MEMORANDUM OPINION
(February 23, 2004)
I. INTRODUCTION
THIS MATTER is before this Court on Defendant’s motion to dismiss for lack of subject matter jurisdiction by virtue of Plaintiffs failure to comply with the jurisdictional pre-filing procedures as required by Section 166i(c) of the Virgin Islands Health Care Provider Malpractice Act (Malpractice Act), 27 V.I.C. § 166, and Plaintiff’s opposition thereto. The issues before this court to determine are (1) whether Defendant is a “health care provider” as defined by 27 V.I.C. § 166(c), and, if so, (2) whether Plaintiff’s claim for injuries against Defendant is one for “malpractice” as defined by 27 V.I.C. § 166(f), so as to render Plaintiff’s claim subject to the Malpractice Act, depriving this Court of subject matter jurisdiction. For the following reasons, the Court will grant Defendant’s motion to dismiss.
II. STATEMENT OF THE FACTS
Defendant, the Rehabilitation Center at Beeston Hill, Inc. (Center), is a rehabilitation facility licensed to provide comprehensive rehabilitation services in the district of St. Croix including massage therapy, cardiac rehabilitation, and aquatherapy. The Center is housed in the same building as a health club facility and is оwned by the same owner. However, the Center is a separate entity than the health club, with
Patients are referred to the Center by physicians for the purpose of receiving physical therapy and rehabilitative services. Patients are evaluated by a licensed physician and licensed рhysical therapists employed by the Center. The physician and the physical therapists in turn design rehabilitation regimens that are mainly administered by athletic trainers and physiologists employed by the Center.
Plaintiff, Lucille J. Ference (Ference), was referred by her physician to the Center on or about January 8th, 2002, for physical therapy due to cardiovascular problems and back pain. At the Center, Ference was evaluated by Dr. Lisa McMahon (McMahon), M.D., a licensed physician emрloyed by the Center. McMahon designed an assessment plan for Ference’s rehabilitation after her first evaluation. She was then evaluated by Carolyn Barry (Barry), a licensed physical therapist (LPT) employed by the Center. Ference returned to the Center on February 12th, 2002, where she was re-evaluated by both McMahon and Barry. McMahon and Barry then designed a treatment plan for Ference that consisted of specific rehabilitative exercises that detailed the type of exercise, the duration of the exercise, and the number of treatments to be administered. One specific treatment that was part of Ference’s treatment regimen was cardiovascular exercise on a treadmill. Ference’s physical therapy regimen was administered by athletic trainers and physiologists under the employ of the Center eighteen times over a two-month period.
On March 8th, 2002, Ference arrived at the Center for her physical therapy treatment. She had her blood pressure taken by Jean Sylvester (Sylvester), an athletic trainer employed by the Center. Sylvester then directed Ference to proceed to the treadmill to begin her cardiovascular physical therapy, which she did. Sylvester did not accompany or assist Ference to the treadmill, nor did Sylvester set the time and speed of the treadmill for Ference. As she did many times before, Ference set the speed and duration of her exercise. However, Ference mistakenly set thе
Plaintiff filed suit against Defendant in this Court claiming Defendant was negligent in failing to supervise her treatment, or, more spécifically, by leaving her alone on the treadmill. Furthermore, Plaintiff contends Defendant is liable on a premises liability theory by utilizing a treadmill to administer treatment to Ference that lacked appropriate safety devices. Defendant filed a motion to dismiss advocating that Plaintiffs action is subject to the Malpractice Act because the Defendant is a “health care provider” as defined by 27 V.I.C. 166(c) and Plaintiffs claim is one for “malpractice” pursuant to 27 V.I.C. 166(f). On that account, Defendant insists that Plaintiffs failure to first file her claim with the Malpractice Action Review Committee (Malpractice Committee) before filing with the Court deprives the Court of subject matter jurisdiction and warrants dismissal of Plaintiff s action. Plaintiff opposes the motion to dismiss on several grounds:
(1) That the Defendant is not a “health care provider” as defined by the Malpractice Act, and therefore, Plaintiffs action is not covered by the Malpractice Act
(2) That the injuries suffered did not result from “malpractice” pursuant to the Malpractice Act, but rather from the ordinary negligence of non-medical individuals
(3) That, even if the negligence of the Center constitutes “malpractice,” Plaintiffs premises liability claim survives Defendant’s motion to dismiss because it is a separate and independent theory of liability falling outside the scope of the Malpractice Act.
