                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS 



Connor McLaughlin, administrator
of the Estate of Peter James McLaughlin, 
                                        FILED
Plaintiff Below, Petitioner                                                     May 11, 2018 

                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 17-0453 (Berkeley County 15-C-682)                                       OF WEST VIRGINIA


Christopher J. Murphy, M.D. and
University Healthcare Physicians, Inc.
d/b/a University Behavioral Medicine
and Psychiatry,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioner Connor McLaughlin, administrator of the Estate of Peter James McLaughlin,
by counsel Paul G. Taylor, appeals the April 17, 2017, order of the Circuit Court of Berkeley
County denying petitioner’s motion to alter or amend its February 3, 2017, order granting
Respondent University Healthcare Physicians, Inc., d/b/a University Behavioral Medicine and
Psychiatry’s (“UHP”) motion to dismiss. Petitioner also appeals the circuit court’s April 17,
2017, order denying his motion to alter or amend its February 8, 2017, order granting
Respondent Christopher J. Murphy, M.D.’s (“Dr. Murphy”) motion to dismiss. Respondent
UHP, by counsel David E. Schumacher and Daniel T. LeMasters, and Dr. Murphy, by counsel
Chelsea V. Prince, filed their respective responses.

       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. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         Peter James McLaughlin (“the decedent”) was admitted as a patient at UHP on or about
December 22, 2013, and Dr. Murphy was assigned as the attending provider. Dr. Murphy
diagnosed the decedent with Bipolar I Disorder, suicidal ideation, cocaine abuse, and feigning
illness. The decedent was prescribed Lamictal, but that medicine was directed not to be taken
until December 29, 2013, and Dolophine was prescribed beginning on December 28, 2013. The
decedent was directed to stop taking Oxymorphone, Tylenol, Motrin, and Aleve.

       On the morning of December 28, 2013, the decedent submitted a formal request for
discharge, so Dr. Murphy met with him. At that time, the decedent denied any suicidal, self-
harm, or homicidal ideation, and according to Dr. Murphy showed no adverse signs of

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responding to internal stimuli. Dr. Murphy determined that the decedent did not meet the criteria
for involuntary commitment. Between 4:00 p.m. and 5:00 p.m. on December 28, 2013, the
decedent was discharged from UHP. He then traveled on foot to at least two restaurants where
employees reportedly observed him acting erratically, resulting in a call to police. However, the
responding officers did not take the decedent into custody. Thereafter, the decedent continued
traveling on foot outside of the city limits where he was struck by an automobile and killed in the
roadway at approximately 11:06 p.m.

         Petitioner “attempted to commence” the civil action before the circuit court by filing a
complaint on December 22, 2015, alleging medical malpractice by respondents.1 However, he
did not provide a pre-suit notice required by West Virginia Code § 55-7B-6, to respondents prior
to filing this suit. In the complaint, petitioner alleged that UHP was believed to be an
independent contractor providing psychological and psychoanalytic services to patients at West
Virginia University Medical Corp. d/b/a University Health Care; that respondent Dr. Murphy
was employed as a physician at UHP; and that Murphy was assigned as the attending provider of
medical services by UHP. The complaint also alleged that Dr. Murphy had a duty to determine
whether the decedent was likely to cause serious harm to himself and was critical of decisions
Dr. Murphy made regarding prescription medications for the decedent. Petitioner alleged that
both UHP and Dr. Murphy failed to perform their duties owed to the decedent by discharging
him, which proximately caused the decedent’s death. Seven months after filing that complaint,
petitioner provided a notice of claim on or about August 8, 2016, for this complaint. That notice
of claim asserted that “[t]he Statement of The Theory or Theories of Liability upon which a
cause of action may be based, will be specifically set forth in detail in a forthcoming screening
certificate of merit.” It also incorporated the “Notice of Medical Malpractice Claim filed on
October 24, 2014,” which was filed in the previously dismissed action. However, petitioner did
not serve respondents with such screening certificate of merit or even a statement of intent to
provide such certificate within sixty days of the notice of claim before filing the complaint to
initiate the action. As of April 17, 2017, petitioner had not served a screening certificate of merit
for this action.

