Totten v. Scaife

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

NATHAN TOTTEN & LINDSEY TOTTEN,

individually and as guardians and next friend of

T.T., an infant,

Plaintiffs,

v. CIVIL ACTION NO. 3:21-0306

DR AARON SCAIFE,

(personally and individually), and

ST. MARY’S MEDICAL CENTER, INC.,

a West Virginia Corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are the United States’ Motion to Substitute (ECF No. 3) and

Motion to Dismiss (ECF No. 6), Defendant St. Mary Medical Center’s (“SMMC”) Motion to

Dismiss (ECF No. 8), Plaintiffs’ Motion to Amend Complaint (ECF No. 20) and Plaintiffs’

Request for Remand (ECF No. 24). For the reasons herein, the Motions to Substitute (ECF No.

3) and to Dismiss (ECF Nos. 6 and 8) are GRANTED. Plaintiffs’ Motion to Amend (ECF No.

20) and Request for Remand (ECF No. 24) are therefore DENIED AS MOOT.

I. FACTUAL BACKGROUND

This action arises from the delivery of infant T.T. at SMMC by Dr. Aaron Scaife.

Plaintiffs Nathan Totten and Lindsey Totten are a married couple. Compl. at Parties, ¶ 1, ECF

No. 6-11. On March 27, 2019, Plaintiff Lindsey Totten went into labor with her first child, T.T.

1 The Complaint style uses repeating paragraph numbers under each subsection. For

Id. at Statement of Facts, ¶ 1. On the same day, shortly after being admitted to SMMC, Plaintiffs

were informed that their primary OB-GYN doctor was not available to deliver their baby. Id. ¶ 2.

Instead, Dr. Scaife, another OB-GYN employed by Valley Health, was the attending physician

on call at SMMC. Id. ¶ 3. Allegedly, he performed his duties in a manner that was foul and

reckless and extreme and outrageous, which caused Plaintiffs severe pain and suffering and

emotional harm. Id. ¶¶ 4-7.

Dr. Scaife performed (some of) the delivery, during which he allegedly: used foul

language from the time he entered the birthing room; used his bare hands to give Plaintiff

Lindsey Totten a complete episiotomy with no warning; verbally abused Plaintiff Lindsey Totten

when she screamed in pain during said unexpected episiotomy; took off his bloody gloves and

threw them on the floor; informed Plaintiff Lindsey Totten that he was abandoning the birth

without providing a substitute; actually abandoned the delivery, causing Plaintiffs and the

attending nurses to be frantic; and refused to return to complete the delivery upon request by

Plaintiff Nathan Totten, instead insinuating that he would physically fight Mr. Totten rather than

return to the birthing room. Id. at Count I, ¶¶ 1-10. Allegedly, SMMC was aware of Dr. Scaife’s

history of rude, unprofessional, outrageous, and extreme behavior towards expectant mothers

prior to the alleged events but failed to take any action to protect Plaintiffs. Id. at Count 2, ¶¶ 3-4.

Plaintiffs sued Dr. Scaife and SMMC in the Circuit Court of Cabell County for these events on

March 23, 2021. Exhibit 1, ECF No. 1-1.

On May 18, 2021, the United States removed the action to this Court. Notice of Removal,

ECF No. 1. In its notice of removal, the United States attached an affidavit confirming that

clarity, this Court will therefore refer to the subsections under which the paragraphs can be

found. Further, because Plaintiffs served Defendant Scaife with only a partial Complaint, the

Court will use the full Complaint docketed at ECF No. 6-1, rather than the one attached to the

original notice of removal.

Valley Health Systems has been deemed a Public Health Service Employee under 42 U.S.C. §

233(g) and is subject to Federal Tort Claims Act (“FTCA”). See Declaration of Meredith Torres,

ECF No. 1-2. Dr. Scaife is employed by the deemed entity Valley Health and thus also subject to

the protections of the FTCA. 42 U.S.C. § 233(g)(1)(A).

