care provider. We find this solution to be untenable as courts cannot impose such judicially defined procedures to an activity which the Legislature has explicitly placed outside the judicial arena. This Court’s constitutional authority to promulgate procedural rules regarding process is expressly limited to “cases and proceedings, civil and criminal, for all of the courts of the State.” W.Va. Const. Art VIII, § 3;
Under these circumstances we have no choice but to apply the statute as written. In the provisions of the MPLA, the Legislature has made its intent clear that certain prerequisites occur before a complainant may initiate a medical malpractice action in the courts. W.Va.Code 55-7B-6 (a). Among the prerequisites the Legislature set forth is the requirement that “[a]t least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation.” W.Va. Code § 55-7B-6 (b). It is undisputed that Appellant deposited in the mail the notice of claim by return-receipt certified mail, thirty-one days before filing a medical malpractice suit in the circuit court. Absent further legislative prescription by definition of the term “serve,” including direction about where a health care provider must be served or similar technicalities regarding perfection of service, Appellant complied with the plain meaning of the MPLA when he mailed the notification package by certified mail, return receipt requested, to Appellee’s place of work.
In determining whether a notice of claim and certificate are legally sufficient, a reviewing court should apply W.Va.Code, 55-7B-6 [2003]11 in light of the statutory purposes of preventing the making and filing of frivolous medical malpractice claims and lawsuits; and promoting the pre-suit resolution of non-frivolous medical malpractice claims. Therefore, a principal consideration before a court reviewing a claim of insufficiency in a notice or certificate should be whether a party challenging or defending the sufficiency of a notice and certificate has demonstrated a good faith and reasonable effort to further the statutory purposes.
We also stressed in Hinchman that “[t]he requirement of a pre-suit notice of claim and screening certificate of merit is not intended to restrict or deny citizens’ access to the courts.” Id., Syl. Pt. 2,
Accordingly, both in using care not to intrude upon the power the Legislature has reserved in this area and in furthering the principles announced in Hinchman, we find that the lower court erred in dismissing this suit because Appellant complied with the express statutory notification process.
Nevertheless, it is clear under the provisions of West Virginia Code § 55-7B-6 that the Legislature intended that a health care provider be given thirty days to evaluate the claim and in which to assert his statutory right to invoke pre-suit mediation in order to resolve the claim. Respecting this statutory requirement, upon remand the court below should honor a request, made by Appellee within a reasonable time period, to mediate the claim before the case proceeds in court.
IV. Conclusion
Based upon the foregoing analysis, the June 16, 2005, order of the Circuit Court of Greenbrier County is reversed and this matter is remanded to the lower court for the suit to proceed in conformity with this opinion.
Reversed and remanded.
Notes
. Appellant had initially notified three medical providers regarding this medical malpractice action; in addition to Dr. Johnson, Triad Hospitals, Inc., d/b/a Greenbrier Valley Medical Center and BJSM Med, Inc. were also proceeded against. The two corporate entities were dropped from the claim and are not involved in this appeal.
. See 2001 Acts of the Legislature of West Virginia, 6th ex. sess., ch. 19. West Virginia Code Article 7B of Chapter 55 was amended in 2003, with the specific provision that the 2003 amendments be applied to all medical professional liability cases filed on or after July 1, 2003. W.Va. Code § 55-7B-10 (b) (2003) (Supp.2006). The 2001 version of the MPLA was the version of the statute in effect at the time the initial notice and certificate were sent by Appellant.
.The portion of the record certified to this Court contains two affidavits of Ms. Shinn-Morgan, one dated March 9, 2004, and the other dated February 26, 2004. The 'March affidavit was attached as an exhibit to “Plaintiff’s Motion for Reconsideration,” stamped as filed on March 10, 2004, and the February affidavit was attached as an exhibit to “Defendant's John M. Johnson, D.O.'s Response to Plaintiff's Motion for Reconsideration,” stamped as filed February 27, 2004. In the affidavits Ms. Shinn-Morgan related that she had been an employee of GVMC for over five years and that she was working as a refund clerk or refund clerk/mail clerk in the GVMC business office when she signed for the certified letter.
. Supra n. 2.
. Rule 12(b) of the West Virginia Rules of Civil Procedure reads as follows:
(b) How Presented. — Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
. Appellant also refiled his suit against Appellee within the statute of limitations period in order to preserve his action should this appeal not result in reinstatement. Since the second action ' was filed after the effective date of the 2003 amendments to the MPLA, the second action would be subject to the statutory cap on damages as set forth in West Code § 55-7B-8 (2003) (Supp.2006).