        UHP filed a motion to dismiss the underlying action. In petitioner’s response to that
motion, it attached what the circuit court characterized as “an alleged certificate of merit” as an
exhibit. However, that certificate of merit was created and produced approximately eleven
months after the filing of the complaint. On February 3, 2017, the circuit court granted UHP’s


       1
          Prior to the filing of the instant action below, a complaint was filed in Civil Action No.
14-C-845 by Michelle Lee McLaughlin, then-administratrix of the estate of Peter James
McLaughlin. The Notice of Claim served on UHP in that action set forth that a screening
certificate of merit would not be provided pursuant to the exemption found at West Virginia
Code § 55-7B-6(c). Judge Yoder granted UHP’s motion to dismiss that action for the failure to
comply with the West Virginia Medical Professional Liability Act. Petitioner filed a motion
under Rule 59(e) to alter or amend that opinion, but the circuit court denied that motion by order
entered January 6, 2016. It is apparent from the orders in that matter that the circuit court
acknowledged that petitioner became the administrator of the decedent’s estate during the
pendency of that matter, as petitioner appears on the style of the January 6, 2016, order.


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motion to dismiss. Petitioner filed a motion to alter or amend that memorandum opinion,
pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. By order entered April 17,
2017, the circuit court denied that motion.

       In that order, the circuit court concluded that petitioner’s complaint

       falls squarely under the West Virginia Medical Professional Liability Act . . . and
       all of its requirements. . . These alleged breaches of duty [by respondents] relate
       to complex matters outside of the common knowledge of lay jurors as the
       Complaint is based upon the medical issues addressed and decisions reached by
       Dr. Murphy on medication provision, delayed provision, withdrawal symptoms,
       suicidal ideations, and involuntary committals.

It further determined that Dr. Murphy’s decisions regarding the decedent’s prescription
medications and his determination that the decedent was not a threat to himself or others
involved complex medical issues beyond the common knowledge or understanding of lay
persons. The circuit court pointed out that despite petitioner’s previously filed civil action being
dismissed for failure to comply with the Medical Professional Liability Act (“MPLA”)
requirement to serve a screening certificate of merit, he still alleged that a screening certificate of
merit is not needed in this action because the action “is based on well-established legal theory of
liability which does not require expert testimony supporting a breach of the applicable standard
of care.”

        In that order, the circuit court also rejected petitioner’s contention that the “common
knowledge doctrine” applied. It found that the three-factor test promulgated in Wilhelm v. State
Traffic Safety Comm., 185 A.2d 715 (Md. 1962), and applied in Galloway v. Horne Concrete
Construction, 524 Fed.Appx. 865 (4th Cir. 2013), was inapplicable as an improper attempt to
establish that the medical issues and decisions at issue here are not “complex medical issues.”
Thereafter, it concluded that petitioner’s complaint involves a “complex medical issue” requiring
expert medical testimony. The circuit court specifically held that because petitioner’s complaint

       falls squarely under the West Virginia Medical Professional Liability Act and
       involves a “complex medical issue” for which expert testimony is required, a pre-
       suit screening certificate was required in this matter in order to comply with the
       MPLA and its statutory purposes. . . Under these facts, there is no basis to extend
       or toll the Statute of Limitations.

The circuit court also stated that its order dismissing the prior civil action instructed petitioner
that a screening certificate of merit was necessary for the allegations within that complaint and
noted that the complaint in the instant matter is identical to the prior case. Thus, it concluded that
petitioner’s failure to comply with the MPLA’s pre-suit requirements deprived the circuit court
of subject matter jurisdiction over petitioner’s underlying claims and that subject matter
jurisdiction could not be waived.

       In addition, Dr. Murphy filed a motion to dismiss on October 18, 2016, citing the absence
of subject matter jurisdiction over petitioner’s claim. On February 7, 2017, the court granted Dr.

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Murphy’s motion and dismissed petitioner’s case against him with prejudice. In that order, the
circuit court cited petitioner’s failure to provide a screening certificate of merit prior to filing his
complaint and concluded that collateral estoppel precluded him from re-litigating this issue. On
February 17, 2017, petitioner filed a motion to alter or amend that February 3, 2017, dismissal
order. By order entered on April 17, 2017, the circuit court denied that motion, noting that in
refiling his complaint in the second action petitioner or his counsel “knowingly and intentionally
disregarded the clear language of the prior Memorandum Opinion and Order as well as the
language of W.Va. Code § 55-7B-6(a)-(b).” It also found that petitioner waited nearly one year
after refiling his complaint to produce a screening certificate of merit. Petitioner appeals from the
denial of both of his motions to alter or amend the orders dismissing his action against both
respondents.

