Opinion
No. 21-0038
04-15-2022
Rita TANNER and Dennis Tanner, Petitioners, v. Bryan D. RAYBUCK, M.D., Respondent.
George N. Sidiropolis, Esq., David A. Jividen, Esq., Jordan M. Laird, Esq., Jividen Law Offices, PLLC, Wheeling, WV, Counsel for Petitioners, Rita and Dennis Tanner. Chelsea V. Brown, Esq., Bowles Rice LLP. Morgantown, WV, Counsel for Respondent, Bryan D. Raybuck, M.D.
George N. Sidiropolis, Esq., David A. Jividen, Esq., Jordan M. Laird, Esq., Jividen Law Offices, PLLC, Wheeling, WV, Counsel for Petitioners, Rita and Dennis Tanner.
Chelsea V. Brown, Esq., Bowles Rice LLP. Morgantown, WV, Counsel for Respondent, Bryan D. Raybuck, M.D.
ARMSTEAD, Justice: The West Virginia Medical Professional Liability Act (hereinafter "MPLA") prohibits the filing of a medical professional liability action against a health care provider unless the claimant first serves a notice of claim on every health care provider that he or she will join in the action. W. Va. Code § 55-7B-6. Petitioners, Rita and Dennis Tanner (hereinafter "Petitioners"), filed suit against Respondent (hereinafter "Respondent" or "Dr. Raybuck") and various medical providers, asserting claims including, but not limited to, medical negligence, res ipsa loquitur , and loss of consortium. However, Petitioners did not serve a screening certificate of merit upon Respondent before filing their Complaint. Respondent filed a motion to dismiss, and the circuit court granted the motion. Petitioners appeal the circuit court's dismissal of their complaint with prejudice. After careful review of the record before us, the parties’ briefs and oral arguments, and the applicable law, we find that the circuit court did not err by dismissing Petitioners’ claims against Respondent for lack of subject matter jurisdiction, albeit for different reasons. However, the circuit court erred in dismissing Petitioners’ claims with prejudice . Accordingly, we affirm the portion of the circuit court's order granting Respondent's motion to dismiss, but we vacate the circuit court's decision to grant the dismissal with prejudice. We further remand this case to the circuit court and direct it to enter an order dismissing Petitioners’ civil action without prejudice.
In addition to Dr. Raybuck, Petitioners named West Virginia University Hospitals, Inc., d/b/a J.W. Ruby Memorial Hospital and West Virginia University Board of Governors, d/b/a WVU Medicine as defendants in their civil action. West Virginia University Hospitals, Inc. was voluntarily dismissed pursuant to a Stipulation of Voluntary Dismissal, and West Virginia University Board of Governors was never served with a copy of the Complaint.
I. FACTUAL AND PROCEDURAL HISTORY
In 2018, Petitioner, Rita Tanner, was referred to Dr. Raybuck for implantation of a Watchman Left Atrial Appendage Closure Device ("Watchman device"), which is designed to prevent clots that form in the left atrial appendage of the heart from migrating into the blood stream, potentially causing a stroke. On April 19, 2018, Ms. Tanner underwent surgery at Ruby Memorial Hospital. While Dr. Raybuck was positioning the Watchman device, the device came free from the delivery cable and embolized into Ms. Tanner's left ventricle causing her to go into cardiac arrest. According to Petitioners, Ms. Tanner underwent an emergency open heart surgery to retrieve the Watchman device.
On April 17, 2020, Petitioners served Dr. Raybuck with a Notice of Claim. The Notice of Claim indicated that Petitioners had not had sufficient time to procure a screening certificate of merit but would provide the same within sixty (60) days. However, on May 18, 2020, before producing a screening certificate of merit, Petitioners filed their civil action in the Circuit Court of Monongalia County. On or about June 9, 2020, Petitioners produced a screening certificate of merit authored by Dr. Emil Hayek. The following day, counsel for Dr. Raybuck objected to the screening certificate of merit. By letter dated June 22, 2020, counsel for Dr. Raybuck identified several issues with the screening certificate of merit authored by Dr. Hayek.
The Notice of Claim was not contained in the appendix record. However, the circuit court made a finding that the Notice of Claim "indicated that [Petitioners] had not had sufficient time to procure a Screening Certificate of Merit but would provide the same within sixty (60) days."
Petitioners did not serve Dr. Raybuck with their Complaint until September 17, 2020.
Dr. Raybuck's correspondence dated June 22, 2020, objected to the fact that Dr. Hayek had never undergone training on how to perform the Watchman operation, was not affiliated with a hospital authorized to perform the Watchman operation, and had never personally performed the operation.
