State ex rel. PrimeCare Med. of W. Va, Inc.v. Faircloth, No. 18-1071

CourtSupreme Court of West Virginia
Writing for the CourtArmstead, Justice
Citation835 S.E.2d 579
Docket NumberNo. 18-1071
Decision Date12 November 2019
Parties STATE of West Virginia EX REL. PRIMECARE MEDICAL OF WEST VIRGINIA, INC., Petitioner v. The Honorable Laura V. FAIRCLOTH, Judge of the Circuit Court of Berkeley County; The Estate of Cody Lawrence Grove; Joshua David Zombro; and The West Virginia Regional Jail and Correctional Facility Authority, Respondents

835 S.E.2d 579

STATE of West Virginia EX REL. PRIMECARE MEDICAL OF WEST VIRGINIA, INC., Petitioner
v.
The Honorable Laura V. FAIRCLOTH, Judge of the Circuit Court of Berkeley County; The Estate of Cody Lawrence Grove; Joshua David Zombro; and The West Virginia Regional Jail and Correctional Facility Authority, Respondents

No. 18-1071

Supreme Court of Appeals of West Virginia.

Submitted: September 4, 2019
Filed: November 12, 2019


Mark R. Simonton, Esq., D.C. Offutt, Jr., Esq., Anne Liles O’Hare, Esq., Offutt Nord Ashworth, PLLC, Huntington, West Virginia, Counsel for the Petitioner

Paul G. Taylor, Esq., Law Office of Paul G. Taylor, Martinsburg, West Virginia, Counsel for the Respondent Estate of Cody Lawrence Grove

Michael W. Taylor, Esq., James W. Marshall III, Esq., Bailey & Wyant, PLLC, Charleston, West Virginia, Counsel for the Respondent Joshua David Zombro

Anthony J. Delligatti, Esq., Matthew R. Whitler, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Martinsburg, West Virginia, Counsel for the Respondent West Virginia Regional Jail and Correctional Facility Authority

Armstead, Justice:

835 S.E.2d 582

The West Virginia Medical Professional Liability Act (the "MPLA ") says that no person may file a medical professional liability action against a health care provider unless he or she first serves a notice of claim on every health care provider that he or she will join in the action. W. Va. Code § 55-7B-6 [2003]. The Respondent Estate of Cody Lawrence Grove (the "Estate ") sued the Respondent Joshua David Zombro ("Officer Zombro ") and the Respondent West Virginia Regional Jail and Correctional Facility Authority (the "Regional Jail Authority ") in the Circuit Court of Berkeley County. Later, the Estate amended its complaint to join the Petitioner, PrimeCare Medical of West Virginia, Inc., ("PrimeCare ") as a defendant. PrimeCare is a health care provider, and the amended complaint charges PrimeCare with medical professional liability. Yet the Estate did not serve a notice of claim before it filed the amended complaint.

When PrimeCare moved to dismiss the amended complaint, the circuit court, instructed the Estate to serve notice under the MPLA. After a purported notice was served, the circuit court denied the motion to dismiss.

Based on the record before us, the arguments of the parties, and the applicable law, we find that the circuit court erred by failing to dismiss the Estate’s claims against PrimeCare for lack of subject matter jurisdiction. Accordingly, we grant the writ of prohibition and vacate the circuit court’s order denying PrimeCare’s motion to dismiss. We further remand this case to the circuit court and direct it to enter an order dismissing the Estate’s claims against PrimeCare.

835 S.E.2d 583

I. FACTUAL AND PROCEDURAL BACKGROUND

Cody Grove committed suicide on December 8, 2015, at the Eastern Regional Jail and Corrections Facility ("Eastern Regional Jail ") where he was an inmate. At the time, Officer Zombro was a correctional officer at Eastern Regional Jail, and the Regional Jail Authority was responsible for the jail’s operation and management.1 According to the Estate, Mr. Grove was able to commit suicide because Officer Zombro failed to conduct one or more "safety checks" on Mr. Grove.

