*1 December 1935 Or- sight its or omission
der.
Affirmed. S.E.2d 387 Rep HINCHMAN, as Personal
Charlotte of Paul Z. Estate
resentative Hinchman,
Hinchman; indi Charlotte Below, Appellants,
vidually, Plaintiffs GILLETTE, C.R.N.A., R.N., indi
Julie M.
vidually, agent, as servant employee of Doctor As Medical
and/or sociates, Inc., agent, servant, and as employee Jackson of Stonewall
and/or Hospital Company; Medical
Memorial Associates, Inc., foreign corpo
Doctor doing business within the State
ration Pons, M.D., Virginia; Roger K. agent,
individually and servant employee Jackson of Stonewall and/or Hospital; Jackson
Memorial Stonewall Company, Hospital a West
Memorial corporation; John Doe and Below, Doe, Appellees. Defendants
Jane
No. 31760. Appeals Virginia. of West
Supreme Court 5, 2005. April
Submitted: July
Filed:
Mary MeQuain, Esq., The Calwell Prac- tice, Charleston, Wilson, Esq., G. for Thomas Appellants. Johnson, Ramey, Esq., Steptoe &
Ancil G. Brewer, Charleston, Esq., Kelly A. Susan S. Johnson,- Stepp, Esq., Steptoe Morgan- & town, Roger for K. Pons. Schumacher, Schumacher, Esq.,
David E. Nelson, Charleston, for Francis & Medical Associates, Inc. Doctor Lusk, Shuman, Esq., Esq., Neva G. Grant Battle, Charleston, & for Spilman, Thomas M. Julie Gillette. Offutt, Jr., Perry Oxley, Esq.,
D.C. W. Sammons, III, Offutt, Esq., Esq., Fish- L.R. Nord, Huntington, er & for Jack- Stonewall Hospital Company. son Memorial Opinion Justice STARCHER delivered the Court. Justice DAVIS concurs and reserves the right concurring opinion. to file a concurs, part, Justice MAYNARD dissents, part, right reserves separate opinion. file STARCHER, J.
This a circuit case involves court’s dismiss- al of a case because of alleged in the defects insufficiencies plaintiffs pre-suit notice of claim and screen- plaintiff certificate of merit. Because the specific pre-suit did receive notice alleged op- defects insufficiencies or them, that the portunity to correct we hold case should be reinstated.
I. Background Facts & case, appellant and In the instant below, Hinchman, is the plaintiff Charlotte personal representative of the widow and Paul Hinchman. estate of the late Z. Gillette, appellees
The four are Julie M. Associates, R.N., C.R.N.A.; Doctor Medical Inc.; Hospital injury Memorial Stonewall Jackson dard of care resulted in or death. A Pons, K. Company; Roger M.D. All are separate screening certificate of merit providers alleged, who are in a healthcare provided each must be for health care complaint filed in the Circuit Court of Lewis provider against claim whom a is asserted. County January legally to be person signing certifi- appellant wrongful to the liable death cate of shall no financial inter- damages negli- as a alleged result their claim, the underlying may est in but par- gence providing medical care and services expert as an ticipate any judicial witness during Mr. a pre-operative Hinchman proceeding. Nothing in this subsection Specifically, Mr. cedure. Hinchman be- may application be construed to limit the ing sedated in preparation outpatient for an 15 of procedure. rule civil rules of *4 biopsy surgery anal of his canal. (c) any Notwithstanding provision of July 7, 2003, On circuit code, the court dismissed if this a claimant or his or her coun- appellant’s grounds on sel, case that the that screening believes no certificate of appellant’s pre-suit notice of claim and necessary merit because the cause of (“notice screening of merit upon action based a well-established le- certificate”), W.Va.Code, required by 55-7B- gal theory liability of does not which re- [2003],1 legally were defective and insuffi- quire expert testimony supporting a cient. of applicable care, breach standard of counsel, or the claimant his or her shall file W.Va.Code,55-7B-6 [2003] states: a specifically setting statement forth the (a) Notwithstanding any provision other alleged liability basis of the of the health code, of may this person no file a medical provider screening care in lieu of a certifi- liability professional against any action cate of merit. provider complying health care without (d) aIf claimant or his or her counsel provisions
with the of this section. has screening insufficient time to obtain a (b) thirty days At prior least to the fil- prior expiration certificate of merit to the professional of a medical liability action applicable limitations, of the of statute against provider, a health care claim- shall comply provisions claimant mail, ant shall serve certified return (b) except subsection of this section receipt requested, a notice of claim each the claimant his or her counsel shall health provider join care the claimant will provider furnish the health care with a litigation. The notice of claim shall statement of intent a provide screening theory include a statement or theo- sixty days certificate of merit within of the liability ries of upon which a of ac- cause provider date the health care receives the based, may tion and a list of all health of claim. notice providers care and health care facilities to sent, (e) being Any notices of claim are whom to- provider health care who re- gether screening with a pursuant certificate of mer- ceives notice of to the claim it. The screening certificate of shall provisions may respond, of this section be executed under oath care writing, health to the claimant or his or her coun- provider qualified as an expert thirty under the days receipt sel within of the West rules of evidence thirty days receipt and shall claim within (1) particularity: expert’s screening state with if certificate of merit the claim- n familiarity applicable proceeding with the standard of pursuant provi- ant is to the (2) issue; (d) expert’s qualifica- care subsection sions of of this section. The tions; opinion expert’s may response as to how state the health care applicable provider standard was care has a bona defense fide and the breached; expert’s counsel, provider’s name of health care applicable to how the breach of the stan- any. if TV.Va.Co4e, [2001], applied any germane opinion; raise therefore, issues that are to this case, 20Q3. slightly the instant amended in we will use the current version appear It does not opinion. 2003 amendments of the statute this (f) any provision other (i)Notwithstanding of claim or Upon receipt of notice (cid:127) claim, code, merit, a notice care of this health if the certificate of claim, any provider’s response to notice pursuant to the proceeding claimant is (d) screening certificate of merit and the re- section, of this
visions of subsection any pursuant conducted sults of mediation provider pre- is entitled health care provisions to the this section are confi- litigation qualified me- mediation before dential and are not admissible as evidence demand to the claim- diator written court, proceeding unless the court ant. upon hearing, that failure to determines (g) If the health demands cause a miscar- disclose the contents would pursuant provisions mediation riage justice. section, (f) of the mediation subsection read appellant’s notice and certificate days forty-five concluded within shall be as follows: me- demand. The written date pursu- be conducted shall otherwise diation rules, the trial court ant to rule This of Claim made letter Notice clearly rule portions of the are unless provisions under the 55-7B-6 of prior applicable to mediation conducted my The claimant is Code. *5 complaint filing to of a or unless .the client, Hinchman, Charlotte Administratrix supreme appeals promulgates court of of Z. Hinchman. of Estate Paul prior fil- mediation to the governing rules file a Charlotte Hinchman intends to complaint. is con- If mediation against you medical as suit ducted, may depose the the claimant you result medical treatment and others mediation health care before husband, attempted provide to to her late pro- testimony of the health care take Z. said Paul Hinchman. during the mediation.
