664 S.E.2d 90
Robert W. Bright Thomas J. Hurney, Jr.
Story Law Office Rob J. Aliff
Pomeroy, Ohio Amber L. Hoback
Attorney for the Appellant Jackson Kelly, PLLC
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER concurs in part, and dissents in part, and reserves the right to file a separate opinion.
1. “'Appellate review of a circuit court's order granting a motion to
dismiss a complaint is de novo.' Syllabus point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).” Syllabus point 1, Albright v.
White, 202 W. Va. 292, 503 S.E.2d 860 (1998).
2. “Under W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)] the purposes of
requiring a pre-suit notice of claim and screening certificate of merit are (1) to prevent the
making and filing of frivolous medical malpractice claims and lawsuits; and (2) to promote
the pre-suit resolution of non-frivolous medical malpractice claims. 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.” Syllabus point 2, Hinchman v. Gillette, 217 W. Va. 378, 618
S.E.2d 387 (2005).
3. “Before a defendant in a lawsuit against a healthcare provider can
challenge the legal sufficiency of a plaintiff's pre-suit notice of claim or screening certificate
of merit under W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)], the plaintiff must have been
given written and specific notice of, and an opportunity to address and correct, the alleged
defects and insufficiencies.” Syllabus point 3, Hinchman v. Gillette, 217 W. Va. 378, 618
S.E.2d 387 (2005).
4. “Under W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)], the making of a
request for a more definite statement in response to a notice of claim and screening certificate
of merit preserves a party's objections to the legal sufficiency of the notice and certificate
as to all matters specifically set forth in the request; all objections to the notice or certificate's
legal sufficiency not specifically set forth in the request are waived.” Syllabus point 5, Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005).
5. “In determining whether a notice of claim and certificate are legally
sufficient, a reviewing court should apply W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)] 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.” Syllabus point 6, Hinchman v. Gillette,
217 W. Va. 378, 618 S.E.2d 387 (2005).
6. “Although courts should not set aside default judgments or dismissals
without good cause, it is the policy of the law to favor the trial of all cases on their merits.”
Syllabus point 2, McDaniel v. Romano, 155 W. Va. 875, 190 S.E.2d 8 (1972).
Per Curiam:
The appellant, Danny Ray Westmoreland (hereinafter “Dr. Westmoreland”),
appeals from two adverse rulings issued by the Circuit Court of Mason County. On
December 13, 2006, the trial court entered an order denying Dr. Westmoreland's Rule 60(b) (See footnote 1) motion for reconsideration of an October 30, 2006, order that dismissed his complaint for
failure to comply with the West Virginia Medical Professional Liability Act (hereinafter
“MPLA”), W. Va. Code § 55-7B-1, et seq. Specifically, the October 30, 2006, order found
that Dr. Westmoreland's medical malpractice suit against the appellee, Shrikant K. Vaidya,
M.D., (hereinafter “Dr. Vaidya”) failed to comply with the MPLA's certificate of merit
requirement. See W. Va. Code § 55-7B-6(b) (2003) (Supp. 2007). On appeal to this Court,
Dr. Westmoreland alleges that dismissal of his suit was improper for various reasons. (See footnote 2) In
response, Dr. Vaidya avers that dismissal was proper because Dr. Westmoreland failed to
comply with the MPLA pre-suit mandates. Based upon the parties' arguments, the record
designated for our consideration, and the pertinent authorities, we affirm the trial court's
decision that the MPLA governs this case, we reverse the decisions of the Circuit Court of
Mason County (See footnote 3) that dismissed this case, and we remand this case for further consideration
consistent with this opinion to afford Dr. Westmoreland an opportunity to secure a certificate
of merit.
This is a case of one doctor suing another doctor for alleged medical
malpractice. Dr. Westmoreland is a family practitioner who saw Dr. Vaidya, a urologist, on
June 13, 2003, for kidney stones. Dr. Vaidya placed a temporary stent in Dr.
Westmoreland's ureter to remove a kidney stone that had obstructed the left kidney. The
parties agree that this procedure was uneventful. However, the parties differ as to the effect
of a procedure performed on June 16, 2003, when Dr. Vaidya removed the temporary stent
through a process known as a cystoscopy. The minor surgery took place in Dr. Vaidya's
office. Dr. Vaidya avers that the procedure went well without incident; however, Dr.
Westmoreland claims that he was injured during the event and that Dr. Vaidya continued
with the cystoscopy even after Dr. Westmoreland directed him to stop. As a result of the
June 16, 2003, cystoscopy, Dr. Westmoreland claims permanent injury and disfigurement.
