Dr. Robby Keith and Dr. John Deel v. Christine Lawrence, Administratrix ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Dr. Robby Keith and Dr. John Deel
Defendants Below, Petitioners FILED
November 20, 2015
vs) No. 15-0223 (Kanawha County 14-C-1705) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Christine Lawrence, Administratrix of the
Estate of Rondall L. Lawrence, Jr.
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioners Dr. Robby Keith and Dr. John Deel, by counsel Karen H. Miller and Robert
A. Hogue, appeal the February 2, 2015, order of the Circuit Court of Kanawha County, denying
their motions to dismiss respondent’s medical malpractice claims. Respondent Christine
Lawrence, Administratrix of the Estate of Rondall L. Lawrence, Jr., by counsel James D. Stacy
II, responds in support of the circuit court’s order. Petitioners submitted a reply. The parties
jointly submitted a supplemental appendix.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Respondent’s claims against petitioners herein arise from the October 20, 2012, death of
respondent’s husband, Rondall L. Lawrence, Jr. At the time of his death, Mr. Lawrence was a
patient at Charleston Area Medical Center (“CAMC”). Mr. Lawrence was initially treated at
CAMC, on April 16, 2012, at which time he complained of shortness of breath. As his
respiratory issues persisted, a team of doctors (including petitioners) performed several tests and
medical procedures upon Mr. Lawrence, in an effort to diagnose and treat him, including a May
1, 2012, lung biopsy. Following the lung biopsy, Mr. Lawrence went into respiratory distress,
that required he undergo tracheostomy and be placed on a ventilator.1 From that point, until the
time of his death, Mr. Lawrence remained hospitalized. The cause of the Mr. Lawrence’s death,
as listed on his death certificate, was respiratory failure due to a “CVA” or cerebrovascular
accident (commonly referred to as a stroke).
1
During his post-biopsy hospitalization, Mr. Lawrence developed subcutaneous
emphysema, pneumonia, and renal failure.
1
On August 5, 2014, respondent individually served, via certified mail, notices of claim
and screening certificates of merit upon petitioners, as required by West Virginia Code § 55-7B­
6.2 In a September 2, 2014, letter, Petitioner Keith’s counsel advised respondent that the
certificate of merit served upon him was deficient, and asked that respondent address and correct
the deficiencies of the certificate. By letter dated September 4, 2014, Petitioner Deel’s counsel
likewise advised respondent that the certificate of merit served upon him was similarly deficient,
and also requested correction of the deficiencies. In these letters, petitioners claimed that
respondent’s certificates of merit failed to meet the requirements of West Virginia Code § 55­
7B-6(b), and that respondent’s expert (Dr. Singer) was unqualified to render an opinion as to the
alleged malpractice of petitioners. In response to petitioners’ letters, on September 8, 2014,
respondent’s counsel met with petitioners’ counsel.3
On September 10, 2014, petitioners’ counsel again wrote to respondent and asked that the
alleged deficiencies in the certificates of merit be corrected.4 On September 15, 2014, respondent
filed her complaint against petitioners.5 In October of 2014, petitioners filed motions to dismiss
respondent’s complaint, pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure,
and argued that respondent’s screening certificates of merit did not satisfy the requirements of
West Virginia Code § 55-7B-6(b). A hearing was held on petitioners’ motions, and on February
2, 2015, the circuit court entered its order denying said motions.6 It is from the February 2, 2015,
2
West Virginia Code §§ 55-7B-1 through -12 are collectively known as the Medical
Professional Liability Act (“MPLA”). The certificates of merit served upon petitioners by
respondents were separate as to each individual physician. The certificates were each signed by
Barry Singer, M.D., a board certified internal medicine physician, with a subspecialty in
hematology and oncology.
3
Respondent alleges that during this meeting, her counsel: explained to petitioners’
counsel, how and why Dr. Singer was qualified to render an opinion in this matter; defended the
sufficiency of the certificates of merit served upon petitioners; and argued that the certificates
satisfied the spirit of the MPLA.
4
Respondent describes that petitioners’ counsel’s September 10, 2014, letter was “at best
a recitation of a factual disagreement that can only be resolved through discovery and litigation.”
5
In addition to petitioners, CAMC and the West Virginia University Board of Governors
(“WVUBOG”) were also named as defendants in the underlying action. Neither CAMC nor
WVUBOG are involved in the instant appeal.