vider Specifically, Hinchman claims Charlotte you applicable breached standards of (h) provided Except as in otherwise provide attempting care while to medical subsection, any appli- of limitations statute Paul treatment to Z. Hinchman at Stone- against cause action a health cable to a Weston, Hospital wall Jackson Memorial provider upon whom notice was care Virginia, West on or about October alleged professional lia- for served [2001], appeared he for a when there from of mail bility be tolled the date shall outpatient examination. Mrs. scheduled thirty days following to of a notice of claim your Hinchman claims -that breach stan- claim, response to the notice of receipt of a injury brain dards caused irreversible thirty days response from the date to the Paul Z. Hinchman. Mr. Hinchman died due, thirty days claim would be notice of injuries complications arising from said receipt by claimant of written from the June 2002. that the media- notice from mediator prepared A Merit verified Certificate of in a settlement of the tion has resulted Valenzuela, J.D., C. a board Roberto that mediation is con- alleged claim and anesthesiologist, certified is attached cluded, If a claim- last occurs. whichever Dr. Certificate of this letter. Valenzuela’s relating of claim ant sent notice has (1) Merit forth his familiari- [.sic] sets than injury or to more one death ty applicable with the standard of care provider, any one health care of whom has (3) issue; qualifications; his his mediation, demanded then the statute applicable care as to standard of how to, respect limitations shall tolled with breached; opinions his as to was to, only respect health care those applicable how breach of the standard providers to whom the claimant sent a Paul injury Z. Hinch- resulted thirty days from notice of claim to man. notice receipt of claimant written report strongly You cautioned to that the mediation has are
from the mediator your liability alleged receipt of Notice Claim not resulted a settlement of ‘ lawyer delay. Section carrier and without claim and that mediation is concluded. Fifth, recognition of the West Code re- trol. there was lack of you quires response underlying etiology file a written pa- of the bradycardia thirty resulting Hinehman’s claim within delay Charlotte tient’s sixth, days receipt. efforts. resuscitative And there was delayed airway pa- securement once the govern yourself accordingly. Please cyanotic. tient was noted to be above deviations resulted in appellant’s attached certificate of mer- longed hypoxia, subsequent respirato- it read: ry and cardiac arrest. you asking Thank me to review the Copies
medical records from Stonewall Jackson of medical relating records to the Hospital pertaining Memorial to the treat- claim and Mr. death Hinchman’s were at- notice, ment Paul Z. Hinchman dated October copy tached to the as well as a through October 2001. certifying expert’s separate copy résumé. A of this of claim and notice attached I practicing anesthesiology been personally certificate of merit addressed since and have had the to and sent to each of appellees on or years good participate fortune to in 5 about December practice years academic as well as 6 private practice. I am a board certified appellees, Two of the Stonewall Jackson anesthesiologist and have been appointed Hospital Memorial and Medical Doctor Asso- Society to the American of Anesthesiolo- ciates, responded to the notice and certificate gists Surgical Preopera- Committee on days thirty receipt. within of its One re- tive Anesthesia since October 2001. sponse read: *6 Therefore, I feel I am familiar with On behalf of Stonewall Jackson Memo- applicable the standard of care in issue. Hospital, rial letter this serves as the re- anesthesiologist As a board certified as your sponse to Notice of Claim dated my participation in peer well with re- December 2002 with the attached view, executive, medical and clinical com- Screening Certificate Dr. from Valenzue- petency I quali- committees feel that I am on regarding la. Based the scant details fied to an on render the case of part standard of care on deviations the copy Mr. Hinchman. I have enclosed a my employees, allega- client or all its my your curriculum vitae for review. tions contained in the Notice Claim After careful review the records fur- Screening hereby Certificate are de- nished from me Stonewall Jackson Memo- nied. Weston, WV, Hospital, rial dated October Also, please be advised that Stonewall through pertaining October Hospital Jackson Memorial to ex- declines provided to treatment to Paul Z. right pre-litigation ercise its to mediation Pons, by M.D., Roger Hinchman K. Julie " by authorized 55- West Code Gillette, R.N., C.R.N.A., M. and various 7B-6. employees of Stonewall Jackson Memorial response The other read:
Hospital I applicable conclude that standard of care was breached Associates, On behalf Medical Doctor ways. above entities in numerous response your as a letter serves First, excessively Mr. Hinchman was se- Notice of Claim dated December 2002. condition, physical inadequacy dated for his Based on the of the informa- illnesses, Second, operative position. concerning alleged tion standard patient inadequately part was monitored. care deviations on the of Medical Doc- Third, inadequate vigilance agents there was on or or tor Associates its em- Gillette, part Pons, Dr. ployees, allegations Nurse all in the contained the other screening members of OR Staff. Notice Claim certificate Fourth, airway inadequate hereby there was con- are denied. 3. Dr. Valenzuela failed to state with that Medical Doctor
