“The FTCA does not itself provide for a substantive cause of action. Rather, in assessing FTCA claims, we apply the substantive law of the state where the alleged tort took place....”
How later courts described this case
- “The FTCA does not itself provide for a substantive cause of action. Rather, in assessing FTCA claims, we apply the substantive law of the state where the alleged tort took place....”
- rejecting plaintiff’s claim that the alleged delay in treating his fracture fell within the exception of 55-7B-6(c
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
RODNEY CARTER,
Plaintiff,
v. Case No.: 3:19-cv-00077
UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are Defendant’s Motion to Strike Plaintiff’s Demand for A Jury Trial, (ECF
No. 13), and Defendant’s Motion to Dismiss, (ECF No. 15). Plaintiff has filed a response
to the Motion to Dismiss, (ECF No. 18), and Defendant has filed a reply memorandum.
(ECF No. 19). For the following reasons, the Court ORDERS that:
1. Defendant’s Motion to Strike is GRANTED. (ECF No. 13). Title 28 U.S.C.
§ 2402 clearly indicates that tort claims against the United States for money damages
“shall be tried by the court without a jury.” Id.; also Lehman v. Nakshian, 453 U.S. 156,
161 (1981) (holding that “in tort actions against the United States … Congress has similarly
provided that trials shall be to the court without a jury.”) (citing 28 U.S.C. § 2402).
2. With respect to the Motion to Dismiss, the United States argues that
Plaintiff’s complaint alleges medical malpractice, but Plaintiff has failed to file the
requisite pre-suit paperwork; therefore, the complaint must be dismissed. (ECF Nos. 15,
16). Specifically, the United States contends that the alleged wrongdoing in this case
occurred in the State of West Virginia and, therefore, the case is governed by West
Virginia’s Medical Professional Liability Act (“MPLA”), W. Va. Code § 55-7B-1 et seq.
Under § 55-7B-6 of the MPLA, a plaintiff is required to submit to the accused medical
provider a Notice of Claim and a Screening Certificate of Merit at least thirty days before
the plaintiff can file a lawsuit. According to the United States, Plaintiff submitted a federal
Form 95 in February 2018, but did not provide the Notice of Claim or Screening
Certificate required by West Virginia law.
The United States is correct that, even though this is a federal lawsuit, Plaintiff
must follow the mandates of W. Va. Code § 55-7B-6 before filing a medical negligence
complaint against the United States for care rendered at the Veterans Administration
Medical Center. See Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009) (“The FTCA does not
itself provide for a substantive cause of action. Rather, in assessing FTCA claims, we apply
the substantive law of the state where the alleged tort took place....”). W. Va. Code § 55-
7B-6 sets out all of the prerequisites for filing a medical negligence claim as follows:
(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 30 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. For the purposes of this section, where
the medical professional liability claim against a health care facility is
premised upon the act or failure to act of agents, servants, employees, or
officers of the health care facility, such agents, servants, employees, or
officers shall be identified by area of professional practice or role in the
health care at issue. 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 who:
(1) Is qualified as an expert under the West Virginia rules of evidence;
(2) Meets the requirements of § 55-7B-7(a)(5) and § 55-7B-7(a)(6) of this
code; and
(3) Devoted, at the time of medical injury, 60 percent of his or her
professional time annually to the active clinical practice in his or her
medical field or specialty, or to teaching in his or her medical field or
specialty in an accredited university.
If the health care provider executing the screening certificate of merit meets
the qualifications of subdivisions (1), (2), and (3) of this subsection, there
shall be a presumption that the health care provider is qualified as an expert
for the purpose of executing a screening certificate of merit. The screening
certificate of merit shall state with particularity, and include: (A) The basis
for the expert’s familiarity with the applicable standard of care at issue; (B)
the expert’s qualifications; (C) the expert’s opinion as to how the applicable
standard of care was breached; (D) the expert’s opinion as to how the breach
of the applicable standard of care resulted in injury or death; and (E) a list
of all medical records and other information reviewed by the expert
executing the screening certificate of merit. A separate screening certificate
of merit must be provided for each health care provider against whom a
claim is asserted. The health care provider 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 limits the application of Rule 15 of the Rules of Civil Procedure.