On October 9, 2020, Dr. Raybuck filed a motion to dismiss Petitioners’ Complaint in its entirety. Dr. Raybuck's motion relied upon Rules 12(b)(1) and 12(b)(6) of the West Virginia Rules of Civil Procedure. Dr. Raybuck argued that Petitioners failed to comply with the pre-suit notice requirements under the MPLA and thus, deprived the circuit court of subject matter jurisdiction. In response, Petitioners argued that they had timely complied with all pre-suit notice requirements. Dr. Raybuck filed a reply, and a hearing on Dr. Raybuck's motion to dismiss was held on December 4, 2020. By order entered December 15, 2020, the circuit court granted Dr. Raybuck's motion and dismissed Petitioners’ Complaint with prejudice. In support of its decision to dismiss Petitioners’ Complaint, the circuit court found it lacked subject matter jurisdiction. Although it noted that Petitioners filed their Complaint before producing a screening certificate of merit, the circuit court based its decision that it lacked subject matter jurisdiction on Petitioners’ failure to provide a screening certificate of merit that met the statutory requirements of the MPLA. Specifically, the circuit court found that "Dr. Hayek does not possess the ‘experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient’ as required by West Virginia Code § 55-7B-7(a)(6)." Further, the circuit court found that Petitioners failed to produce a "valid Screening Certificate of Merit prior to the running of the statute of limitations." Accordingly, the circuit court dismissed Petitioners’ Complaint with prejudice.
Dr. Raybuck argued that Petitioners’ screening certificate of merit was both legally deficient and insufficient as a matter of law. In addition, Dr. Raybuck argued that Petitioners’ claim for res ipsa loquitur should fail because the applicable standard of care for this type of medical decision must be presented by an expert witness.
II. STANDARD OF REVIEW
Petitioners appeal the circuit court's December 15, 2020 order granting Dr. Raybuck's motion to dismiss. " ‘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, 194 W. Va. 770, 461 S.E.2d 516 (1995)." Syl. Pt. 1, Collins v. Heaster , 217 W. Va. 652, 619 S.E.2d 165 (2005). Further, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statue, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995).
With these standards in mind, we turn to the parties’ arguments.
III. ANALYSIS
Although it appears undisputed, we begin our analysis by confirming that the MPLA applies to the claims being asserted by Petitioners. Petitioners’ factual allegations in their Complaint allege that Ms. Tanner was a "patient" of the Respondent "health care provider" as those terms are defined in the MPLA. Further, a reading of Petitioners’ complaint reveals that their allegations state a claim for "medical professional liability" because the acts and omissions complained of were "health care services rendered or which should have been rendered by a health care provider or a health care facility to a patient." These allegations clearly fall within the definitions and claims expressly governed by W. Va. Code § 55-7B-2. Therefore, it is clear that the MPLA applies to the claims being asserted by Petitioners.
West Virginia Code § 55-7B-2(g) defines "health care provider" as
a person, partnership, corporation, professional limited liability company, health care facility, entity or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, physician assistant, advanced practice registered nurse, hospital, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, speech-language pathologist, audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical service personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician's plan of care, a health care facility's plan of care, medical diagnosis or treatment; or an officer, employee or agent of a health care provider acting in the course and scope of the officer's, employee's or agent's employment.
West Virginia Code § 55-7B-2(m) defines "patient" as a "natural person who receives or should have received health care from a licensed health care provider under a contract, express or implied."
Initially, Petitioners argue that the circuit court erred in determining that the screening certificate of merit they produced failed to meet the requirements of West Virginia Code § 55-7B-7(a)(6) insofar as Dr. Hayek is engaged and qualified in the medical field of interventional cardiology. However, because we find that the circuit court lacked subject matter jurisdiction in this matter due to Petitioners’ failure to serve a screening certificate of merit prior to filing their Complaint, the circuit court should not have proceeded to consider the sufficiency or contents of the screening certificate of merit. Accordingly, it is not necessary for us to consider the sufficiency of the screening certificate of merit on appeal.
With respect to the lack of subject matter jurisdiction, we agree with the circuit court that it lacked subject matter jurisdiction, but not for the reasons delineated in the order being appealed by Petitioners. Instead, the circuit court lacked subject matter jurisdiction over Petitioners’ claims because they failed to comply with the pre-suit notice requirements of the MPLA by filing their Complaint before serving a screening certificate of merit – deficient or otherwise. The pre-suit notice requirements of the MPLA provide that
[p]ursuant to W. Va. Code § 55-7B-6(a) and (b) [2003], no person may file a medical professional liability action against any health care provider unless, at least thirty days prior to the filing of the action, he or she has served, by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in the litigation.