Please advised right particularity applica- the standard care its Associates declines exercise provider against ble to each health care mediation authorized pre-litigation a claim and how whom was asserted 55-7B-6. standard of care was breached. Dr. appellees, Nurse Gillette and The other Finally, certificate Pons, response no to the notice and made particularity how merit did not sate with certificate. care alleged breach of the standard of each January all After suit was filed the death injury resulted complaint. On appellees answered Plaintiffs’ decedent. filed a motion to April Nurse Gillette complaint pursuant dismiss II. W.V.R.C.P., 12(b)(6), alleging dismissed complaint should be because Review Standard of a claim for relief appellant had failed to state ruling in dis The circuit court’s its comply pre- by failing properly undisputed law applied the missal order process set forth suit notice and certificate facts, interpretation of and rested W.Va.Code, That motion [2003]. 55-7B-6b appeal on an from the issue statute. “Where joined by Jack- Dr. Pons and Stonewall was clearly question of law the circuit court is motion, son, hearing on the after statute, involving interpretation of a we granted appellees’ motions circuit court those Sylla apply de novo standard review.” to dismiss.2 A.L., Chrystal Point R.M. Charlie bus The circuit court’s order stated: provided 1. The Plaintiffs one screen- III. of merit from Roberto C. M.D., Valenzuela, anesthesiologist, for Discussion providers, all health defendant begin our discussion with caution We required separate screen- rather than that our decision in instant case does each ing certificate of health care W.Va.Code, constitutionality of address the against whom a claim assert- arguendo that We assume [2003]. *7 ed. is Harshbar the statute constitutional. Cf. of his 2. Dr. Valenzuela’s discussion Gainer, 656, 660, 403 S.E.2d ger v. 184 W.Va. vitae, qualifications, and his curriculum 399, 403 screening to certifi- which attached his this, pre-suit the Having said we examine merit, generally cate of documented his statute, W.Va.Code,55- notice and certificate qualifications to comment the standard statutory provi- This is a new [2003]. 7B-6 applicable anesthesiologist. to of care not ad- previously this Court has sion that However, expressly Dr. did not Valenzuela However, statute for a similar dressed. familiarity particularity his state with with malpractice has been in effect medical claims Rather, any specific standard of care. he The Florida courts for some time. Florida conclusory fashion, “I in a feel that stated arising a number of issues addressed applicable I am familiar the standard with statute, analyses are their under their and Therefore, the of in issue.” certifi- care persuasive. and instructive failing of merit to state cate is deficient Clinics, Teaching Hospital In and Shands particularity Dr. Valenzuela’s famil- with Barber, (Fla.App. v. 638 So.2d Inc. iarity applicable the of standard
n 1994),the court stated: Pons, Gillette, surgeon; Dr. to Ms. Anesthetist; of intent to sue Registered purpose of notice Certified Nurse of inci- any employees give to the defendant notice the the “various or of unnamed investigation the Hospital.” dent in order to of Jackson Memorial allow of Stonewall liability one the whose was "vicarious" to of Subsequently court the circuit dismissed Associates, appellees. already-dismissed remaining appellee, Medical Doctor promote presuit appellees matter and settlement of certificate. These made no other claim; expert criticism of the notice and corroborative their designed prevent filing response.3 to of baseless litigation. [Citations omitted.] However, filed, after suit was three Patry Capps, 11-12 So.2d appellees, including two not who had re- [Fla.1994], Supreme Florida’s Court stated: sponded certificate, or the notice attacked goal [pre-suit is to notification] the notice length and certificate at and on mote settlement of meritorious claims grounds. several distinct early controversy in the order avoid determining Without whether proceedings. full adversarial [Citations appellees’ post-suit alleged claims of defects omitted.] and appellant’s insufficiencies notice Supreme The Florida Court has also held any degree and certificate were meritori- pre-suit purpose requirements that the ous, arguendo they we will assume had high cost of negli- alleviate medical degree at least some of merit. So assuming, gence through early claims determination necessary is then to ask whether it was claims, prompt deny resolution of appropriate and fair to appel- dismiss the plaintiffs. access to the courts to Weinstock lant’s remedy lawsuit —a draconian —when (Fla.1993). Groth, 629 So.2d appellant specific had received no notice And in v. Applegate; alleged So.2d of the claimed defects and-insufficien- Wolfsen cies, (Fla.Ct.App.1993), opportunity the court said: no to correct them. procedure judicial for review [of Garron, This Court stated in Rosier v.
