Darrell Wingett and Carol Wingett v. Kishore K. Challa, M.D. ( 2023 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2023 Term November 8, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 22-567
DARRELL WINGETT and CAROL WINGETT,
Plaintiffs Below, Petitioners,
v.
KISHORE K. CHALLA, M.D.,
Defendant Below, Petitioner.
Certified Question from the Circuit Court of Kanawha County
The Honorable Louis Bloom, Judge
Case No. 19-C-479
CERTIFIED QUESTION ANSWERED
Submitted: October 11, 2023
Filed: November 8, 2023
Andrew D. Byrd, Esq. Candice M. Harlow, Esq.
WARNER LAW OFFICES, PLLC Thomas J. Hurney, Jr., Esq.
Charleston, West Virginia Blair E. Wessels, Esq.
Counsel for Petitioners JACKSON KELLY, PLLC
Counsel for Petitioners Charleston, West Virginia
Counsel for Respondent
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ARMSTEAD concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “The appellate standard of review of questions of law answered and
certified by a circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc.,
197 W. Va. 172, 475 S.E.2d 172 (1996).
2. “When a certified question is not framed so that this Court is able to
fully address the law which is involved in the question, then this Court retains the power
to reformulate questions certified to it under both the Uniform Certification of Questions
of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va. Code, 58-5-2 [(1998)], the
statute relating to certified questions from a circuit court of this State to this Court.”
Syllabus Point 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).
3. “‘In the absence of any specific indication to the contrary, words used
in a statute will be given their common, ordinary and accepted meanings.’ Syl. pt. 1, Tug
Valley Recovery Ctr. v. Mingo Cnty. Comm’n, 164 W. Va. 94, 261 S.E.2d 165 (1979).”
Syllabus Point 1, Thomas v. Firestone Tire & Rubber Co., 164 W. Va. 763, 266 S.E.2d 905(1980).
4. “A cardinal rule of statutory construction is that significance and
effect must, if possible, be given to every section, clause, word or part of the statute.”
Syllabus Point 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676(1999).
i
5. For purposes of West Virginia Code § 55-7B-9(b) (2016), a healthcare
provider named in the complaint and alleged to have contributed to the plaintiff’s injuries
is an “alleged party,” even if that party is later voluntarily dismissed by the plaintiff prior
to trial.
6. “It is well established that the word ‘shall,’ in the absence of language
in the statute showing a contrary intent on the part of the Legislature, should be afforded a
mandatory connotation.” Syllabus Point 1, Nelson v. W. Va. Pub. Employees Ins. Bd., 171
W. Va. 445, 300 S.E.2d 86 (1982).
ii
WALKER, Chief Justice:
By certified question, this Court is asked whether parties who are dismissed
from an action brought under the Medical Professional Liability Act (MPLA), 1 but who
did not settle their claims with the plaintiff may be considered by the jury in apportioning
fault under West Virginia Code § 55-7B-9(b) (2016). That provision states that the jury
“shall” consider the fault of “all alleged parties.” Though not defined, we conclude that
the language of the statute and its legislative history compel a conclusion that the term
“alleged parties” encompasses those originally named as a party in the complaint as having
contributed to the plaintiff’s injuries irrespective of whether they remain parties to the
litigation at the time of trial. We therefore answer the certified question as reformulated
by this Court in the affirmative.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying medical malpractice case arises from the implantation of Mr.
Darrell Wingett’s permanent pacemaker. In May 2014, Mr. Wingett presented to the
Thomas Memorial Hospital emergency room with complaints of dizziness, weakness, and
abdominal pain. He was admitted to the hospital and Dr. Kishore Challa, the cardiologist
who treated Mr. Wingett, believed Mr. Wingett required a permanent pacemaker due to
symptomatic sick sinus syndrome. Dr. Challa did not perform those surgeries, so he
1
W. Va. Code §§ 55-7B-1 to -12.
1
consulted with Dr. M. Salim Ratnani, a cardiothoracic surgeon. Dr. Ratnani also concluded
that Mr. Wingett suffered from symptomatic sick sinus syndrome and implanted a
permanent pacemaker the following day.
