4. The 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. Syl. Pt. 2, in part, Hinchman v. Gillette, 217 W.Va. 378, 618 S.E.2d 387
(2005).
Per Curiam:
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) (See footnote 1) was dismissed without prejudice. Appellant alleges that the lower court
incorrectly determined that dismissal was required because Appellant failed to adequately
comply with the pre-suit notice of claim requirements of the Medical Professional Liability
Act (hereinafter referred to as MPLA). Having carefully considered the briefs and
arguments of the parties, the record certified to this Court and the applicable law, we reverse
the decision of the court below and remand the case for reinstatement and further
proceedings.
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
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. 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.
(Emphasis added.) As reflected in the June 16, 2005, order, the lower court also relied on
the following two subsections of West Virginia Code § 55-7B-6 to arrive at its conclusion
that Appellant did not complete proper pre-suit notice pursuant to the statute:
(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) (See footnote 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 certified 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; see also W.Va. Code § 51-1-4 (1935) (Repl. Vol. 2000) (The supreme court of appeals
may, from time to time, make and promulgate general rules and regulations governing
pleading, practice and procedure in such court and in all other courts of record of this
State.). Moreover, as a court of limited jurisdiction, this Court can only act when authority
to do so has been constitutionally or statutorily granted. Syl. Pt. 1, in part, James M.B. v.
Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995) (This Court's jurisdictional authority
is either endowed by the West Virginia Constitution or conferred by the West Virginia
Legislature.). No such apparent authority exists here. Accordingly, this Court may require
no more as to service of an MPLA pre-suit notice than is stated in the statute. As a result,
since the Legislature has reserved the authority in this province, only the Legislature may
provide any further clarification regarding the method of service or direction regarding
reconciliation of the various provisions of West Virginia Code § 55-7B-6. In consideration
of the law and facts, dismissal of Appellant's suit was erroneous.
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. (See footnote 10) Furthermore, we find no reason to penalize
Appellant with dismissal of his suit when the record fails to show that Appellant was not
acting in good faith or otherwise was neglecting to put forth a reasonable effort to further
the statutory purposes. As we said in syllabus point six of Hinchman v. Gillette, 217 W.Va.
378, 618 S.E.2d 387 (2005), an opinion released roughly two weeks after the lower court
issued its ruling,
In determining whether a notice of claim and certificate
are legally sufficient, a reviewing court should apply W.Va.
Code, 55-7B-6 [2003] (See footnote 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, in part. Thus our review of the application of the MPLA pre-suit notice
statute involves a balanced consideration of not only the rights of the health care provider
but also the rights of the claimant. There is nothing in the record to suggest _ and Appellee
does not allege _ that Appellant's claim is frivolous or that his actions impeded pre-suit
resolution of the claim.
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. (See footnote 12)
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.