Defendant filed a reply to Plaintiffs response to Defendant’s motion to dismiss, re-alleging that the Malpractice Act applies to Plaintiffs action because Defendant is a “health care provider” and Ference’s injuries occurred during “doctor-prescribed, licensed physical therapist directed physical therapy,” and therefore Plaintiffs action is one for malpractice, rendering it subject to the Malpractice Act.
A. Motion to Dismiss Standard
Defendant has filed a motion to dismiss on the ground that this court lacks jurisdiction over the subject matter, raising the objection that the court has no authority or competence to hear and decide the case. See Stafford v. Hess Oil Virgin Islands, Corporation, Inc.,
B. The Virgin Islands Health Care Provider Malpractice Act, 27 V.I.C. § 166
In 27 V.I.C. § 166i, the Legislature еnumerated certain jurisdictional pre-filing procedures a claimant must satisfy before the court can have subject matter jurisdiction over a claim for medical malpractice against a health care provider. To be in compliance, a claimant must first file a verified proposed complaint with the Malpractice Committee, and second wait 90 days before filing the complaint in court. See Simmons v. Martinez,
No action against a health care provider may be commenced in court before the claimant’s proposed complaint has been filed with the (Malpractice Action Review) Committee and the Committee has received the expert opinion as required by this section, provided, that if said opinion is not received by the Committee within ninety days from the date the complaint was filed with the Committee, the claimant may commence his action against the health care provider in court; provided further, that the commencement of the court action shall not prevent the Committee from obtaining the expert opinion.
27 V.I.C. § 166i(b) (emphasis added). Plaintiff mаintains she is not bound by this jurisdictional pre-filing prerequisite because Defendant is not a “health care provider” for purposes of the statute.
C. Is Defendant a “health care provider” pursuant to 27 V.I.C. § 166(c)?
Section 166(c) of Title 27 of the Virgin Islands Code defines a “health care provider” for purposes of the Malpractice Act as:
A person, corporation, facility or institution who must be licensed by the territory to provide health care or professional medical services including a рhysician, osteopath, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, physical therapist, psychologist, paramedical personnel, emergency medical technician and naturopathic physician, pharmacist, and laboratory technician; provided that for purposes of this subchapter, “health care provider” shall not include chiropractors.
27 V.I.C. § 166(c) (emphasis added).
In determining whether or not Defendant is a “health care provider” under the Malpractice Act, it is the duty of this Court to determine the legislature’s intent. See Negonsatt v. Samuels,
The legislature’s intent is manifested in the clear language of the statute such that a corporation or facility licensed by the territory to provide physical therapy is a “health care provider” for purposes of the Malpractice Act. Contrary to Plaintiffs contention, Defendant is not merely a health club cloaking itself in medical terminology. At all relevant periods, Defendant was and is a facility licensed by the territory to provide physical therapy. Patients who are in need of treatment are referred by physicians to Defendant’s facility to receive that treatment. Defendant, through its physician, physical therapists, physiologists, and athletic trainers, designs treatment plans for those patients that consist of varied physical therapies. Therefore, pursuant to 27 V.I.C. § 166i(c), this Court finds that Defendant is a “health care provider” for purposes of the Malpractice Act.
Because this Court finds Defendant to be a “health care provider” under the Malpractice Act, it is now proper to determine whether Plaintiff’s claim is one sounding in “malpractice,” which would preclude this Court from asserting subject matter jurisdiction over the action.
D. Is Plaintiff’s action one for “malpractice”, pursuant to 27 V.l.C. § 166(f) so as to render it subject to the Malpractice Act?
The Malpractice Act limits the liability of “health care providers” only for claims that sound in “malpractice” as defined by 27 V.I.C. § 166(f). 27 V.l.C. § 166(f) defines “malpractice” as:
Any tort or breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider to a patient.
27 V.l.C. § 166(f) (emphasis added). The Malpractice Act further defines “health care” as:
Any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.