Syl. Pt. 4, State ex rel. PrimeCare Medical of West Virginia, Inc. v. Faircloth , 242 W. Va. 335, 835 S.E.2d 579 (2019). 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." W. Va. Code § 55-7B-6(b). Of particular importance in this case, the notice of claim must also be accompanied by a "screening certificate of merit." Id. The MPLA clearly prohibits the filing of a medical professional liability action against a health care provider prior to serving, by certified mail, return receipt requested, a notice of claim upon each health care provider the claimant will join in the litigation. In addition to the notice of claim, unless a claimant is proceeding under West Virginia § 55-7B-6(c), the claimant must also serve a screening certificate of merit upon each health care provider the claimant will join in the litigation, prior to filing a civil action. As we held in Davis v. Mound View Health Care, Inc. , 220 W. Va. 28, 32, 640 S.E.2d 91, 95 (2006), "[t]he provisions of W. Va. Code § 55-7B-6 (a) and (b) are clear and unambiguous, and thus should be applied as written." We are unpersuaded by Petitioners’ argument that the MPLA is silent as to whether a claimant may file a complaint prior to serving a screening certificate of merit.
There are, however, circumstances where a notice of claim may be served without a screening certificate of merit. West Virginia Code § 55-7B-6(c) permits a claimant who believes that no screening certificate of merit is necessary because the claim 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" to 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." Id.
Petitioners served a notice of claim upon Dr. Raybuck before they filed their Complaint. However, the notice of claim did not include a screening certificate of merit. The notice of claim indicated that Petitioners had not had sufficient time to procure a screening certificate of merit but would provide the same within sixty (60) days.
See supra n. 2.
West Virginia Code § 55-7B-6(d) permits claimants like Petitioners who have insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations to furnish a statement of intent to provide the screening certificate of merit within sixty days of the date the health care provider receives the notice of claim. Specifically, W. Va. Code § 55-7B-6(d) states:
Except for medical professional liability actions against a nursing home, assisted living facility, their related entities or employees, or a distinct part of an acute care hospital providing intermediate care of skilled nursing care or its employees, 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 60 days of the date the health care provider receives the notice of claim. The screening certificate of merit shall be accompanied by a list of the medical records otherwise required to be provided pursuant to subsection (b) of this section.
W. Va. Code § 55-7B-6(d). Therefore, Petitioners were authorized by the MPLA to provide the screening certificate of merit within sixty (60) days, and Petitioners, in fact, provided the screening certificate of merit within the sixty (60) day period. Once the screening certificate of merit is provided within sixty (60) days of the notice claim, the healthcare provider has thirty (30) days to respond pursuant to the provisions of West Virginia Code § 55-7B-6(f). Further, the MPLA provides for the tolling of the statute of limitations
West Virginia Code § 55-7B-6(c) outlines circumstances in which a notice of claim may be served without a screening certificate of merit. Petitioners filed a notice of claim, which included a statement of intent to provide a screening certificate of merit within sixty days, and Petitioners subsequently served Respondent with a screening certificate of merit. Moreover, with respect to their res ipsa loquitur claim, Petitioners noted that "[t]he instant case, is not a scenario where [they] are without a Screening Certificate of Merit. To the contrary, the issue is whether or not in addition to the Screening Certificate of Merit, the doctrine of res ipsa loquitur militates in favor of a finding for the Petitioner." For these reasons, it is clear that Petitioners were not proceeding under West Virginia § 55-7B-6(c). To the extent that they may now be arguing that a screening certificate was not necessary, they failed to follow the process outlined in West Virginia Code § 55-7B-6(c).
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 last occurs.
If a complaint is filed after the notice of claim, but before the screening certificate of merit, the purpose of pre-suit notice requirements is undermined because the health care provider is not afforded an opportunity to review the context of the purported deviation from the standard of care and settle meritorious claims before suit is filed against them. Likewise, the point of the screening certificate of merit – to prevent the filing of frivolous claims unsupported by an expert's assurances that the claim is not, in fact, frivolous – is missed when the complaint is filed before that safeguard is in place.
Dismissal for lack of jurisdiction is proper in this case, however, because Petitioners filed their Complaint in the Circuit Court of Monongalia County before they provided Dr. Raybuck with a screening certificate of merit. For this reason, Petitioners clearly failed to comply with the pre-suit notice requirements of the MPLA. Providing a notice of claim, which includes a screening certificate of merit, is a pre-suit notice requirement of the MPLA. The screening certificate of merit provided by Petitioners failed to satisfy the requirements of West Virginia Code § 55-7-6(b) because it was filed several weeks after Petitioners filed their Complaint.
Before the circuit court, Petitioners argued that they had "timely complied" with the pre-suit notice requirements of the MPLA, noting that,
[i]n accordance with the provisions of West Virginia Code § 55-7B-6, a notice of claim was sent to Dr. Raybuck on April 17, 2020. Thirty days later, on May 18, 2020, the instant civil action was filed in accordance with the Medical Professional Liability Act (‘MPLA’). The plaintiff provided the Screening Certificate of Merit to the defendant on June 9, 2020.
The timing of these filings clearly shows that Petitioners failed to comply with the pre-suit notice requirements of the MPLA.