Three years later, Mr. Wingett contracted a MRSA infection that ultimately
resulted in surgical removal of the permanent pacemaker. At that point, Mr. Wingett
alleges he was advised that the pacemaker was the source of the infection and that it had
not been operational since it was implanted in 2014. Mr. Wingett, consistent with the pre-
suit notice provisions of the MPLA, 2 sent a timely notice of claim and screening certificate
of merit to Dr. Challa, Dr. Ratnani, and their respective practice groups: South Charleston
Cardiology Associates (SCCA) and Professional Cardiothoracic Surgery, PLLC (PCS). 3
The notice of claim and screening certificate of merit alleged that Mr. Wingett’s symptoms
were not appropriately assessed by either physician and that the recommendation of a
permanent pacemaker and implantation of that device fell below the standard of care.
On May 10, 2019, Mr. Wingett filed his complaint, naming Dr. Challa, Dr.
Ratnani, SCCA, and PCS as defendants. He alleged, consistent with the screening
certificate of merit, that a permanent pacemaker was not indicated for Mr. Wingett and that
2
See W. Va. Code § 55-7B-6.
3
The practice groups were included on a theory of vicarious liability. Mr. Wingett
later voluntarily dismissed his claim against SCCA. Mr. Wingett’s wife was originally a
plaintiff in the action, but her claim was also later voluntarily dismissed.
2
both physicians contributed to his injuries by failing to accurately assess his symptoms and
recommending or surgically implanting the permanent pacemaker. Dr. Challa and SCCA
answered the complaint in June 2019 and those parties proceeded to the discovery phase.
But Mr. Wingett attempted to serve Dr. Ratnani without success and whether service on
PCS was perfected is unclear from the record.
Mr. Wingett’s counsel advised Dr. Challa’s counsel of the service issue with
Dr. Ratnani and that a voluntary dismissal of Dr. Ratnani and his practice group may be
forthcoming. That information led Dr. Challa to file a notice of non-party fault 4 out of an
abundance of caution, without waiving his position that the MPLA still applied to the
underlying claim. Mr. Wingett then filed the notice of dismissal, without prejudice, 5 as to
Dr. Ratnani and PCS, stating that Dr. Ratnani could not be served because he was believed
to be residing in Pakistan, which is not a member of the Hague Convention. The notice of
dismissal also alleged that PCS’s license to do business in West Virginia had been revoked
on November 1, 2016, but did not make any assertions about service of process on that
party except to state that no answer or motion for summary judgment had been filed. 6
4
See W. Va. Code § 55-7-13d (2016).
5
See W. Va. R. Civ. P. 41(a).
6
The civil case information sheet lists service through the Secretary of State.
3
Finally, Mr. Wingett asserted that Dr. Ratnani and PCS were not necessary parties at the
time of the filing of the notice of dismissal.
After expert disclosures and depositions, Mr. Wingett filed a motion in
limine to preclude Dr. Challa from arguing, offering into evidence, or eliciting testimony
from witnesses that Dr. Ratnani or PCS was responsible for Mr. Wingett’s damages. The
basis of the motion in limine was that Dr. Challa had served no notice of claim, screening
certificate of merit, or third-party complaint against those parties nor had he retained an
expert to testify that Dr. Ratnani deviated from the standard of care by recommending and
implanting a permanent pacemaker that proximately caused Mr. Wingett’s injuries. Stated
differently, Mr. Wingett sought to preclude consideration of Dr. Ratnani’s contribution to
the injuries because Dr. Challa failed to establish an independent medical malpractice case
against him. Mr. Wingett’s motion in limine further objected to consideration of Dr.
Ratnani’s medical care pursuant to the non-party fault statute, West Virginia Code § 55-7-
13d, suggested that the court could strike the notice of non-party fault pursuant to West
Virginia Rule of Civil Procedure 12(f), 7 and moved to change the style of the case to
remove Dr. Ratnani and PCS.
In response to the motion in limine, Dr. Challa acknowledged that he did not
intend to argue that Dr. Ratnani’s care of Mr. Wingett fell below the standard of care. But
7
Mr. Wingett never filed a motion to strike the notice of non-party fault.