6
In the instant case, the circuit court, found that respondent’s certificates of merit were
“particular as to [her expert’s] familiarity; [her expert’s] qualifications; how the breach occurred;
when the breach occurred; who breached [sic] the applicable standard of care; and how the
breach resulted in complications causing [respondent’s] decedent’s death, thereby satisfying the
requirements of West Virginia Code § 55-7B-6(b).”
2
order that petitioners now appeal.
We address, as a threshold matter, whether the circuit court’s February 2, 2015, order is
an appealable order. Under West Virginia Code § 58-5-1, appeals before this Court may only be
taken from the final decisions of a circuit court. This rule, commonly referred to as the “rule of
finality,” is designed to prohibit “piecemeal appellate review of trial court decisions which do
not terminate the litigation [.]” United States v. Hollywood Motor Car Co., 458 U.S. 263, 265
(1982). In Robinson v. Pack, 223 W.Va. 828, 832, 679 S.E.2d 660, 664 (2009), we discussed
exceptions to the rule of finality, which include “interlocutory orders which are made appealable
by statute or by the West Virginia Rules of Civil Procedure, or . . . [which] fall within a
jurisprudential exception” such as the “collateral order” doctrine. As we explained in James M.B.
v. Carolyn M., 193 W.Va. 289, 293 n.4, 456 S.E.2d 16, 20 n.4 (1995), the “collateral order”
doctrine
was set forth by the United States Supreme Court in Cohen [v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949)]. In Durm [v.
Heck’s, Inc.], 184 W.Va. [562] at 566 n.2, 401 S.E.2d [908] at 912 n.2 [(1991)],
we noted the doctrine as an exception to the federal interpretation of Rule 54(b),
and we said that under Cohen, “[a]n interlocutory order would be subject to
appeal under this doctrine if it ‘(1) conclusively determines the disputed
controversy, (2) resolves an important issue completely separate from the merits
of the action, and (3) is effectively unreviewable on appeal from a final
judgment.’ [internal citations omitted]”
In the instant case, petitioners argue that the circuit court’s February 2, 2015, order met
each of the requirements of the collateral order doctrine, and established this Court’s jurisdiction
to hear petitioners’ appeal. Specifically, petitioners contend that the February 2, 2015, order
conclusively determined the disputed controversy of the sufficiency of the certificates of merit
(and, thus, the circuit court’s jurisdiction); resolved an important issue completely separate from
the merits (whether respondent’s certificates of merit were in compliance with the pre-suit notice
requirements of the MPLA); and was effectively unreviewable on appeal from a final judgment
(as to hold otherwise would require petitioners to await the outcome of case before seeking a
decision on the lower court’s jurisdiction, effectively stripping petitioners of the protections
afforded by the MPLA). Based upon our review of the record before us, and under the limited
facts and circumstances of this case, we agree with petitioners, and find that, under the
application of the collateral order doctrine, petitioners’ appeal is properly before this Court.7
7
In State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 245 n.5, 460 S.E.2d 54, 60
n.5 (1994), we noted that “[an] appeal [of denial of a motion to dismiss for failure to state a
claim] is available in a few special circumstances to protect rights that are defined as rights
intended to protect against the burden of trial rather than simply to protect against the entry of
judgment . . . .” (citing Charles Alan Wright et al., Federal Practice and Procedure § 3914.1 at
493 (2d ed. 1992)).
3
Having resolved the threshold question regarding jurisdiction, we now turn to petitioners’
assignment of error. “Appellate review of a circuit court’s order granting a motion to dismiss a
complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194
W.Va. 770, 461 S.E.2d 516 (1995). “Where the issue on appeal from the circuit court is clearly a
question . . . involving interpretation of a statute, we apply a de novo standard of review.” Syl.
Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). On appeal,
petitioners argue that the circuit court improperly determined that the certificates of merit served
upon them by respondent satisfied the requirements of West Virginia Code § 55-7B-6(b).
West Virginia Code § 55-7B-6(b) requires 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.
Petitioners contend that respondent’s certificates of merit were deficient in that they did
not address: (1) respondent’s expert’s familiarity with the standard of care; (2) respondent’s
expert’s qualifications to offer an opinion on the care provided by petitioners; (3) how the
standard of care was breached; and (4) how the alleged breach of the standard of care resulted in
the death of respondent’s husband. Conversely, respondent argues that its certificates of merit
satisfied the requirements of West Virginia Code § 55-7B-6(b), and the spirit and purpose of the
MPLA.
We have, on several prior occasions, addressed the pre-suit requirements of the MPLA.