pre-suit cannot notice] be converted into Inc., type summary proceeding some to test “... possible, to the extent under sufficiency, legally factually, med- concepts jurisprudence, legal modern con negligence ical claims. sporting tests should be devoid those char W.Va.Code, reading A 55-7B-6 gave acteristics quality law purpose that is [2003] shows the same as game forfeits trial ambush.” frivolous medical made no requirement of pre-suit that identified under W.Va. poses prevent screening certificate of merit is not intended to restrict or courts. statutory scheme. We hold therefore that In the instant promote malpractice requiring response Code, making certificate of merit are deny a case, pre-suit to the claims and pre-suit citizens’ access to the Florida courts two notice of claim and filing appellant’s resolution of [2003] notice lawsuits; the claims. The of frivolous appellees notice claim their non- pur Mut. Ins. Co. v. *8 ty used a Rule erally given. Syllabus Point Cotton States complaint under determines that there is an S.E.2d 745 of a Ordinarily, in challenge complaint, party to amend the W.Va. appellants’ pre-suit case, In the which (1963); 12(b)(6) sufficiency the case of a instant Bibbee, complaint opportunity should be lib is afforded Farmer motion to dismiss to notice and certificate. 12(b)(6), case, insufficiency before dismissal challenge L.D.I., if contents of opportuni the court appellees Inc., to a in a merit, only However, asserting and certificate of in in the the situation the instant case, of insufficiency the notice and certificate af- there would seem to be no sense or appellees utility ter suit of in allowing pre-suit was filed. Two the of amendment a responses they made brief in which asserted notice and is certificate suit filed. For after specific objections that there a lack of or pre-suit detail information a notice and of only about the standard care in the notice and certificate be to made the first time Thus, respect purpose they against Why with to the first of the to resolve the claim them. did statute, this, appellees four the all of waived their does not record disclose. right engage pre-suit attempt mediation to screening contrary purposes claim and certificate is suit is filed after claims lead- to be avert frivolous that the healthcare believes of the statute —to insufficient, pre-suit to promote legally and the health- ing to a lawsuit defective or thirty claims. provider may reply days of non-frivolous resolution within receipt of notice and certificate with a a de hold therefore before We a request to the claimant for more written against healthcare a a fendant lawsuit claim and definite statement of the notice of legal sufficiency challenge the provider can request screening certificate merit. notice of claim or screen plaintiffs pre-suit a identify for a more definite statement must W.Va.Code, under 55- ing certificate of merit insufficiency particularity alleged each [2003], have been plaintiff must 7B-6 in the notice and certificate and -all or defect of, specific notice and given written and requested by specific and information details correct, and the al to address opportunity given a the defendant. A claimant must be leged insufficiencies. defects and time, period not to thir- reasonable exceed statutory set forth scheme as W.Va. days, provider’s ty reply to a healthcare Code, and otherwise silent 55-7B-6 [2003] statement, request and all for a more definite objections and suffi as to when how periods limitation ex- applicable shall be may ciency claim or a notice of certificate periods of time. tended to include such gap or To this evident be made. address statute, Fayette in the see Harmon lacuna Additionally, hold that under we 125, 136-137, County of Educ., 205 Bd. W.Va.Code, [2003], making a 55-7B-6 (1999),4 turn to 759-760 we re request for a more definite statement in 12(e) analogous provision, Rule of the of- sponse to a notice claim and Procedure, Civil Rules objec a preserves party’s of merit certificate provides: legal sufficiency tions of the notice (e) More Definite Statement. Motion for specifically certificate as all matters set responsive plead- pleading If to which objections request; to the forth in the all vague ambiguous permitted is so or sufficiency legal notice certificate’s not reasonably required party that a cannot request are specifically set forth in pleading, party responsive to frame a waived. may for a more definite statement move was directed or before notice of plained of motion is time as the court deems strike the court motion just. interposing granted pleading shall obeyed order or the details desired. point make such order as may to which within responsive pleading. out the defects com- fix, within such other order the motion days court If after may whether practice claims and legally making pal consideration before cal apply pre-suit statutory W.Va.Code, sufficient, a notice of We also resolution of non-frivolous medi filing purposes claims. of frivolous hold lawsuits; claim and reviewing Therefore, a court [2003] preventing medical mal court should determining reviewing promoting light princi are course, situation, insufficiency a notice or certificate pre-suit claim challenging party to rule on a motion for a whether there is no court should be Therefore, defending sufficiency of a notice and more we definite statement. *9 12(e)’s good faith and modify approach, hold that certificate has demonstrated statutory W.Va.Code, [2003], to when a reasonable effort further under pre-suit provider purposes.5 receives a notice healthcare Charleston, reasonably ensuring City statutory purposes Rogers an ad- South 4. See also 285, 304-305, possible pre-suit W.Va. equate basis for the resolution (Neely, dissenting). J. malpractice non-frivolous medical claims have Wolfsen,supra. been achieved. See legal The have 5. Florida courts concluded wrangling pre-suit no- about the technicalities of if a that the tice unwarranted court satisfied This is attuned to and understand- IV. Court ing purpose promoting legislative of the Conclusion malpractice pre-suit of medical resolution not Under claims that are frivolous. The circuit court’s dismissal order is re- case, approach formulated in the instant versed and this case is remanded for further statutory avoiding litiga- frivolous purpose proceedings opinion. consistent with this by authorizing pre-suit tion is served re- Reversed and Remanded. statement, quest for a more definite because filing any on notice claimant is before suit J., DAVIS, concurring. potential challenges sufficiency to the of a notice of claim and certificate of In proceeding, this court circuit dis- merit, opportunity provide an to and has complaint ground missed a on the that the supplemented modified or notice certifi- fully plaintiffs comply failed to with medi- cate that addresses meritorious concerns cal require- certificate of merit provider. pur- raised the healthcare ment, § provided as W. 55-7B- Va.Code pose encouraging pre-trial resolution is 6(b) (2003) (Supp.2004). majority opin- by authorizing pre-suit request served ion has reversed the dismissal based on the statement, by affording more definite finding objection that the defendants’ opportunity respond to the claimant to to the certificate of untimely. merit was render- if request, because a claimant makes a more decision, majority de- ing response request, definite to a statement constitutionality clined to of the address the healthcare has more information requirement. certificate of merit I concur in investigate which to and decide whether However, result reached this case. respond mediate or otherwise to the claim. below, majority opin- I will demonstrate Applying foregoing principles ion should have reversed this case on the the facts of the instant two of case: grounds require- certificate of merit Pons, appellees, Nurse Gillette and Dr. made Separation ment violated the of Powers/Rule- response no to the notice and certificate. making Remedy Clauses and the Certain They request they did not mediation and Clause of the Constitution. objection raised no to the and certifi notice cate, thereby waiving any objection thereto 55-7B-6(B) A.W. VA. CODE VIOLATES
post-suit.
appellees, Stonewall Jackson
Two
THE
OF
SEPARATION
POW-
Hospital
Memorial
and Medical Doctor Asso
CLAUSES
ERS/RULE-MAKING
ciates, responded
appellant’s
to the
notice
Before I demonstrate that the certificate of
only
generic objection
requirement of
W. Va.Code
55-7B-
alleging
regard
lack of information or detail
6(b)
Rule-Making
violates
Clause and
appellees
standard
care. These
Clause,
Separation of
a brief review
Powers
engage
pre-suit
also
declined to
mediation.
necessary.
of both Clauses is
notice,
appellant
pre-suit,
was not on
(a)
specific alleged
Separation
defects and insufficien-
Clause. The
Powers
appellees
Separation
cies that the
after suit
our
asserted
of Powers Clause of
state
filed;
appellant
part
opportu-
provides
nor
constitution
did
relevant
nity
allegations
legislative,
judicial
address
with further
executive and
de-
“[t]he
distinct,
appellee
advantage
separate
No
partments
submissions.
took
shall
so
pre-suit
opportunity
attempt
powers prop-
mediation
that neither shall exercise the
erly
possibly
belonging
further understand and
either of the others[.]”
resolve
W.