4
he noted the deposition testimony from Mr. Wingett’s expert expressing the same opinions
as to Dr. Ratnani’s care as were expressed in the screening certificate of merit and that, as
a cardiothoracic surgeon, Dr. Ratnani should have been fluent in the guidelines for the
procedure he performed. Dr. Challa also argued that Dr. Ratnani and PCS were “alleged
parties” by virtue of being named by Mr. Wingett in the action and that the MPLA dictates
that their fault be considered by the jury. 8
In pre-trial memoranda, the parties stated that they were unable to reach an
agreement as to the jury’s consideration of Dr. Ratnani and PCS under either the MPLA or
the non-party fault statute. The circuit court entered an order stating that it was initially
inclined to deny Mr. Wingett’s motion in limine but agreed to certify the question to this
Court and to continue the trial pending an answer. The certification order asks, “[s]hould
the jury be allowed to consider the fault of a party who was originally named as a defendant
but voluntarily dismissed by the plaintiff pursuant to either West Virginia Code § 55-7B-
9, West Virginia Code § 55-[7]-13c, and/or West Virginia Code § 55-7-13d under the
specific facts set forth in the instant case?” The circuit court submitted findings of fact and
conclusions of law answering that question in the affirmative. This Court accepted the
certified question by order dated February 27, 2023, and set the matter for oral argument.
8
See W. Va. Code § 55-7B-9(b) (“[t]he trier of fact shall, in assessing percentages
of fault, consider the fault of all alleged parties, including the fault of any person who has
settled a claim with the plaintiff arising out of the same medical injury.”).
5
II. STANDARD OF REVIEW
Certified questions addressed by this Court are given plenary review: “The
appellate standard of review of questions of law answered and certified by a circuit court
is de novo.” 9
III. ANALYSIS
Questions certified from a circuit court may be reformulated as necessary to
address the full scope of the legal issues underlying the question:
When a certified question is not framed so that this
Court is able to fully address the law which is involved in the
question, then this Court retains the power to reformulate
questions certified to it under both the Uniform Certification of
Questions of Law Act found in W. Va. Code, 51-1A-1, et seq.
and W. Va. Code, 58-5-2 [(1998)], the statute relating to
certified questions from a circuit court of this State to this
Court.[10]
Limiting the scope of a certified question is also within this Court’s authority: “[w]e have
traditionally maintained that upon receiving certified questions we retain some flexibility
in determining how and to what extent they will be answered.” 11 Certified questions can
9
Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172(1996).
10
Syl. Pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).
11
Cty. of Fairmont v. Retail, Wholesale, and Dept. Store Union, AFL-CIO, 166 W.
Va. 1, 3-4, 283 S.E.2d 589, 590 (1980).
6
and should be reformulated or refused to avoid issuing advisory opinions. 12
Because the question posed by the circuit court is in the alternative and we
conclude that Dr. Ratnani and PCS are “alleged parties” under West Virginia Code § 55-
7B-9(b), we need not and do not decide whether they may also be considered as “non-
parties” for purposes of West Virginia Code § 55-7-13d. We therefore exercise our
authority to reformulate the question to whether a healthcare provider who was named in
the complaint but voluntarily dismissed as a party is an “alleged party” for purposes of
West Virginia Code § 55-7B-9(b) and answer that question in the affirmative.
West Virginia Code § 55-7B-9(b) of the MPLA provides that “[t]he trier of
fact shall, in assessing percentages of fault, consider the fault of all alleged parties,
including the fault of any person who has settled a claim with the plaintiff arising out of
the same medical injury.” 13 Dr. Challa argues that because Dr. Ratnani and PCS were
named as parties in the complaint they satisfy the definition of “alleged parties” and the
statute requires that their fault be considered by the jury. Mr. Wingett, conversely, would
have us read West Virginia Code § 55-7B-9(b) as creating only two distinct categories of
12
See State ex rel. Advance Stores Co., Inc. v. Recht, 230 W. Va. 464, 469-70, 740
S.E.2d 59, 64-65 (2013) (discussing requirement that answer to certified question be
determinative of issue pending in certifying court and not advisory). See also Huston v.
Mercedes-Benz USA, LLC, 227 W. Va. 515, 523-24, 711 S.E.2d 585, 593-94 (2011)
(declining to answer second certified question as advisory given answer to first certified
question).
13
The parties do not dispute that the 2016 version of the MPLA applies.