In syllabus point six of Hinchman v. Gillette, 217 W.Va. 378, 618 S.E.2d 387 (2005), we held,
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.
In syllabus point four of Elmore v. Triad Hospitals, Inc., 220 W.Va. 154, 640 S.E.2d 217
(2006), we determined that “[t]he 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.” (citation
omitted). Applying our rulings in Hinchman and Elmore to petitioners’ claims herein, we find
that respondent’s screening certificates of merit satisfied the requirements of West Virginia Code
§ 55-7B-6(b).
4
The certificates of merit served by respondent (upon petitioners) were particular as to
respondent’s expert’s familiarity with the applicable standard of care; his qualifications; his
opinion as to how the applicable standard of care was breached; and how the breach resulted in
the death of respondent’s decedent. The record further reveals that respondent was conscientious
in addressing petitioners’ allegations of deficiencies in the certificates of merit, including
meeting with petitioners’ counsel to explain the certificates of merit and providing supporting
medical records to petitioners. Accordingly, we find that respondent has demonstrated a good
faith and reasonable effort to further the statutory purposes of the MPLA, as required by
Hinchman. To hold otherwise would restrict or deny respondent’s access to the court, in direct
contravention to the intent of the MPLA, as explained in Elmore.8
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING AND WRITING SEPERATELY:
Justice Robin Jean Davis
Davis, J., dissenting:
In this medical malpractice proceeding, the Petitioners filed motions to dismiss
the Respondent’s complaint on the grounds of that the Respondent’s certificates of merit were
8
As Justice Davis, reasoned in her concurring opinion in Hinchman, 217 W.Va. at 396,
618 S.E.2d at 405, in cases proceeding under the MPLA,
[p]laintiffs must be afforded sufficient time to develop cases, and the screening
certificate of merit, filed pre-lawsuit, simply does not afford sufficient maturation
of the issues. In the majority of cases, simply reading medical records will not be
sufficient for an expert to render a bonafide opinion. One of the most critical
pieces of evidence used by a medical malpractice expert in rendering an opinion
is the deposition testimony of the defendant and all persons assisting in the
rendering of the services to the plaintiff.
5
insufficient. The circuit court entered an interlocutory order denying the motions to dismiss. The
Petitioners appealed from the circuit court’s interlocutory ruling. The majority opinion has
determined that the appeal was proper and affirmed the denial of the motions. For the reasons set
out below, I must dissent from the determination of the majority opinion that a defendant may
appeal from an interlocutory order denying a motion to dismiss for insufficiency of a certificate
of merit.1
We have repeatedly explained that this Court’s appellate jurisdiction extends only
to final judgments. See McDaniel v. Kleiss, 198 W.Va. 282, 284, 480 S.E.2d 170, 172 (1996)
(“Since the circuit court’s order . . . is interlocutory and not subject to appeal, we find the petition
for appeal was improvidently granted and accordingly dismiss the same for lack of appellate
jurisdiction.”); Sipp v. Yeager, 194 W.Va. 66, 67, 459 S.E.2d 343, 344 (1995) (“[T]he circuit
court’s decision is an interlocutory rather than a final order and therefore, we dismiss this appeal
as improper before this Court.”). This Court’s jurisdictional authority to address the ruling of a
circuit court was set out in syllabus point 3 of James M.B. v. Carolyn M., 193 W.Va. 289, 456
S.E.2d 16 (1995), as follows:
Under W. Va. Code, 58-5-1 [1998], appeals only may be taken from final
decisions of a circuit court. A case is final only when it terminates the litigation
between the parties on the merits of the case and leaves nothing to be done but to
enforce by execution what has been determined.
It has been held that “[t]he required finality is a statutory mandate, not a rule of discretion.”
Province v. Province, 196 W.Va. 473, 478, 473 S.E.2d 894, 899 (1996). “This rule, commonly
referred to as the ‘rule of finality,’ is designed to prohibit piecemeal appellate review of trial
1
I wish to reiterate my previously stated position “that the certificate of merit requirement
violated the Separation of Powers/Rule-making Clauses and the Certain Remedy Clause of the
West Virginia Constitution.” Hinchman v. Gillette, 217 W.Va. 378, 387, 618 S.E.2d 387, 396
(2005) (Davis, J., concurring).
6
court decisions which do not terminate the litigation[.]” James M.B., 193 W.Va. at 292, 456
S.E.2d at 19 (internal quotations and citation omitted). When there is no finality of the judgment,
this Court generally does not have authority to review the merits of a case.2 See Coleman v.
