State of West Virginia ex rel. Hope Clinic, PLLC v. Judge McGraw ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
FILED
__________________
May 17, 2021
released at 3:00 p.m.
No. 20-0410 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
__________________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. HOPE CLINIC, PLLC, ET AL.
Petitioners
v.
THE HONORABLE WARREN R. MCGRAW, JUDGE OF THE CIRCUIT
COURT OF WYOMING COUNTY, GREG A. SHREWSBURY, and PHYLLIS
A. SHREWSBURY,
Respondents
____________________________________________________________
ORIGINAL PROCEEDING IN PROHIBITION
WRIT GRANTED
____________________________________________________________
Submitted: April 21, 2021
Filed: May 17, 2021
Timothy R. Linkous, Esq. Joseph H. Spano Jr., Esq.
Jenny L. Hayhurst, Esq. Pritt & Spano, PLLC
Linkous Law, PLLC Charleston, WV
Morgantown, WV Counsel for Respondents
Counsel for Petitioner Sanjay R. Greg and Phyllis Shrewsbury
Mehta, D.O.
Robert M. Sellards, Esq.
John H. Zickefoose, Esq.
Bailes Craig Yon & Sellards, PLLC
Huntington, WV
Counsel for Petitioners Hope Clinic,
PLLC and James H. Blume, Jr., D.O.
Thomas P. McGinnis, Esq.
Jeanette H. Ho, Esq.
Samuel G. Dunlop, Esq.
Thomas, Thomas & Hafer, LLP
Pittsburgh, PA
Counsel for Petitioner Walgreen Co.
Trevor Taylor, Esq.
Taylor Law Office
Morgantown, WV
Counsel for Petitioner Bypass Pharmacy, Inc.
Tim J. Yianne, Esq.
Thomas P. Mannion, Esq.
Lewis Brisbois Bisgaard & Smith, LLP
Charleston, WV
Counsel for Petitioners Deschner Medical Services, PLLC
d/b/a Deboss Neurology and Pain Clinic, and
Stephen H. Deschner, M.D.
Michael J. Farrell, Esq.
Tamela J. White, Esq.
Julian P. Pecora, Esq.
Farrell, White & Legg, PLLC
Huntington, WV
Counsel for Petitioner Rite Aid of West Virginia, Inc.
Robert L. McKinney, II, Esq.
C. William Knapp, Esq.
Ollie M. Harton, Esq.
Hawkins Parnell & Young, LLP
Charleston, WV
Counsel for Petitioners Westside Pharmacy, Inc. and
Devonna Miller-West, R. Ph.
Jace H. Goins, Esq.
Steptoe & Johnson PLLC
Charleston, WV
Counsel for Petitioners Rhonda Rose, R. Ph., Evan D.
Brush, R. Ph., and Rhonda’s Pharmacy, LLC
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WOOTON disqualified. JUDGE OLEJASZ sitting by assignment.
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syl. Pt. 2,
State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
2. “Pursuant 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
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).
3. “The pre-suit notice requirements contained in the West Virginia
Medical Professional Liability Act are jurisdictional, and failure to provide such notice
deprives a circuit court of subject matter jurisdiction.” Syl. Pt. 2, State ex rel. PrimeCare
Medical of West Virginia, Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019).
4. “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.
i
Va. Code § 55-7B-6 (2003).” Syl. Pt. 5, State ex rel. PrimeCare Medical of West Virginia,
Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019).
5. Because a statement that no screening certificate of merit is required
pursuant to W. Va. Code §55-7B-6(c) is clearly “in lieu of” providing such a certificate of
merit, such statement should be served no later than the applicable statutory deadline for
providing a certificate of merit pursuant to W. Va. Code §55-7B-6.
6. A claimant whose claim is subject to the Medical Professional
Liability Act may not attempt to cure his or her failure to timely serve a screening certificate
of merit in accordance with the applicable deadlines set forth in W. Va. Code §55-7B-6 by
maintaining for the first time, after such deadline has passed, that he or she is invoking the
provisions of W. Va. Code §55-7B-6(c) to assert that no such certificate of merit is
required.
ii
ARMSTEAD, J.:
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 (2003). Respondents, Greg and Phyllis
Shrewsbury (hereinafter “Shrewsburys”), filed suit against Petitioners, various medical
providers, pharmacists, and pharmacies, 1
asserting claims of medical negligence,
pharmacist negligence, and loss of consortium. However, Respondents did not serve a
notice of claim upon Petitioners before filing their complaint. Petitioners filed various
motions to dismiss, and the circuit court denied said motions.
