Adkins v. Clark

875 S.E.2d 266

Helen ADKINS Plaintiff Below, Petitioner,

v.Carolyn CLARK, M.D., Defendant Below, Respondent.

No. 21-0300

Supreme Court of Appeals of West Virginia.

Submitted: April 13, 2022

Filed: June 14, 2022

Lonnie C. Simmons, Esq., DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC, Charleston, West Virginia, Counsel for Petitioner

D.C. Offutt, Jr., Esq., Laci Browning, Esq., Offutt Nord, PLLC, Huntington, West Virginia, Counsel for Respondent

WALKER, Justice:

In March 2018, Petitioner Helen Adkins had surgery performed by Carolyn Clark, M.D. Alleging that she was injured by the surgery, in 2020 Ms. Adkins sent a notice of claim and certificate of merit consistent with the pre-suit notice requirements of the West Virginia Medical Professional Liability Act (MPLA) to Dr. Clark. Counsel for the parties corresponded by letter about the claim, but Dr. Clark neither requested pre-suit mediation nor declined it. Ms. Adkins did not file her claim until months later when she received a response letter from Dr. Clark explicitly declining pre-suit mediation – long after the expiration of the statute of limitations and any statutory tolling periods. The circuit court granted Dr. Clark's motion to dismiss the claim on the grounds that the MPLA does not permit an indefinite tolling of the statute of limitations to facilitate pre-suit mediation and there was no evidence of any affirmative conduct by Dr. Clark that would have induced Ms. Adkins to delay filing her claim so as to equitably toll the statute of limitations. On appeal, we affirm the circuit court's order concluding that Ms. Adkins's claim was not timely filed and dismissing it with prejudice.

I. Factual and Procedural History

On March 22, 2018, Dr. Clark performed a total abdominal hysterectomy with bilateral salpingo-oophorectomy and lysis of adhesions on Ms. Adkins. During that procedure, Ms. Adkins alleges Dr. Clark caused a left ureteral injury, requiring Ms. Adkins to undergo additional subsequent surgeries. Dr. Clark referred Ms. Adkins to another physician for repair of the left ureteral injury on March 28, 2018. Ms. Adkins sent Dr. Clark a notice of claim dated February 27, 2020, stating that the injury was discovered "on or after March 22, 2018" and indicating that she needed an additional sixty days to obtain a screening certificate of merit, consistent with West Virginia Code § 55-7B-6(d) (2019).

In light of the COVID-19 pandemic, this Court issued an Administrative Order on May 6, 2020, stating that "[s]tatutes of limitations and statutes of repose that would otherwise expire during the period of judicial emergency between March 23, 2020, and May 15, 2020, shall expire on May 18, 2020." And, conversely, "[d]eadlines, statutes of limitations, and statutes of repose that do not expire during the period of judicial emergency between March 23, 2020, and May 15, 2020, are not extended or tolled by this or prior orders[.]" As a result, Ms. Adkins's deadline to obtain a screening certificate of merit was extended to May 18, 2020.

On May 18, 2020, Ms. Adkins sent Dr. Clark a revised notice of claim, together with a screening certificate of merit.¹ But before receiving the revised notice of claim or screening certificate of merit, Dr. Clark's counsel had sent a letter dated May 13, 2020, to Ms. Adkins's counsel requesting that Ms. Adkins sign an authorization for Dr. Clark to collect medical records to "determine whether or not pre-suit mediation is advantageous." On August 31, 2020, Dr. Clark's counsel forwarded to Ms. Adkins's counsel the medical records it obtained through the provided authorization and noted that additional records would be provided upon receipt.

After there were no additional communications, on November 13, 2020, Ms. Adkins's counsel inquired whether Dr. Clark was requesting pre-suit mediation. By letter dated November 17, 2020, counsel responded that Dr. Clark had chosen not to request pre-suit mediation under the MPLA and had not responded to the revised notice of claim and screening certificate of merit within thirty days.² Under the tolling provisions of the MPLA, the complaint had to be filed thirty days after that failure to respond. So, Dr. Clark's counsel stated that the statute of limitations had expired and the claim was now untimely.

