Tanner v. Raybuck

873 S.E.2d 892

Rita TANNER and Dennis Tanner, Petitioners,

v.Bryan D. RAYBUCK, M.D., Respondent.

No. 21-0038

Supreme Court of Appeals of West Virginia.

Submitted: February 8, 2022

Filed: April 15, 2022

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,¹ 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.

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.² However, on May 18, 2020, before producing a screening certificate of merit, Petitioners filed their civil action in the Circuit Court of Monongalia County.³ 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.⁴

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.⁵ 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.

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.⁶ 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.

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."⁷ 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.

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...