Const,
facts,
appellant’s
5, §
the-
claims. Under these
Va.
art.
This Court stated
suit,
syllabus
appellant’s
point
dismissal of the
of State ex
Barker v.
which was
rel.
frivolous,
Manchin,
clearly
was erroneous.6
“is not
and,
such,
warrants,
practice
procedure,
process
it
of our State
fundamental law
effect of law.”
closely
havé the force and
strictly
fol which shall
construed
must be
Const,
8, §
art.
3. As a result
Sepa
W. Va.
It has
noted
“[t]he
been
lowed.”
by
this
the Rule-
given
by
authority granted to
Court
life
each
of Powers Clause is
ration
“
Clause,
proce-
exclusively
governing
‘a
working
Making
statute
government
branch of
criminal eases
in [civil or]
domain and not en
dural matters
its constitutional
within
by
powers
any
promulgated
a rule
croaching upon
legitimate
which conflicts with
legislative
Supreme
Court would be
government.” State ex rel.
other branch of
’
rule-making powers.”
Vieweg,
invasion of the court’s
Trades Found. v.
Constr.
Affiliated
132, 138, 595
854,
Arbaugh, 215
S.E.2d
869 State v.
W.Va.
520
205 W.Va.
(2004)
J.,
289,
(Davis,
dissenting)
(1999) (Davis, J., concurring).
Separa
S.E.2d
295
Hollis,
441, 442
literally “compels
People v.
670 P.2d
(quoting
tion of Powers Clause
1,
Syl. pt.
(Colo.Ct.App.1983)). See
Ben-
courts,
upon,
un
also
called
thwart
when
Warner,
742, 372
government
nett v.
179 W.Va.
S.E.2d
actions of one branch
lawful
(1988) (“Under
eight, section
responsibili
920
article
impair
constitutional
which
Constitution,
Supreme Court
coequal
three of our
functions of a
branch.”’
ties and
promul-
power to
Spaulding,
Appeals
shall have the
Farley
rel.
v.
203 W.Va.
State ex
(1998)
286-287,
376,
275,
gate
for all of the courts of
State
507 S.E.2d
387-388
rules
practice,
procedure,
C.J.,
process,
(Davis,
dissenting) (quoting
ex rel.
related to
State
390,
effect of
Blankenship,
force and
v.
158
which
Brotherton
W.Va.
shall
Wallace,
(1975)).
law.”);
5,
467,
pt.
v.
205 W.Va.
402,
Syl,
State
214 S.E.2d
477
Further
(1999) (“The
155,
Virgi-
more,
20
West
517 S.E.2d
this Court has never “hesitated
par-
are the
a nia
of Criminal Procedure
felt there
Rules
utilize the doctrine where we
was
authority controlling criminal
one
amount
direct and fundamental encroachment
courts of
government
ceedings
before
circuit
into
traditional
branch
jurisdiction; any statutory or common-law
government.”
powers of another branch
PSC,
procedural
rule that conflicts with these
v.
170
Appalachian Power Co.
W.Va.
(1982). See,
or ef-
759,
887,
presumptively
force
889
Rules is
without
296 S.E.2d
Derr,
Virginia
fect.”); Syl.
part,
in
State
e.g.,
ex
West
Citizens
State
rel.
pt.
(“The
(1994)
Group
389
jurors.
ing
nine
the concurrence of at least
a statute that was
conflict with W. Va.
Evid.,
plaintiff
702); Mayhorn
contended that the statute was R.
Rule
Logan
v.
Med.
Found.,
42,
(1994)
Virginia
conflict
Rule 48 of West
193
454
87
with
W.Va.
S.E.2d
48,
(invalidating
Under
Rules Civil Procedure.
Rule
a statute that was in conflict
jury
may only
Evid.,
702);
re-
non-unanimous
verdict
with
Va.W.
R.
Rule
Williams v.
parties stipulate
allowing
turned if
Cummings,
370,
191 W.Va.
State (2004) (Davis, J., 289, dissenting) designation persuaded legislature’s of 295 Inc., Design-Build, Caple (quoting opinion v. Tuttle’s the new law as substantive. (Fla.2000)). Furthermore, 49, it 53 753 So.2d stated: that: recognized been has (1993), Rockey In 66 Lumber Co. 84 for so- prescribes norms law Substantive 789, paragraph Ohio St.3d 611 N.E.2d punishments for viola- and cietal conduct syllabus, two of the we held: creates, defines, It and tions thereof. thus Procedure, Ohio of “The Rules Civil contrast, rights. In regulates primary promulgated Supreme were pertain to the es- practice procedure and 5(B), pursuant Court to Section Article IV sentially operations of the mechanical Constitution, over the Ohio must control law, rights, by which substantive courts subsequently enacted inconsistent statutes remedies are effectuated. and purporting procedural to govern matters.” at at
Arbaugh, (Davis, J., dissenting),(quoting State v. Tem Montgomery argues Respondent 59 P.3d pleton, 148 Wash.2d of [the Hiatt is determinative new (2002)). validity because the General Assem- law’s] authorities, cer- above Pursuant to the bly “sets forth its that the certifi- now view may only requirement tifícate of merit cate substantive and it sets is the'Separation of Power’s under invalidated In forth its rationale for that conclusion.” Rule-Making if and Clause Clause 5(H)(1), Assembly Section the General procedural law and not sub- requirement enacting its [new law] states that intent law. The issue of whether medical stantive “by respond holding is to Hiatt malpractice requirement of merit certificate jurisdictional clarifying the nature of'cer- squarely law procedural or substantive requirements creating of merit and tificate Supreme by the Ohio Court in addressed medical, requirement substantive Academy Lawyers rel. Trial State ex Ohio dental, optometric, chiropractic, mal- Sheward, 715 N.E.2d 86 Ohio St.3d practice claims.” Assembly notion that the General Sheward, organizations group apply legis- can our courts direct trial original action before the individuals filed already rule this court has de- lative challenging Supreme Court the consti- Ohio Civil clared to be conflict with the Rules that, tutionality legislation among other by denominating simply “jurisdictional” it required a certificate of merit be filed things, fundamentally is so con- “substantive” days af- malpractice ninety in medical cases trary principle separation pow- to the Be- complaint. ter an answer is filed to the ers that it no further com- deserves case, addressing the merits fore ... ment. that in an earlier Sheward observed Facilities, Inc., case, Hiatt v. S. Health (1994), ordinary piece [The 626 N.E.2d new no statute]