The United States then moved to substitute itself for Dr. Scaife. Mot. to Substitute, ECF

No. 3. It also moved to dismiss the complaint for failure to exhaust administrative remedies

pursuant to the FTCA. ECF No. 6. SMMC likewise moved to dismiss the complaint against it for

failure to comply with the jurisdictional pre-suit requirements of the West Virginia Medical

Professional Liability Act (“MPLA”). ECF No. 8. Plaintiffs then filed a Motion to Amend. ECF

No. 20. In response to the United States’ Motion to Dismiss, Plaintiffs also requested that the

case be remanded to the Circuit Court of Cabell County. ECF No. 24. Parties subsequently

briefed the motions, and they are ripe for resolution. Because the issues and the legal framework

presented by the various motions overlap significantly, the Court will address the motions

together.

II. LEGAL STANDARD

The federal government is immune from suit unless it consents to be sued. See e.g.,

United States v. Sherwood, 312 U.S. 584 (1941). The FTCA constitutes a limited waiver of that

sovereign immunity and allows certain suits to proceed against the federal government. See 28

U.S.C. § 1346. The FTCA is the exclusive remedy for specified actions against members of the

Public Health Service (“PHS”). See 42 U.S.C. § 233(a); Carlson v. Green, 446 U.S. 14, 20

(1980) (Congress explicitly provides in 42 U.S.C.§ 223(a) that the FTCA is a plaintiff’s sole

remedy against PHS employees). It protects commissioned officers or employees of the PHS

from liability for “personal injury, including death, resulting from the performance of medical,

surgical, dental, or related functions” by requiring that such lawsuits be brought against the

United States instead. 42 U.S.C. § 233(a). It functions as a grant of “absolute immunity for

actions arising out of the performance of medical or related functions within the scope of their

employment by barring all actions against them for such conduct.” Hui v. Castenada, 559 U.S.

799, 806 (2010) (emphasis added).

If a plaintiff attempts to bring a claim under the FTCA, they must comply with certain

procedural requirements. For example, when a plaintiff sues a federal employee, the Attorney

General (or her designee) may certify that “the defendant employee was acting within the scope

of his office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. §

2679(d)(1). Upon certification, the court substitutes the United States as the sole defendant. See

id; see also Maron v. United States, 126 F.3d 317, 321-22 (4th Cir. 1997). (“Once this

certification has been made, the United States is substituted as the sole defendant…. [t]he

plaintiff, despite the seeming unfairness, cannot proceed against the individual defendants.”). If

the plaintiff initiated the action in state court, it “shall be removed without bond at any time

before trial” upon such certification. 28 U.S.C. § 2679(d)(2). “This certification of the Attorney

General shall conclusively establish scope of office or employment for purposes of removal.” Id.

(emphasis added); Osborn v. Haley, 549 U.S. 225, 231-32 (2007).

However, a district court is not precluded “from resubstituting the federal official as

defendant for purposes of trial if the court determines, postremoval, that the Attorney General’s

scope of employment certification was incorrect.” Id. at 242. A plaintiff’s challenge to the

Attorney General’s scope of employment certification is subject to review by the district court.

Id. at 231. The Fourth Circuit has explained the process by which a district court should review

scope of employment certifications:

In short, the scope-of-employment certification is prima facie evidence that the defendant

federal employee acted within the scope of his employment, thereby placing the burden

on the plaintiff to prove otherwise. If the plaintiff does not come forward with any

evidence, the certification is conclusive. Moreover, the plaintiff’s submission must be

specific evidence or the forecast of specific evidence that contradicts the Attorney

General’s certification decision, not mere conclusory allegations and speculation. If the

plaintiff’s evidence is sufficient to carry the burden of proof, the defendant federal

employee or the Government may come forward with evidence in support of the

certification. At this point, the district court may permit (and limit) any needed discovery.

Thereafter, the district court must determine whether there are any genuine issues of fact

material to the scope-of-employment decision, and, if so, it may conduct an evidentiary

hearing to resolve these factual issues. Once any factual issues are resolved, the district

court should weigh the evidence on each side to determine whether the certification

should stand.

Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1155 (4th Cir. 1997). However, the United States

“must remain the federal defendant in the action unless and until the District Court determines

that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond

the scope of his employment.” (emphasis in original). Osborn 549 U.S. at 231.

