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).
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
(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,
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  (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.