Hinchman v. Gillette
| Decision Date | 05 July 2005 |
| Docket Number | No. 31760.,31760. |
| Citation | 618 S.E.2d 387 |
| Parties | Charlotte HINCHMAN, as Personal Representative of the Estate of Paul Z. Hinchman; Charlotte Hinchman, individually, Plaintiffs Below, Appellants, v. Julie M. GILLETTE, R.N., C.R.N.A., individually, and as the agent, servant and/or employee of Medical Doctor Associates, Inc., and as the agent, servant, and/or employee of Stonewall Jackson Memorial Hospital Company; Medical Doctor Associates, Inc., a foreign corporation doing business within the State of West Virginia; Roger K. Pons, M.D., individually and as the agent, servant and/or employee of Stonewall Jackson Memorial Hospital; Stonewall Jackson Memorial Hospital Company, a West Virginia corporation; John Doe and Jane Doe, Defendants Below, Appellees. |
| Court | West Virginia Supreme Court |
Mary McQuain, Esq., The Calwell Practice, Thomas G. Wilson, Esq., Charleston, for Appellants.
Ancil G. Ramey, Esq., Steptoe & Johnson, Charleston, Susan S. Brewer, Esq., Kelly A. Stepp, Esq., Steptoe & Johnson, Morgantown, for Roger K. Pons.
David E. Schumacher, Esq., Schumacher, Francis & Nelson, Charleston, for Medical Doctor Associates, Inc.
Neva G. Lusk, Esq., Grant Shuman, Esq., Spilman, Thomas & Battle, Charleston, for Julie M. Gillette.
D.C. Offutt, Jr., Esq., Perry W. Oxley, Esq., L.R. Sammons, III, Esq., Offutt, Fisher & Nord, Huntington, for Stonewall Jackson Memorial Hospital Company.
Justice DAVIS concurs and reserves the right to file a concurring opinion.
This case involves a circuit court's dismissal of a medical malpractice case because of alleged defects and insufficiencies in the plaintiff's pre-suit notice of claim and screening certificate of merit. Because the plaintiff did not receive specific pre-suit notice of the alleged defects and insufficiencies or an opportunity to correct them, we hold that the case should be reinstated.
In the instant case, the appellant and plaintiff below, Charlotte Hinchman, is the widow and personal representative of the estate of the late Paul Z. Hinchman.
The four appellees are Julie M. Gillette, R.N., C.R.N.A.; Medical Doctor Associates Inc.; Stonewall Jackson Memorial Hospital Company; and Roger K. Pons, M.D. All are healthcare providers who are alleged, in a complaint filed in the Circuit Court of Lewis County on January 7, 2003, to be legally liable to the appellant for wrongful death damages as a result of their alleged negligence in providing medical care and services to Mr. Hinchman during a pre-operative procedure. Specifically, Mr. Hinchman was being sedated in preparation for an outpatient biopsy surgery of his anal canal.
On July 7, 2003, the circuit court dismissed the appellant's case on the grounds that the appellant's pre-suit notice of claim and screening certificate of merit ("notice and certificate"), required by W.Va.Code, 55-7B-6 [2003],1 were legally defective and insufficient.
W.Va.Code, 55-7B-6 [2003] states:
(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.
(b) 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) 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.
(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.
(d) If a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.
(e) Any 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. The response may state that the health care provider has a bona fide defense and the name of the health care provider's counsel, if any.
(f) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) of this section, the health care provider is entitled to pre-litigation mediation before a qualified mediator upon written demand to the claimant.
(g) If the health care provider demands mediation pursuant to the provisions of subsection (f) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the supreme court of appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.
(h) Except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled 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. If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of 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.
(i) Notwithstanding any other provision of this code, a notice of claim, a health care provider's response to any notice claim, a screening certificate of merit and the results of any mediation conducted pursuant to the provisions of this section are confidential and are not admissible as evidence in any court proceeding unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.
The appellant's notice and certificate read as follows:
* * *
This letter is a Notice of Claim made under the provisions of § 55-7B-6 of the West Virginia Code. The claimant is my client, Charlotte Hinchman, Administratrix of the Estate of Paul Z. Hinchman.
Charlotte Hinchman intends to file a medical malpractice suit against you as a result of medical treatment you and others attempted to provide to her late husband, said Paul Z. Hinchman.
Specifically, Charlotte Hinchman claims that you breached applicable standards of care while attempting to provide medical treatment to Paul Z. Hinchman at Stonewall Jackson Memorial Hospital in Weston, West Virginia, on or about October 2, 2002 [2001], when he appeared there for a scheduled outpatient examination. Mrs. Hinchman claims that your breach of standards caused irreversible brain injury to Paul Z. Hinchman. Mr. Hinchman died of complications arising from said injuries on June 17, 2002.
A verified Certificate of Merit prepared by Roberto C. Valenzuela, J.D., a...
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