Keith v. Lawrence, 15-0223

• Decision Date: 20 November 2015
• Docket Number: No. 15-0223,15-0223
• Court: West Virginia Supreme Court
• Parties: Dr. Robby Keith and Dr. John Deel Defendants Below, Petitioners v. Christine Lawrence, Administratrix of the Estate of Rondall L. Lawrence, Jr. Plaintiff Below, Respondent

Dr. Robby Keith and Dr. John Deel Defendants Below, Petitioners v. Christine Lawrence, Administratrix of the Estate of Rondall L. Lawrence, Jr. Plaintiff Below, Respondent

No. 15-0223

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 20, 2015

(Kanawha County 14-C-1705)

MEMORANDUM DECISION

Petitioners Dr. Robby Keith and Dr. John Deel, by counsel Karen H. Miller and Robert A. Hogue, appeal the February 2, 2015, order of the Circuit Court of Kanawha County, denying their motions to dismiss respondent's medical malpractice claims. Respondent Christine Lawrence, Administratrix of the Estate of Rondall L. Lawrence, Jr., by counsel James D. Stacy II, responds in support of the circuit court's order. Petitioners submitted a reply. The parties jointly submitted a supplemental appendix.

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

Respondent's claims against petitioners herein arise from the October 20, 2012, death of respondent's husband, Rondall L. Lawrence, Jr. At the time of his death, Mr. Lawrence was a patient at Charleston Area Medical Center ("CAMC"). Mr. Lawrence was initially treated at CAMC, on April 16, 2012, at which time he complained of shortness of breath. As his respiratory issues persisted, a team of doctors (including petitioners) performed several tests and medical procedures upon Mr. Lawrence, in an effort to diagnose and treat him, including a May 1, 2012, lung biopsy. Following the lung biopsy, Mr. Lawrence went into respiratory distress, that required he undergo tracheostomy and be placed on a ventilator.¹ From that point, until the time of his death, Mr. Lawrence remained hospitalized. The cause of the Mr. Lawrence's death, as listed on his death certificate, was respiratory failure due to a "CVA" or cerebrovascular accident (commonly referred to as a stroke).

On August 5, 2014, respondent individually served, via certified mail, notices of claim and screening certificates of merit upon petitioners, as required by West Virginia Code § 55-7B-6.² In a September 2, 2014, letter, Petitioner Keith's counsel advised respondent that the certificate of merit served upon him was deficient, and asked that respondent address and correct the deficiencies of the certificate. By letter dated September 4, 2014, Petitioner Deel's counsel likewise advised respondent that the certificate of merit served upon him was similarly deficient, and also requested correction of the deficiencies. In these letters, petitioners claimed that respondent's certificates of merit failed to meet the requirements of West Virginia Code § 55-7B-6(b), and that respondent's expert (Dr. Singer) was unqualified to render an opinion as to the alleged malpractice of petitioners. In response to petitioners' letters, on September 8, 2014, respondent's counsel met with petitioners' counsel.³

On September 10, 2014, petitioners' counsel again wrote to respondent and asked that the alleged deficiencies in the certificates of merit be corrected.⁴ On September 15, 2014, respondent filed her complaint against petitioners.⁵ In October of 2014, petitioners filed motions to dismiss respondent's complaint, pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, and argued that respondent's screening certificates of merit did not satisfy the requirements of West Virginia Code § 55-7B-6(b). A hearing was held on petitioners' motions, and on February 2, 2015, the circuit court entered its order denying said motions.⁶ It is from the February 2, 2015,order that petitioners now appeal.

