Vest v. St. Albans Psychiatric Hosp., Inc.

• Decision Date: 19 October 1989
• Docket Number: No. 18709,18709
• Citation: 387 S.E.2d 282,182 W.Va. 228
• Parties: Otis J. VEST and Pauline B. Vest, his Wife v. ST. ALBANS PSYCHIATRIC HOSPITAL, INC., a Virginia Corporation.
• Court: West Virginia Supreme Court

Page 282

387 S.E.2d 282

182 W.Va. 228

Otis J. VEST and Pauline B. Vest, his Wife v. ST. ALBANS PSYCHIATRIC HOSPITAL, INC., a Virginia Corporation.

No. 18709.

Supreme Court of Appeals of West Virginia.

Oct. 19, 1989.

Dissenting Opinion Nov. 21, 1989.

Syllabus by the Court

1. If a Virginia defendant has subjected himself to suit in West Virginia under this state's long-arm statute, W.Va.Code, 56-3-33 [1984], a West Virginia plaintiff need not litigate his medical malpractice claim first before a medical review panel in Virginia, Va.Code, 8.01-581.1 et seq. [1984].

2. In consideration of West Virginia's own public policy and principles of comity, this Court would not permit Virginia citizens with few contacts in this state to sue Virginia "health care providers" here simply to avoid the review panel procedures required in the Commonwealth of Virginia, Va.Code, 8.01-581.1 et seq. [1984].

Richard E. Hardison, Beckley, for Otis J. Vest and Pauline B. Vest.

John R. Jessee and Frank K. Friedman, Woods, Rogers & Haxlegrove, Roanoke, Va., for St. Albans Psychiatric Hosp., Inc.

NEELY, Justice:

The appellants, Otis and Pauline Vest, citizens of West Virginia, brought this action in the circuit court of Raleigh County, West Virginia, charging the defendant, a Virginia corporation, with medical malpractice occurring in the Commonwealth of Virginia. ¹ The action was dismissed because the appellants failed to comply with a notice provision of Virginia's statute on medical malpractice review panels.

Otis Vest, a resident of Beckley, West Virginia, suffers from Parkinson's disease. In April 1984, he went to St. Albans Mental Health Services in Beckley for an adjustment of his medication for the disease. St. Albans, Beckley, is a West Virginia corporation offering outpatient services. Patients needing hospitalization are referred to St. Albans Psychiatric Hospital in Radford, Virginia, a Virginia corporation licensed to do business in West Virginia. Mr. Vest was referred to St. Albans, Radford, and was hospitalized there from May to September 1984. His condition worsened there, so that, appellants claim, Mr. Vest was "on the verge of death" at the time he was released from the hospital. Appellants claim that negligent treatment by St. Albans, Radford, and its staff caused the deterioration in Mr. Vest's condition.

On 18 September 1986, the appellants brought this action in the Circuit Court of Raleigh County, West Virginia. Mr. Vest sought damages based on the alleged negligence, and Mrs. Vest brought a derivative claim for loss of consortium. The appellants did not notify St. Albans, Radford, before filing this lawsuit.

The Virginia legislature has established a system of medical malpractice review panels that are available to either party in a potential medical-malpractice lawsuit. Va.Code, 8.01-581.1 et seq. [1984]. A plaintiff may not bring suit against a "health-care provider" registered in Virginia without first notifying the defendant of the claim and allowing time for the case to be reviewed by a medical review panel. Such panels are convened, case-by-case, by appointment of the Chief Justice of Virginia, at the request of either party. The panel comprises one trial-court judge (as chairman), three impartial Virginia lawyers, and three impartial Virginia doctors. The panel hears evidence and issues a non-binding opinion on the issues of liability and extent of injury. The panel's opinion is admissible as evidence if the matter goes to a full civil trial.

The Circuit Court granted the appellee's motion to dismiss the action, on the ground that the appellants had failed to notify the appellee before filing suit, as required by Va.Code, 8.01-581.2(A) [1984]. ² The appellants seek relief here, on the ground that the notice provisions of the Virginia statute are procedural only, not substantive law, and cannot be applied to bar their action in a West Virginia court.

We now reverse the judgment below, and hold that, in a West Virginia court, a citizen of West Virginia suing a Virginia hospital for injuries sustained in Virginia need not comply with the medical review panel provisions of Virginia law.