Ohio St.3d inadvertently “pro- legislation happens Court had struck down a statute which medical, legislative den- vided that in an action cross the boundaries authori- claim, tal, ty. Assembly optometric, chiropractic The General has circum- mandates, accompanied by attempting certifi- complaint must be vented our while [a Sheward, 715 N.E.2d at itself as the final arbiter of the of merit.” establish cate] that, validity legislation. It as a of its It has bold- 1087.2 was said Sheward own Hiatt, ly power adju- the legislature seized the of constitutional result decision authority dication, post-complaint appropriated certificate of mer- to es- enacted judicial requirement it as “sub- rules court overrule denominated tablish 2. The in Hiatt that the certificate the Ohio Rules Civil Procedure. decision found Rule 11 of of merit statute was conflict with (“A and, uneonstitutionality, (Supp.2005) declarations of un- action thinly guise declaring requirements der the veiled is not considered filed until the “public establishing “jurisdiction,” policy,” of W. Va.Code been satis- fied.”). law, enacting requirements “substantive” forbade of a *13 judicial province the of merit are: courts the review. screening
The
certificate of merit shall
by
be executed under oath
a health care
usurps judi-
hold that
new
[the
law]
We
provider qualified
expert
an
as
under the
cial
the
power
violation of
Ohio constitu-
Virginia
rules of evidence and shall
and,
separation
of
powers
tional doctrine
of
(1)
particularity:
expert’s
state with
The
therefore, is unconstitutional.
familiarity
applicable
the
with
standard of
Sheward,
715 N.E.2d at
and 1096-97.
(2)
issue;
expert’s qualifica-
care
the
principle
gleaned
be
The
law to
from
(3)
tions;
expert’s opinion
as to how
pre-complaint
a
post-
Sheioard is that
or.
applicable
standard of care was
requirement
complaint certificate of merit
(4)
breached;
expert’s opinion
as
law,
procedural
involves
not substantive law.
how
applicable
the breach of the
stan-
agree
reasoning
I
with the
Sheward
injury
dard
care resulted in
or death.
finding
therefore I do not hesitate
that the
55-7B-6(b).3
§
W. Va.Code
The essence
pre-complaint
require-
merit
serving
intent
this statute
that of
a
as
imposed by
procedur-
ment
our legislature is
“gatekeeper”
prevent
frivolous medical
implicates
Separation
al
law
of Pow- malpractice
being
claims from
filed. The
Rule-Making
ers Clause and the
Clause.
by imposing
statute does this
pre-
inflexible
Warmuth,
See State ex rel.
v.
Kenamond
179
investigatory
responsibili-
lawsuit
duties and
W.Va.
366
740
S.E.2d
plaintiffs.
ties
I
believe this statute
inis
(“Procedural
... are
only
statutes
effective
Virgi-
direct
with
11
conflict
Rule
of the West
subject
as rules of court and are
to modifica-
Syl.
nia
pt.
Rules Civil Procedure. See
tion, suspension
by
or annulment
rules of
Mazzone,
State ex
rel. Weirton Med. Ctr.
Court.”).
procedure promulgated by this
(2002) (“The
587
122
W.Va.
55-7b-6(b)
§
3. W. Va.Code
Is in
provisions of the Medical Professional Liabil-
Virginia
Conñict with West
ity
falling
... govern
Act
actions
within its
Civil Procedure Rule 11
parameters, subject
power
to this Court’s
promulgate
proceed-
rules for all cases and
plaintiff may
a
Before
initiate medical
ings,
practice
including
proce-
rules of
55-7B-6(b)
action,
§
W. Va.Code
dure,
VIII,
pursuant to Article
Section 3 of
requires
plaintiff
serve the health care
Constitution.”).
Virginia
the West
provider with a certificate of merit. See
Cleckley,
Franklin D.
J.
&
“gatekeeper” employed by
Robin Davis Louis
Rule
is the
Palmer, Jr., Litigation
J.
keep
Handbook on West
this Court
out frivolous lawsuits.
3(a),
§
previously
Rules
Civil Procedure
at We have
indicated that
Rule
provides
familiarity
3.
expert’s
applicable
The statute
in full:
with the
issue; (2)
expert’s qual-
standard
care in
thirty days prior
filing
At least
ifications; (3)
expert's opinion
as to how
professional liability
against
action
breached;
applicable
standard of care was
provider,
health care
the claimant shall serve
expert's opinion
to how the
as
mail,
receipt requested,
certified
return
applicable
re-
breach of the
standard of care
provider
notice of claim on each health care
screening
injury
separate
A
sulted in
or death.
join
litigation.
will
the claimant
notice
provided
merit
be
certificate of
must
for each
theory
of claim shall include a
statement of
against
health care
whom a claim is
liability upon
or theories of
cause of
screening
person signing
based,
asserted. The
may
action
be
and a list of all health
merit
financial in-
certificate of
shall
no
providers
and health care facilities to
claim,
sent,
underlying
may partici-
terest in
being
together
but
whom notices
claim are
judicial
pate
expert
screening
as an
witness in
awith
certificate of merit. The
ceeding. Nothing
may
in this
be
subsection
certificate of
shall
executed
provider qualified
application
limit
of rule
under oath
health care
construed to
expert
procedure.
as an
under the West
the rules
civil
rules of
55-7B-6(b).
particularity:
evidence and
with
shall state
W. Va.Code
re-
expenses
as a direct
discouraging
and other
incurred
the dual concern with
“reflects
correctly been
...,
places cer-
the violation” It has
frivolity
sult of
and abuse
both
component of
attorney
respect
punishment
noted that
“[t]he
tain burdens
11(c)
integrity
judi-
Daily
protects the
Rule
gatekeeping function.”
his or her
severely
by moderately or
sanc-
Co.,
Canady,
system
cial
Inc.