       This Court has previously set forth the following standards of review:

              “The standard of review applicable to an appeal from a motion to alter or
       amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard
       that would apply to the underlying judgment upon which the motion is based and
       from which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. American
       Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

Syl. Pt. 1, Affiliated Const. Trades Foundation v. University of West Virginia Bd. of Trustees,
210 W. Va. 456, 557 S.E.2d 863 (2001).

       Dismissal for failure to state a claim is proper “where it is clear that no relief
       could be granted under any set of facts that could be proved consistent with the
       allegations.” Murphy v. Smallridge, 196 W.Va. 35, 37, 468 S.E.2d 167, 168
       (1996). This Court has also held that “[a]ppellate 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, Inc., 194 W.Va. 770, 461 S.E.2d
       516 (1995).

Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 52, 717 S.E.2d 235, 239 (2011).

        The majority of petitioner’s claimed errors stem from his failure to timely file a screening
certificate of merit as required by West Virginia Code § 55-7B-6(b). That statute provides as
follows:

       At least thirty 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 qualified as an expert
       under the West Virginia Rules of Evidence and shall state with particularity: (1)

                                                   4

        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. A separate screening
        certificate of merit must be provided for each health care provider against whom a
        claim is asserted. The person signing the screening certificate of merit shall have
        no financial interest in the underlying claim, but may participate as an expert
        witness in any judicial proceeding. Nothing in this subsection may be construed to
        limit the application of Rule 15 of the Rules of Civil Procedure.

Part of the basis for petitioner’s failure to file the screening certificate of merit is his reported
belief that this matter falls under the exception set forth in West Virginia Code § 55-7B-6(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.

        Specifically, petitioner asserts that the circuit court erred by concluding that he failed to
comply with West Virginia Code § 55-7B-6(b) by holding that a screening certificate of merit is
necessary when no such certificate is required under these facts; by holding that the civil action
involved a “complex medical issue;” by refusing to consider the certificate of merit even though
petitioner filed such certificate in accordance with West Virginia Code § 55-7B-6; by refusing to
find that the issues of negligence by the hospital were non-medical, administrative, and
ministerial in nature; and by finding that the twenty-month delay in filing a certificate was
untimely notwithstanding the circumstances and obstruction of discovery by respondents.

         Petitioner points to the fact that he filed a notice of his theories of liability at the outset of
the litigation with service on respondents. He argues that the following negligence claims fit that
criteria: 1) failing to discharge the decedent by retrieving the hospital gown, assuring that the
decedent had clothing in lieu of the gown, ensuring that it was not getting dark, ensuring that he
had some means of subsistence such as money for a taxi or a phone call, and ensuring that he had
his prescription medications with him; 2) failing to discharge the decedent without removal of
the hospital gown; 3) failing to discharge the decedent by some orderly protocol regarding
transportation; 4) discharging the decedent without any inquiry by hospital staff as to how the
decedent was to get home; 5) discharging the decedent without a hospital employee noticing or
inquiring as to where he proposed to go considering the hazards he might encounter and where
he was going; and 6) discharging the decedent with the knowledge that he “was afflicted by a
degree of mental instability (confirmed by restaurant employees) requiring [respondent Dr.]
Murphy to caution the hospital staff of the requirements in (1) to (4) above.” In addition, citing
only dictionary definitions of the word “complex” in support, petitioner argues that the fact the
decedent was treated, released, and exited the hospital involves no complex aspects. Further,
without citing to any specific portion of the record, he contends that even the decedent’s

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treatment by Dr. Murphy was routine.