The pre-suit notice requirements of the MPLA "are jurisdictional, and failure to provide such notice deprives a circuit court of subject matter jurisdiction." Syl. Pt. 2, in part, State ex rel. PrimeCare Med. of W. Va. v. Faircloth , 242 W. Va. 335, 835 S.E.2d 579 (2019). It appears from the circuit court's order that it predicated its ruling of lack of subject matter jurisdiction, at least in part, on the insufficiency of Petitioners’ screening certificate of merit based on the qualifications and experience of the doctor providing the certificate. However, we find that the circuit court lacked subject matter jurisdiction because Petitioners failed to provide their screening certificate of merit before filing their Complaint. "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syl. Pt. 3, Barnett v. Wolfolk , 149 W. Va. 246, 140 S.E.2d 466 (1965). It is undisputed that Petitioners filed their Complaint before they served Dr. Raybuck with a screening certificate of merit, which is in violation of the MPLA. Therefore, we find that the circuit court lacked subject matter jurisdiction over the action.
We note that the circuit court identified this issue during the hearing on December 4, 2020.
Providing the screening certificate of merit post-suit is insufficient to cure the jurisdictional deficiency created by Petitioners’ failure to comply with the pre-suit notice requirements of the MPLA. As we noted in State ex rel. PrimeCare v. Faircloth , 242 W. Va. 335, 835 S.E.2d 579 (2019), the intents of the MPLA "are thwarted whenever claimants file suit and give notice later." Id. at 345, 835 S.E.2d at 589. In the instant case, it is undisputed that Petitioners served their screening certificate of merit after they filed suit, which certainly thwarts the intent of the MPLA. "A circuit court has no authority to suspend the West Virginia Medical Professional Liability Act's pre-suit notice requirements and allow a claimant to serve notice after the claimant has filed suit. To do so would amount to a judicial repeal of W. Va. Code § 55-7B-6 [2003]." Syl. Pt. 5, State ex rel. PrimeCare , 242 W. Va. 335, 835 S.E.2d 579 (2019).
After determining that Petitioners lacked jurisdiction to proceed, the circuit court should have taken "no further action in the case other than to dismiss it from the docket." Syl. Pt. 1, in part, Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W. Va. 492, 211 S.E.2d 705 (1975). Instead, the circuit court undertook an analysis of the sufficiency of the screening certificate of merit and found that Petitioners "did not produce a rule-compliant Screening Certificate of Merit prior to the expiration of the statute of limitations as identified by Defendant Dr. Raybuck on August 9, 2020" and dismissed the case with prejudice. However, as we have determined above, the circuit court did not have subject matter jurisdiction because the complaint was filed before the screening certificate of merit. Therefore, the circuit court should not have undertaken an analysis of the sufficiency of the screening certificate of merit or application of the statute of limitations.
Although dismissal for lack of subject matter jurisdiction was clearly warranted, we must further examine whether the circuit court's dismissal with prejudice was appropriate. Pursuant to Rule 41 of the West Virginia Rules of Civil Procedure, involuntary dismissals of actions:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.
W. Va. R. Civ. P. 41(b) (emphasis added). Accordingly, a dismissal for lack of jurisdiction is not considered an "adjudication on the merits" and is therefore generally a dismissal without prejudice. See McClay v. Mid-Atlantic Country Magazine , 190 W. Va. 42, 435 S.E.2d 180 (1993) ; Belcher v. Greer , 181 W. Va. 196, 382 S.E.2d 33 (1989).
We have previously considered the question of whether the dismissal of an action governed by the MPLA for failure to fulfill the pre-suit requirements of the act should be with or without prejudice. In Davis v. Mound View Health Care, Inc. , 220 W. Va. 28, 640 S.E.2d 91 (2006), we held that "where a medical malpractice action is dismissed for failure to comply with the pre-suit notice of claim provision set forth in W. Va. Code § 55-7B-6(b) and the dismissal order does not specify the dismissal to be with prejudice , the dismissal is deemed to be without prejudice." Id. at Syl. Pt. 3, in part (emphasis added). While the holding in Davis clearly appears to favor dismissal without prejudice in cases such as this, the inclusion of the qualifying phrase "and the dismissal order does not specify the dismissal to be with prejudice" certainly implies that the circuit court may dismiss such action with prejudice.
Here, the circuit court did, in fact, order that the Petitioners’ action be dismissed with prejudice . However, in considering the entirety of the circuit court's order dismissing the Petitioners’ action, it appears that the circuit court reached such conclusion, at least in part, based on factors other than the fact that Petitioners filed their action prior to serving a certificate of merit. As set forth above, the circuit court's consideration of the applicable statute of limitations and the sufficiency of the screening certificate of merit was improper due to the fact that Petitioners’ failure to serve the screening certificate of merit prior to filing their Complaint deprived the circuit court of subject matter jurisdiction over the action.