Gazette
compo-
attorney.
deterrence
tioning
Under Rule
11(c)
11(a),
signed by
protects
the administration
must be
nent of
pleadings
all
attorneys
justice by using
attorney
party.
It
sanctioned
unrepresented
has
spring
examples
poisonous
fruits
signature
“that
certifies
noted
been
Cleckley,
document,
litigation.”
et al.
signer has
from ‘frivolous’
read
court that
Handbook,
11(c),
See,
Litigation
inquiry into
at
a reasonable
has conducted
*14
Co., Ltd., 204
e.g.,
is
that
Pritt v. Suzuki Motor
satisfied
facts and
law
(1998)
388,
(affirming
both,
grounded in
W.Va.
396
199,
Process,
OF
22 RAND J. Econ.
C. THE ISSUE
SEVERABILITY
Litigation
(1991)).
201
legislature
severability
has created
applicable
is
to W. Va.Code
statute
must be afforded sufficient time
Plaintiffs
severability
§
55-7B-6. Pursuant
cases,
screening certifi-
develop
and
statute,
(2004),
§ 55-7B-11
W. Va.Code
merit,
pre-lawsuit, simply
cate
filed
does
if
legislature
any provi-
has determined that
maturation of the issues.
not
sufficient
afford
invalidated,
§
is
sion W. Va.Code
cases, simply reading med-
majority
In
remaining provisions are
severable.
an ex-
ical
not be sufficient for
records will
However,
severability
Court’s
“[u]nder
opinion.
pert
One of
to render
bonafide
statutory
principles of
construction
do not
we
pieces of evidence used
the most critical
defer,
course,
severability
as a matter of
expert
rendering
an
malpractice
Louk,
provisions contained in
218
statutes.”
testimony
deposition
is
Va. at
Insofar believe requirement concurring opin- purposes is not a reasonable method for For the of this ion, preventing remaining it I all of the frivolous and because will not examine lawsuits claims, § provisions also in In- shuts door to meritorious W. W. Va.Code 55-7B-6. 55-7B-6(b) stead, severability only § the Certain I examine Va.Code violates will 55-7B-6(f).9 Remedy § Clause. W. Va.Code suggesting experts analyze pinpoint 8. I am not that medical records and useful for negligent omission.''). deposition testimony are all that is needed to act or rendering expert opinion. in Other assist signifi- may play imposed also a 9. I have this limitation because I believe discoverable materials Buckingham, Lapa- facially provisions B. all other Va.Code role. See Kent When that W. cant Trial, dependent upon Surgery Wrong, § roscopic are so W. Va.Code Gallbladder Goes 55-7B-6(b) C'[M]any § § May physician W. that at times the Va.Code 55-7B-6® procedure. they videotaped complete declared invalid. As Court has Attor- must be Louk, neys tape through request pointed aspect a for most critical "[t]he should obtain the out production.... videotape severability analysis degree immensely of de- can be involves declared, legislature through jurors has W. must that be chosen so a minimum 733—6(f), § “[u]pon receipt jurors may that Va.Code of nine a Con- render verdict. 55— merit, the ... certificate of ... sequently, juror provision the twelve is pre-litiga- health care is entitled to invalid it because is not severable from the a qualified jury tion mediation before mediator unconstitutional ver- non-unanimous provision § dict written demand to the claimant.” As- W. Va.Code 55-7B-6d. for suming, argument, the sake of that the Louk, at W. Va. S.E.2d at pre-complaint issue of mediation is severable Louk teaches that a provision in a statute 55-7B-6(b), § from I W. Va.Code believe the may be invalidated because it inter- is provision still it is invalid because conflicts inseparable provision twined and from a that promulgated by with a rule this Court. The unconstitutional, was held because the decision Louk will help my point. illustrate provision is in promulgat- conflict with a rule by ed this Court. Louk, indicated, previously As Court The issue of mediation invalidated verdict addressed in W. non-unanimous 55-7B-6(f) provision § § by W. Va.Code has been Va.Code 55-7B-6d. After addressed so, determine, doing this Court Rule 25.08 of the among Court had to things, Trial Court remaining other Rules. Rule 25.03 states that: whether twelve juror provision in was the statute severable. Pursuant these rules W. Va. remaining provision may, We found the R.Civ.P. court was not its mo- own tion, upon any stipu- for party, severable two reasons: motion lation of parties, refer case to media- jurors The issue of the number of in a Upon entry referring tion. of an 47(b) order civil action is addressed in Rule mediation, case to parties shall have the West Rules of Civil Proce- (15) days fifteen within which file a 47(b) states, dure. Rule part, in relevant objection, specifying grounds. written “[ujnless jury that court that directs promptly The court shall consider such greater number, jury shall consist of a may objection, modify original its or- persons.” shall consist of six Under W. good for A der cause case shown. ordered 55-7B-6d, § mandatory Va.Code it is for mediation shall remain on court jurors a trial court seat twelve a medical docket and trial calendar. However, malpractice action. under Rule 47(b), jury is limited to six members Rxxle 25.03 reflects this Court’s commit- unless, in the exercise of the trial court’s litigants ment to encouraging dis- resolve discretion, greater imposed. number is putes through period mediation after a Clearly, juror requirement twelve post-complaint discovery. To extent W. Va.Code 55-7B-6d is in conflict option, only mediation is a viable viable 47(b) and is therefore unconstitution- strengths parties after the have learned al and invalid for that alone. reason position during and weaknesses of each side’s