No challenge to the notice of claim may be raised prior to receipt of the
notice of claim and the executed screening certificate of merit.
(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. The statement
shall be accompanied by the list of medical records and other information
otherwise required to be provided pursuant to subsection (b) of this section.
(d) Except for medical professional liability actions against a nursing home,
assisted living facility, their related entities or employees, or a distinct part
of an acute care hospital providing intermediate care or skilled nursing care
or its employees, 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 60 days of the date the
health care provider receives the notice of claim. The screening certificate
of merit shall be accompanied by a list of the medical records otherwise
required to be provided pursuant to subsection (b) of this section.
(e) In medical professional liability actions against a nursing home, assisted
living facility, their related entities or employees, or a distinct part of an
acute care hospital providing intermediate care or skilled nursing care or its
employees, 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 180 days of the date the health care
provider receives the notice of claim.
(f) 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 30 days of receipt of the claim or within 30 days of
receipt of the screening certificate of merit if the claimant is proceeding
pursuant to the provisions of subsection (d) or (e) 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.
(g) 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) or
(e) of this section, the health care provider is entitled to prelitigation
mediation before a qualified mediator upon written demand to the
claimant.
(h) If the health care provider demands mediation pursuant to the
provisions of subsection (g) of this section, the mediation shall be concluded
within 45 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.
(i)(1) Except for medical professional liability actions against a nursing
home, assisted living facility, their related entities or employees, or a
distinct part of an acute care hospital providing intermediate care or skilled
nursing care or its employees, and 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 30 days following receipt of a response to the notice of claim, 30 days
from the date a response to the notice of claim would be due, or 30 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.
(2) In medical professional liability actions against a nursing home, assisted
living facility, their related entities or employees, or a distinct part of an
acute care hospital providing intermediate care or skilled nursing care or its
employees, 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 180 days from the date of mail of a notice of claim to 30 days
following receipt of a response to the notice of claim, 30 days from the date
a response to the notice of claim would be due, or 30 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.
(3) 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 30 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.
(j) 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.
W. Va. Code §55-7B-6. It is undisputed in this case that Plaintiff did not provide the
United States with a compliant Notice of Claim, or with a Screening Certificate of Merit.
Plaintiff does not address his failure to comply with the MPLA in his response, but
seems to suggest that his case involves “a well-established legal theory of liability which
does not require expert testimony supporting a breach of the applicable standard of care,”
which, under §55-7B-6(c), obviates the need for a Screening Certificate of Merit. (ECF No.
18 at 2) (stating “I think we should all agree that [no doctor] that feels he’s not his best
and not himself should never be doing any type of surgery.”). Even in a case where (c)
applies, however, the plaintiff is still required by the MPLA to “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. The statement shall be accompanied by the list of medical
records and other information otherwise required to be provided pursuant to subsection
(b) of this section.” This Plaintiff did not do.
Having considered the information provided by Plaintiff, the undersigned
concludes that the medical issues involved in this case are not so clear cut that a screening
certificate is unnecessary. To the contrary, Plaintiff challenges the decision made by his
treating surgeon to abort a procedure in the face of unexpected intraoperative findings.
Matters of medical/surgical judgment typically fall beyond the common knowledge of lay
persons, and this case is no exception. Indeed, cases that meet the exception to the general
rule requiring a screening certificate are rare. See Giambalvo v. United States, No.
