STATE of West Virginia ex rel. Elizabeth Ann MILLER, Individually, and as Administratrix of the Estate of Rachel M. Miller, Deceased, Petitioner v. The Honorable Robert B. STONE, Judge of the Circuit Court of Monongalia County, West Virginia; and West Virginia University Board of Governors, Respondents.
No. 31755.
Supreme Court of Appeals of West Virginia.
Decided Dec. 2, 2004.
607 S.E.2d 485
Submitted Nov. 9, 2004. Dissenting Opinion of Justice Starcher Dec. 23, 2004.
William E. Galeota, Nancy A. Defeo, Rodney L. Bean, Steptoe & Johnson, Morgantown, for West Virginia Board of Governors.
PER CURIAM:
Petitioner, Elizabeth Ann Miller, individually, and as administratrix of the estate of her deceased daughter, Rachel M. Miller, seeks a writ of prohibition1 to prevent the enforcement of the October 1, 2003, order of the Circuit Court of Monongalia County ruling that Petitioner‘s medical malpractice claim is governed by the amended version of the Medical Professional Liability Act,
I.
FACTS
Petitioner‘s daughter, Rachel M. Miller, was born on June 10, 2001, at West Virginia University Hospital, and she died two days later. On May 9, 2003, Petitioner filed a notice of claim, pursuant to the 2001 version of
On June 9, 2003, Petitioner filed a medical malpractice complaint against several parties including the hospital and a number of physicians. Thereafter, the certificate of merit required by
Subsequently, the physicians filed a motion to dismiss Petitioner‘s medical malpractice claim on the grounds that Petitioner did not file a proper and timely certificate of merit as required by
The effective date of the Notice [of Claim] . . . is not until that Certificate of Merit is actually provided; without a Certificate of Merit, there is not in fact a complete Notice of Claim. . . .
In the undisputed circumstances of this case, the plaintiff did not provide a Certificate of Merit until June 20, 2003. That was, in effect the date of the statutorily required “Notice of Claim.” Under the provisions of § 55-7B-6, therefore, this action could not be commenced until 30 days thereafter, or not until July 20, 2003.
Petitioner sought extraordinary relief from the order in this Court, and we granted a rule to show cause. For the reasons that follow, we now deny the writ.
II.
STANDARD FOR ISSUING A WRIT OF PROHIBITION
When determining whether a writ of prohibition should lie, we traditionally employ the following standard:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal‘s order is clearly erroneous as a matter of law; (4) whether the lower tribunal‘s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal‘s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With this standard to guide us, we proceed to consider the issue herein.
III.
DISCUSSION
In support of her request for a writ of prohibition, Petitioner argues that the cir
Respondent replies that because Petitioner‘s notice of claim was incomplete until she supplied the required screening certificate of merit, and because she could not initiate the underlying medical malpractice action until 30 days after a proper notice of claim, the trial court correctly treated the underlying action as having been filed on the first day it properly could have been filed which was after the amended version of the Medical Professional Liability Act went into effect. Also, Respondent avers that, although Petitioner seeks to avail herself of
The issue before us concerns the meaning of
(b) 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. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, together with a screening certificate of merit. The certificate 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. . . .
* * *
(d) If a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.
(e) Any health care provider who receives a notice of claim pursuant to the provisions of this section must respond, in writing, to the claimant within thirty days of receipt of the claim or within thirty days of receipt of the certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) of this section.
(f) Upon receipt of the notice of claim or of the screening certificate, 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.
(g) If the health care provider demands mediation pursuant to the provisions of subsection (f) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the supreme court of appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.
(h) The failure of a health care provider to timely respond to a notice of claim, in the absence of good cause shown, constitutes a waiver of the right to request pre-litigation mediation. Except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of the mailing of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs. If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded.4
In ascertaining the meaning of this statute, we are mindful that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syllabus Point 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959). After careful consideration of the provisions of the statute at issue, we conclude that the Legislature‘s clear intent in enacting
A proper reading of
Pursuant to subsection (e), once a claimant files his or her certificate of merit under subsection (d), a health care provider, upon receipt of the certificate, must respond to the claimant, in writing, within 30 days. According to subsection (f), the health care provider is entitled to pre-litigation mediation before a qualified mediator upon written demand to the claimant. Subsection (g) indicates that if the health care provider demands mediation, the mediation shall be conducted within 45 days of the date of the written demand.