We address, as a threshold matter, whether the circuit court's February 2, 2015, order is an appealable order. Under West Virginia Code § 58-5-1, appeals before this Court may only be taken from the final decisions of a circuit court. This rule, commonly referred to as the "rule of finality," is designed to prohibit "piecemeal appellate review of trial court decisions which do not terminate the litigation [.]" United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1982). In Robinson v. Pack, 223 W.Va. 828, 832, 679 S.E.2d 660, 664 (2009), we discussed exceptions to the rule of finality, which include "interlocutory orders which are made appealable by statute or by the West Virginia Rules of Civil Procedure, or . . . [which] fall within a jurisprudential exception" such as the "collateral order" doctrine. As we explained in James M.B. v. Carolyn M., 193 W.Va. 289, 293 n.4, 456 S.E.2d 16, 20 n.4 (1995), the "collateral order" doctrine

was set forth by the United States Supreme Court in Cohen [v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)]. In Durm [v. Heck's, Inc.], 184 W.Va. [562] at 566 n.2, 401 S.E.2d [908] at 912 n.2 [(1991)], we noted the doctrine as an exception to the federal interpretation of Rule 54(b), and we said that under Cohen, "[a]n interlocutory order would be subject to appeal under this doctrine if it '(1) conclusively determines the disputed controversy, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.' [internal citations omitted]"

In the instant case, petitioners argue that the circuit court's February 2, 2015, order met each of the requirements of the collateral order doctrine, and established this Court's jurisdiction to hear petitioners' appeal. Specifically, petitioners contend that the February 2, 2015, order conclusively determined the disputed controversy of the sufficiency of the certificates of merit (and, thus, the circuit court's jurisdiction); resolved an important issue completely separate from the merits (whether respondent's certificates of merit were in compliance with the pre-suit notice requirements of the MPLA); and was effectively unreviewable on appeal from a final judgment (as to hold otherwise would require petitioners to await the outcome of case before seeking a decision on the lower court's jurisdiction, effectively stripping petitioners of the protections afforded by the MPLA). Based upon our review of the record before us, and under the limited facts and circumstances of this case, we agree with petitioners, and find that, under the application of the collateral order doctrine, petitioners' appeal is properly before this Court.⁷

Having resolved the threshold question regarding jurisdiction, we now turn to petitioners' assignment of error. "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, 194 W.Va. 770, 461 S.E.2d 516 (1995). "Where the issue on appeal from the circuit court is clearly a question . . . involving interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). On appeal, petitioners argue that the circuit court improperly determined that the certificates of merit served upon them by respondent satisfied the requirements of West Virginia Code § 55-7B-6(b).

West Virginia Code § 55-7B-6(b) requires that a certificate of merit

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.

Petitioners contend that respondent's certificates of merit were deficient in that they did not address: (1) respondent's expert's familiarity with the standard of care; (2) respondent's expert's qualifications to offer an opinion on the care provided by petitioners; (3) how the standard of care was breached; and (4) how the alleged breach of the standard of care resulted in the death of respondent's husband. Conversely, respondent argues that its certificates of merit satisfied the requirements of West Virginia Code § 55-7B-6(b), and the spirit and purpose of the MPLA.

We have, on several prior occasions, addressed the pre-suit requirements of the MPLA. In syllabus point six of Hinchman v. Gillette, 217 W.Va. 378, 618 S.E.2d 387 (2005), we held, that

in determining whether a notice of claim and certificate are legally sufficient, a reviewing court should apply W.Va. Code, 55-7B-6 [2003] in light of the statutory 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. Therefore, a principal consideration before a court reviewing a claim of insufficiency in a notice or certificate should be whether a party challenging or defending the sufficiency of a notice and certificate has demonstrated a good faith and reasonable effort to further the statutory purposes.

In syllabus point four of Elmore v. Triad Hospitals, Inc., 220 W.Va. 154, 640 S.E.2d 217 (2006), we determined that "[t]he 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." (citation omitted). Applying our rulings in Hinchman and Elmore to petitioners' claims herein, we find that respondent's screening certificates of merit satisfied the requirements of West Virginia Code § 55-7B-6(b).

The certificates of merit served by respondent (upon petitioners) were particular as to respondent's expert's familiarity with the applicable standard of care; his qualifications; his opinion...