                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Percy Lee Clay and Diane Clay,
Plaintiffs Below, Petitioners                                                       FILED
                                                                               February 3, 2020
vs) No. 18-0983 (Monongalia County 18-C-166)                                    EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
J.W. Ruby Memorial Hospital,
West Virginia University Board of Governors
and Antonio Sortino, M.D.,
Defendants Below, Respondents


                               MEMORANDUM DECISION

        Petitioners Percy Lee Clay and Diane Clay, by counsel Ira A. Richardson, appeal the
Circuit Court of Monongalia County’s September 21, 2018, orders dismissing their claims against
all respondents. Respondent J.W. Ruby Memorial Hospital, by counsel Christine S. Vaglienti,
Carlie M. Lacy, and Mark A. Moses, submitted a response.1 In addition, Respondents West
Virginia Board University of Governors and Antonio Sortino, M.D., by counsel Timothy R.
Linkous and Margaret L. Miner, submitted a response.

       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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

        In March of 2016, Petitioner Percy Lee Clay was scheduled to undergo a four-vessel
coronary artery bypass surgery at J.W. Ruby Memorial Hospital (“WVUH”). According to the
circuit court’s order, Mr. Clay suffered injuries to his penis when a nurse attempted to insert a
catheter in preparation for the surgery. Petitioners alleged that the nurse negligently placed the
catheter and was inadequately supervised while doing so. They also asserted that Dr. Sortino, who
performed the bypass surgery, requested that the catheter be inserted. Further, they alleged that
Mr. Clay’s IV treatment created a significant risk of infection and that respondents’ negligence
increased the duration of his hospitalization.

       On February 14, 2018, without the assistance of counsel, petitioners mailed a notice of
claim to Respondent WVUH, though they did not provide a screening certificate of merit or a

       1
         According to West Virginia University Hospital, Inc.’s motion to dismiss filed before the
circuit court, it was incorrectly identified as J.W. Ruby Memorial Hospital in petitioner’s
complaint.
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statement of intent to provide the same within sixty days. On February 22, 2018, WVUH informed
petitioners that the notice of claim alone was not a proper pre-suit notice pursuant to the West
Virginia Medical Professional Liability Act (“MPLA”). It further informed petitioners that

       [t]he standard of care applicable to a nurse or other health care provider inserting a
       urinary catheter is not within the common knowledge of a lay person; therefore,
       any alleged breach of the standard of care must be established by expert testimony.
       The notice of claim you have filed must be supplemented by a screening Certificate
       of Merit within the times [sic] frames set forth in West Virginia Code § 55-7B-6
       before a lawsuit may be filed.

        On March 5, 2018, petitioners mailed a notice of claim to the West Virginia University
Board of Governors (“WVUBOG”), again failing to provide a screening certificate of merit or a
statement of intent to provide such certificate within sixty days. The WVUBOG and Dr. Sortino
did not respond to the notice. On April 6, 2018, petitioners, pro se, filed their complaint, asserting
claims for medical negligence and general negligence. The WVUBOG and Dr. Sortino filed their
motion to dismiss on April 23, 2018, and petitioners submitted a pro se response on April 26, 2018.
Petitioners retained counsel on May 7, 2018. The circuit court heard oral argument on June 25,
2018, and entered its order granting the WVUBOG’s and Dr. Sortino’s motion to dismiss on
September 21, 2018. WVUH filed its motion to dismiss on June 21, 2018, and petitioners
submitted a response to that motion. The circuit court granted that motion in a separate order
entered on September 21, 2018.