       Petitioner further asserts that while a screening certificate of merit was not necessary, he
engaged an expert witness and provided the screening certificate of merit. That certificate was
signed by Melvyn M. Ninzy, M.D., on October 27, 2016, and includes a report dated October 24,
2016. In that report, Dr. Nizny opined

       with a reasonable degree of psychiatric certainty . . . that the acceptance of a said,
       [sic] request for discharge by a psychiatric patient with sudden onset, and
       subsequent discharge, violated the standard of care and violated the need for
       involuntary hospitalization as there is good reason to believe that Mr. McLaughlin
       did meet criteria for involuntary hospitalization per W VA code [sic] 27-5-4(j)
       given both mental illness and being addicted.

Based on all of the work involved related to the expert, petitioner argues that the twenty-month
delay was not unreasonable and that respondents were not prejudiced by that delay, particularly
since they obstructed petitioner’s efforts to conduct discovery.

       As we have previously recognized,

       [u]nder W.Va. Code, 55–7B–6 [2003] the purposes of requiring a pre-suit notice
       of claim and screening certificate of merit are (1) to prevent the making and filing
       of frivolous medical malpractice claims and lawsuits; and (2) to promote the pre-
       suit resolution of non-frivolous medical malpractice claims. The 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.

Syl. Pt. 2, Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005). Petitioner filed his
complaint on or about December 23, 2014, in Civil Action No. 14-C-845 in the Circuit Court of
Berkeley County. UHP promptly submitted its motion to dismiss, which was granted by order
entered April 13, 2015. Petitioner then filed a motion to alter or amend the dismissal order,
pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. That motion was denied by
order entered January 6, 2016. In those orders, the circuit court made it abundantly clear that
petitioner’s claims fell within the purview of the MPLA so a screening certificate of merit was
required due to the complex medical issues and decisions at the center of the case.

        While its motion to alter or amend in the earlier case was still being considered, petitioner
filed the complaint in Civil Action No. 15-C-682 on December 22, 2015, also before the Circuit
Court of Berkeley County. That complaint stemmed from the same set of events as those alleged
in 14-C-845, but petitioner again chose not to present a screening certificate of merit. Instead, he
submitted a notice of theories of liability eight months after filing the action. As a result,
respondents filed their respective motions to dismiss, which were granted by the circuit court.

       In petitioner’s complaint in 15-C-682, he specifically alleges the following:




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       [The decedent] was directed to stop taking Oxymorphone (an opioid agonist); a
       result of which a severe withdrawal syndrome could have occurred. The failure to
       take the prescribed Lamictal and the Dolophine, and the withdrawal of
       Oxymorphone, separately or together, could have precipitated [the decedent’s]
       erratic and suicidal behavior. . . The negligent and untimely prescription of drugs
       probably precipitated the erratic behavior or seizure of [the decedent] resulting in
       his death. . . From the diagnosis . . . [the decedent] was likely to cause serious
       harm presenting a danger to himself as defined by West Virginia Code § 27-1-
       12(a)(3) and West Virginia Code § 27-1-12(a)(4). Given the above diagnosis, Dr.
       Murphy had a duty, under the provisions of West Virginia Code § 27-1-12(b) to
       make a determination whether [the decedent] was “likely to cause serious harm”
       to himself. Murphy was required to utilize all available information, including [1]
       psycho social, [2] medical, [3] hospitalization, [4] psychiatric information
       including the circumstances of any previous [5] commitments [sic] or [6]
       convalescent or [7] conditional releases that are relevant to the current situation,
       in addition to the individual’s [8] current overt behavior. . . A hospital owes to its
       patients [and here its subcontractors] such reasonable care and attention for their
       safety as their mental and physical condition, if known, may require. The care to
       be exercised should be commensurate with the known inability of the patient to
       take care of himself . . . [Dr.] Murphy was grossly negligent in that he failed to
       perform a duty owed to [the decedent] by improperly discharging [the decedent]
       from the hospital when he was clearly a danger to himself. [Dr.] Murphy failed to
       apply reasonable care for [the decedent’s] safety. [Dr.] Murphy failed to make the
       determination required by West Virginia Code § 27-1-12(b). . . [Dr.] Murphy’s
       negligence proximately caused the death of [the decedent]. . . .”

[underscore in original]. In numbered paragraphs twenty-four and twenty-five of the complaint,
petitioner contends that a screening certificate of merit is not needed because the cause of action
is based on a well-established legal theory of liability that does not require expert testimony and
that the body of the complaint sets forth the basis of the alleged liability of the health care
provider in lieu of such certificate.