He sued Dr. Vaidya for medical malpractice, civil battery, slander, and fraud.
On May 2, 2005, Dr. Westmoreland served a handwritten “Notice of intent to
bring suit” on Dr. Vaidya. Dr. Westmoreland filed the same handwritten notice in the circuit
court on June 10, 2005, to initiate his case against Dr. Vaidya. Dr. Westmoreland invoked
W. Va. Code § 55-7B-6(c) (2003) (Supp. 2007), (See footnote 4) in his pro se filing. The “Notice of intent
to bring suit” stated that he was providing notice “in lieu of [a] Certificate of Merit due to the
fact that the common person would not need to have an expert verify the breech [sic] of [the]
standard of care[.]” The filing went on to state that “[a]ll urologists refused to sign the
certificate of merit for social reasons making it impossible to use legal counsel[.]” (See footnote 5) Further,
“I understand that this notification meets the criteria in W. V[a.] Code § 55-7B-6(c)[.]”
Thereafter, on June 30, 2005, Dr. Vaidya filed a motion to dismiss for failure
to comply with the pre-suit requirements, namely the failure to provide a screening certificate
of merit. By order entered October 30, 2006, the circuit court agreed and found that
this case is controlled by the “MPLA” and [Dr. Westmoreland]
must meet its requirements in filing this malpractice action, including filing a certificate of merit and providing an expert
witness to testify to the deviation of the standard of care. This
is particularly true because of the specialized nature of the
medical practice of urology. Because Plaintiff has failed to meet
the pre-filing requirements in this action, the case must, as a
matter of law, be dismissed.
(Emphasis in original). Dr. Westmoreland filed a motion under Rule 60(b) of the West
Virginia Rules of Civil Procedure asking the trial court to reconsider its earlier dismissal of
the suit. In that motion, Dr. Westmoreland argued that his pro se (See footnote 6) procedural mistakes
should be overlooked and that he had litigated the case with a good faith belief that his case
did not require expert testimony and that his case should be allowed to proceed. In the
alternative, Dr. Westmoreland asked for a stay of the case and a second chance to obtain a
certificate of merit.
By order entered December 13, 2006, the circuit court denied the Rule 60(b) motion for reconsideration, finding as follows:
Plaintiff admitted his awareness of the Certificate of Merit
requirement and it is undisputed that Plaintiff did not serve Dr.
Vaidya with a Certificate of Merit. Plaintiff did attempt to
obtain a Certificate of Merit and Plaintiff contends that two
specialists in urology were willing to sign a Certificate of Merit
on his behalf in this case. . . . Plaintiff claims he is entitled to
reconsideration . . . because he made procedural errors
constituting mistake and excusable neglect and . . . under the
“any other reason justifying relief from the operation of the
judgment” provision of Rule 60(b).
The circuit court went on to find that the
Plaintiff failed to show good faith and a reasonable basis for
noncompliance. Plaintiff knew of the Certificate of Merit
requirement when he filed his claim and he was reminded of his
noncompliance when Dr. Vaidya filed his Motion to Dismiss of
June 30, 2005. This means that for the past 18 months Plaintiff
has neglected to address these deficiencies. Plaintiff has also
failed to show “any other reason” warranting reconsideration for
his failure to comply with the MPLA.
After the circuit court's denial of the motion for reconsideration, Dr.
Westmoreland appealed to this Court. On appeal, he asserts numerous allegations; (See footnote 7) however,
the controlling issue on appeal is the trial court's dismissal of the suit for failure to comply
with the MPLA on procedural grounds.
The appeal before this Court involves two orders entered by the trial court: a
dismissal order for failure to follow pre-suit requirements, and a denial of a Rule 60(b)
motion for reconsideration of the dismissal. Recognizing that “[a] motion made pursuant to Rule 60(b), W. Va. R.C.P., does not toll the running of the appeal time of [four] months
provided by West Virginia Code, Chapter 58, Article 5, Section 4, as amended.” Syl. pt. 1, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974), (See footnote 8) the current appeal before this Court
was timely filed as it relates to both orders.
Observing the guiding principle expressed in Syllabus point 3 of Toler that
“[a]n appeal of the denial of a Rule 60(b) motion brings to consideration for review only the
order of denial itself and not the substance supporting the underlying judgment nor the
final judgment order,” (See footnote 9) 157 W. Va. 778, 204 S.E.2d 85, we take note that the underlying motion
for reconsideration challenges the trial court's earlier dismissal of the case. Because the
appeal of the order of dismissal was also timely filed within the four month appeal period,
our review will focus on the substantive standard of review applicable to motions to dismiss.