Thus, in an alleged medical malpractice case involving a federal employee, if the Court

determines that the employee acted within the scope of his employment, the challenge to

certification fails, and the FTCA is the plaintiff’s only remedy. The FTCA has other mandatory

pre-suit procedures. “The FTCA bars claimants from bringing suit in federal court until they

have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113

(1993). “[T]he requirement of the filing [of an administrative claim] is ‘jurisdictional and may

not be waived.’” Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990) (quoting Henderson v.

United States, 785 F.2d 121, 123 (4th Cir. 1986)). Here, Plaintiffs have not complied with the

FTCA. The only remaining issue is whether Dr. Scaife acted within the scope of his

employment, which would both challenge the certification for substitution purposes and bring

their claims outside of the FTCA.

III. ANALYSIS

A. Motion to Substitute

The United States moved to substitute itself as the named defendant in place of Dr. Aaron

Scaife. Mot. to Substitute, ECF No. 3. Plaintiffs did not object to this certification, but they argue

that Dr. Scaife was not acting within the scope of his employment in response to the Motions to

Dismiss. See e.g., Pls.’ Mem. in Supp., ECF No. 25. While Plaintiffs may dispute the scope of

employment certification, for removal purposes, the certification is conclusive, and thus the

United States’ Motion to Substitute (ECF No. 3) is GRANTED.

B. United States’ Motion to Dismiss

The United States also moved to dismiss on the basis that Plaintiffs had failed to comply

with the administrative exhaustion requirements of the FTCA. See, e.g., Mem. in Support of

United States’ Motion to Dismiss Complaint, ECF No. 7. Plaintiffs conceded that they did not

file an administrative claim, but they argue that they were not required to do so because their

claims were outside the FTCA. See Pls.’ Mem. in Supp. at 3-4, ECF No. 25 .2

In arguing that Dr. Scaife acted outside the scope of his employment, Plaintiffs

challenged both the Attorney General’s certification and whether this action is subject to the

FTCA’s administrative exhaustion requirement. The Court must consider whether Plaintiffs have

produced sufficient evidence to conclude that Dr. Scaife acted outside the scope of his

employment. See Gutierrez de Martinez, 111 F.3d at 1155. This “scope of employment” analysis

2 In doing so, Plaintiffs argue that Dr. Scaife’s actions are subject to the FTCA’s

intentional tort exception. See Mem. in Supp. at 3-4. However, they also argue that Dr. Scaife

did not act within the scope of his employment for their state law claims. Given that the scope of

employment inquiry for FTCA purposes is governed by state law, the Court will construe this as

an argument that Plaintiffs’ case is not subject to the FTCA, though Plaintiffs’ brief does not

explicitly state as much. See id. at 4-7.

is the same required for the purposes of deciding whether an action is subject to the FTCA and

its exhaustion requirements. Accordingly, the Court will analyze the scope of employment both

for the purposes of the Motion to Dismiss and as a subsequent challenge to the substitution.

i. Scope of Employment

The question of whether Dr. Scaife was acting within the scope of employment for

purposes of the FTCA and the attendant certification is governed by West Virginia law. See Doe

v. Meron, 929 F.3d 153, 165 (4th Cir. 2019) (citing Gutierrez de Martinez, 111 F.3d at 1156-

57)). To determine whether a tort occurred within the scope of employment, West Virginia

courts examine several factors, including the character of the employment, the nature and

character of the tortious conduct, and the time, place, and purpose of the conduct. Roof Serv. of

Bridgeport, Inc. v. Trent, 854 S.E.2d 302, 315 (W. Va. 2020) (citation omitted). West Virginia

has specific provisions governing claims of medical professional liability under the MPLA. See

W. Va. Code Ann. § 55-7B-1, et seq.; State ex rel. PrimeCare Med. of West Virginia, Inc. v.

Faircloth, 835 S.E.2d 579, 586 (W. Va. 2019).