While this Court's holding in Davis implies that a circuit court may order dismissal with prejudice where a plaintiff fails to comply with the pre-suit requirements of the MPLA, we find that in the present case, the circuit court's consideration of other grounds for dismissal, which should have not been considered in this case, appears to have influenced its decision to grant dismissal with prejudice. We decline to hold that dismissal with prejudice is never proper where a plaintiff fails to comply with the pre-suit notice requirements of the MPLA. See Pendleton v. Wexford Health Sources, Inc., No. 15-0014, 2015 WL 8232155 (W. Va. December 7, 2015) (memorandum decision) (holding that dismissal of an MPLA action with prejudice was proper when Petitioner misrepresented information in his statement in lieu of a screening certificate of merit). However, in light of the facts of the current matter, and the circuit court's apparent improper consideration of the statute of limitations and sufficiency of the contents of the certificate of merit in reaching its decision, the court's dismissal should have been without prejudice.
There are instances in which medical malpractice actions which are dismissed without prejudice may be refiled after compliance with pre-suit notice requirements. However, we do not intend for the holding in this case to imply that this Court has made a determination as to whether Petitioners’ claims, if they decide to refile, are time-barred. That issue will need to be addressed by the circuit court if Petitioners comply with the pre-suit notice requirements and refile their action.
IV. CONCLUSION
For the reasons set forth above, this Court finds that the circuit court lacked subject matter jurisdiction to proceed in this case due to Petitioners’ failure to comply with the MPLA's pre-suit notice requirements. Accordingly, we affirm the circuit court's decision to the extent that it dismisses Petitioners’ civil action, but we vacate the circuit court's decision to the extent that the dismissal was with prejudice, and remand with instructions that the case be dismissed without prejudice.
We decline to address Petitioners’ assignment of error as to an alleged "clearly frivolous" standard of proof as this assignment was rendered moot by our holding regarding lack of subject matter jurisdiction. Further, we find no error with the circuit court's ruling that Petitioners’ decision to plead this case as one under res ipsa loquitur does not remedy their failure to comply with the MPLA.
Affirmed, in part, and vacated and remanded, in part
CHIEF JUSTICE HUTCHISON concurs and reserves the right to file a separate Opinion.
JUSTICE WOOTON concurs in part and dissents in part and reserves the right to file a separate Opinion.
JUSTICE ALAN D. MOATS, sitting by temporary assignment.
Chief Justice Hutchison, concurring:
In this medical malpractice action, Plaintiffs Rita and Dennis Tanner allege in their complaint that Defendant Bryan D. Raybuck, M.D., attempted, but failed, to implant a device known as the WATCHMAN Left Atrial Appendage Closure Device ("WATCHMAN LAAC") into Mrs. Tanner, causing her significant injury. More specifically, the complaint alleges that Dr. Raybuck twice attempted to deploy a WATCHMAN LAAC device and on the second attempt, the device came free from the delivery cable and embolized inside Mrs. Tanner's left ventricle. The complaint further alleges that "[t]he device was never retrieved from M[r]s. Tanner's left ventricle by Dr. Raybuck, and an emergency cardiac surgical intervention was necessary to retrieve the device from her heart." The majority opinion correctly concluded that, based upon the plaintiffs’ admitted failure to provide Dr. Raybuck with a screening certificate of merit before filing their complaint, as required by the West Virginia Medical Professional Liability Act, West Virginia Code 55-7B-6(b), the circuit court was deprived of subject matter jurisdiction and so dismissal of the complaint was mandatory. In so concluding, the majority opinion determined that the circuit court, having no jurisdiction over the subject matter, should not have undertaken the analysis of whether the plaintiffs’ standard of care expert, Dr. Emil Hayek (an interventional cardiologist practicing in the same field as Dr. Raybuck), was qualified to provide the screening certificate of merit that was provided after the filing of the complaint. Consistent with that admonishment, the majority similarly elected to forego such an analysis.
Although I concur with the majority's ultimate holding (that dismissal of the complaint, without prejudice, was proper because of the failure to provide Dr. Raybuck with a screening certificate of merit prior to the filing of the complaint), I write separately because I expect that the question of Dr. Hayek's qualifications will recur following remand. If this occurs, it is critical that the circuit court understand that the cursory analysis and conclusions offered by the defendant were contrary to the clear and unambiguous language of the MPLA. As discussed below, Dr. Hayek is more than qualified to render an expert opinion as to the standard of care in this case and the circuit court erred in concluding that the screening certificate of merit was deficient as a matter of law.
The pre-requisites for filing an action against a health care provider, including the criteria for a screening certificate of merit, are set forth in W. Va. Code § 55-7B-6(b) :
(b) At least 30 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, ... together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider who:
(1) Is qualified as an expert under the West Virginia rules of evidence;
(2) Meets the requirements of § 55-7B-7(a)(5) and § 55-7B-7(a)(6) of this code ; and
(3) Devoted, at the time of medical injury, 60 percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or specialty in an accredited university.