Sopher, 194 W.Va. 90, 94, 459 S.E.2d 367, 371 (1995) (“The usual prerequisite for our appellate
jurisdiction is a final judgment, final in respect that it ends the case.”). In the instant case, the
order denying Petitioners’ motions to dismiss was not a final judgment disposing of the case.
Therefore, the order remained interlocutory and was not subject to review by this Court.
As I have indicated, “ordinarily the denial of a motion to dismiss is an
interlocutory order and, therefore, is not immediately appealable.” Credit Acceptance Corp. v.
Front, 231 W.Va. 518, 522, 745 S.E.2d 556, 560 (2013) (internal quotation and citation omitted).
However, we have also recognized that an appeal may be taken from “an interlocutory order
approximating a final order in its nature and effect.” Guido v. Guido, 202 W.Va. 198, 202, 503
S.E.2d 511, 515 (1998). See also Nat’l Union Fire Ins. Co. of Pittsburgh v. Miller, 228 W.Va.
739, 746, 724 S.E.2d 343, 350 (2012). Pursuant to Rule 54(b) of the West Virginia Rules of Civil
Procedure, an otherwise interlocutory order may be designated as final for appeal purposes. Rule
54(b) states, in part, that a circuit court
2
“[O]ur modern practice is to allow the use of prohibition, based on the particular facts of
the case, where a remedy by appeal is unavailable or inadequate, or where irremediable prejudice
may result from lack of an adequate interlocutory review.” McFoy v. Amerigas, Inc., 170 W.Va.
526, 532, 295 S.E.2d 16, 22 (1982). See also State ex rel. Chafin v. Halbritter, 191 W.Va. 741,
743-44, 448 S.E.2d 428, 430-31 (1994) (“[P]rohibition may be substituted for a writ of error or
appeal when the latter alternatives would provide an inadequate remedy.”). In addition to seeking
a writ of prohibition, the Petitioners ultimately could have appealed the denial of their motions to
dismiss if an adverse final judgment was entered against them. See Franklin D. Cleckley, Robin
Jean Davis and Louis J. Palmer, Jr, Litigation Handbook on West Virginia Rules of Civil
Procedure, § 12(b)(6), pg. 391 (2012) (“Of course, where there is an appeal of a final judgment,
a party may assign error to the denial of a motion to dismiss[.]”).
7
may direct the entry of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of judgment.
Interpreting this rule, we have held that “[a]n otherwise interlocutory order that is not expressly
certified as final by using the language required by Rule 54(b) of the West Virginia Rules of
Civil Procedure remains interlocutory[.]” Syl. Pt. 3, in part, Hubbard v. State Farm Indemn. Co.,
213 W.Va. 542, 584 S.E.2d 176 (2003). In the instant case, the order denying Petitioners’
motions to dismiss did not, either in express language or implicitly, indicate that it was intended
to be a final and appealable order. Therefore, the order remained interlocutory and was not
subject to review on the merits by this Court. See Walker v. Option One Mortgage Corp., 220
W.Va. 660, 667, 649 S.E.2d 233, 240 (2007) (Davis, C.J., dissenting) (“The order denying the
defendants’ motion to add a counterclaim and implead a third party was a nonappealable
interlocutory order.”).3
As a result of the majority’s decision to hear the merits of this appeal, I am
concerned that this Court will be flooded with appeals by defendants from interlocutory orders
denying motions to dismiss on certificate of merit grounds. Even though the majority’s decision
correctly addresses the requirements for a certificate of merit,4 the majority has, nevertheless,
accepted an improper appeal from an interlocutory order. Therefore, I must dissent
3
I would also note that the circuit court’s order in this case did not satisfy the collateral
order doctrine. This Court has observed that “[a]n interlocutory order would be subject to appeal
under this doctrine if it (1) conclusively determines the disputed controversy, (2) resolves an
important issue completely separate from the merits of the actions, and (3) is effectively
unreviewable on appeal from a final judgment.” Robinson v. Pack, 223 W.Va. 828, 832, 679
S.E.2d 660, 664 (2009) (internal quotation marks and citation omitted). The circuit court’s order
was not unreviewable on appeal.
4
The requirements for certificates of merit summarized by the majority in this case derived from
West Virginia Code 55-7B-6B; Hinchman v. Gillette, 217 W.Va. 378, 387, 618 S.E.2d 387, 396
(2005); and Elmore v. Triad Hospitals, Inc., 220 W.Va. 154, 640 S.E.2d 217 (2006).
8