On December 7, 2017—one day short of two years after Mr. Grove’s suicide—the Estate sued Officer Zombro and the Regional Jail Authority in the circuit court of Berkeley County. The Estate sought damages for (1) deprivation of state constitutional rights, (2) negligent supervision, (3) negligent training and retention, (4) negligent and intentional infliction of emotional distress, (5) general negligence, and (6) wrongful death. The Estate also asked the court to enjoin the Regional Jail Authority from similar acts and omissions.

On March 14, 2018, the Estate moved to amend the complaint to add PrimeCare as a defendant. The circuit court granted the motion to amend on April 25, 2018, and the Estate filed an amended complaint on May 10, 2018.

The amended complaint asserts the same six causes of action and requests the same injunctive relief. It is sometimes difficult to discern which allegations apply to PrimeCare, because the amended complaint rarely accuses PrimeCare by name. Indeed, most allegations simply charge "Defendants" with doing one thing or failing to do another. The amended complaint, for instance, alleges that "because of Cody Grove’s prior incarcerations at the [Eastern Regional Jail], Defendants knew or should have known Cody Grove was addicted to heroin and a possible suicide risk" (emphasis added).

The amended complaint specifically alleges that PrimeCare "provided medical screening and monitoring of Eastern Regional Jail inmates on behalf of, and in concert with," the Regional Jail Authority. Elsewhere the amended complaint alleges that PrimeCare (and the Regional Jail Authority)

(a) negligently failed to supervise ... [Officer] Zombro;

(b) negligently failed to properly train ... [Officer] Zombro;

(c) negligently retained employment of ... [Officer] Zombro;

(d) negligently fired ... [Officer] Zombro;

(e) negligently staffed [Eastern Regional Jail];

(f) negligently failed to intervene on [Mr. Grove]’s behalf; ...

(g) acted with deliberate indifference towards [Mr. Grove]; [and]

(h) allowed [Mr. Grove] to hang and kill himself ... while in Defendants’ "protective custody."

Later the amended complaint lists (and quotes from) a number of legislative rules that correctional facilities must follow in screening for, monitoring, and housing potentially suicidal inmates.2 The Estate asserts that "Defendants ignored" these rules and "their own policies, practices, and procedures" by assigning Mr. Grove to "the general population, instead of [placing him] on full Suicide Watch where he belonged." However, the amended complaint also alleges that Mr. Grove "was on ‘suicide watch’, [sic] ‘medical watch,’ and/or under a heightened level of monitoring and/or supervision" when he died.3

835 S.E.2d 584

PrimeCare filed a motion to dismiss on June 15, 2018, alleging that the Estate failed to serve the notice of claim and the screening certificate of merit required by the MPLA. W. Va. Code § 55-7B-6(b) [2003].4 The MPLA applies to the Estate’s claims, according to PrimeCare, because the Estate accuses PrimeCare of medical negligence. PrimeCare also asserted that the Estate’s claims are barred by the statute of limitations.5

In response, the Estate claimed that a screening certificate of merit is not required where the plaintiff’s theory of liability is well-established and there is no need for expert testimony to establish the standard of care.6 Grove’s death, according to the Estate, raised "a nonmedical, administrative, ministerial, or routine care issue" that "was not complex." The Estate also maintained that the amended complaint’s filing was timely because it related back to the complaint’s filing on December 7, 2017.7

The Estate did not dispute that it did not serve PrimeCare with a notice of claim. Rather, the Estate asked the circuit court to either (a) stay proceedings until it could comply with the MPLA’s notice requirements or (b) direct PrimeCare to give notice of its objections under Hinchman v. Gillette , 217 W. Va. 378, 618 S.E.2d 387 (2005).8 The circuit court considered PrimeCare’s motion at a hearing on July 9, 2018. During the hearing, the circuit court directed the Estate to comply with the MPLA.

On July 17, 2018, the Estate e-filed9 a "Notice of Medical Malpractice Claim/Certificate of Merit" (the "Notice of Claim "). The Notice of Claim simply referred to the amended complaint (which was attached) for the Estate’s theory of liability. Instead of attaching a screening certificate of merit,10 the Notice of Claim repeated the Estate’s claim that its theory of liability was well-established and did not depend on expert testimony to establish the standard of care. PrimeCare objected to the Notice of Claim in a July 31, 2018 letter to the Estate.