If the health care provider executing the screening certificate of merit meets the qualifications of subdivisions (1), (2), and (3) of this subsection, there shall be a presumption that the health care provider is qualified as an expert for the purpose of executing a screening certificate of merit. The screening certificate of merit shall state with particularity, and include: (A) The basis for the expert's familiarity with the applicable standard of care at issue; (B) the expert's qualifications; (C) the expert's opinion as to how the applicable standard of care was breached; (D) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death; and (E) a list of all medical records and other information reviewed by the expert executing the screening certificate of merit.
Pursuant to the relevant parts of West Virginia Code § 55-7B-7(a)(5) and (6), "[a] proposed [standard of care] expert witness may only be found competent to testify if the foundation for his or her testimony is first laid establishing that[,]"
(5) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided , That the expert witness's license has not been revoked or suspended in the past year in any state; and
(6) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient.
(Emphasis added). See W. Va. Code § 55-7B-6(b)(2).
Dr. Hayek received his medical education and training at the Johns Hopkins University School of Medicine; practices in the same field as Dr. Raybuck (interventional cardiology); and is board certified in internal medicine, cardiovascular disease, nuclear cardiology, and echocardiography. Dr. Hayek founded and is currently the president (since 2007) and medical director (since 2009) of Western Reserve Heart Care in Hudson, Ohio. He is also Assistant Professor of Medicine (since 2009) at University Hospitals/Case Western Reserve University. He devotes at least 75% of his time to the active clinical practice of medicine and "actively teach[es] the standard of care for cardiologists to members of the medical community." In the screening certificate of merit, Dr. Hayek stated that he is familiar with the standard of care applicable to this case and opined that "Dr. Raybuck negligently deviated from the applicable standard of care for an interventional cardiologist/electrophysiologist, [sic] increased the risk of harm which was a substantial factor in bringing about the ultimate injury to plaintiff Rita Tanner." Based upon the records provided to him, Dr. Hayek opined that Mrs. Tanner "was injured and damaged from Dr. Raybuck's deviation from the standard of care" as follows:
a. Failing to secure the required concurrent opinion and attestation from a second interventional cardiologist or electrophysiologist that the left atrial appendage closure (LAAC) with WATCHMAN surgical procedure was medically necessary.
b. Failing to obtain proper informed consent from Rita Tanner for the left atrial appendage closure (LAAC) with WATCHMAN surgical procedure after a concurrent opinion for the procedure was obtained.
c. Failing to order a pre-op diagnostic 3D cardiac CT scan to determine the appropriate size of the left atrial appendage closure (LAAC) with WATCHMAN for Rita Tanner.
d. Failing to properly size the left atrial appendage closure (LAAC) with WATCHMAN for Rita Tanner prior to the surgical procedure.
e. Surgical implantation of an inappropriate sized left atrial appendage closure (LAAC) with WATCHMAN.
f. Failure to abandon the surgical procedure when it was reasonably clear that the 24 mm left atrial appendage closure (LAAC) with WATCHMAN device was too large for the patient.
g. Repeatedly attempting to position an ill-fitting appendage device, causing it to break free and loose in the patient's body.
Despite Dr. Hayek's extensive (and impressive) education, professional training, and experience in the field of interventional cardiology – all of which was included in his curriculum vitae provided with the screening certificate of merit and made a part of the record below – the circuit court concluded that he does not possess the "experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient[,]" W. Va. Code § 55-7B-7(a)(6), and that, as a result, the plaintiffs failed to provide a screening certificate of merit that meets the threshold requirements of West Virginia Code § 55-7B-6(b). The stated basis for the court's conclusion is that Dr. Hayek has not performed/is not trained to perform the WATCHMAN LAAC procedure – a requirement that is not supported by the MPLA.
Under the clear and unambiguous language of the MPLA, there is absolutely no requirement that a proffered expert have performed or be trained to do the identical procedure, or use the same medical device, disputed by the parties. The MPLA, in addition to other statutory requirements that are not at issue in this case, requires similarity, not identicality. A proposed expert need only be "engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient." W. Va. Code § 55-7B-7(a)(6) (emphasis added). Dr. Hayek more than satisfies this requirement as he has extensive experience in the field of interventional cardiology and "in diagnosing or treating ... conditions similar to those of [Mrs. Tanner.]" Id. The circuit court was clearly wrong in adopting the defendant's narrow reading of this provision so as to disqualify Dr. Hayek from executing a certificate of merit in this case. This Court has stated that "[i]n determining whether a notice of claim and certificate [of merit] 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 malpractice claims and lawsuits; and promoting the pre-suit resolution of non-frivolous medical malpractice claims." Syl. Pt. 6, in part, Hinchman v. Gillette , 217 W. Va. 378, 618 S.E.2d 387 (2005). Given the serious allegations of the complaint, it is beyond cavil that the plaintiffs’ malpractice claim against Dr. Raybuck is in no way frivolous and that the certificate of merit executed by Dr. Hayek, in light of his extensive and relevant professional experience, is legally sufficient.