“Medical professional liability” is defined in the MPLA as:

any liability for damages resulting from the death or injury of a person for any tort or

breach of contract based on health care services rendered, or which should have been

rendered, by a health care provider or health care facility to a patient. It also means other

claims that may be contemporaneous to or related to the alleged tort or breach of contract

or otherwise provided, all in the context of rendering health care services.

W. Va. Code Ann. § 55-7B-2(i). The MPLA goes on to define both health care and health care

providers. See id. § 55-7B-2(e), (g). Health care is defined under the statute as:

1) Any act, service or treatment provided under, pursuant to or in the furtherance of a

physician’s plan of care, a health care facility’s plan of care, medical diagnosis or

treatment;

(2) Any act, service or treatment performed or furnished, or which should have been

performed or furnished, by any health care provider or person supervised by or acting

under the direction of a health care provider or licensed professional for, to or on behalf

of a patient during the patient’s medical care, treatment or confinement, including, but

not limited to, staffing, medical transport, custodial care or basic care, infection control,

positioning, hydration, nutrition and similar patient services; and

(3) The process employed by health care providers and health care facilities for the

appointment, employment, contracting, credentialing, privileging and supervision of

health care providers.

Id. § 55-7B-2(e). If Dr. Scaife was providing health care as defined by the MPLA, his case is one

of “medical professional liability,” which is undoubtedly within the scope of his employment as

a medical professional and covered by the FTCA. However, Plaintiffs contend that the claims

brought against Dr. Scaife are not ones of medical professional care liability because they do not

involve “health care services.” Pls.’ Mem. in Supp. at 4-7.

Firstly, Plaintiffs have not provided any evidence challenging the certification beyond

their own pleadings, let alone the required “specific evidence or the forecast of specific evidence

that contradicts the Attorney General’s certification decision.” Gutierrez de Martinez, 111 F.3d

at 1155. But it is clear from the face of the Complaint that Plaintiffs take issue with Dr. Scaife’s

provision of medical or related functions within the scope of his employment.3 The claims arise

solely from Dr. Scaife’s provision of medical care to Plaintiff Lindsey Totten as the “on-call”

physician for Valley Health when she came into the hospital for labor and delivery. See e.g.,

Compl. The conduct at issue (“the negligence” and “intentional infliction of emotional distress”

originally pled as Counts I and III), amount to criticism of Dr. Scaife’s clinical judgment, care

3 The Court notes that Plaintiffs use their allegations in the Amended Complaint to

support their contentions. The Motion to Amend has not yet been granted. ECF No. 20.

However, for the purposes of this Order, the Court has reviewed the Amended Complaint. Many

of the allegations of the Amended Complaint which Plaintiffs point to as supporting their

argument are simply conclusory allegations and legal characterizations of conduct, rather than

specific descriptions. The Court is not required to accept these conclusory allegations. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”). But even if the Court

accepted these amended allegations, the particular facts asserted remain completely tied to

medical treatment, whether labelled intentional or negligent, as discussed above.

rendered, or bedside manner during Plaintiff Lindsey Totten’s delivery, as described by the

Plaintiffs in their own words. For example, the Complaint alleges that Dr. Scaife “owed a duty to

Plaintiffs to act professionally and compose himself as a reasonable OB-GYN while birthing a

baby.” Compl. at Statement of Facts, ¶ 10. It alleges that Dr. Scaife used his bare hands to give

Plaintiff an episiotomy and angrily advised Plaintiff Lindsey Totten that he was abandoning his

duties without providing a qualified second Doctor to complete the birth. Compl. at Count I, ¶¶

2-8. His abandonment of the birth, refusal to finish the delivery of T.T., and insinuation that he

would fight Mr. Totten rather than return to the delivery room (the alleged assault) were part of

his failure to complete a medical service, here, the delivery of T.T. Id. at ¶¶ 5-9.

These allegations involve Dr. Scaife’s breach of the relevant standard of care – that he

either exercised poor clinical judgment, provided inadequate care, or had a poor bedside manner

– and inherently include “[a]ny act, service or treatment provided under, pursuant to or in the

furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis

or treatment.” See W. Va. Code Ann. § 55-7B-2(e). Regardless of how the complaint is pled, the

alleged conduct at issue involves medical care that is subject to the MPLA and is part of Dr.