. Appellee suggests in a footnote of his brief that a summary judgment standard of review may apply to this appeal because the court below relied on materials outside of the pleadings and dismissal was granted, in part, on Rule 12(b)(6) grounds. Indeed, the June 16, 2005, order confirms that the lower court went beyond the pleadings and considered the affidavits of Teresa Shinn-Morgan in reaching its decision. However, we find that the dismissal decision centered on the lower court's belief that it lacked jurisdiction to proceed causing the "failure to state a claim upon which relief can be granted." W.Va. R. Civ. P. 12(b)(6). In Easterling v. American Optical Corp.,
"[I]f the court has no jurisdiction, it has no power to enter a judgment on the merits and must dismiss the action. In addition, a dismissal for want of jurisdiction has no preclu-sive effect and the same action subsequently may be brought in a court of competent jurisdiction. A summary judgment, on the other hand, is on the merits and purports to have preclusive effect on any later action. The court's role on the two motions is also different. On a motion attacking the court’s jurisdiction, (he ... judge may resolve disputed jurisdictional-fact issues. On a motion under Rule 56 the judge simply determines whether any issues of material fact exist that require trial.”
Easterling at 128-29,
. In his response, Appellee also alleges problems with the certificate of merit. The lower court did not rule on issues related to the certificate of merit in its order of dismissal, and "this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.” Syl. Pt. Mowery v. Hitt,
. Although unrelated to the issue at hand, for clarity we note that West Virginia Code § 55-7B-6 (d) addresses situations when a screening certificate of merit can not be obtained before the expiration of the statute of limitations.
. The record shows that a few days after mailing the pre-suit notice to GVMC as Appellee's workplace, Appellant became aware that Appel-lee was employed by BJSM. Appellant then mailed an additional packet of the pre-suit materials to the BJSM address.
. We merely point out that although the 2001 version of the MPLA applied to the case underlying Hinchman, it was related in footnote one of that opinion that the 2003 provisions of West Virginia Code § 55-7B-6 were relied upon because the notice requirements were only slightly modified in unsubstantial ways by the 2003 amendments to the Act. As the same applies to the instant case, we will follow the same course.
. The lower court relied upon the per curiam opinion of State ex rel. Miller v. Stone,
Concurrence Opinion
concurring.
In this case, the plaintiffs complaint was dismissed solely upon the grounds that he did not serve a notice of claim on the defendant, thirty days before filing the action, as required by the Medical Professional Liability Act. The majority opinion reversed the dismissal on the grounds that the defendant has been properly served with pre-suit notice. I concur in the judgment, but I respectfully reject the reasoning used by the majority opinion to reach this result.
In resolving this case, the majority found it necessary to indicate that the presuit notice requirements of the Act are valid and outside the scope of this Court’s constitutional authority to promulgate rules of procedure for trial courts. This reasoning “is merely gratuitous (and unwise) dicta.” State ex rel. Stump v. Johnson,
Consequently, I respectfully concur.
Concurrence Opinion
concurring, in part, and dissenting, in part.
I dissent from the majority opinion in this matter to the extent it indicates that receipt of a notice of claim by a person having absolutely no authority, express or implied, to accept the same on behalf of a medical provider is sufficient to satisfy the requirements of W. Va.Code § 55-7B-6 (2001). The Appellant mailed, via certified mail, his notice of claim as to Dr. Johnson to Greenbrier Valley Medical Center (hereinafter “GVMC”). This notice of claim was signed for by GVMC employee Teresa Shinn-Morgan. Ms. Shinn-Morgan worked in the GVMC business office as a refund clerk/mail clerk. Dr. Johnson provides emergency medical services in the GVMC emergency room by virtue of GVMC’s contract with BJSM, Inc. (hereinafter “BJSM”). Dr. Johnson is an employee of BJSM, not GVMC. The record contains no evidence that GVMC or its employees had actual or apparent authority to act or accept service on behalf of Dr. Johnson. Therefore, neither GVMC nor Ms. Shinn-Morgan had the authority to accept the notice of claim on Dr. Johnson’s behalf. The majority erred by implying that such authority existed.
Even assuming, arguendo, that an apparent agency relationship might exist between Dr. Johnson and GVMC under this Court’s ease law, the same is not, in my view, sufficient to permit GVMC to accept any form of service on behalf of Dr. Johnson. See, Burless v. West Virginia University Hospitals, Inc.,
Although I dissent to the majority’s determination that the notice at issue was properly served upon Dr. Johnson, I agree and concur with the majority’s discussion regarding the legislature’s authority with respect to pre-suit notice of claims as a pre-requisite to filing a medical malpractice action. The legislature is empowered to define common law causes of action, including prerequisites which must be satisfied before a court’s jurisdiction to entertain the action is triggered.