Additionally, Indeed, juror require- the twelve post-complaint discovery.10 com- dependent upon ment and intertwined mentators noted that it the “conven- with the among attorneys, unconstitutional non-unanimous tional wisdom of- defense jury provision counsel, accepted verdict of Va.Code ten true plaintiffs’ W. 55- 7B-6d. order the non-unanimous not be until mediation should held effect, jury provision essentially discovery completed.” verdict to take all ... twelve *19 ,of Louk, 97, pendency Liability W. Va. statutes.” 218 at utes” in the Medical Act Professional is, 55-7B-6(b). § 622 at That "[w]here S.E.2d 804. the valid are severable W. from Va.Code analysis provisions beyond scope and the invalid of a statute are so Such an is far the matter, concurring interdependent subject opinion. connected and in belief, meaning, purpose preclude or as to the presumption Legislature legislature Ironically, the purported conclusion that also the has other, passed require mandatory post-complaint would have one the the without the to mediation Syl. pt. whole statute will be declared invalid.” in medical It states in W. cases. Hatcher, 55-7B-6b(b) § (Supp.2004) Robertson v. 135 "[t]he Va.Code (1964). Additionally, parties participate S.E.2d 675 I will not dis- court shall ... order the to in remaining mandatory cuss the issue of whether the "stat- mediation.” Metzloff, the certificate so Ralph Peeples appellants’ A. fact is that was B. Thomas statute, Harris, that an immedi- Perspectives deficient under the Empirical T. Catherine According to & ate was Malpractice, 60 Law dismissal warranted. on Mediation and (1997). 55-7B-6, separate § screen- “[a] W.Va.Code Contemp. Probs. provided of merit be certificate must pre-complaint mediation imposition of The a provider against each health care whom 55-7B-6(f) clearly § in by W. Va.Code added). (Emphasis In claim is asserted.” Syl. pt. Rule 25.03. See Stern conflict with case, was the the same certificate instant McClure, Bros., Inc. v. Legislature If the sent to each defendant. (1977) (“[Ajdministrative rules only to mandate that each health intended Ap Supreme the Court promulgated provided the same certifi- care be Virginia have the force and peals West cate, separate it have omitted the word would operate super statutory law and to effect obviously in this context means indi- which them.”). in any law that is conflict with sede paHicular. our rules of vidual or Under mediation, Pre-complaint without fruits construction, give is to each word this Court discovery, “is diligent post-complaint give meaning. mean- statute When we potential has the procedural to hurdle 55-7B-6, § it ing to of W.Va.Code each word prolong the and increase the cost of time provider is to is clear that each health care malpractice litigation.” Carson v. medical partic- provided a certificate of merit be with Maurer, 120 N.H. A.2d provider. to This ular that health certificate was not done here. Because the above, out I light the reasons set flawed, fundamentally prop- dismissal was so that, invalidity of a result of the W. believe as er and be affirmed. should 55-7B-6(b), provisions all of Va.Code majority’s indi- reversal and remand are invalid. in Va.Code 55-7B-6 W. requiring pre- cates to me that the statute reasons, I foregoing concur. For may of merit be rendered essen- certificates tially meaningless. may fail to Plaintiffs now Justice, MAYNARD, concurring, part, in provide cursory provide a certificate or one part. in dissenting, they get by can with it. If to see whether may in majority opinion result object, plaintiff can defendant does gutting portion of the 2001 complete proceed to she then do what he or should malpractice reforms. medical simply comply at the have done outset — agree I with the new law crafted requirements the clear of the statute. majority opinion, chal- which mandates that I also that certificate at issue believe sufficiency pre-filing cer- lenges to the in that it does not state with was flawed give plaintiff must tificate of merit expert’s opinion as to sufficient detail the alleged opportunity to address correct applicable how the standard breach filing prior in the certificate defects Instead, injury care resulted death. complaint, the extent that this law is merely above deviations “[t]he concludes only applied alleged defects in the four hypoxia, and prolonged resulted in subse- Specifi- of merit. corners of the certificate quent respiratory and cardiac arrest.” required cally, a defendant should part, a certificate of explains, statute challenge alleged defect in content of merit filing com- prior certificate (1) The ex- particularity: shall state with however, If, plaint. plaintiff fails to familiarity applicable pert’s with the stan- of merit the manner vide a certificate issue; expert’s care in dard of statute, clearly the circuit set forth opinion as qualifications; expert’s immediately. case court should dismiss the applicable standard care was how absolutely This is because statute breached; expert’s required exactly is of a clear as to what applicable the breach of the stan- how malpractice plaintiff. A injury or death. dard of care resulted reason, of merit separate I dissent to revers- For this must *20 provided for each health remanding give must be this case to provider against apple. whom claim asserted. appellants another bite at appellant’s explain in certifícate does not any way respiratory how the cardiac surgical
arrest that occurred in the room
ultimately caused decedent’s death.
Finally, my I wish to make clear firm
conviction that W.Va.Code 55-7B-6 is con- infringe
stitutional. statute does not rule-making power of this Court
because it does not conflict with of this
Court’s Our Rules of rules. Civil Procedure
“govern procedure in all trial courts actions, suits, judicial
record all or other of a
proceedings civil nature.” W.Va.R.Civ. According
Pro. 1. to Rule of Civil Procedure
3(a), by filing action civil is commenced “[a]
complaint Thus, with the court.” gov-
Court’s Rules Civil Procedure do
ern pre-filing certificate of merit because
such prior a certificate is filed the com-
mencing Hence, of a civil action. W.Va.Code legitimate is a addition to the
substantive law of this State. sum, would I affirm dismissal
appellant’s provide action below failure to appellees separate
each of certifi- merit, majori-
cate of Iso dissent to the
ty’s disposition of ultimate this case. Howev-
er, I concur with the new law crafted
majority applies only the extent that it
alleged defects within the four of a corners concur, Accordingly,
certificate of merit. I dissent,
part, part.
George B. SUMMERS Ronald
Fertile, Below, Petitioners
Appellants,
THE VIRGINIA WEST CONSOLIDATED BOARD, RETIREMENT
PUBLIC Below,
Respondent Appellee.
No. 32508.
Supreme Virginia. Appeals Court of of West
Submitted: June 2005. July
Filed: