|
Mary McQuain, Esq. |
Neva
G. Lusk, Esq. Grant Shuman, Esq. Spilman, Thomas & Battle Charleston, West Virginia Attorneys for Julie M. Gillette D.
C. Offutt, Jr., Esq. |
2. Under W.Va. Code, 55-7B-6 [2003] 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.
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], the plaintiff must have been given written and specific notice of, and an opportunity to address and correct, the alleged defects and insufficiencies.
4. Under W.Va. Code, 55-7B-6 [2003], 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.
5. Under W.Va. Code, 55-7B-6 [2003], 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.
6. In determining whether a notice of claim and certificate are legally sufficient, a reviewing court should apply W.Va. Code, 55-7B-6 [2003] 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.
Starcher, J.:
This
case involves a circuit court's dismissal of a medical malpractice case because
of alleged defects and insufficiencies in the plaintiff's pre-suit notice of
claim and screening certificate of merit. Because the plaintiff did not receive
specific pre-suit notice of the alleged defects and insufficiencies or an opportunity
to correct them, we hold that the case should be reinstated.
The four appellees are Julie M. Gillette, R.N., C.R.N.A.; Medical Doctor Associates, Inc.; Stonewall Jackson Memorial Hospital Company; and Roger K. Pons, M.D. All are healthcare providers who are alleged, in a complaint filed in the Circuit Court of Lewis County on January 7, 2003, to be legally liable to the appellant for wrongful death damages as a result of their alleged negligence in providing medical care and services to Mr. Hinchman during a pre-operative procedure. Specifically, Mr. Hinchman was being sedated in preparation for an outpatient biopsy surgery of his anal canal.
On July 7, 2003, the circuit court dismissed the appellant's case on the grounds that the appellant's pre-suit notice of claim and screening certificate of merit (“notice and certificate”), required by W.Va. Code, 55-7B-6 [2003], (See footnote 1) were legally defective and insufficient.
W.Va. Code, 55-7B-6 [2003] states:
(a)
Notwithstanding any other provision of this code, no person may file a medical
professional liability action against any health care provider without complying
with the provisions of this section.
(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 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.
(c)
Notwithstanding any provision of this code, 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.
(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 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) 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.
(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)
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 mail
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.
(i)
Notwithstanding any other provision of this code, a notice of claim, a health
care provider's response to any notice claim, a screening certificate of merit
and the results of any mediation conducted pursuant to the provisions of this
section are confidential and are not admissible as evidence in any court proceeding
unless the court, upon hearing, determines that failure to disclose the contents
would cause a miscarriage of justice.
The appellant's
notice and certificate read as follows:
Charlotte Hinchman intends to file a medical malpractice suit against you as a result of medical treatment you and others attempted to provide to her late husband, said Paul Z. Hinchman.
Specifically, Charlotte Hinchman claims that you breached applicable standards of care while attempting to provide medical treatment to Paul Z. Hinchman at Stonewall Jackson Memorial Hospital in Weston, West Virginia, on or about October 2, 2002 [2001], when he appeared there for a scheduled outpatient examination. Mrs. Hinchman claims that your breach of standards caused irreversible brain injury to Paul Z. Hinchman. Mr. Hinchman died of complications arising from said injuries on June 17, 2002.
A verified Certificate of Merit prepared by Roberto C. Valenzuela, J.D., a board certified anesthesiologist, is attached to this letter. Dr. Valenzuela's Certificate of Merit sets forth (1) that [sic] his familiarity with the applicable standard of care in issue; (2) his qualifications; (3) his opinion as to how the applicable standard of care was breached; and (4) his opinions as to how the breach of the applicable standard of care resulted in injury to Paul Z. Hinchman.
You
are strongly cautioned to report receipt of Notice of Claim to your liability
carrier and lawyer without delay. Section 55- 7B-6 of the West Virginia Code requires
that you file a written response to Charlotte Hinchman's claim within thirty
(30) days of receipt.