Scaife’s scope of employment as a medical professional. As such, the FTCA is applicable, and

Plaintiffs’ admitted failure to comply with its provisions4 requires dismissal of the claim.

ii. Intentional Tort Claim

In a last-ditch effort to save their Complaint, Plaintiffs cite to the intentional tort

exception found in the FTCA. See e.g., Mem. in Supp. The FTCA has an exception that

preserves governmental immunity for “any claim arising out of assault….” 28 U.S.C. § 2680(h).

4 The Court notes that the MPLA has its own pre-suit notice requirements that would be

applicable to Plaintiffs’ action if it were to proceed against Dr. Scaife individually. These

requirements and failure to comply are explained further in the discussion of the merits of

SMMC’s Motion to Dismiss.

However, this waiver provision is inapplicable to “assault or battery arising out of negligence in

the performance of medical, surgical, dental, or related functions.” 42 U.S.C. 233(g). Plaintiffs

do not argue that the assault or battery arose from medical negligence and instead, have

repeatedly referred to the specific actions in this claim as ones of intentional conduct, and so this

provision is not implicated. See e.g., Mem. in Supp. of Rule 15 Motion to Amend Complaint,

ECF No. 21.

The United States also notes that none of the original claims asserted against Dr. Scaife

(negligence, intentional infliction of emotional distress, loss of consortium and loss of enjoyment

of life, and punitive damages5) are listed in the statute and so are not exempted from coverage

under the FTCA. See United States’ Reply at 3-4, ECF No. 34. Of course, Plaintiffs have since

moved to amend their Complaint to “clarif[y] that Plaintiffs are asserting a claim for assault

based upon the conduct complained of and asserted in the original Complaint,” and to otherwise

clarify that Dr. Scaife’s behavior was intentional. Mem. in Supp. of Rule 15 Motion to Amend

Complaint at 3, ECF No. 21.

However, Plaintiffs have not changed any of the underlying factual allegations, and the

Court’s analysis is not swayed even where the existing allegations are now labelled as ones of

“assault.” Intentional torts can be governed by the MPLA where they are part of a health care

service. See Earle v. City of Huntington, 2015 WL 5611650, at *3 (S.D.W. Va. Sept. 23, 2015).

Regardless of how the claims have been pled, all of Plaintiffs’ claims are based on alleged

tortious conduct while providing health care to Plaintiff Lindsey Totten during labor and delivery

5 The Court notes that loss of consortium is a derivative claim. State ex rel. Small v.

Clawges, 745 S.E.2d 192, 201 (W. Va. 2013); McLaurin v. Vulcan Threaded Products, Inc., 410

F. App’x 630, 633 n.3 (4th Cir. 2011). Punitive damages and loss of enjoyment are damages

claims. See Wilt v. Buracker, Syl Pt. 4 in part, 443 S.E.2d 196 (W. Va. 1993). Accordingly,

dismissal of the underlying claims requires dismissal of these claims as well.

of T.T. Here, the alleged assault arose from a disagreement over Dr. Scaife’s abandonment of the

delivery, which is undoubtedly an omission in the provision of medical care. Therefore, to the

extent that there are any factual allegations that the Court must take as true, the alleged assault

occurred in the course of providing (or failing to provide) medical care. All actions therefore

occurred within the scope of the MPLA and during Dr. Scaife’s employment, and the claim

remains subject to the FTCA. Given that Plaintiffs have not effectively challenged certification

and have admittedly failed to comply with the FTCA, this Court remains deprived of jurisdiction

and the Complaint must be dismissed and the United States’ Motion to Dismiss must be

GRANTED.

B. SMMC’s Motion to Dismiss

The Court has thus far dismissed all of Plaintiffs’ FTCA claims against the United States.

The only remaining claims are for state law actions against SMMC, because SMMC is not a

deemed health care provider covered by the FTCA. However, this Court retains supplemental

jurisdiction to resolve the state law claims. See 28 U.S.C. § 1367.

