Davis v. Mound View Health Care, Inc.

• Decision Date: 09 November 2006
• Docket Number: No. 33104.,33104.
• Citation: 640 S.E.2d 91
• Court: West Virginia Supreme Court
• Parties: Sarina L. DAVIS, Administratrix of the Estate of Elizabeth K. Weston, deceased Plaintiff Below, Appellant, v. MOUND VIEW HEALTH CARE, INC., Defendant Below, Appellee.

640 S.E.2d 91

Sarina L. DAVIS, Administratrix of the Estate of Elizabeth K. Weston, deceased Plaintiff Below, Appellant, v. MOUND VIEW HEALTH CARE, INC., Defendant Below, Appellee.

No. 33104.

Supreme Court of Appeals of West Virginia.

Submitted: October 19, 2006.

Decided: November 9, 2006.

Syllabus by the Court

1. "`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)." Syllabus Point 1, Collins v. Heaster, 217 W.Va. 652, 619 S.E.2d 165 (2005).

2. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syllabus Point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).

3. Where a medical malpractice action is dismissed for failure to comply with the pre-suit notice of claim provision set forth in W. Va.Code § 55-7B-6(b) (2003) and the dismissal order does not specify the dismissal to be with prejudice, the dismissal is deemed to be without prejudice. In such a case, the medical malpractice action may be re-filed pursuant to W. Va.Code § 55-2-18 (2001) after compliance with the pre-suit notice of claim and screening certificate of merit provisions of W. Va.Code § 55-7B-6 (2003).

Ronald Wm. Kasserman, Kasserman & Bowman, PLLC, Wheeling, for Appellant.

Charles R. Bailey, Robert P. Martin, Jason A. Winnell, Bailey & Wyant, PLLC, for Appellee.

Thomas J. Hurney, Jr., Gretchen M. Callas, Jackson Kelly, PLLC, Charleston, for Amicus Curiae West Virginia Mutual Insurance Company.

BENJAMIN, Justice.

In challenging the constitutionality of the pre-suit notice of claim provisions set forth in West Virginia Code § 55-7B-6 (2003),¹ Appellant, Sarina L. Davis, asks this Court to reverse the November 3, 2005, order entered by the Circuit Court of Marshall County which dismissed her medical malpractice action for failure to comply with statutory mandates. In light of this Court's longstanding policy of not addressing the constitutionality of statutes unless necessary for the determination of the case,² we decline to address Appellant's constitutional challenge herein. Having reviewed the facts and law applicable to this case, we conclude that the circuit court's dismissal of this action was not improper in view of Appellant's failure to comply with clear and unambiguous statutory terms applicable to medical malpractice actions of the kind filed by Appellant. We further conclude that our savings statute, W. Va.Code § 55-2-18 (2001),³ permits Appellant to re-file her claim in compliance with the mandates of W. Va.Code § 55-7B-6 (2003). Thus, we affirm the circuit court's November 3, 2005, dismissal order, with leave to Appellant to properly re-file her claim.

I. FACTUAL AND PROCEDURAL HISTORY

This action arises from the death of Appellant's eighty-three year old grandmother, Elizabeth K. Weston. On March 21, 2005, Appellant initiated the current medical malpractice action by filing a complaint against Mound View Health Care (hereinafter "Mound View"), a nursing home/continuous care facility, in the Circuit Court of Marshall County, West Virginia. On March 23, 2003, Ms. Weston was transferred from Mound View to Reynolds Memorial Hospital where she underwent surgery for a fractured femur. She died the same day.⁴ Prior to her death, Ms. Weston had been a bed-ridden patient at Mound View where she had resided since October 12, 1999.⁵

Appellant's March 21, 2005, complaint alleges that Ms. Weston's fractured femur, surgery and resulting death were a result of Mound View's negligence. It is undisputed that Appellant did not serve a notice of claim accompanied by a screening certificate of merit upon Mound View at least thirty days prior to filing her March 21, 2005, complaint as required by W. Va.Code § 55-7B-6(b). It is also undisputed that Appellant did not serve a notice of claim together with a statement invoking the provisions of W. Va.Code § 55-7B-6 (c) indicating that a screening certificate of merit was not required to establish liability or invoking the provisions of W. Va.Code § 55-7B-6 (d) to obtain an additional sixty day time period in which to furnish a screening certificate of merit to Mound View. Likewise, it is undisputed that Appellant did not attempt to serve her complaint upon Mound View at the time it was filed.