After careful review of the record before us, the parties’ briefs and oral
arguments, and the applicable law, we find that the circuit court erred by failing to dismiss
the Shrewsburys’ claims against Petitioners for lack of subject matter jurisdiction.
Accordingly, we grant the writ of prohibition and vacate the circuit court’s order denying
Petitioners’ motions to dismiss for lack of subject matter jurisdiction. We further remand
this case to the circuit court and direct it to enter an order dismissing Respondents’ civil
action.
The Petitioners are: Hope Clinic, PLLC; James H. Blume, Jr. D.O.; Sanjay R.
1
Metha, D.O.; Deschner Medical Services, PLLC d/b/a Deboss Neurology and Pain Clinic;
Steven H. Deschner, M.D.; Rhonda’s Pharmacy, LLC; Rhonda Rose, R. Ph.; Evan D.
Brush, R.Ph.; Bypass Pharmacy, Inc.; Westside Pharmacy, Inc.; Devonna L. Miller-West,
R.Ph.; Rite Aid of West Virginia, Inc. and Walgreen Co.
1
I. FACTUAL AND PROCEDURAL HISTORY
On or about September 12, 2018, the Shrewsburys filed a civil action in the
Circuit Court of Wyoming County against Petitioners alleging medical negligence,
pharmacist negligence, and loss of consortium. 2 The Shrewsburys alleged that Mr.
Shrewsbury was injured in a motor vehicle accident in April 2011, and he sought medical
treatment and medication from Petitioners for those injuries. Generally, the Shrewsburys
alleged that Petitioners purposely prescribed and filled prescriptions for controlled
substances in a concerted effort to addict Mr. Shrewsbury for monetary purposes.
Specifically, it is alleged that following the accident, Drs. Rodriguez-Cayro,
Mehta, Morgan and Deschner and the various clinics provided prescriptions to Mr.
Shrewsbury without a proper medical examination or no examination at all. Further, the
Shrewsburys allege that the pharmacies and pharmacists negligently dispensed
prescriptions for controlled substances for Mr. Shrewsbury. All of these actions were
alleged to have caused Mr. Shrewsbury to become addicted to pain medications.
2
In addition to petitioners, the Shrewsburys’ Complaint also named the following
six defendants: (1) PPPFD Allliance, LLC; (2) Mark Radcliffe; (3) Dr. Rodriquez-Cayro;
(4) Ace Medical; (5) Dr. Morgan; and (6) Beckley Pain Clinic. The first five of these
defendants had not participated in this case prior to the filing of the Writ of Prohibition.
Some of those defendants may not have even been served with a copy of the Summons and
Complaint. Beckley Pain Clinic, through its counsel, filed a Notice of Dissolution advising
that it was previously dissolved on August 17, 2015.
2
It is undisputed that the Shrewsburys failed to comply with the pre-suit notice
requirements of the MPLA. Over two months after filing their Complaint, the Shrewsburys
filed their first Notice of Claim (hereinafter “First Notice of Claim”), which was dated
November 21, 2018. The purported First Notice of Claim provided as follows:
Each of you is hereby notified in accord with the provisions of West
Virginia Code Chapter 55, Article 7B, Section 6 of the intent to file a claim
or claims against you in the Circuit Court of Kanawha County, West
Virginia. The theories of liability upon which the cause of causes of action
will be based will include the over-prescribing of highly addictive controlled
substances, the prescribing of controlled substances without adequate or
proper evaluation of the patient and consistently failing to address the
patient’s actual medical needs. The foregoing resulted in the death of the
patient.
A Screening Certificate of Merit will be provided within 60 days as
outlined in West Virginia Code Chapter 55, Article 7B, Section 6.
On or about November 27, 2018, the Shrewsburys issued their second
purported Notice of Claim. 3 By January 2019, the Shrewsburys had not served the
Complaint so they sought an extension of time to effectuate service of their Complaint. In
support of this motion, the Shrewsburys indicated that the extension was needed “in order
to allow time for all parties to comply with the provisions of the MPLA.” The Shrewsburys
went on to note that “[u]ntil full compliance with the provisions of the MPLA have been
3
The second Notice of Claim was not made part of the record before the Circuit
Court of Wyoming County.