Significantly, subsection (h) indicates that the statute of limitations applicable to the medical malpractice action shall be tolled from the date of the mailing of a notice of claim to 30 days following receipt of a response to the notice of claim, 30 days from the date a response to the notice of claim would be due, or 30 days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever occurs last.
When we apply these plain statutory terms to the facts of this case, we find that the circuit court properly ruled that Petitioner‘s claim could not be commenced until, at the earliest, 30 days after she filed her certificate of merit on June 20, 2003, which would be July 20, 2003. This is due to the fact that Petitioner filed her notice of claim pursuant to subsection (d) which means that she first filed her statement of the theories of liability along with a statement of intent to provide a screening certificate of merit within 60 days of the date the health care provider received her notice of claim. According to subsection (h), at this point the statute of limitation was tolled. Petitioner then filed her certificate of merit on June 20, 2003. Under subsection (e), the health care providers then had 30 days to respond in writing. Subsection (f) provides that, at this point, the health care provider is entitled to pre-litigation mediation upon a written demand.
Petitioner violated the statute when she filed her medical malpractice claim on June 9, 2003, before she filed her certificate of merit, which completely foreclosed the health care provider‘s statutorily granted right to demand pre-litigation mediation—in other words, mediation prior to the filing of any action. This premature filing of her medical malpractice claim was in obvious contravention of the clear provisions of the statute. Because Petitioner‘s certificate of merit was not filed until June 20, 2003, her medical malpractice claim could not be filed until 30 days later to give the defendants the right to demand pre-litigation mediation. As found by the circuit court, this means that her claim could not be filed until after July 1, 2003, at which time the amended version of the Medical Professional Liability Act became applicable.5
Petitioner‘s assertion that
IV.
CONCLUSION
For the reasons stated above, we find that the circuit court properly ruled that Petition
Writ denied.
Justice STARCHER dissents and files an opinion.
STARCHER, J., dissenting:
I want to state that I have grave reservations about several aspects of the 2003 amendments to the Medical Professional Liability Act, particularly those that relate to procedural matters. It is well established that this Court has the primary constitutional authority to administer and control the procedural aspects of litigation. See
Nevertheless, accepting arguendo the statutes as written, I believe that the circuit judge erred in deciding to apply the 2003 amendments to the Medical Professional Liability Act to the instant case. The petitioner—who alleges that her deceased child was the victim of medical malpractice in June 2001—filed her case on June 9, 2003, and the statutory changes at issue did not take effect until July 1, 2003. It is a fundamental rule of statutory construction that statutory changes are presumed to apply prospectively only. See
The majority opinion disregards these basic rules of statutory construction to reach an inequitable result. The opinion gives a liberal reading to the Medical Professional Liability Act so as to retroactively apply the July 2003 statutes to impair the petitioner‘s legal rights established when the alleged malpractice occurred in June 2001. I cannot accept such a misreading of the Legislature‘s actions, and therefore respectfully dissent.
Notes
This Court‘s rejection of a petition for appeal is not a decision on the merits precluding all future consideration of the issues raised therein, unless, as stated in Rule 7 of the West Virginia Rules of Appellate Procedure, such petition is rejected because the lower court‘s judgment or order is plainly right, in which case no other petition for appeal shall be permitted.See e.g., Meagan B. v. Nationwide Mut. Ins. Co., No. 041772 (explaining that “having fully reviewed the certified questions presented and the answers provided by the circuit court, the Court is of the opinion that the petition should be, and hereby is, refused, because the circuit court‘s order is plainly right“). Finally, we note that Petitioner makes public policy arguments in support of her position. However, as set forth in the body of this opinion, when a statute is clear and unambiguous, it generally is our task to apply the statute as written and not to interpret it in consonance with this Court‘s policy preferences.