         In the circuit court’s orders granting the motions to dismiss, it found that the MPLA
requires that plaintiffs properly serve defendants with pre-suit notice of their claims pursuant to
West Virginia Code § 55-7B-6(b). It also noted that the MPLA provides an exception to the general
rule, allowing plaintiffs or their counsel to serve notice without a certificate of merit when they
believe that the cause of action does not require expert testimony. Further, if a plaintiff or his/her
counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the
applicable statute of limitations, the claimant or the attorney shall furnish the healthcare provider
with a statement of intent to provide the screening certificate of merit within sixty days of receipt
of the notice of claim. The circuit court found that before a suit may be dismissed due to the lack
of the screening certificate of merit, the plaintiff must be given written and specific notice of, and
an opportunity to address and correct, the alleged defects and insufficiencies. See Syl. Pt. 3,
Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005). It stated that petitioners alleged in
their complaint that respondents had a duty to care for Mr. Clay and see that his medical needs
were met but failed to do so. They also alleged that he was exposed to germs for an extended
period of time, causing a serious infection, in addition to claims for pain and suffering, mental
anguish, and emotional distress. The circuit court determined that petitioners’ allegations require
expert testimony because they involve complex standards of care and/or causation opinions
regarding the need for, and procedure for, insertion of a urinary catheter. With regard to the
WVUBOG, the circuit court found that while it did not provide a response to the notice, petitioners
had received a response and specific objections from WVUH and were aware of the need for a
screening certificate of merit. The circuit court went on to conclude that petitioners had ample
opportunity to correct their deficient pre-suit notice but failed to do so. Petitioners’ complaint as
to the WVUBOG and Dr. Sortino was dismissed without prejudice.

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       In its order granting WVUH’s motion to dismiss, the circuit court also set forth the
applicable statute of limitations for MPLA claims, which is two years. As noted by the circuit
court, West Virginia Code § 55-7B-6(h) (2003) tolls the statute of limitations

        from the date of mail of a notice of claim to thirty days following receipt of a
        response to the notice of claim, thirty days from the date a response to the notice of
        claim would be due, or thirty 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.

The circuit court concluded that petitioners’ claims against WVUH were barred by the statute of
limitations. The circuit court wrote:

        Normally, the statute of limitations would have expired on March 21, 2018.
        However, the statute of limitations was tolled from the date of [petitioners’] Notice
        of Claim until thirty days after the receipt of WVUH’s response to the Notice of
        Claim. WVUH mailed its response to [petitioners] on February 22, 2018. It can be
        assumed that the response was received by [petitioners] by February 27, 2018. The
        tolled statute of limitations then expired on March 28, 2018. [Petitioners] did not
        file this action until April 6, 2018. Therefore, [petitioners’] claims against WVUH
        are time barred.

Petitioners’ claims against WVUH were dismissed with prejudice. Petitioners appeal from the
dismissal orders.2

        “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, Inc., 194 W. Va. 770, 461
S.E.2d 516 (1995). Dismissal of an action filed pursuant to the MPLA is proper when the plaintiff
fails to comply with the MPLA’s pre-suit screening requirements. See Davis v. Mound View
Health Care, Inc., 220 W. Va. 28, 32, 640 S.E.2d 91, 95 (2006) (noting that the mandatory term
“shall” is used in West Virginia Code § 55-7B-6).

        The circuit court’s dismissal of petitioners’ complaint is due, in part, to their failure to file
a screening certificate of merit as required by West Virginia Code § 55-7B-6(b) (2003). The statute
provided 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


        2
         Petitioners filed a motion for reconsideration before the circuit court on October 23, 2018,
and their notice of appeal before this Court on October 25, 2018. WVUH objected to the motion
for reconsideration on November 7, 2018. On November 30, 2018, the circuit court denied
petitioners’ motion for reconsideration, again finding that petitioners failed to meet the pre-suit
notice requirements of the MPLA.


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        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) 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.

        Petitioners first argue that they were not required to file a screening certificate of merit
because the claims pled fall under the exception set forth in West Virginia Code § 55-7B-6(c)
(2003):

        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.