We have previously explained that “a motion to dismiss should be granted only
where 'it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations.'” Ewing v. Board of Educ. of County of Summers, 202 W. Va.
228, 235, 503 S.E.2d 541, 548 (1998) (quoting Murphy v. Smallridge, 196 W. Va. 35, 36,
468 S.E.2d 167, 168 (1996) (internal citations omitted)). The standard of review applied to
grants of motions to dismiss is well-recognized as follows: “'Appellate review of a circuit
court's order granting a motion to dismiss a complaint is de novo.' Syllabus point 2, State ex
rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).”
Syl. pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998). Mindful of these
applicable standards, we now consider the substantive issues raised herein.
On appeal to this Court, Dr. Westmoreland asserts nine assignments of error. (See footnote 10) However, several of them are duplicative as far as the underlying merits and substantive law.
In essence, Dr. Westmoreland argues the following: (1) the trial court's dismissal of his suit
for failure to comply with the MPLA on procedural grounds was in error; (2) the certificate
of merit requirement is unconstitutional; (See footnote 11) and (3) the civil battery, slander, and fraud claims
are all outside the ambit of the MPLA and should not have been dismissed. (See footnote 12) In response to
Dr. Westmoreland's assignments of error, Dr. Vaidya argues that Dr. Westmoreland failed
to comply with the pre-suit requirement of obtaining a certificate of merit. Thus, Dr. Vaidya
contends that dismissal was proper on all procedural grounds. The core of this discussion
will necessarily center on the trial court's dismissal of the suit based on Dr. Westmoreland's
failure to comply with the pre-suit notice requirements of W. Va Code § 55-7B-6(b).
The pre-suit filing requirements of the MPLA are found in W. Va. Code § 55-
7B-6(b), which states, in relevant part, 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 . . . a notice of claim on each health care provider . . . . 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.
Dr. Westmoreland filed suit against Dr. Vaidya, invoking an exception to the requirement that a certificate of merit be filed. Specifically, Dr. Westmoreland relied on W. Va. Code § 55-7B-6(c), which states, in relevant part,
if a claimant or his or her counsel, believes that no screening
certificate of merit is necessary because the cause of action is
based upon a well-established legal theory of liability which
does not require expert testimony supporting a breach of the
applicable standard of care, the claimant or his or her counsel,
shall file a statement specifically setting forth the basis of the
alleged liability of the health care provider in lieu of a screening
certificate of merit.
The language of the statute and its interpretation is not at issue in this case.
Rather, the issue is Dr. Westmoreland's reliance on the exception in subsection (c) and its
resulting effect on the pendency of the case. In specifically addressing the pre-suit filing
requirements of the MPLA, this Court has previously held that,
[u]nder W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)] the
purposes of requiring a pre-suit notice of claim and screening
certificate of merit are (1) to prevent the making and filing of
frivolous medical malpractice claims and lawsuits; and (2) to
promote the pre-suit resolution of non-frivolous medical
malpractice claims. 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, Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005).
In regards to alleged deficiencies in the certificate of merit, this Court has
explained that
[b]efore a defendant in a lawsuit against a healthcare provider can challenge the legal sufficiency of a plaintiff's pre- suit notice of claim or screening certificate of merit under W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)], the plaintiff must have been given written and specific notice of, and an opportunity to address and correct, the alleged defects and insufficiencies.
Syl. pt. 3, id. Further,
[u]nder W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)], the
making of a request for a more definite statement in response to
a notice of claim and screening certificate of merit preserves a
party's objections to the legal sufficiency of the notice and
certificate as to all matters specifically set forth in the request;
all objections to the notice or certificate's legal sufficiency not
specifically set forth in the request are waived.
Syl. pt.5, id.
Dr. Westmoreland argues that Dr. Vaidya has waived any objections that he
may have had to the certificate of merit, or lack thereof, because of his failure to object to a
lack of a certificate of merit after receipt of the “Notice of intent to bring suit” and the
attendant knowledge that Dr. Westmoreland was invoking the exception in subsection (c).
Conversely, Dr. Vaidya claims no screening certificate of merit was provided to which he
could object. In resolving this dispute, we find instructive the following:
In determining whether a notice of claim and certificate
are legally sufficient, a reviewing court should apply W. Va.
Code, 55-7B-6 [(2003) (Supp. 2007)] 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.
Syl. pt. 6, Hinchman, 217 W. Va. 378, 618 S.E.2d 387.