Please
govern yourself accordingly.
I
have been practicing anesthesiology in West Virginia since 1991, and have had
the good fortune to participate in 5 years of academic practice as well as 6
years of private practice. I am a board certified anesthesiologist and have been
appointed to the American Society of Anesthesiologists Committee on Surgical
and Preoperative Anesthesia since October 2001. Therefore, I
feel that I am familiar with the applicable standard of care in issue.
As a board certified anesthesiologist as well as with my participation in peer review, medical executive, and clinical competency committees I feel that I am qualified to render an opinion on the case of Mr. Hinchman. I have enclosed a copy of my curriculum vitae for your review.
After careful review of the records furnished me from Stonewall Jackson Memorial Hospital, Weston, WV, dated October 2, 2001 through October 7, 2001 pertaining to the treatment provided to Paul Z. Hinchman by Roger K. Pons, M.D., Julie M. Gillette, R.N., C.R.N.A., and various employees of Stonewall Jackson Memorial Hospital I conclude that the applicable standard of care was breached by the above entities in numerous ways.
First, Mr. Hinchman was excessively sedated for his physical condition, medical illnesses, and operative position. Second, the patient was inadequately monitored. Third, there was inadequate vigilance on the part of Nurse Gillette, Dr. Pons, and the other members of the OR Staff. Fourth, there was inadequate airway control. Fifth, there was a lack of recognition as to the underlying etiology of the patient's bradycardia resulting in delay of resuscitative efforts. And sixth, there was delayed airway securement once the patient was noted to be cyanotic.
The
above deviations resulted in prolonged hypoxia, and subsequent respiratory and
cardiac arrest.
Two of the appellees, Stonewall Jackson Memorial Hospital and Medical Doctor Associates, responded to the notice and certificate within thirty days of its receipt. One response read:
On
behalf of Stonewall Jackson Memorial Hospital, this letter serves as the response
to your Notice of Claim dated December 3, 2002 with the attached Screening Certificate
from Dr. Valenzuela. Based on the scant details regarding standard of care deviations
on the part of my client or its employees, all allegations contained in the Notice
of Claim and Screening Certificate are hereby denied.
Also,
please be advised that Stonewall Jackson Memorial Hospital declines to exercise
its right to pre-litigation mediation authorized by West Virginia Code § 55-7B-6.
The other response read:
On
behalf of Medical Doctor Associates, this letter serves as a response to your
Notice of Claim dated December 3, 2002. Based on the inadequacy of the information
concerning the alleged standard of care deviations on the part of Medical Doctor
Associates or any of its agents or employees, all allegations contained in the
Notice of Claim and screening certificate are hereby denied.
Please
be advised that Medical Doctor Associates declines to exercise its right to pre-litigation
mediation authorized by West Virginia § 55-7B-6.
The other appellees, Nurse Gillette and Dr. Pons, made no response to the notice
and certificate.
After suit was filed on January 7, 2003, all of the appellees answered the complaint. On April 18, Nurse Gillette filed a motion to dismiss the complaint pursuant to W.V.R.C.P., Rule 12(b)(6), alleging that the complaint should be dismissed because the appellant had failed to state a claim for relief by failing to properly comply with the pre-suit notice and certificate process set forth in W.Va. Code, 55-7B-6b [2003]. That motion was joined by Dr. Pons and Stonewall Jackson, and after a hearing on the motion, the circuit court granted those appellees' motions to dismiss. (See footnote 2)
The circuit court's order stated:
1.
The Plaintiffs provided one screening certificate of merit from Roberto C. Valenzuela,
M.D., an anesthesiologist, for all of the defendant health care providers, rather
than the required separate screening certificate of merit for each health care
provider against whom a claim was asserted.
2.
Dr. Valenzuela's discussion of his qualifications, and his curriculum vitae,
which was attached to his screening certificate of merit, generally documented
his qualifications to comment on the standard of care applicable to an anesthesiologist.