        Petitioners compare their case to the per curiam case of Westmoreland v. Vaidya, 222 W.
Va. 205, 664 S.E.2d 90 (2008), in which this Court found that because the plaintiff had no way of
knowing that he would not be permitted to rely on the exception in § 55-7B-6(c) until the circuit
court found that an expert and certificate of merit were required, plaintiff was not afforded an
opportunity to correct the error. Petitioners herein argue that while their “reliance on the exception
may have been in error, they had no way of knowing if the [c]ircuit [c]ourt would require an expert
and certificate of merit until it ruled in its dismissal orders that [p]etitioners’ claims required expert
testimony.” They further contend that the circuit court failed to provide them with notice that
expert testimony would be required so they were not afforded the opportunity to correct their
deficiency and obtain a screening certificate of merit. They further argue that the circuit court
should have “provide[d p]etitioners with a reasonable amount of time to fulfill the pre-suit
certificate of merit requirement.”

        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

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       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. We agree with respondents that the circuit court correctly concluded that
petitioners’ claims are not based upon a well-established legal theory and do not qualify for the
narrow exception to the screening certificate of merit requirement. As the WVUBOG and Dr.
Sortino argue, “whether the standard of care permits a surgeon to order catheterization for a cardiac
surgery is a matter requiring expert testimony and not within the province of laypeople.” Those
respondents also contend that laypersons do not commonly know the proper method by which
nurses insert urinary catheters into a penis or the injuries and complications that can occur from
urinary catheter insertion even when the insertion is performed perfectly within the standard of
care. In addition, respondents assert that Mr. Clay’s alleged bleeding sustained from the insertion
of the catheter may be related to an underlying medical condition, rather than the insertion of the
catheter, so expert testimony is required. Finally, they argue that under the MPLA,

       [a] health care provider may not be held vicariously liable for the acts of a
       nonemployee pursuant to a theory of ostensible agency unless the alleged agent
       does not maintain professional liability insurance covering the medical injury
       which is the subject of the action in the aggregate amount of at least $1 million for
       each occurrence.

W. Va. Code § 55-7B-9(g) (2015), in relevant part.

         In addition to echoing some of the WVUBOG’s and Dr. Sortino’s arguments, WVUH
states that petitioners’ claim against it is that one of its nurses used too much force when inserting
a urinary catheter into Mr. Clay’s penis in preparation for a coronary artery bypass procedure.
WVUH argues that “[n]ot only would laypersons not commonly know the standard of care
applicable to a nurse inserting a urinary catheter, or any potential complications from such a
procedure, but they also would not commonly know whether such a procedure could cause the
injuries that form the basis for [p]etitioners’ claims.” We agree and note that this Court has
“expressly and repeatedly warned litigants to err on the side of caution in complying with the
MPLA.” Cline v. Kresa-Reahl, 229 W. Va. 203, 214, 728 S.E.2d 87, 98 (2012).

        All parties address Westmoreland, wherein this Court considered a plaintiff’s failure to file
a screening certificate of merit, instead writing on his notice that “[a]ll urologists refused to sign
the certificate of merit for social reasons making it impossible to use legal counsel[.]” Id. at 208,
664 S.E.2d at 93. That notice also invoked the exception to the MPLA requirement to file a
screening certificate of merit. Id. Upon a motion to dismiss, the circuit court dismissed the
complaint due to the plaintiff’s failure to comply with the requirements of the MPLA; that court
also denied the plaintiff’s motion for reconsideration, finding that the plaintiff failed to show good
faith and a reasonable basis for his noncompliance. Id. On appeal, the plaintiff alleged that the
doctor had waived any objections that he may have had to the certificate of merit, or lack thereof,
due to his failure to object to the lack of the certificate of merit following the receipt of the notice
of intent to bring suit, which included the plaintiff’s statement that he was invoking the exception.

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Id. at 211, 664 S.E.2d at 96. This Court then found that “[f]rom the specific facts of this case, it is
clear that [the plaintiff] made a good faith and reasonable effort to further the statutory purposes
of the MPLA. He should have been afforded a reasonable amount of time to fulfill the pre-suit
certificate of merit requirement prior to dismissal.” Id. at 212, 664 S.E.2d at 97.