1:11CV14, 2012 WL 984277, at *4 (N.D.W. Va. Mar. 22, 2012) (rejecting plaintiff’s
argument that his medical negligence claim, alleging that a bandage wrapped too tightly
around his foot caused swelling, pain, tissue death, necrosis, and a MRSA infection, was
based upon a well-established theory of liability and required no certificate of merit); Ellis
v. United States, No. 5:11-CV-00096, 2013 WL 4679933, at *7 (S.D.W. Va. Aug. 30, 2013)
(holding that issues, like “what constitutes timely treatment, risk factors, symptoms,
possible side-effects, and appropriate treatment options [in a dental claim] .... are not
within the understanding of lay jurors by resort to common knowledge and experience.”);
Callahan v. Cho, 437 F. Supp. 2d 557, 562 (E.D. Va. 2006) (“As a general rule, a plaintiff
is not required to provide a medical screening certificate when the plaintiff's case will not
require expert medical witnesses ... Yet, this exception is not easily invoked, as a plaintiff
seeking to do so must overcome the general presumption in West Virginia medical
malpractice law that “negligence or want of professional skill can be proved only by expert
witnesses”) (citing McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389, 394
(1997)); and Morris v. United States, No. 3:12-CV-73, 2012 WL 6048936, at *5 (N.D.W.
Va. Dec. 5, 2012) aff'd, 520 F. App'x 205 (4th Cir. 2013) (rejecting plaintiff’s claim that
the alleged delay in treating his fracture fell within the exception of 55-7B-6(c) and noting
“[a] court shall require expert testimony except where the ‘lack of care or want of skill is
so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of
diagnosis and treatment within the understanding of lay jurors by resort to common
knowledge and experience.’”) (citing Banfi v. Am. Hosp. for Rehab., 529 S.E.2d 600, 605
(W.Va. 2000)).
Thus, the Court finds that Plaintiff should have submitted to the United States a
Notice of Claim and Screening Certificate of Merit, as required by West Virginia law,
before he filed the complaint herein. Nevertheless, the Court notes that “the West Virginia
Supreme Court and other courts within this district have emphasized that the MPLA is
intended to prevent frivolous medical malpractice lawsuits, and that motions regarding
compliance with the MPLA should be reviewed in light of that statutory purpose.”
Mitchell v. United States, No. 5:18-CV-00074, 2018 WL 4204345, at *4 (S.D.W. Va. Sept.
4, 2018). Given Plaintiff’s pro se status; his apparent belief that his case does not require
a Screening Certificate of Merit, because his surgeon was “not himself” and simply failed
to perform the surgery; and the harshness of dismissal as a remedy for Plaintiff’s failures,
the undersigned finds that Plaintiff should be given an opportunity to rectify his errors.
See Sumpter v. United States, No. 5:16-CV-08951, 2018 WL 2170505, at *6 (S.D.W. Va.
May 10, 2018) (holding that “dismissal would be too harsh of a remedy” where a plaintiff
failed to comply with the pre-filing requirements of the MPLA, but was acting pro se and
did not present a patently frivolous claim).
Accordingly, the Court finds that Plaintiff should have a reasonable opportunity to
submit a Notice of Claim and Screening Certificate of Merit, which comply with the
MPLA. Courts have found thirty days to be a reasonable amount of time to secure a
screening certificate, prepare a notice of claim, and submit them to the health care
provider—in this case, the United States. Pledger v. United States, No. 2:16-CV-83, 2018
WL 4627023, at *9 (N.D.W. Va. Sept. 27, 2018) (“[C]ourts have found that 30 days is
enough time to cure the failing of the certificate requirement.”). As such, Plaintiff is
hereby ORDERED to file a Notice of Claim and Screening Certificate of Merit, both of
which comply with the MPLA, within thirty (30) days of the date of this Order. Plaintiff
is notified that his failure to file these documents, as ordered, will likely result in a
recommendation at that his lawsuit be dismissed for the failure to comply with the MPLA.
The Clerk is instructed to provide a copy of this Order to Plaintiff and counsel of
record.
ENTERED: October 2, 2019
Uni ates Magistrate Judge
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