In determining whether Dr. Westmoreland demonstrated a good faith and
reasonable effort to further the statutory purpose, we agree with the circuit court's
determination that “this case is controlled by the 'MPLA' and [Dr. Westmoreland] must meet
its requirements in filing this malpractice action, including filing a certificate of merit and
providing an expert witness to testify to the deviation of the standard of care.” (See footnote 13) Significantly, we note that from the outset of this case, Dr. Westmoreland proceeded with
a belief that he could litigate this case under the exception contained in subsection (c) of the
filing requirements. In his filing titled “Notice of intent to bring suit,” Dr. Westmoreland, pro se, stated that he was providing notice “in lieu of [a] Certificate of Merit due to the fact
that the common person would not need to have an expert verify the breech [sic] of [the]
standard of care[.]” Further, “I understand that this notification meets the criteria in W. V[a.]
Code § 55-7B-6(c)[.]”
While his reliance on such subsection was in error due to the complexities of
the underlying medical issues in this case, Dr. Westmoreland had no way of knowing how
the trial court would rule on the matter until it eventually ruled in the dismissal order that an
expert and certificate of merit were required. Dr. Vaidya had never objected to the statement
in lieu of the certificate of merit until he filed his motion to dismiss. The case then
progressed to a hearing on the motion to dismiss. The first point in time when a court set
forth that Dr. Westmoreland would not be permitted to rely on subsection (c) in lieu of a
certificate of merit was the same point in time that the case was dismissed for failure to
comply with such requirement. Thus, Dr. Westmoreland was never afforded an opportunity
to correct the error.
This Court has previously recognized that “dismissal based on procedural
grounds is a severe sanction which runs counter to the general objective of disposing cases
on the merit.” Dimon v. Mansy, 198 W. Va. 40, 45-46, 479 S.E.2d 339, 344-45 (1996).
Further, “[a]lthough courts should not set aside default judgments or dismissals without good
cause, it is the policy of the law to favor the trial of all cases on their merits.” Syl. pt. 2, McDaniel v. Romano, 155 W. Va. 875, 190 S.E.2d 8 (1972). Thus, based on Dr.
Westmoreland's reliance on an exception to the certificate of merit requirement and based
on the fact that he was not afforded an opportunity to correct the error after the trial court
ruled adversely, dismissal of the case was too draconian of a result. When the trial court
granted the dismissal order, Dr. Westmoreland obtained counsel and filed a motion under
Rule 60(b) for reconsideration, arguing his reliance on the exception contained in subsection
(c), as well as a request that he be afforded a second opportunity to obtain a certificate of
merit in light of the trial court's ruling that one would be required. From the specific facts
of this case, it is clear that Dr. Westmoreland made a good faith and reasonable effort to
further the statutory purposes of the MPLA. He should have been afforded a reasonable
amount of time to fulfill the pre-suit certificate of merit requirement prior to dismissal.
In similar cases before this Court, a time period of thirty days has been found
to be reasonable. See Syl. pt. 4, Hinchman, 217 W. Va. 378, 618 S.E.2d 387 (2005) (“Under W. Va. Code, 55-7B-6 [(2003) (Supp. 2007)], when a healthcare provider receives a pre-suit
notice of claim and screening certificate of merit that the healthcare provider believes to be
legally defective or insufficient, the healthcare provider may reply within thirty days of the
receipt of the notice and certificate with a written request to the claimant for a more definite
statement of the notice of claim and screening certificate of merit. The request for a more
definite statement must identify with particularity each alleged insufficiency or defect in the
notice and certificate and all specific details requested by the defendant. A claimant must be
given a reasonable period of time, not to exceed thirty days, to reply to a healthcare
provider's request for a more definite statement, and all applicable periods of limitation
shall be extended to include such periods of time.” (emphasis added)); Syl. pt. 6, State ex rel.
Weirton Med. Ctr. v. Mazzone, 214 W. Va. 146, 587 S.E.2d 122 (2002) (“'Upon a trial
court's determination that an expert witness is required to prove standard of care or
proximate cause in an action brought under the West Virginia Medical Professional Liability
Act, West Virginia Code §§ 55-7B-1 to -11 (1986) (Repl. Vol. 2000), a reasonable period
of time must be provided for retention of an expert witness.' Syllabus Point 4, Daniel v.
Charleston Area Medical Center, Inc., 209 W. Va. 203, 544 S.E.2d 905 (2001).”). Thus, at
the time that the trial court determined that subsection (c) of W. Va. Code § 55-7B-6 did not
apply and that a certificate of merit was needed, Dr. Westmoreland should have been allowed
time to secure a certificate of merit executed by an expert. (See footnote 14) The circuit court's dismissal of
the case without affording time to secure a certificate of merit was in error.