7
those whose fault may be considered by the jury by operation of this provision: (1) party-
defendants and (2) settling parties. Mr. Wingett argues that Dr. Ratnani and PCS do not
fit into either category because they were dismissed from the action and did not settle.
We begin and end our analysis of this certified question with the meaning of
“alleged parties” as ascertained by the language of the statute: “courts should give effect
to the legislative will as expressed in the language of the statute.” 14 “Alleged parties” is
not defined under the MPLA, nor does that term exist elsewhere in the West Virginia Code.
Where a definition is not legislatively provided, we presume that the Legislature intended
the term to have its common usage: “in the absence of any specific indication to the
contrary, words used in a statute will be given their common, ordinary and accepted
meanings.” 15 Parsing out the individual words, “alleged” means “[a]sserted to be true as
described” or “accused but not yet tried” 16 and “party” means “[o]ne by or against whom
a lawsuit is brought; anyone who both is directly interested in a lawsuit and has a right to
control the proceedings, make a defense, or appeal from an adverse judgment.” 17
14
Donley v. Bracken, 192 W. Va. 383, 387, 452 S.E.2d 699, 703 (1994).
15
Syl. Pt. 1, Thomas v. Firestone Tire & Rubber Co., 164 W. Va. 763, 266 S.E.2d
905 (1980) (quoting Syl. Pt. 1, Tug Valley Recovery Ctr. v. Mingo Cnty. Comm’n, 164 W.
Va. 94, 261 S.E.2d 165 (1979)).
16
Alleged, BLACK’S LAW DICTIONARY (11th ed. 2019).
17
Party, BLACK’S LAW DICTIONARY (11th ed. 2019).
8
Applying the common meaning of these words, and for the reasons explained
below, we conclude that Dr. Ratnani and PCS are “alleged parties” under West Virginia
Code § 55-7B-9(b) because they were named by Mr. Wingett as parties in the complaint. 18
That they were later dismissed at the election of Mr. Wingett does not alter that Mr. Wingett
alleged, by verified complaint, that they contributed to his injuries. Contrary to Mr.
Wingett’s assertions, West Virginia Code § 55-7B-9(b) does not require that the alleged
tortfeasor either be in the litigation at the time of trial or have previously settled in order to
qualify as an “alleged party” under that provision. Both the legislative history and the text
of the statute itself belie that conclusion.
To be sure, “alleged parties” is a term that occupies a grey area of party
status: one is typically a party or a non-party. But the Legislature’s inclusion of the word
“alleged” to modify “parties” must be given effect in applying West Virginia Code § 55-
7B-9(b): “[a] cardinal rule of statutory construction is that significance and effect must, if
possible, be given to every section, clause, word or part of the statute.” 19 And, “[i]t is a
well known rule of statutory construction that the Legislature is presumed to intend that
18
In State ex rel. Chalifoux v. Cramer, No. 20-0929, 2021 WL 2420196 (W. Va.
June 14, 2021 (memorandum decision), this Court was presented with a petition for a writ
of prohibition relative to placing non-party healthcare providers on the verdict form and
grappled with the term “alleged parties.” As the circuit court below recognized, that case
is of little moment here due to its procedural posture and factual distinctions.
19
Syl. Pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676(1999).
9
every word used in a statute has a specific purpose and meaning.” 20 A “party” cannot be
coextensive with the meaning of an “alleged party” if we are to give effect to the
Legislature’s use of “alleged.”
We know this for two reasons. First, as discussed, the Legislature chose to
modify the word “party” with “alleged,” necessarily broadening the scope beyond those
parties in the action at the time of trial. Second, the Legislature also chose to list, by way
of example, that “alleged parties” would “include” “any person who has settled a claim
with the plaintiff arising out of the same medical injury.” As a non-exhaustive list, we
cannot conclude that “alleged parties” has so exclusive a definition that Dr. Ratnani and
PCS, who were named in the complaint and voluntarily dismissed by the plaintiff, would
not qualify.