On November 19, 2018, the court entered an order denying PrimeCare’s motion to dismiss.11 The court found that PrimeCare suffered no harm from the Estate’s late MPLA notice, and the court agreed with the Estate’s argument that no screening certificate of merit was necessary.12

835 S.E.2d 585

PrimeCare filed this petition for writ of prohibition on December 7, 2018. PrimeCare challenges the circuit court’s November 19, 2018 order denying PrimeCare’s motion to dismiss.13

II. STANDARD OF REVIEW

We have held that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code , 53-1-1." Syl. Pt. 2, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977).

PrimeCare contends that the MPLA’s pre-suit notice requirements are jurisdictional and, therefore, that failure to provide such notice deprives a circuit court of subject matter jurisdiction.14 We agree. We have held that " ‘[g]enerally the want of notice required by statute is a...

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18 practice notes
  • Pledger v. Lynch, 18-2213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 21, 2021
    ...and seek dismissal on that basis if plaintiff fails to cure); State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth , 242 W.Va. 335, 835 S.E.2d 579, 589 (2019) (holding that failure to send notice and certificate mandates dismissal on jurisdictional grounds).Finally, we agree with Pledg......
  • State ex rel. Monster Tree Serv., Inc. v. Cramer, No. 20-0043
    • United States
    • Supreme Court of West Virginia
    • November 6, 2020
    ...is one of law, we apply a de novo standard of review. State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth , 242 W. Va. 335, 341, 835 S.E.2d 579, 585 (2019) (citations, internal quotation marks, and footnote omitted). However, 853 S.E.2d 602 "[o]stensible findings of fact, which entail......
  • W.Va. Reg'l Jail & Corr. Facility Auth. v. Estate of Grove, No. 18-1076
    • United States
    • Supreme Court of West Virginia
    • November 20, 2020
    ...the Estate's claims against PrimeCare. See generally State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019). PrimeCare is not a party to this appeal and has not appeared before the Court in this matter. 10. The circuit court also made findings relat......
  • W. Va. Reg'l Jail & Corr. Facility Auth. v. Grove, No. 18-1076
    • United States
    • Supreme Court of West Virginia
    • November 20, 2020
    ...the Estate's claims against PrimeCare. See generally State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth , 242 W. Va. 335, 835 S.E.2d 579 (2019).PrimeCare is not a party to this appeal and has not appeared before the Court in this matter.10 The circuit court also made findings relativ......
  • Request a trial to view additional results
15 cases
  • Pledger v. Lynch, No. 18-2213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 21, 2021
    ...and seek dismissal on that basis if plaintiff fails to cure); State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth , 242 W.Va. 335, 835 S.E.2d 579, 589 (2019) (holding that failure to send notice and certificate mandates dismissal on jurisdictional grounds).Finally, we agree with Pledg......
  • Pledger v. Lynch, 18-2213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 21, 2021
    ...and certificate, and seek dismissal on that basis if plaintiff fails to cure); State ex rel. PrimeCare Med. of W.Va., Inc. v. Faircloth, 835 S.E.2d 579, 589 (W.Va. 2019) (holding that failure to send notice and certificate mandates dismissal on jurisdictional grounds). Finally, we agree wit......
  • State ex rel. Monster Tree Serv., Inc. v. Cramer, No. 20-0043
    • United States
    • Supreme Court of West Virginia
    • November 6, 2020
    ...is one of law, we apply a de novo standard of review. State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth , 242 W. Va. 335, 341, 835 S.E.2d 579, 585 (2019) (citations, internal quotation marks, and footnote omitted). However, 853 S.E.2d 602 "[o]stensible findings of fact, which e......
  • W.Va. Reg'l Jail & Corr. Facility Auth. v. Estate of Grove, No. 18-1076
    • United States
    • Supreme Court of West Virginia
    • November 20, 2020
    ...the Estate's claims against PrimeCare. See generally State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019). PrimeCare is not a party to this appeal and has not appeared before the Court in this matter. 10. The circuit court also made findings relat......
  • Request a trial to view additional results

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