Even assuming, arguendo, that an apparent agency relationship might exist
between Dr. Johnson and GVMC under this Court's case law, the same is not, in my view,
sufficient to permit GVMC to accept any form of service on behalf of Dr. Johnson. See, Burless v. West Virginia University Hospitals, Inc., 215 W. Va. 765, 601 S.E.2d 85 (2004)
(finding apparent agency relationship may exist between physician and hospital in certain
situations where there is no actual agency relationship); Torrence v. Kusminsky, 185 W. Va.
734, 408 S.E.2d 684 (1991) (finding emergency room physician may be deemed ostensible
agent of hospital where no actual agency relationship exists). Such a relationship may
permit the hospital to be held liable for the acts of the physician, but it does not permit the
hospital to act on behalf of the physician. I have been unable to locate a single case
permitting a hospital to accept service on behalf of an emergency room physician. To the
contrary, courts uniformly reject such service. See, Jackson v. County of Nassau, 339
F.Supp.2d 473 (E.D.N.Y. 2004) (Under New York law, a county medical center's
designated agent was not authorized to accept service of process for physician formerly
employed by the medical center, absent evidence that he was ever appointed as physician's
agent for service of process or for any other purpose.); Neely v. Eshelman, 507 F.Supp. 78
(D.C.Pa. 1981) (quashing service of process upon physician where complaint was served
on individual at the hospital other than the physician and the physician did not have an
authorized agent for service at the hospital); Brown v. Carolina Emergency Physicians, P.A.,
560 S.E.2d 624 (S.C. Ct. App. 2001) (under South Carolina law, plaintiffs' service of
process was ineffective for purposes of medical malpractice action brought against company
employing emergency room doctor, hospital, and emergency room doctor where service was
made upon employee of the hospital who was not authorized to accept service on behalf of
company or doctor); C.f., LaPalme v. Romero, 621 N.E.2d 1102 (Ind. 1993) (service upon
manager of defendant's employer was insufficient as to defendant because employer did not
have legal authority to accept service on behalf of defendant). Simply put, the mere mailing
of a notice of claim to a hospital where a physician provides medical services cannot suffice
to establish service of the notice of claim upon the physician unless the notice is received
by a person designated by the physician as having the authority to accept such service on the
physician's behalf. The purpose of the notice of claim provision found in W. Va. Code §
55-7B-6 is to provide notice to the physician of an impending medical malpractice claim and
to provide the physician with thirty days in which to respond before suit is filed.
Recognizing that the Legislature failed to define the term “service” as used in W. Va. Code
§ 55-7B-6, I do not believe that providing notice to a person who is a non-authorized agent
of the physician in the hopes that it will eventually reach the physician himself can, by any
stretch of the imagination, satisfy the legislature's intent under any definition of service.
Although I dissent to the majority's determination that the notice at issue was
properly served upon Dr. Johnson, I agree and concur with the majority's discussion
regarding the legislature's authority with respect to pre-suit notice of claims as a pre-requisite to filing a medical malpractice action. The legislature is empowered to define
common law causes of action, including prerequisites which must be satisfied before a
court's jurisdiction to entertain the action is triggered.