Ms. Adkins nevertheless filed her complaint in the Circuit Court of Cabell County on November 23, 2020, and Dr. Clark responded with a motion to dismiss, arguing that the statute of limitations had expired. The circuit court granted Dr. Clark's motion and dismissed the claim with prejudice. This appeal followed.

II. Standard of Review

Our review of the circuit court's order dismissing Ms. Adkins's complaint as untimely is plenary: "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. "³

III. Analysis

We begin our analysis by clarifying what is not at issue here. First, there is no dispute that the original notice of claim filed on February 27, 2020, was filed within and tolled the applicable statute of limitations for Ms. Adkins's alleged injury.⁴ Second, there is no dispute that the screening certificate of merit was timely filed within the sixty days permitted by West Virginia Code § 55-7B-6(d). On that point, although the screening certificate of merit would have been due on April 27, 2020, because that date fell within the time period addressed in our Administrative Order postponing those deadlines to May 18, 2020, Ms. Adkins's screening certificate of merit was timely. The issue before us is the effect on the tolling provisions of the MPLA of Dr. Clark's letter asking for authorization to obtain medical records so that counsel could determine whether pre-suit mediation would be beneficial.

West Virginia Code §§ 55-7B-6(f) - (i) inform our discussion here, which centers on the MPLA's pre-suit notice requirements, the right to pre-suit mediation, and the corresponding tolling provisions in place to enable compliance with those requirements and that right. Subsection (f) states, in relevant portion, that a

health care provider who receives a notice of claim pursuant to the provisions of this section may respond, in writing, to the claimant or his or her counsel within ... 30 days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider's counsel, if any.^{[5 ]}

According to section (g), that response may also include a demand for prelitigation mediation:

[u]pon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section, the health care provider is entitled to prelitigation mediation before a qualified mediator upon written demand to the claimant.

Subsection (h) tells us that if such a demand for prelitigation mediation is made, that mediation must be concluded within 45 days of the written demand. And, most important for our purposes is subsection (i)(1), which addresses the tolling of the statute of limitations, and provides in relevant part:

except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of mail of a notice of claim 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.

This subsection (i)(1) provides three circumstances that begin the thirty-day clock to file the complaint if the statute of limitations has expired: (1) receipt of a response from the health care provider; (2) no response from the health care provider after 30 days; and (3) notification from a mediator that settlement was unsuccessful.

Here, at the time of Dr. Clark's May 13, 2020 letter, the screening certificate of merit had not yet been provided and Ms. Adkins could not have filed her complaint thirty days from receipt of that response in any case because the pre-suit notice requirements were not yet met. So, the relevant thirty-day time frame would have begun from the date Ms. Adkins provided the amended notice of claim and screening certificate of merit. Dr. Clark received the amended notice of claim and screening certificate of merit on May 26, 2020. Under West Virginia Code § 55-7B-6(f), Dr. Clark had thirty days from then to respond; she did not. Her non-response triggered circumstance two of West Virginia Code § 55-7B-6(i)(1) : that the tolling ceases thirty days from the date a response would have been due. The statute of limitations ran in late July 2020 and Ms. Adkins did not file her complaint until November 2020.

Giving Ms. Adkins the benefit of every inference does not change the outcome that her complaint was not timely filed. Even if we assume that the May 13, 2020 letter constituted a "response" for purposes of these provisions, the statute of limitations would have run on June 13, 2020. And, if we assume that the August 31, 2020 letter forwarding medical records to Ms. Adkins's counsel constituted a "response," Ms. Adkins fares no better. Dr. Clark's response would have been due within thirty days of receipt of the amended notice of claim and screening certificate of merit (June 26, 2020), and would have been untimely, so we are still in the category of a non-response. For that reason, the August 31, 2020 letter could not serve as a "response" that would further toll the statute of limitations under West Virginia Code § 55-7B-6(i)(1). And, even if it did further toll the statute of limitations as...