On June 17, 2005, Appellant's original counsel transferred this matter to current counsel as original counsel was discontinuing her law practice. On July 15, 2005, current counsel filed an amended complaint adding a declaratory judgment count to the original complaint seeking a declaration that expert testimony was not necessary to establish the appropriate standard of care. Appellant thereafter immediately served a copy of the original complaint and the amended complaint on Mound View together with a letter, dated July 14, 2005, indicating that a screening certificate of merit would be provided within sixty days after receipt of the letter.⁶ One week later, by letter dated July 22, 2005, Appellant first requested copies of Ms. Weston's medical records from Mound View.

On August 12, 2005, after receipt of a notice of bona fide defense from Mound View, Appellant invoked Rule 34 of the West Virginia Rules of Civil Procedure and served, via United States Mail, a request for production of Ms. Weston's medical records upon Mound View. Appellant's counsel received copies of Ms. Weston's medical records, totaling 4011 pages, from Mound View on September 13, 2005.⁷

On August 26, 2005, Mound View filed a Motion to Dismiss this medical malpractice action based upon Appellant's failure to serve a notice of claim⁸ thirty days prior to filing her original complaint as required by W. Va.Code § 55-7B-6(b). After considering Mound View's motion and Appellant's response thereto, the circuit court entered an order granting the motion. In its November 3, 2005, order, the circuit court relied upon Appellant's failure to comply with the clear and unambiguous provisions of W. Va.Code § 55-7B-6(b) which require that a notice of claim be served at least thirty days prior to the filing of any complaint. In its dismissal order, the circuit court noted that "[e]ven though W. Va.Code § 55-7B-6 provides for alternative handling of the screening certificate, which may very well apply in this case, there are no alternatives to providing the notice specifically and unequivocally required by the statute." The circuit court declined to address Appellant's arguments regarding the constitutionality of the Medical Professional Liability Act, W. Va.Code § 55-7B-1, et seq. The circuit court's November 3, 2005, dismissal order did not specify whether the circuit court intended the dismissal to be with or without prejudice.

II. STANDARD OF REVIEW

This matter is presented to this Court upon appeal of the circuit court's November 3, 2005, order granting Mound View's motion to dismiss for Appellant's failure to adhere to statutory pre-filing requisites. "`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). To the extent this matter may be deemed one of statutory interpretation, our review is likewise de novo. See, Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). With these principles in mind, we now address the circuit court's November 3, 2005, dismissal order.

III. DISCUSSION

In dismissing Appellant's complaint, the circuit court noted that "the statute is clear. The notice in mandatory." This Court has long held that "[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). See also, Syl. Pt. 1., State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect."); DeVane v. Kennedy, 205 W.Va. 519, 529, 519 S.E.2d 622, 632 (1999) ("Where the language of a statutory provision is plain, its terms should be applied as written and not construed."). The provisions of W. Va.Code § 55-7B-6 (a) and (b) are clear and unambiguous, and thus should be applied as written. W. Va.Code § 55-7B-6 (a) provides that "no person may file a medical professional liability action against any health care provider without complying with the provisions [of W. Va.Code § 55-7B-6]." W. Va.Code § 55-7B-6(b) clearly provides, in pertinent part, that "[a]t 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[.]" Reading subsections (a) and (b) in para materia and acknowledging the mandatory nature of the term "shall," we find that the circuit court did not err in applying the terms of the statute as written and dismissing Appellant's suit for failure to comply with the notice of claim provision contained in W. Va.Code § 55-7B-6 (b). See, Arneault v. Arneault, ___ W.Va. ___, 639 S.E.2d 720 (Oct. 5, 2006) (noting mandatory connotation of statutory term "shall").

However, in dismissing Appel...