                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                       FILED
                                                                                   December 7, 2015
Ricky Vincent Pendleton,                                                         RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                                    SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

vs) No. 15-0014 (Fayette County 13-C-120)

Wexford Health Sources, Inc. and Carter Gillespie, in his
Official and Individual Capacity as an Employee Dentist
for Wexford Health Sources, Inc., contracting with
Mount Olive Correctional Complex,
Defendants Below, Respondents



                                 MEMORANDUM DECISION

        Petitioner Ricky Vincent Pendleton, pro se, appeals the December 9, 2014, order of the
Circuit Court of Fayette County dismissing with prejudice his civil action against respondents
alleging dental malpractice. The circuit court dismissed the action based on petitioner’s failure to
comply with the pre-suit requirements of the Medical Professional Liability Act (“MPLA”).
Respondents Wexford Health Sources, Inc. and Carter Gillespie, in his official and individual
capacity as an employee dentist for Wexford Health Sources, Inc. (collectively, “respondents”), by
counsel Kelly C. Morgan, filed a response, and petitioner filed a reply.

        The 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner is an inmate at Mount Olive Correctional Complex in Fayette County, West
Virginia. Respondent Wexford Health Sources, Inc. provides medical and dental services at Mount
Olive. On May 20, 2010, Respondent Carter Gillespie, a dentist then in Wexford’s employ, filled a
cavity in petitioner’s tooth and placed a filling in the tooth. On January 11, 2011, petitioner
reported to Dr. Gillespie that his tooth was overly sensitive. Dr. Gillespie informed petitioner that
the oversensitivity was likely due to contact with cold liquids. On October 13, 2011, petitioner
reported that he developed a “bump on [the] gum” above his tooth. Dentist Jean Kennedy
diagnosed petitioner with a bu fistula, which is a draining abscess, and informed petitioner that he
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could either have his tooth extracted free of charge or pay for a root canal.1 Petitioner had the tooth
extracted on February 10, 2012.

         Petitioner filed an inmate grievance alleging that Dr. Gillespie committed malpractice in
filling petitioner’s cavity on May 20, 2010. The manager of petitioner’s unit denied the grievance,
stating that “[d]ental has informed that your tooth went too long without [a] filling, [and] once
filled, the filling was real deep and close to a nerve[.]” Both the Warden of Mount Olive and the
Commissioner of Corrections affirmed the denial of petitioner’s grievance.

        Subsequently, on May 13, 2013, petitioner filed an action in the Circuit Court of Fayette
County against respondents alleging dental malpractice. In an effort to comply with the pre-suit
requirements of the MPLA, petitioner submitted a statement in lieu of a screening certificate of
merit. See W.Va. Code § 55-7B-6(c). In his statement, petitioner asserted that expert testimony
would not be needed to establish respondents’ liability for the eventual extraction of his tooth
because the unit manager’s response to his January 3, 2012, grievance constituted an admission
that Dr. Gillespie placed the filling “too deep” into tooth four. On October 22, 2014,2 respondents
filed a motion to dismiss petitioner’s action for a failure to comply with the MPLA’s pre-suit
requirements and various other grounds.3

        On December 9, 2014, the circuit court dismissed petitioner’s action with prejudice,
rejecting petitioner’s contention that expert testimony would not be necessary to establish
respondents’ liability. The circuit court found, as follows:

       Only another dentist can establish whether Dr. Gillespie drilled deeper than
       necessary to fill the cavity in [petitioner’s] tooth. Only another dentist can link the
       eventual need for a root canal to the filling of the tooth rather the deepness of the
       original cavity. Root canals on previously filled teeth are a regular occurrence in
       dentistry. Further, [petitioner’s] allegations that the permanent filling was placed
       “too deep to the nerve” does not indicate that the filing was the proximate cause of
       1
        See United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (“[T]hough it is plain that
an inmate deserves adequate medical care, he cannot insist that his institutional host provide him
with the most sophisticated care that money can buy.”) (emphasis in original).
       2
           There was a delay in serving respondents with petitioner’s compliant.
       3
         The other grounds asserted in respondents’ motion to dismiss were the following: (1)
failure to serve respondents within 120 days as required by Rule 4(k) of the West Virginia Rules of
Civil Procedure; (2) filing the action outside of the statute of limitations; and (3) failure to
prosecute the action pursuant to Rule 41(b) of the Rules of Civil Procedure. The circuit court
granted respondents’ motion on all grounds. However, having found that petitioner’s failure to
comply with the pre-suit requirements of the MPLA sufficient to sustain a dismissal with prejudice
under the specific facts and circumstances of this case, we do not address the other grounds
addressed by the circuit court.