       We have previously noted that

       [i]n medical malpractice cases where lack of care or want of skill is so gross, so as
       to be apparent, or the alleged breach relates to noncomplex matters of diagnosis
       and treatment within the understanding of lay jurors by resort to common
       knowledge and experience, failure to present expert testimony on the accepted
       standard of care and degree of skill under such circumstances is not fatal to a
       plaintiff's prima facie showing of negligence. . . . The common knowledge
       exception merely allows, in rare cases, the submission of the case to the jury
       without expert testimony.

Totten v. Adongay, 175 W. Va. 634, 638-39, 337 S.E.2d 2, 7 (1985). In considering petitioner’s
arguments, we are also mindful of our decision in Gray v. Mena, 218 W. Va. 564, 570, 625
S.E.2d 326, 332 (2005), wherein we stated that

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       in the present case, while the Appellant characterizes the event as not affiliated in
       any manner with the provision of medical services, the defendant, should this case
       proceed to trial, would most certainly argue that his actions were necessary to a
       complete diagnosis and investigation of the complaints presented to him by the
       Appellant. The resolution of this matter of whether the allegedly offensive action
       occurred within the context of rendering medical services is exceedingly fact-
       driven. We caution all litigants preparing a complaint in such matters to be
       diligent in adhering to the requirements of the Medical Professional Liability Act
       where the healthcare provider’s action could possibly be construed as having
       occurred within the context of the rendering of health care services.

Unlike the facts in Gray, petitioner argued that the claim fell under the exception to the
requirement for the screening certificate of merit. This was in spite of the circuit court’s finding
that dismissal was proper due to the lack of the screening certificate of merit in the earlier case.
In the instant matter, based on the language of petitioner’s complaint, we find that the circuit
court did not err in determining that because petitioner’s allegations involved complex medical
issues a screening certificate of merit was required to be timely filed pursuant to West Virginia
Code § 55-7B-6. Petitioner had ample time to file that certificate during the pendency of the first
complaint and prior to filing the second complaint. However, he chose to wait until
approximately twenty months after the filing of the first complaint to finally present the circuit
court with that certificate. Further, when the circuit court was considering the motions to dismiss,
at no point did petitioner present argument or evidence, as he does here, that he experienced any
difficulties in securing the decedent’s medical records or an expert review of those records.

        In addition, petitioner argues that the circuit court erred by basing dismissal on collateral
estoppel. Petitioner’s argument on this point is a single sentence that does not cite any statute,
rule of law, or legal precedent. He simply states that “[t]he issue of collateral estoppel is not
applicable since the prior civil action was dismissed without prejudice, and the prerequisites of
collateral the estoppel doctrine are not met.” West Virginia Rule of Appellate Procedure 10(c)(7)
requires that briefs “contain an argument exhibiting clearly the points of fact and law presented .
. . and citing the authorities relied on, under headings that correspond with the assignments of
error.” Petitioner failed to do so. Instead, this Court had to look to his brief below to determine
the basis for that contention.

        In its order granting UHP’s motion to dismiss, the circuit court does not address collateral
estoppel as a basis for granting that motion, and the memorandum of law petitioner cites in this
argument relates only to the circuit court’s order granting Dr. Murphy’s motion to dismiss. In
denying petitioner’s motion to alter or amend the order dismissing his claims against Dr.
Murphy, the circuit court specifically stated that it “does not find persuasive [petitioner’s]
continued argument that a Screening Certificate of Merit is not needed in this action . . .” based
on the theories of “common knowledge” or that “the cause of action is based on a well-
established legal theory of liability” that does not require expert testimony. The circuit court,
alternatively, found that because the Circuit Court of Berkeley County determined in the earlier
suit that petitioner must file a screening certificate of merit but failed to do so, the complaint in
the instant matter must be dismissed due to collateral estoppel. However, because we affirm the
circuit court’s dismissal on other grounds and petitioner presents only a skeletal, single-sentence
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argument on this assignment of error, we decline to address the propriety of this alternate ground
for dismissal.

      For these reasons, we find no error in the circuit court’s denial of petitioner’s Rule 59(e)
motions in the underlying action.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: May 11, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II


DISQUALIFIED:

Justice Elizabeth D. Walker




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