Damron v. PrimeCare Med. of W.Va., 20-0862

CourtSupreme Court of West Virginia
PartiesZack Damron, Petitioner, v. Primecare Medical of West Virginia, Inc., Respondent.
Decision Date09 June 2022
Docket Number20-0862

Zack Damron, Petitioner,

Primecare Medical of West Virginia, Inc., Respondent.

No. 20-0862

Supreme Court of Appeals of West Virginia

June 9, 2022

Kanawha County 18-C-1391


Petitioner, Zack Damron, by counsel, Paul M. Strobel, appeals the Circuit Court of Kanawha County's dismissal of his complaint against Respondent, PrimeCare Medical of West Virginia, Inc., who, by its counsel D.C. Offutt, Jr., Anne Liles O'Hare, and Mark R. Simonton, filed a response. In his petition, Petitioner alleges that the circuit court "erred in dismissing [his] constitutional claim for deliberate indifference pursuant to 42 U.S.C. § 1983 by requiring a certificate of merit when it applied the [Medical Professional Liability Act] to [his] cause of action."

As more fully explained herein, we agree that the circuit court correctly dismissed the complaint for lack of subject matter jurisdiction. Therefore, Petitioner did not establish that the circuit court's rulings were in error. Having considered the parties' briefs, oral arguments and the record on appeal, the Court finds no substantial question of law and no prejudicial error. Accordingly, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

We review the grant of a motion to dismiss under a de novo standard of review. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995) ("Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo."). See also Commonwealth, Pa. Fish & Boat Comm'n v. Consol Energy, Inc., 233 W.Va. 409, 413, 758 S.E.2d 762, 766 (2014) (citing Cleckley, Davis and Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(1) at 328 (4th ed.2012) (confirming that appellate review of a dismissal under a Rule 12(b)(1) facial attack is de novo)).

Jurisdiction is the inherent power of a court to decide a case. See Syl. Pt. 2, Vanover v. Stonewall Cas. Co., 169 W.Va. 759, 289 S.E.2d 505 (1982) ("'Jurisdiction deals with the power of the court, while venue deals with the place in which an action may be tried.' Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963)."). Under the Medical Professional Liability Act ("MPLA"), a plaintiff is required to take certain steps to ensure that a circuit court has jurisdiction to hear a medical negligence suit. See Syl. Pt. 2, State ex rel. PrimeCare Med. of W.Va., Inc. v. Faircloth, 242 W.Va. 335, 835 S.E.2d 579 (2019). ("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."). In an attempt to avoid application of the MPLA, Petitioner stated in his complaint and amended complaint that he was not pleading a medical negligence claim and he later agreed that he was dismissing any MPLA claims.

According to the amended complaint, on or about October 5, 2016, Petitioner, while incarcerated at the Western Regional Jail in Barboursville, West Virginia, got into a fight with another inmate. As a result of that fight, Petitioner was injured and was taken to the medical section of the Western Regional Jail, where his jaw was x-rayed and it was determined that Petitioner had suffered a broken jaw. Petitioner alleges in his amended complaint that Respondent was "responsible for facilitating the transportation of inmates for medical care where needed," that Respondent "learned through x-rays that [Petitioner's] jaw was fractured, and "[d]espite [such] knowledge, [Respondent] delayed sending [Petitioner] to a specialist for treatment." Ultimately, Petitioner alleged such "conduct . . . resulted in permanent physical harm and injury to [Petitioner] and . . . [Respondent's conduct] amounts to deliberate indifference and/or cruel and unusual punishment." Petitioner alleges such conduct amounted to deliberate indifference because by the time Petitioner was taken to a medical specialist on November 3, 2016, he "was informed that nothing could be done for his jaw because extensive time had elapsed from the time [sic] his injury. [Petitioner] now suffers from a misaligned jaw."

Petitioner's amended complaint contained five separate causes of action. Count one sought damages for a violation of West Virginia's Constitution. Count two claimed Respondent was deliberately indifferent to Petitioner's medical needs. Count three alleged intentional infliction of emotional distress and/or outrageous conduct. Count four maintained a claim for negligence and count five was a claim alleging violation of policy and procedure. Although Petitioner maintains in both his original complaint and the amended complaint (hereinafter collectively, "complaint") that "[t]he complaint as currently drafted does not assert a claim for medical negligence," prior to the filing of the original complaint, Petitioner submitted a Notice of Claim, pursuant to West Virginia Code § 55-7B-6(c)[1] to place Respondent on notice of a potential medical malpractice


claim and to assert his position that a screening certificate of merit would be unnecessary to sustain his claim. See W.Va. Code § 55-7B-6(c) (2017).

Respondent filed a motion to dismiss, or in the alternative, for summary judgment, alleging that: 1) Petitioner was required to provide a screening certificate of merit, 2) the amended complaint was filed outside the statute of limitations, 3) Petitioner could not recover damages for violations of the West Virginia Constitution, 4) the complaint did not state a claim for deliberate indifference, and 5) the claims against John Doe defendants did not comply with pleading requirements. The parties agreed that Count I should be dismissed as Petitioner could not recover monetary damages under the West Virginia Constitution. As to the other issues raised in the motion, the circuit court denied the motion to dismiss, giving Petitioner sixty days to provide a screening certificate of merit and to amend his complaint to comply with the MPLA. Additionally, Petitioner was given thirty days to "substantiate a viable Eighth Amendment claim by filing a screening certificate of merit." Further, Petitioner was ordered to provide a short and plain statement of the claims against the John Doe Defendants.

Thereafter, Petitioner filed no amended complaint to address any of the issues noted by the circuit court and Respondent renewed its motion to dismiss. In Petitioner's response he maintained that he had pled a cause of action arising from deliberate indifference, rather than negligence. Petitioner further asserted that his deliberate indifference claim is not subject to the MPLA and that he had properly pled such claim. Respondent's motion alleged that the facts pled in the amended complaint stated a claim for medical negligence and that Petitioner's "deliberate indifference claim is merely a contemporaneous claim ultimately relating to the rendering, or failure to render, health care services."

The circuit court dismissed Petitioner's amended complaint.[2] In its order, the circuit court agreed with Respondent that the amended complaint sounded in negligence, rather than deliberate indifference:

22. All of Plaintiffs claims in this action, regardless of how they are pled, stem solely from the rendering, or alleged failure to render, 'health care' and therefore sound in terms of medical negligence
23. Accordingly, Plaintiff is not permitted to hide behind the guise of a constitutional claim in order to avoid the mandatory application of the MPLA or otherwise excuse his failure to provide a [s]creening [c]ertificate of [m]erit

On appeal, Petitioner urges this Court to reverse the circuit court's ruling, maintaining that the circuit court improperly applied the MPLA to Petitioner's deliberate indifference claim. However, the circuit court did not conclude that the MPLA applied to Petitioner's deliberate indifference claim. Rather, it concluded that Petitioner had not actually pled a deliberate indifference claim, citing that the allegations were under the "guise" of a deliberate indifference claim. Thus, we believe that this matter should be resolved on the issue of whether Petitioner alleged facts giving rise to a claim of deliberate indifference or whether the allegations in his complaint are, instead, merely claims of medical negligence. Here, we agree with the circuit court that Petitioner truly pled a medical negligence claim couched as a deliberate indifference claim. Our precedent relative to the MPLA requires a circuit court, and this Court, to look beyond the labels of causes of action and artful pleading and instead critically examine the allegations pled to determine whether the plaintiff's complained-of conduct falls under the MPLA's provisions.

The failure to plead a claim as governed by the Medical

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