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       the eventual choice between a root canal and an extraction. [Petitioner’s] cavity in
       tooth #4 was obviously quite deep. Based on [petitioner’s] Complaint, it appears
       that Dr. Gillespie may have attempted to save the tooth rather than force
       [petitioner] to choose between a root canal and extraction in May, 2010. To make
       the leap to dental malpractice, [petitioner] would need an expert to establish that his
       original cavity was not too deep, that Dr. Gillespie drilled too deep, that the
       deepness of the filling was the proximate cause of the fistula on his gum, and that
       with proper treatment of tooth #4, [petitioner] would not have been faced with the
       choice of a root canal or extraction. Simply alleging causation is nothing more than
       an attempt to bypass the pre-suit screening requirements of the [MPLA].

        Petitioner now appeals the December 9, 2014, dismissal with prejudice of his action under
the MPLA. “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,
773, 461 S.E.2d 516, 519 (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. 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). A circuit court has the
discretion to designate a dismissal for a failure to comply with the MPLA’s pre-suit screening
requirements as being with prejudice. See Syl. Pt. 3, Davis, 220 W.Va. at 29, 640 S.E.2d at 92
(holding that when dismissal order does not specify that dismissal is with prejudice, dismissal will
be deemed as being without prejudice).

         One of the MPLA’s pre-suit screening requirements is the obligation of the plaintiff to
obtain a screening certificate of merit by an expert witness setting forth the theory of malpractice
to be asserted. See W.Va. Code § 55-7B-6(b). The plaintiff can submit statement in lieu of a
screening certificate of merit if “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.” Id. § 55-7B-6(c).

         On appeal, petitioner asserts that no screening certificate of merit was required pursuant to
the MPLA because “Dr. Gillespie admitted that . . . [he] drill[ed] too deep.” For this assertion,
petitioner relies on the unit manager’s response to his January 3, 2012, inmate grievance, in which
the unit manager stated that “Dental has informed that your tooth went too long without [a] filling,
[and] once filled, the filling was real deep and close to a nerve[.]” We determine that petitioner
misrepresents what the unit manager stated. While petitioner repeatedly refers to his filling being
drilled “too deep,” the actual phrase the unit manager used was “real deep,” which appears to be
nothing more than a factual statement. Furthermore, the unit manager’s response suggests that the
probable cause for the eventual extraction of petitioner’s tooth was that it “went too long without
[a] filling.” Therefore, we agree with the circuit court that expert testimony would be required to
prove petitioner’s theory of malpractice.

       Respondents argue that the circuit court’s finding that petitioner’s failure to comply with
the MPLA’s pre-suit screening requirements is sufficient to sustain a dismissal with prejudice.
Under the specific facts and circumstances of this case, we agree. A principal consideration for a
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court in determining the sufficiency of a pre-suit notice under the MPLA is whether “a party
challenging or defending the sufficiency of a notice and certificate has demonstrated a good faith
and reasonable effort” to further the MPLA’s purposes of “preventing the making and filing of
frivolous medical malpractice claims and lawsuits; and promoting the pre-suit resolution of
non-frivolous medical malpractice claims.” Davis, 220 W.Va. at 32, 640 S.E.2d at 95 (quoting Syl.
Pt. 6, Hinchman v. Gillette, 217 W.Va. 378, 380, 618 S.E.2d 387, 389 (2005)). We determine that
by falsely stating that Dr. Gillespie admitted that he drilled the filling in petitioner’s tooth “too
deep,” petitioner’s statement in lieu of a screening certificate of merit did not represent a good faith
and reasonable effort to further the purposes of the MPLA. Accordingly, we conclude that the
circuit court did not err in dismissing petitioner’s action under the MPLA with prejudice.

       For the foregoing reasons, we affirm the circuit court’s December 9, 2014, order
dismissing petitioner’s action.

                                                                                       Affirmed.

ISSUED: December 7, 2015

CONCURRED IN BY:

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




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