The issue of whether a claim against a “health care provider” is one for ordinary negligence or whether it amounts to “malpractice” so as to be subject to the Malpractice Act is one of first impression in the Virgin Islands. However, several state courts in other jurisdictions whose legislatures have adopted legislation limiting the liability of health care providers for malpractice actions have had this precise issuе before them. In determining whether a negligence claim amounted to malpractice, those courts focused more on the alleged wrong than on the legal theory upon which the claim is brought to determine if it is a malpractice action. See
Regarding negligence claims, in evaluating the majority of courts who have ruled on this issue, most courts have found that a claim constitutes malpractice if the injury involves care of the patient, supervision of the patient, treatment of the patient, or if a determination of the wrong would
Most courts that have refused to find such claims subject to the statute have done so only if the negligence of the act could be determined by common or everyday knowledge, or where the alleged wrong did not arise from medical treatment.
Courts have been more divided on the issue of tort claims involving equipment failure on the part of health care providers and whether those claims constitute malpractice. Most courts that have found such claims to constitute malрractice have done so only if the equipment malfunctioned or failed during patient care or while treatment was being administered.
This Court finds that Plaintiff’s negligence claim constitutes “malpractice” for purposes of the Malpractice Act. The factual circumstances before us reveal that Plaintiff was referred by her physician to the Defendant’s facility to receive physical therapy. Dr. McMahon and LPT Barry designed a rehabilitative plan for the Plaintiff that consisted, in part, of cardiovascular physical therapy that entailed exercising on a treadmill. Plaintiff continuously attended Defendant’s facility аnd exercised on a treadmill as part of her treatment. On the day in question, Plaintiff was injured while conducting her cardiovascular physical therapy on the treadmill. The basis of Plaintiff s negligence claim is that she was injured as a proximate result of Defendant failing to adequately supervise her treatment (emphasis added). In other words, the Plaintiffs injury resulted from the treatment performed or furnished, or which should have been performed or furnished from Defendant to the Plaintiff during Plaintiff’s treatment (emphasis added). Hence, Plaintiffs negligence claim fits squarely undеr the Malpractice Act’s definition of “malpractice.”
Moreover, determination of Plaintiff s negligence claim cannot be evaluated by a layperson with common knowledge. Specialized knowledge
Plaintiff further argues, though, that еven if her negligence claim is subject to the Malpractice Act, her premises liability claim is not. However, “the Malpractice Act does not limit malpractice to professional negligence. Rather, it defines malpractice as any tort or breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient. By using the phrase ‘any tort or breach of сontract based on health care or professional services rendered,’ the legislature expressed its intent to cover all actions relating to the provision of medical care.” See Abdallah v. Callender, M.D.,
Plaintiff, as a basis for her premises liability claim, further argues that Defendant used a treadmill that lacked safety devices to administer Plaintiff’s treatment, and Plaintiff was injured as a result. As discussed infra, most courts have held that premises liability claims based on equipment failure used during treatment constitute “malpractice” claims unless determination of the claim can be made based on common knowledge.
Additionally, several courts in other jurisdictions have held that, even if a clаim independently falls outside the scope of a malpractice statute, it may still be subject to the statute if that claim relates to or incorporates a negligence claim that is subject to the statute.
IV. CONCLUSION
This Court finds, under the current factual circumstances before this Court, that Defendant is a “health care provider” pursuant to 27 V.I.C. § 166(c). Further, the Court finds that Plaintiff’s entire action, both the negligence claim and premises liability claim, constitute a “malpractice” action pursuant to 27 V.I.C. § 166(f). Therefore, this court finds that Plaintiff was required to file her claim with the Medical Malpractice Action Review Committeе before filing with this Court pursuant to 27 V.I.C. § 166i(b). Finally, the Court finds that, because Plaintiff failed the pre-filing jurisdictional requirement as established in 27 V.I.C. § 166i(b), this Court lacks subject matter jurisdiction over Plaintiff’s action.
The premises considered, and the Court otherwise being fully advised, it is hereby ORDERED that Defendant’s motion is GRANTED, and this action is DISMISSED WITHOUT PREJUDICE.
Notes
See Methodist Hospital v. Rioux,
Id.
See Winona Memorial Foundation v. Lomax,
See Pitre v. Hospital Services Dist. No. 1,
See Lamb v. Candler General Hosp.,
See Gonzalez v. Fairfax Hospital System,
See Canon v. McKen,