In a similar context involving whether a medical expert is qualified to testify at trial, this Court has instructed that where the proposed expert may be unfamiliar with a specific procedure that is the subject of the action, but otherwise satisfies the MPLA's statutory requirements, the expert is qualified to render an opinion, leaving it to the trier of fact to weigh the expert's credibility. See Walker v. Sharma , 221 W. Va. 559, 566-67, 655 S.E.2d 775, 782-83 (2007) (stating that, in a medical negligence case involving a urethral stricture dilation procedure, the fact the plaintiff's expert, a board-certified urologist, "uses a different method to perform [the procedure at issue] does not disqualify him from giving testimony on the standard of care to be employed when performing this type of procedure. [Rather] ... the jury would have been free to attach whatever weight they decided to [the expert's] testimony given that he did not employ the [specific] instrument set in performing the procedure"). See also Mayhorn v. Logan Med. Found. , 193 W. Va. 42, 50, 454 S.E.2d 87, 95 (1994) (concluding that board certified internal medicine physician who was professor of cardiology and previously worked in emergency room was qualified to give expert testimony in wrongful death action involving treatment of patient by emergency room physician, and observing that if the defendant health care provider "had wanted to challenge the veracity of [the expert's] credentials it could have done so through cross-examination"); Fortney v. Al-Hajj , 188 W. Va. 588, 591, 595, 425 S.E.2d 264, 267, 271 (1992) (finding that general surgeon who had previously handled impacted food blockage cases was qualified to give expert standard of care opinion as to defendant emergency room doctor's handling of the patient's impacted food blockage even though the expert only worked in an emergency room to perform surgeries when requested by emergency room physicians, and noting that "[a]ny shortcomings which [the defendant] believed existed in [the expert's] credentials could have properly been the subject of cross-examination"); accord Gentry v. Mangum , 195 W. Va. 512, 527, 466 S.E.2d 171, 186 (1995) (recognizing that "[d]isputes as to the strength of an expert's credentials, mere differences in methodology, or lack of textual authority for the opinion go to weight and not to the admissibility of their testimony").
To be clear, I dissent only to the undertaking of an issue of first impression that has not had the benefit of the "crucible of meaningful adversarial testing." U. S. v. Cronic , 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). I do not necessarily suggest disagreement with the substantive underpinnings of the majority's decision.
Finally, not to be overlooked is the fact that that the screening certificate of merit included Dr. Hayek's expert opinion that Dr. Raybuck deviated from the standard of care with respect to arguably routine actions that he should have performed prior to performing the WATCHMAN LAAC procedure (such as failing to obtain a second opinion that the procedure was medically necessary; failing to obtain the proper informed consent; and failing to perform certain pre-surgical diagnostic testing). Without question, regardless of whether the circuit court deemed Dr. Hayek qualified to opine about the surgical procedure itself, Dr. Hayek was more than adequately qualified to render an expert opinion about Dr. Raybuck's pre- surgical acts and omissions. Thus, it was clear error for the circuit court to follow the defendant's invitation to ignore these opinions and declare that the screening certificate of merit was deficient as a matter of law.
For the foregoing reasons, I concur with the majority opinion.
WOOTON, J., concurring, in part, and dissenting, in part:
I concur in the majority's determination to vacate the circuit court's dismissal with prejudice and remand for a non-prejudicial dismissal. However, I write separately to express my disagreement with the majority's decision to dispense with the case on an issue neither raised below, ruled on by the circuit court, nor properly briefed before this Court.1 Petitioners herein provided a notice of claim and notified respondent that they were availing themselves of the extended period of time pursuant to West Virginia Code § 55-7B-6(d) (2019) to provide a screening certificate of merit because the statute of limitations was soon to expire. They filed their complaint and provided the certificate of merit commensurate with the extended time period provided in § 55-7B-6(d). Upon receipt of the screening certificate of merit from petitioners, respondent's counsel raised informally what she believed to be the inadequacy of the certificate of merit due to a purported lack of "experience and/or training" by the screening physician. When that issue was not resolved informally, it was upon this basis alone—the inadequacy of the screening certificate—that respondent moved to dismiss. Accordingly, it was on this issue that the circuit court below ruled, finding the certificate of merit lacking in qualified expert support and dismissing the complaint for the resultant lack of subject matter jurisdiction. Nowhere does the circuit court's order conclude that it lacked subject matter jurisdiction because the complaint itself was prematurely filed, as that issue was not presented to it by respondent.