3
undertaken, service of the summons and complaint on the Defendants is improper and does
not comply with the statutory provisions of the MPLA.”
Despite their earlier indication that a screening certificate of merit would be
provided within sixty days, counsel for the Shrewsburys executed an “Affidavit of
Counsel” on January 9, 2019, averring that pursuant to West Virginia Code § 55-7B-6(c),
a screening certificate of merit was not necessary.
On January 28, 2019, just short of three weeks later, counsel for the
Shrewsburys authored a letter again advising that a Screening Certificate of Merit would
be provided within sixty days. 4 However, the letter also provided that “[d]ue to a personal
emergency of our expert, Dr. Breve, the receipt of the Screening Certificate of Merits [sic]
will be delayed by approximately two weeks.” Finally, this letter requested that the
addressees disregard the November 20, 2018 Notice of Claim as it had been mailed
inadvertently. 5
A third Notice of Claim, which was addressed to the Westside Pharmacy and
Pharmacist Miller-West, was served on or about March 8, 2019. On that same day, a fourth
This letter was not sent to all named defendants. It was addressed to Rhonda’s
4
Pharmacy, LLC, Pharmacist Rose, Pharmacist Brush, Rite Aid, Westside Pharmacy, Inc.,
Pharmacist Miller-West, Walgreen Co., and ByPass Pharmacy.
5
The First Notice of Claim was dated November 21, 2018, not November 20, 2018.
4
Notice of Claim, was served. The third and fourth Notices of Claims included a Screening
Certificate of Merit. The Shrewsburys began achieving service of the Summons and
Complaint in July of 2019, and Petitioners began filing motions to dismiss. Although
Petitioners moved for dismissal on various grounds, for purposes of the instant Writ of
Prohibition, they universally sought dismissal of the Shrewsburys’ Complaint on the
grounds that the circuit court lacked subject matter jurisdiction because the Shrewsburys
failed to comply with the pre-suit requirements of the MPLA.
On January 22, 2020, the circuit court held a hearing on the various motions
to dismiss. By order entered March 13, 2020, the circuit court denied the outstanding
motions to dismiss. Of particular importance to this original proceeding, the circuit court’s
order concludes that the Shrewsburys “complied with the requirements of the Medical
Professional Liability Act (MPLA).” The order finds that Petitioners were provided with
a Statement of Intent, a Notice of Claim, and a Screening Certificate of Merit, and that
those Petitioners that did not respond to those documents are barred from seeking a
dismissal of the Complaint. 6 As to the Petitioners that responded, the order concluded that
the Shrewsburys’ response complied with the MPLA. After concluding that the
6
After finding that all of the Petitioners had been provided with such documents,
the circuit court noted that only “Dr. James H. Blume, Jr., Hope Clinic, PLLC, Devonna
Miller, and Westside Pharmacy” responded by requesting a more definite statement.
5
Shrewsburys had complied with all of the requirements of the MPLA, the circuit court
concluded that it had subject matter jurisdiction and denied the motions to dismiss.
II. STANDARD OF REVIEW
“A writ of prohibition will not issue to prevent a simple abuse of discretion
by a trial court. It will only issue where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syl. Pt. 2, State ex rel.
Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
When a petition raises a jurisdictional challenge, “we must determine …
whether it is jurisdictional in the sense of requiring a decision upon facts or a decision upon
a pure question of law.” Lewis v. Fisher, 114 W. Va. 151, 154-155, 171 S.E. 106, 107
(1933). “If it rests upon a determination of fact, prohibition will not lie.” Id. at 155, 171
S.E. at 107. If, however, the challenge “rests upon the determination of a question of law,
prohibition will lie if the trial court has exceeded its jurisdiction or usurped a jurisdiction
that in law does not exist.” Id. The issue in the instant case is a question of law so we
apply a de novo standard of review. See, e.g., Tennant v. Smallwood, 211 W. Va. 703, 707,
568 S.E.2d 10, 14 (2002).
With these standards in mind, we turn to the parties’ arguments.
6
III. ANALYSIS
Ordinarily, we would begin our analysis by determining whether the MPLA
applies to the claims being asserted by the Shrewsburys. However, that is not necessary in
this case as the Shrewsburys concede that the MPLA applies to their claims.
