Maynard, Chief Justice, dissenting:
I believe that the circuit court properly dismissed Appellant's complaint for
failure to comply with the clear provisions of the 2001 version of W.Va. Code § 55-7B-6.
By reversing the circuit court, the majority opinion disregards plain statutory language and
rules in a manner clearly contrary to this Court's recent decision in State ex rel. Miller v.
Hon. Stone, ___ W.Va. ___, ___ S.E.2d ___ (No. 31755, December 2, 2004)
In Miller, Petitioner filed her notice of claim on May 9, 2003, and the
certificate of merit on June 20, 2003. However, she filed her medical malpractice complaint
on June 9, 2003. The circuit court ruled that Petitioner's complaint could not properly be
filed until 30 days after the filing of the certificate of merit, which was July 30, 2003, after
the 2003 amendments to the Medical Professional Liability Act became applicable.
Petitioner thereafter sought a writ in this Court to prohibit the enforcement of the circuit
court's order. This Court denied the writ after finding that the circuit court's order was
correct.
The applicable statutory language in both Miller and the instant case provides:
(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.
(See footnote 1)
This Court explained in Miller,
A proper reading of W.Va. Code § 55-7B-6(b), indicates
that 30 days before a plaintiff files a medical malpractice action,
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.
Miller, slip op. at 8-9.
Upon application of the clear provisions of W.Va. Code § 55-7B-6 (2001), to
the facts of the instant case, it is obvious that the circuit court properly dismissed Appellant's
Finally, I note that the result of the dismissal of Appellant's complaint would
most likely have been the re-filing of the complaint under the 2003 amendments to the
Medical Professional Liability Act, which became applicable on July 1, 2003. Contrary to
the assertions in the majority opinion, there would have been no injustice to Appellant.
Rather, his causes of action simply would have been governed by an amended version of the
Medical Professional Liability Act.
Accordingly, for the reasons set forth above, I dissent.
Footnote: 1