However, Dr. Valenzuela did not expressly state with particularity his familiarity
with any specific standard of care. Rather, he stated in a conclusory fashion, “I
feel that I am familiar with the applicable standard of care in issue.” Therefore,
the certificate of merit is deficient in failing to state with particularity
Dr. Valenzuela's familiarity with the standard of care applicable to Dr. Pons,
a surgeon; Ms. Gillette, a Certified Registered Nurse Anesthetist; or any of
the unnamed “various employees of Stonewall Jackson Memorial Hospital.”
3.
Dr. Valenzuela failed to state with particularity the standard of care applicable
to each health care provider against whom a claim was asserted and how that standard
of care was breached.
4.
Finally, the screening certificate of merit did not sate with particularity how
each alleged breach of the standard of care resulted in injury to or the death
of the Plaintiffs' decedent.
Having said this, we examine the pre-suit notice and certificate statute, W.Va. Code, 55-7B-6 [2003]. This is a new statutory provision that this Court has not previously addressed. However, a similar statute for medical malpractice claims has been in effect in Florida for some time. The Florida courts have addressed a number of issues arising under their statute, and their analyses are instructive and persuasive.
In Shands Teaching Hospital and Clinics, Inc. v. Barber, 638 So.2d 570, 572 (Fla.App. 1994), the court stated:
The
purpose of a notice of intent to sue is to give the defendant notice of the incident
in order to allow investigation of the matter and promote presuit settlement
of the claim; the expert corroborative opinion is designed to prevent the filing
of baseless litigation. [Citations omitted.]
In Patry
v. Capps, 633 So.2d 9, 11-12 [Fla. 1994], Florida's Supreme Court stated:
The
goal of [pre-suit notification] is to promote the settlement of meritorious claims
early in the controversy in order to avoid full adversarial proceedings. [Citations
omitted.]
The Florida
Supreme Court has also held that the purpose of pre-suit requirements is to alleviate
the high cost of medical negligence claims through early determination and prompt
resolution of claims, not to deny access to the courts to plaintiffs. Weinstock
v. Groth, 629 So.2d 835, 838 (Fla. 1993).
And in Wolfsen v. Applegate, 619 So.2d 1050, 1055 (Fla. Ct. App. 1993), the court said:
The
procedure for judicial review [of pre-suit notice] cannot be converted into some
type of summary proceeding to test the sufficiency, legally or factually, of
medical negligence claims.
A reading
of W.Va. Code, 55-7B-6 [2003] shows a purpose that is the same as that
identified by the Florida courts for their statutory scheme. We hold therefore
that under W.Va. Code, 55-7B-6 [2003] 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.
In the instant case, two of the appellees made no response to the appellant's notice and certificate of merit, only asserting the insufficiency of the notice and certificate after suit was filed. Two of the appellees made brief responses in which they asserted that there was a lack of detail or information about the standard of care in the notice and certificate. These appellees made no other criticism of the notice and certificate in their response. (See footnote 3)
However, after suit was filed, three of the appellees, including two who had not responded to the notice or certificate, attacked the notice and certificate at length and on several distinct grounds.
Without determining whether any of the appellees' post-suit claims of alleged defects and insufficiencies in the appellant's notice and certificate were to any degree meritorious, we will assume arguendo that they had at least some degree of merit. So assuming, it is then necessary to ask whether it was appropriate and fair to dismiss the appellant's lawsuit _ a draconian remedy _ when the appellant had received no specific notice of the claimed alleged defects and insufficiencies, and no opportunity to correct them. This Court stated in Rosier v. Garron, Inc., 156 W.Va. 861, 875, 199 S.E.2d 50, 58 (1973) that “. . . to the extent possible, under modern concepts of jurisprudence, legal contests should be devoid of those sporting characteristics which gave law the quality of a game of forfeits or trial by ambush.”