The legislative history of this statute clarifies that “alleged parties”
encompasses more than those defendants still in the action at the time of trial. The original
version of the statute, enacted in 1986, spoke in terms of “defendants,” and this Court
applied it in that manner, rejecting the jury’s consideration of non-party tortfeasors where
the Legislature’s express terms did not provide for “potential defendants.” 21 In 2003, the
20
State ex rel. Johnson v. Robinson, 162 W. Va. 579, 582, 251 S.E.2d 505, 508
(1979).
21
See Rowe v. Sisters of Pallottine Missionary Society, 211 W. Va. 16, 25, 560
S.E.2d 491, 500 (2001).
10
defendant-specific language in this code provision was amended, permitting the jury to
consider “only the fault of the parties in the litigation at the time the verdict is rendered”
and specifically disallowed consideration of the fault of any other person who settled a
claim with the plaintiff arising out of the same medical injury. 22 But fault of “alleged
parties,” including those who settled a claim with the plaintiff, could be considered by the
jury upon creation of the Patient Injury Compensation Fund. 23
After that fund was established, the Legislature, in 2016, struck the language
mandating the jury consider the “fault of the parties in the litigation at the time the verdict
was rendered” in favor of the current version, which provides that the jury shall consider
the fault of all alleged parties. Stated more succinctly, throughout the development of the
provision at issue, the Legislature has evinced a clear intent to progress away from
“defendants” and “parties in the litigation at the time the verdict is rendered” toward the
current and most expansive “alleged parties,” “including the fault of any person who has
settled a claim with the plaintiff arising out of the same medical injury.” We therefore
reject Mr. Wingett’s contention that because Dr. Ratnani and PCS were dismissed as parties
before trial that they may not be considered “alleged parties.”
22
W. Va. Code § 55-7B-9(b) (2003).
23
Id. See also Chalifoux, 2021 WL 2420196 at *8-10 (Armstead, J., dissenting)
(discussing creation and purpose of Patient Injury Compensation Fund).
11
That the Legislature gave some instruction as to what it would consider an
“alleged party” by way of non-exhaustive list is as informative as the legislative history.
Specifically, the Legislature has deemed an “alleged party” as “including” any person who
has settled a claim with the plaintiff arising out of the same medical injury. But not all
tortfeasors who settle a claim with the plaintiff are, or ever were, “parties,” so it makes
little sense to draw the line of “alleged parties” there. In fact, the MPLA, through its pre-
suit notice requirements, encourages the settlement of cases before a complaint is filed –
that is, before they can be made parties. 24
We have observed that “[t]he term ‘includ[ing]’ in a statute is to be dealt
with as a word of enlargement” 25 and indicative of a partial list:
Black’s Law Dictionary (9th Ed.2009) defines the term
“include” as “to contain as a part of something,” and says that
the term “typically indicates a partial list . . . But some drafters
use phrases such as including without limitation and including
but not limited to—which mean the same thing.”[26]
The Legislature, in using the word “including,” thus demonstrates that it did not intend to
create only two distinct categories of “alleged parties” (party-defendants and those who
24
See W. Va. Code § 55-7B-6.
25
Davis Mem’l Hosp. v. W. Va. State Tax Comm’r, 222 W. Va. 677, 684, 671 S.E.2d
682, 689 (2008) (quotations and citations omitted).
26
Postlewait v. Cty. of Wheeling, 231 W. Va. 1, 4, 743 S.E.2d 309, 312 (2012).
12
settled with the plaintiff before trial) because the enumerated category is a partial list of
who may be considered an “alleged party.”
It follows that, in the context of the MPLA, “alleged parties” must embrace,
at minimum, those alleged tortfeasors who were named in the complaint by plaintiff. We
reject Mr. Wingett’s contention that because Dr. Ratnani and PCS were dismissed as parties
they necessarily cannot be “alleged parties,” when, in fact, that is precisely the sort of
factual scenario the common meaning of that term appears to contemplate. The legislative
history and language of the statute cannot support the restrictive definition Mr. Wingett
advocates. We therefore hold that for purposes of West Virginia Code § 55-7B-9(b)
(2016), a healthcare provider named in the complaint and alleged to have contributed to
the plaintiff’s injuries is an “alleged party,” even if that party is later voluntarily dismissed
by the plaintiff prior to trial.