        There are key factual differences that necessitate a different result in the instant matter.
While the plaintiff in the Westmoreland case was first notified of issues regarding the lack of the
certificate of merit through a motion to dismiss, petitioners in this case were put on notice of the
challenge to the lack of a certificate of merit prior to filing their complaint. However, they took no
action to rectify the situation, instead continuing to argue that their claims fell within the MPLA’s
exception to that requirement. For these reasons, we find that the circuit court did not err in
granting respondents’ motions to dismiss on these grounds.3

         Further, petitioners assert that the circuit court erred in granting the WVUBOG’s and Dr.
Sortino’s motion to dismiss despite their waiver of “objections to the notice of claim not
specifically set forth in the request.” Petitioners argue that because they received a response and
specific objections from WVUH but none from the WVUBOG or Dr. Sortino, the circuit court
erred by finding that petitioners were also aware of the need to provide a screening certificate of
merit to the WVUBOG and Dr. Sortino. They also contend that the circuit court erroneously found
that petitioners had ample time to correct their deficient pre-suit compliance but failed to do so.
Without citing any support for the proposition, petitioners contend that the MPLA specifically
requires a plaintiff to serve a notice of claim on each healthcare provider the claimant will join in
litigation so each provider or party challenging the sufficiency of a notice is also required to make
a written request to the claimant for a more definite statement.

        As set forth above, petitioners fail to cite any case or statute that supports their contention
that each health care provider was required to file a separate objection to the lack of the screening
certificate of merit. In addition, the notice did not inform respondents that petitioners were
proceeding pursuant to the exception to the certificate of merit requirement. While syllabus point
5 of Hinchman provides, in relevant part, that “all objections to the notice or certificate’s legal
sufficiency not specifically set forth in the request are waived[,]” that finding assumes that there
is a certificate of merit to which a party may respond. Petitioners, however, failed to provide the
required certificate of merit.4



       3
          Petitioners also argue that the circuit court erred in dismissing their case based on
procedural law. Their two-paragraph argument on this point cites cases that stand for the
proposition that dismissal based on procedural grounds is not favored by this Court. However, our
analysis of petitioners’ first assignment of error demonstrates that the circuit court did not err in
granting respondents’ motions to dismiss due to petitioners’ failure to comply with the
requirements of the MPLA.
       4
          “The pre-suit notice requirements contained in the West Virginia Medical Professional
Liability Act are jurisdictional, and failure to provide such notice deprives a circuit court of subject
matter jurisdiction.” State ex rel. Primecare Medical of West Virginia, Inc. v. Faircloth, No. 18-
1071, 2019 WL 6108577, *1 (W. Va. Nov. 12, 2019) (memorandum decision).
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         West Virginia Code § 55-7B-6(a) mandates that “no person may file a medical professional
liability action against any health care provider without complying with the provisions of this
section.” That statute further provides that

       [a]ny 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
       thirty days of receipt of the claim or within thirty days of receipt of the screening
       certificate of merit if the claimant is proceeding pursuant to the provisions of
       subsection (d) of this section. . . .

W. Va. Code § 55-7B-6(e). The WVUBOG received the notice on March 8, 2018, and petitioners
filed their complaint with the circuit court on April 6, 2018, less than thirty days after the
WVUBOG received notice. Therefore, the WVUBOG and Dr. Sortino were not provided thirty
days to respond, as required by the statute, before petitioners filed their complaint. In conjunction
with the fact that petitioners fail to cite any legal support for their contention that each defendant
in an action under the MPLA must separately notify plaintiffs of the need to submit a screening
certificate of merit, we find that the circuit court did not err in granting the WVUBOG’s and Dr.
Sortino’s motion to dismiss on this ground.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: February 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Evan H. Jenkins
Justice John A. Hutchison

DISQUALIFIED:

Justice Elizabeth D. Walker




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