In the instant case, the appellees used a Rule 12(b)(6) motion to dismiss to challenge the sufficiency of the contents of the appellants' pre-suit notice and certificate. Ordinarily, in the case of a challenge to a complaint under Rule 12(b)(6), if the court determines that there is an insufficiency in a complaint, a party is afforded the opportunity to amend the complaint before dismissal of a case, which opportunity should be liberally given. Syllabus Point 6, Cotton States Mut. Ins. Co. v. Bibbee, 147 W.Va. 786, 131 S.E.2d 745 (1963); Farmer v. L.D.I., Inc., 169 W.Va. 305, 286 S.E.2d 924 (1982).
However, in the situation in the instant case, there would seem to be no sense or utility in allowing amendment of a pre-suit notice and certificate after suit is filed. For specific objections to a pre-suit notice and certificate to be made for the first time only after suit is filed is contrary to the purposes of the statute _ to avert frivolous claims leading to a lawsuit and to promote the pre-suit resolution of non-frivolous claims.
We hold
therefore that 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], the
plaintiff must have
been given written and specific notice of, and an opportunity to address and
correct, the alleged defects and insufficiencies.
The statutory scheme as set forth in W.Va. Code, 55-7B-6 [2003] and otherwise is silent as to when and how objections to the sufficiency of a notice of claim or certificate may be made. To address this evident gap or lacuna in the statute, see Harmon v. Fayette County Bd. of Educ., 205 W.Va. 125, 136-137, 516 S.E.2d 748, 759-760 (1999), (See footnote 4) we turn to an analogous provision, Rule 12(e) of the West Virginia Rules of Civil Procedure, which provides:
(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
In the pre-suit situation, of course, there is no court to rule on a motion for a more definite statement. Therefore, we modify Rule 12(e)'s approach, and hold that under W.Va. Code, 55-7B-6 [2003], 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 and information 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.
Additionally, we hold that under W.Va. Code, 55-7B-6 [2003], 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.
We also
hold that in determining whether a notice of claim and certificate are legally
sufficient, a reviewing court should apply W.Va. Code, 55-7B-6 [2003]
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. (See
footnote 5)
This Court is attuned to and understanding of the legislative purpose of promoting the pre-suit resolution of medical malpractice claims that are not frivolous. Under the approach formulated in the instant case, the statutory purpose of avoiding frivolous litigation is served by authorizing a pre-suit request for a more definite statement, because a claimant is on notice before filing any suit of potential challenges to the sufficiency of a notice of claim and screening certificate of merit, and has an opportunity to provide a modified or supplemented notice or certificate that addresses any meritorious concerns raised by the healthcare provider. The purpose of encouraging pre-trial resolution is served by authorizing a pre-suit request for a more definite statement, and by affording an opportunity to the claimant to respond to the request, because if a claimant makes a more definite statement in response to a request, the healthcare provider has more information upon which to investigate and decide whether to mediate or otherwise respond to the claim.
Applying
the foregoing principles to the facts of the instant case: two of the appellees,
Nurse Gillette and Dr. Pons, made no response to the notice and certificate.
They did not request mediation and they raised no objection to the notice and
certificate, thereby
waiving any objection thereto post-suit. Two appellees, Stonewall Jackson Memorial
Hospital and Medical Doctor Associates, responded to the appellant's notice
and certificate with only a generic objection alleging lack of information
or detail regarding the standard of care. These appellees also declined to
engage in pre-suit mediation.
The appellant
was not on notice, pre-suit, of the specific alleged defects and insufficiencies
that the appellees asserted after suit was filed; nor did the appellant have
an opportunity to address the allegations with further submissions. No appellee
took advantage of the opportunity pre-suit to attempt mediation to further understand
and possibly resolve the appellant's claims. Under these facts, dismissal of
the appellant's suit, which was not clearly frivolous, was erroneous. (See
footnote 6)