Therefore, we proceed to Petitioners’ argument that the circuit court lacked
subject matter jurisdiction over the Shrewsburys’ claims because they failed to comply
with the pre-suit notice requirements of the MPLA. 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 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). In addition, the notice of claim must also include
a “screening certificate of merit.” Id. As we held in Davis v. Mound View Health Care,
7
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. 7
The Shrewsburys filed multiple notices of claims, but all of their notices were
filed after they filed their complaint. In fact, the First Notice of Claim was filed over two
months after the Shrewsburys filed their Complaint. In addition to being filed after the
Complaint, some of the notices contained deficiencies and inaccuracies. The first
purported Notice of Claim, which was dated November 21, 2018, does not even appear to
identify the name of the patient and it further indicated that the patient had died. 8 In a
Statement of Intent, which was also dated November 21, 2018, there is a reference to the
intent to file claims in the Circuit Court of Kanawha County, but at that time, the
Shrewsburys’ civil action had already been pending in the Circuit Court of Wyoming
County for over two months. Approximately one week later, on November 27, 2018, the
Shrewsburys issued another notice of claim. The third and fourth Notices of Claim were
7
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.
8
Mr. Shrewsbury was not dead at the time of the First Notice of Claim nor has he
died since that time.
8
filed in March 2019, and they directed that the Notice of Claim dated November 20, 2018,
should be disregarded. 9
Despite the Shrewsburys failure to comply with the pre-suit notice
requirements of the MPLA, the circuit court inexplicitly and erroneously found that the
Shrewsburys “have in good faith complied with the provisions set forth in W. Va. Code §
55-7B-6 et seq.” In support of this conclusion, the circuit court relied upon this Court’s
decisions in Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005) and Elmore v.
Triad Hospitals, Inc., 220 W. Va. 154, 640 S.E.2d 217 (2006). Such reliance is misplaced.
Although both cases involved pre-suit notice requirements, the glaring difference between
the instant case and those cases is that the appellants in those cases actually issued notices
of claims more than thirty days prior to filing their complaints. In Hinchman, the issues
were alleged defects and insufficiencies in the pre-suit notice of claim and screening
certificate of merit. In Elmore, the issue was service of the pre-suit notice of claim. In the
instant case, the Shrewsburys did not provide a notice of claim prior to filing their civil
action in the Circuit Court of Wyoming County.
9
Because there was no Notice of Claim dated November 20, 2018, we assume this
reference is to the purported Notice of Claim filed on November 21, 2018.
9
As further evidence of the Shrewsburys failure to comply with the pre-suit
notice requirements of the MPLA, the Shrewsburys further failed to timely issue a
screening certificate of merit as required by the MPLA.
The provisions of W. Va. Code §55-7B-6(b) provide:
(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, 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
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.
(emphasis added).
West Virginia Code § 55-7B-6(c) outlines circumstances in which a notice
of claim may be served without a screening certificate of merit. West Virginia Code § 55-
7B-6(c) provides:
10
(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.
The statement shall be accompanied by the list of medical
records and other information otherwise required to be
provided pursuant to subsection (b) of this section.
We note that the Shrewsburys initially indicated that a screening certificate
of merit would be provided within sixty days of their First Notice of Claim, which was
dated November 21, 2018, so the exception to the screening certificate of merit provided
for in West Virginia Code § 55-7B-6(c) was not implicated at that time. 10 However, nearly
two months later, and nearly four months after the filing of their complaint, counsel for the
Shrewsburys filed an “Affidavit of Counsel” pursuant to West Virginia Code § 55-7B-6(c).
The “Affidavit of Counsel” indicated that it was being provided in lieu of a screening
certificate of merit, and it included the following language: “the theory of liability
presented against these Defendants is based upon well-established legal theory of liability
which does not require expert testimony supporting a breach of the applicable standard of
10
W. Va. Code §55-7B-6(d) permits claimants who are not filing an action against
a nursing home, assisted living facility, their related entities or employees, or a distinct part
of an acute care hospital providing intermediate care or skilled nursing care or its
employees and 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.