Because West Virginia Code § 55-7B-9(b) dictates that “[t]he trier of fact
shall, in assessing percentages of fault, consider the fault of all alleged parties” 27 the jury
must be permitted to consider whether, as plaintiff alleged, Dr. Ratnani and PCS were at
fault for Mr. Wingett’s injuries: “[i]t is well established that the word ‘shall,’ in the absence
27
Emphasis added.
13
of language in the statute showing a contrary intent on the part of the Legislature, should
be afforded a mandatory connotation.” 28
Corollary to that conclusion is the question it begs: who must do the alleging
to make a would-be tortfeasor an “alleged party”? Mr. Wingett insists that because Dr.
Challa has not laid blame for Mr. Wingett’s injuries at the feet of Dr. Ratnani either by
third-party practice or expert testimony, there are no “allegations” to make Dr. Ratnani or
PCS an “alleged party.” Stated differently, Mr. Wingett contends that the definition of
“alleged party” requires Dr. Challa to allege Dr. Ratnani’s treatment of Mr. Wingett fell
below the standard of care. But nothing in the statute requires a third-party complaint or
expert testimony offered by a defendant against an “alleged party” to qualify them as
such. 29 Mr. Wingett’s contention that Dr. Challa needed to serve a notice of claim and
Syl. Pt. 1, Nelson v. W. Va. Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d
2886 (1982).
29
This Court requested briefing on the impact of this Court’s recent syllabus point
in W.W. Consultants v. Pocahontas County Public Service District, 248 W. Va. 323, 888
S.E.2d 823 (2023), which provides that “[t]he statutory scheme and exceptions set forth in
West Virginia Code §§ 55-7-13a to -13d govern contribution claims. The unambiguous
language of those statutes abolished any contribution claim that falls outside of them.”
Mr. Wingett relies on the availability of third-party practice as a remedy of which
Dr. Challa has not availed himself while simultaneously arguing that MPLA defendants
are precluded from invoking the provisions for fault allocation that, pursuant to this Court’s
holding in W.W. Consultants, purport to occupy the field of third-party practice. In their
supplemental briefing, both parties contend this syllabus point has no bearing on the answer
to the certified question posed to this Court. Inasmuch as we have reformulated that
certified question as limited to West Virginia Code § 55-7B-9(b), we agree and do not
intend our recitation of Mr. Wingett’s argument to suggest the availability, or not, of a
contribution claim.
14
screening certificate of merit on Dr. Ratnani and PCS before the jury could consider
whether they may have contributed to Mr. Wingett’s injuries rests on the faulty premise
that Dr. Ratnani and PCS are being sued by Dr. Challa, when the operation of the statute
he invokes is merely for the jury to apportion their fault, if any, in relation to his. 30
Here, the “allegations” were supplied by the plaintiff through his verified
complaint. This is consistent with consideration of fault of settling defendants or those
who settled prior to becoming a party. Allegations tendered by the plaintiff are sufficient
there; we see no reason to draw a distinction here where none exists in the statute. To hold
otherwise puts Dr. Challa in the untenable position of criticizing Dr. Ratnani for
recommending the same course of treatment that he himself recommended before Dr.
Ratnani may be considered by the jury to be totally, partially, or not at all at fault. For
those reasons, we disagree that Dr. Challa had to either file a third-party complaint or offer
expert testimony critical of Dr. Ratnani’s care before Dr. Ratnani and PCS may be
considered “alleged parties” for purposes of West Virginia Code § 55-7B-9(b).
30
See W. Va. Code § 55-7B-6 (“[N]o person may file a professional liability action
against any health care provider without complying with [pre-suit notice provisions].”)
(emphasis added). The parties’ arguments relative to an evidentiary burden, expert
testimony, and the sufficiency of the aspersions cast upon Dr. Ratnani’s treatment of Mr.
Wingett are beyond the scope of this certified question where we are concerned only with
whether Dr. Ratnani and PCS are “alleged parties” such that the statute would permit
consideration of their fault in the first place.
15
IV. CONCLUSION
The reformulated certified question asked: whether a healthcare provider
who was named in the complaint but voluntarily dismissed as a party is an “alleged party”
for purposes of West Virginia Code § 55-7B-9(b)? Having answered the reformulated
certified question in the affirmative, we remand this case to the Circuit Court of Kanawha
County for further proceedings.
Certified question answered.
16