Maynard, Justice, concurring, in part, and dissenting, in part:
The majority
opinion may result in the complete gutting of a portion of the 2001 medical malpractice
reforms.
I agree
with the new law crafted in the majority opinion, which mandates that challenges
to the sufficiency of a pre-filing certificate of merit must give the plaintiff
an opportunity to address and correct alleged defects in the certificate prior
to the filing of the complaint, to the extent that this law is applied only to
alleged defects in the four corners of the certificate of merit. Specifically,
a defendant should be required to challenge an alleged defect in the content of
a certificate prior to the filing of the complaint. If, however, a plaintiff
fails to provide a certificate of merit in the manner clearly set forth in the
statute, the circuit court should dismiss the case immediately. This is because
the statute is absolutely clear as to what exactly is required of a medical malpractice
plaintiff.
For this
reason, I must dissent to reversing and remanding this case to give the appellants
another bite at the apple. The fact is that the appellants' certificate was so
deficient under the statute, that an immediate dismissal was warranted. According
to W.Va. Code § 55-7B-6, “[a] separate screening certificate
of merit must be provided for each health care provider against whom a
claim is asserted.” (Emphasis added). In the instant case, the same certificate
was sent to each defendant. If the Legislature intended to mandate only that
each health care provider be provided the same certificate, it would have omitted
the word separate which in this context obviously means individual
or particular. Under our rules of construction, this Court is to give each
word of a statute meaning. When we give meaning to each word of W.Va. Code § 55-7B-6,
it is clear that each health care provider is to be provided with a certificate
of merit particular to that health care provider. This was not done here. Because
the certificate was so fundamentally flawed, dismissal was proper and should
be affirmed.
The majority's
reversal and remand indicates to me that the statute requiring pre-certificates
of merit may be rendered essentially meaningless. Plaintiffs may now fail to
provide a certificate or provide a cursory one to see whether they can get by
with it. If the defendant does object, the plaintiff can then proceed to do what
he or she should have done at the outset _ simply comply with the clear requirements
of the statute.
I believe
also that the certificate at issue was flawed in that it does not state
with sufficient detail the expert's opinion as to how the breach of the applicable
standard of care resulted in injury or death. Instead, it merely concludes
that “[t]he above deviations resulted in prolonged hypoxia, and subsequent
respiratory and cardiac arrest.” The statute explains, in part, that a
certificate of merit
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 appellant's certificate does not explain in any way how the respiratory
and cardiac arrest that occurred in the surgical room ultimately caused the
decedent's death.
Finally,
I wish to make clear my firm conviction that W.Va. Code § 55-7B-6 is constitutional.
The statute does not infringe upon the rule-making power of this Court because
it does not conflict with any of this Court's rules. Our Rules of Civil Procedure “govern
the procedure in all trial courts of record in all actions, suits, or other judicial
proceedings of a civil nature. W.Va.R.Civ.Pro. 1. According to Rule of Civil
Procedure 3(a), “[a] civil action is commenced by filing a complaint with
the court.” Thus, this Court's Rules of Civil Procedure do not govern a
pre-filing certificate of merit because such a certificate is filed prior to
the commencing of a civil action. Hence, W.Va. Code § 55-7B-6 is a legitimate
addition to the substantive law of this State.
In sum,
I would affirm the dismissal of the appellant's action below for failure to provide
each of the appellees with a separate certificate of merit, and so I dissent
to the majority's ultimate disposition of this case. However, I concur with the
new law crafted by the majority to the extent that it applies only to alleged
defects within the four corners of a certificate of merit. Accordingly, I concur,
in part, and dissent, in part.