11
care.” However, despite this “Affidavit of Counsel,” the Shrewsburys subsequently
provided a screening certificate of merit in March 2019. We are unaware of the reason(s)
that the Shrewsburys twice changed their position, first providing a statement of intent
indicating that a screening certificate of merit would be provided within sixty days, to then
filing an “Affidavit of Counsel” in lieu of a screening certificate of merit and then again
changing their position and ultimately providing a purported and untimely screening
certificate of merit. However, regardless of the Shrewsbury’s intent, neither their efforts
to provide the certificate of merit required by West Virginia Code § 55-7B-6(b) nor the
statement expressing their belief that no such certificate of merit was required pursuant to
West Virginia Code § 55-7B-6(c), was timely. 11
Here, the Shrewsburys or counsel were required to either serve a screening
certificate of merit accompanying their notice of claim thirty days prior to filing an action
pursuant to W. Va. Code §55-7B-6(b) or advise that they would provide such screening
certificate within sixty days of the notice of their claim pursuant to W. Va. Code §55-7B-
6(d) (emphasis added). If a claimant wishes, instead, to take the position that no screening
certificate of merit is necessary pursuant to West Virginia Code § 55-7B-6(c), it stands to
reason that such conclusion would have been reached prior to filing a civil action since the
11
The Shrewsburys’ efforts were untimely because their First Notice of Claim and
all subsequent notices were filed after they initiated a civil action in the Circuit Court of
Wyoming County. Although the “Affidavit of Counsel” was filed within sixty days of the
First Notice of Claim, the failure to file the First Notice of Claim prior to initiating the civil
action was fatal to their claims and any attempt thereafter to provide a screening certificate
of merit or express their belief that no such certificate was required was untimely.
12
claimant would take such position instead of either (1) providing a screening certificate of
merit with his or her notice of claim or, (2) advising that such certificate of merit would be
provided within the applicable statutory deadline for providing a certificate of merit.
The statute does not specifically indicate when the statement referenced in
West Virginia Code § 55-7B-6(c) is required to be filed. However, the statute does state
that, if the claimant or his or her counsel believe no certificate of merit is required pursuant
to W. Va. Code §55-7B-6(c), “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.” (emphasis added). Because a statement that no
screening certificate of merit is required pursuant to W. Va. Code §55-7B-6(c) is clearly
“in lieu of” providing such a certificate of merit, we find that such statement should be
served no later than the statutory deadline for serving a certificate of merit pursuant to the
applicable subsections of W. Va. Code §55-7B-6, in this case subsections (b) or (d).
Accordingly, a claimant may not attempt to cure his or her failure to timely serve a
screening certificate of merit by simply maintaining for the first time, after such deadline
has passed, that he or she is invoking the provisions of W. Va. Code §55-7B-6(c) to assert
that no such certificate of merit is required.
Because the Shrewsburys failed to comply with the applicable statutory
deadlines to serve a certificate of merit pursuant to W. Va. Code §55-7B-6(b) or (d) or to
assert an exemption to filing such certificate of merit under W. Va. Code §55-7B-6(c), we
13
find that they have failed to comply with the screening certificate of merit requirements of
the MPLA.
Post-suit notice is insufficient to cure the jurisdictional deficiency created by
the Shrewsbury’s 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. “[A] circuit court has no authority to suspend the MPLA’s
pre-suit notice requirements and allow a claimant to serve notice after the claimant has
filed suit.” Id.
“The pre-suit notice requirements contained in the West Virginia Medical
Professional Liability Act are jurisdictional, and failure to provide such notice deprives a
circuit court of subject matter jurisdiction.” Syl. Pt. 2, State ex rel. PrimeCare Medical of
West Virginia, Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019). Because the
Shrewsburys failed to comply with the MPLA’s pre-suit requirements regarding the notice
of claim and the screening certificate of merit, the Circuit Court of Wyoming County
lacked jurisdiction and, pursuant to Rule 12(h)(3) of the West Virginia Rules of Civil
Procedure, should have dismissed the Shrewsburys’ Complaint.
14
IV. CONCLUSION
For the reasons set forth above, this Court finds that the circuit court erred
by failing to dismiss the Respondents’ claims against all petitioners because it lacked
subject matter jurisdiction to proceed in this case due to the Respondents’ failure to comply
with the MPLA’s pre-suit requirements. Accordingly, we grant the requested writ of
prohibition and vacate the circuit court’s order denying Petitioners’ motions to dismiss for
lack of subject matter jurisdiction. We further remand this case to the circuit court and
direct the circuit court to enter an order dismissing the Shrewsburys’ claims.
Writ Granted.
15