As a result, the adequacy of the screening certificate of merit was the issue briefed on appeal by both parties. Petitioners did not brief premature filing of the complaint as this was not the issue presented in the order on appeal. However, upon briefing and at oral argument, respondent attempted to reframe the issue he raised below and as ruled upon by the circuit court. Arguing that, at base, the circuit court's determination was that it lacked "subject matter jurisdiction," respondent contended that the premature filing issue was properly before the Court. However, the circuit court clearly ruled only that it lacked jurisdiction under the MPLA because the screening certificate of merit was inadequate, not that the complaint filing was premature. While either basis may result in a lack of jurisdiction, to claim that the premature filing issue was raised, ruled on, and properly asserted herein is disingenuous.
I recognize, of course, that this Court has held that jurisdictional issues may be raised by a party for the first time on appeal. See Syl. Pt. 3, Charleston Apartments Corp. v. Appalachian Elec. Power Co. , 118 W. Va. 694, 192 S.E. 294 (1937) ("Lack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion."). Further, while this Court likewise has the authority "on its own motion" to recognize jurisdictional defects, this does not mean that it is necessarily prudent to do so. Id. ; see In re Goldston , 246 W.Va. 61, 866 S.E.2d 126 (2021) (Wooton, J., dissenting) (observing that Court's mere authority to take action "does not speak to the wisdom of so doing."). Because the "manifest[ ] unfair[ness]" to a party by ruling on an issue never raised is not lessened simply because an issue is jurisdictional, this Court should be very judicious in exercising this authority. Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993).
Critically, the parties herein did not raise the presumably dispositive issue on appeal ; rather, they briefed the issue ruled upon by the circuit court and upon which petitioners’ appeal was based—the adequacy of the certificate of merit. It is the majority which sua sponte determined to resolve an issue not before it. Therefore, not only does this issue lack development and a ruling below, it suffers the even greater defect that it was not even briefed or developed on appeal by the parties in interest. It is well understood that "[i]ssues that are fully pled, briefed, argued, and decided in the first instance by a lower court not only provide the jurisdictional basis for appellate court review, but well-serve the process that the creators of our system foresaw." Morrisey v. W. Va. AFL-CIO , 239 W. Va. 633, 647, 804 S.E.2d 883, 897 (2017) (Workman, J., concurring in part and dissenting in part).
Despite attempting to "shoehorn" the premature filing into its brief before this Court, respondent summarily argues merely that petitioners failed to provide a screening certificate with their notice of claim, without so much as addressing the extension for the screening certificate authorized by § 55-7B-6(d) and relied upon by petitioners, or the tolling provisions contained in West Virginia Code § 55-7B-6(i). Therefore, despite attempting to recharacterize the argument to one he failed to raise below, respondent likewise failed to afford the issue adequate treatment before this Court.
There is an inherent wisdom and equity to our long-standing principle that "the trial court must be provided with an opportunity to rule on issues properly before it and that it would be improper for this Court to rule on an issue on which the trial court had not first passed judgment." State v. Jessie , 225 W. Va. 21, 27, 689 S.E.2d 21, 27 (2009). Fundamental to that precept is "the element of fairness[ ]" to the parties and the "need to have the issue refined, developed, and adjudicated by the trial court, so that we may have the benefit of its wisdom." Whitlow, 190 W. Va. at 226, 438 S.E.2d at 18. Cf. Syl. Pt., 3, State v. Salmons , 203 W. Va. 561, 509 S.E.2d 842 (1998) (holding that when a defendant raises error for first time on appeal, if State does not object, "actually briefs the matter, and the record is adequately developed on the issue" the Court may, in its discretion, review merits (emphasis added)); see also State ex rel. Justice v. King , 244 W. Va. 225, 243, 852 S.E.2d 292, 310 (2020) (Workman, J., concurring) (admonishing Court's tendency to "[r]ul[e] dispositively or create[e] dispositive standards without factual development or even a ruling from the lower court").
In my view, were the majority intent on the premature filing issue being addressed, the appropriate means to do so would be to remand for the issue to be raised and developed in the lower court. "Appellate courts generally must remand a case to afford parties an opportunity to cure jurisdictional defects in their pleadings when the parties did not have that opportunity in the first instance because the jurisdictional issue arose for the first time on appeal." Clint Indep. Sch. Dist. v. Marquez , 487 S.W.3d 538, 558-59 (Tex. 2016). Because jurisdictional defects are never waived, respondent would still have the ability to raise the premature filing on remand and provide petitioners notice of this defense and the ability to formulate an argument in response. Then, if either party took issue with the circuit court's resolution of this issue, it could be properly presented to this Court on appeal, complete with a record, a ruling from the circuit court, and proper briefing by the parties in interest.
" ‘[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.’ " Greenlaw v. United States , 554 U. S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (quoting United States v. Samuels , 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring)). The majority's eagerness to reach an undeveloped issue without first affording petitioners an opportunity to consider and formulate an argument in response is inequitable and runs contrary to our adversarial system and precepts of appellate review—regardless of whether its new holding is sound or not. Accordingly, I respectfully concur in part and dissent in part.