I

At first blush, the issue may appear to be a question of "choice of law" or "conflict of laws." In tort cases, West Virginia courts apply the traditional choice-of-law rule, lex loci delicti; that is, the substantive rights between the parties are determined by the law of the place of injury. Paul v. National Life, 177 W.Va. 427, 352 S.E.2d 550 (1986). There is no dispute that the substantive law to be applied in this case is the law of Virginia. It is just as clear that West Virginia procedure applies in all cases before West Virginia state courts, and a merely procedural rule of Virginia law would be ignored here.

A leading commentator on conflict of laws writes:

[One] type of rule often called procedural actually is designed to govern access to courts, and necessarily governs access only to courts of the state having the rule. A state can control access to its own courts but it cannot prevent courts of another state, if they have jurisdiction, from proceeding to exercise it.

R. Leflar, American Conflicts Law, 243-44 (3d ed. 1977). See also Crider v. Zurich Insurance Co., 380 U.S. 39, 85 S.Ct. 769, 13 L.Ed.2d 641 (1965) (Federal court in Alabama may hear action based on Georgia worker's compensation act, even though Georgia limits enforcement to its own administrative board; the Court found it compelling that the worker was an Alabama resident, injured in Alabama, merely employed by a Georgia corporation).

The Erie doctrine has forced the federal courts to become adept at distinguishing between the substantive law and the procedural law of their forum states. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The federal courts of Virginia have held that, for purposes of the Erie doctrine, the notice provision of Virginia's medical review panel statute is substantive law. DiAntonio v. Northampton-Accomack Memorial Hospital, 628 F.2d 287 (4th Cir.1980). The plaintiff in DiAntonio, a New Jersey citizen, filed an action against the defendant, a Virginia hospital, in the federal court of the Eastern District of Virginia. The plaintiff had failed to notify the defendant before filing suit, as required by Va.Code, 8.01-581.2 [1977]. The Fourth Circuit held that the action had properly been dismissed, because, for purposes of the Erie doctrine, the statute was substantive:

The Act's notice requirement and provision for panel review at the instance of either party were so "intimately bound up" with the rights and obligations being asserted as to require their application in federal courts under the doctrine of Erie Railroad Co. v. Tompkins, [supra ].

Id. at 290.

We do not in the least disagree with the holding in DiAntonio. ³ We part ways with the Fourth Circuit in this case not on the grounds of technical choice-of-law rules, but on the connection among sovereignty, in personam jurisdiction, and access to the courts of sister states.

Our Federalism comprises two distinct and complementary strands: The national government's relation to the states, controlled by the Supremacy Clause of the U.S. Constitution and, in the DiAntonio example, by the Erie doctrine; and the relation of the government of one state to the governments of her sister states, controlled by the Full Faith and Credit Clause and the Privileges and Immunities Clause of the U.S. Constitution, the principle of comity, and, in this particular case, the doctrine of in personam jurisdiction.

A court is always the court of a sovereign. Before the decision in Erie, the federal courts saw their sovereign as the United States alone. Even in diversity cases, federal courts imagined that the law that governed between the parties was the law of the United States. In David Lupton's Sons Co. v. Automobile Club of America, 225 U.S. 489, 32 S.Ct. 711, 56 L.Ed. 1177 (1912), the plaintiff brought a contract claim in the federal court in New York because New York barred access to its state courts by foreign corporations not registered to do business in New York. The Court held:

The state could not prescribe the qualifications of suitors in the courts of the United States, and could not deprive of their privileges those who were entitled under the Constitution and laws of the United States to resort to the Federal courts for the enforcement of a valid contract.

Id. at 500, 32 S.Ct. at 714; contra, after Erie, Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949).

Since Erie, the sovereignty of any federal court has been changeable. As to a claim created by federal law, the court remains subject only to the sovereignty of the United States. When a federal court hears a claim based on state law, the court acts under the sovereignty of the state where the court sits. ⁴ In Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the plaintiff sought to enforce in a New York federal court a claim under New York negotiable-instruments law that was barred from the New York state courts by the statute of limitations. In his opinion for the Court, Mr. Justice Frankfurter wrote:

Here we are dealing with a right to recover derived not from the United States but from one of the States. When, because the plaintiff happens to be a non-resident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic. But since a federal court adjudicating a State-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State.

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