West Virginia’s MPLA is applicable to the claims against SMMC as a health care

provider. See W. Va. Code Ann. § 55-7B-2(g). Pursuant to the MPLA, a medical professional

liability action ordinarily may not be filed against “any health care provider” unless a plaintiff

first timely and properly serves the health care provider with a screening certificate of merit. W.

Va. Code § 55-7B-6(a), (b).6 A failure to provide the required notices under the MPLA deprives

6 There is an exception for claimants and/or their counsel who believe 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.” W. Va. Code Ann. § 55-7B-6(c). This has not been invoked by

Plaintiffs and is not applicable here.

a court of subject matter jurisdiction. See Syl. Pt. 2, State ex rel. PrimeCare Med. of W. Va., Inc.

v. Faircloth, 835 S.E.2d 579 (W. Va. 2019) (“The pre-suit notice requirements contained in the

[MPLA] are jurisdictional, and failure to provide such notice deprives a circuit court of subject

matter jurisdiction.”). In this case, SMMC asserts that Plaintiffs’ counts of negligence/breach of

fiduciary duty (and subsequent loss of consortium and loss of enjoyment claims) are

encompassed within the rendering of health care under the MPLA and Plaintiffs’ failure to

comply with pre-suit requirements deprives this Court of jurisdiction. See Def. SMMC’s Mem.

in Support of Mot. to Dismiss at 3-5, ECF No. 9.

Plaintiffs concede that they did not comply with the pre-suit requirements of the MPLA

but argue that their claims do not arise under the MPLA. See Pls.’ Mem in Supp. at 4-7, ECF No.

23. Instead, they argue that the core allegations do not involve a “medical professional liability

action” because the claims do not involve health care. They rely on Manor Care7 to support their

claims that the negligence alleged here is outside the scope of health care services. Manor Care,

Inc. v. Douglas, 763 S.E.2d 73 (W. Va. 2014). In Scott, the Supreme Court of Appeals of West

Virginia extensively discussed the changes to the definitions in the MPLA and how it broadened

protection from liability:

Prior to the 2015 amendments, the MPLA defined “health care” as “any act or treatment

performed or furnished, or which should have been performed or furnished, by any health

care provider for, to or on behalf of a patient during the patient's medical care, treatment

or confinement.” W. Va. Code § 55-7B-2(e) (eff. 2006). This was the definition in effect

when this Court issued the Manor Care decision in 2014. However, in 2015, the

Legislature expanded the definition of “health care” to include “[a]ny act, service or

treatment provided under, pursuant to or in the furtherance of a physician's plan of care, a

health care facility's plan of care, medical diagnosis or treatment.” W. Va. Code § 55-7B-

2(e)(1) (eff. 2015). The 2015 amendments also expanded the definition of “medical

7 Plaintiffs’ counsel does not cite the case beyond calling it “Manor Care,” so the Court is

presuming this is the case referenced, which it also notes was superseded by statute as discussed

in State ex rel. West Virginia University Hospitals, Inc. v. Scott, 2021 WL 5446109 (W. Va. Nov.

22, 2021).

professional liability.” The prior definition of “medical professional liability” was “any

liability for damages resulting from the death or injury of a person for any tort or breach

of contract based on health care services rendered, or which should have been rendered,

by a health care provider or health care facility to a patient.” W. Va. Code § 55-7B-2(i)

(eff. 2006). The 2015 amendment added the following sentence to the definition of

“medical professional liability”: “It also means other claims that may be

contemporaneous to or related to the alleged tort or breach of contract or otherwise

provided, all in the context of rendering health care services.” W. Va. Code § 55-7B-2(i)

(eff. 2015) (emphasis added). This addition to “medical professional liability” combined

with the broadened definition of “health care,” expanded what services, and therefore

what claims, are included in the definition of “medical professional liability.” All of these

changes illustrate the Legislature's intent for the MPLA to broadly apply to services

encompassing patient care—not just the care itself.

State ex rel. West Virginia University Hospitals, Inc. v. Scott, 2021 WL 5446109, at *6 (W. Va.

Nov. 22, 2021).

Thus, the definition of health care broadly includes any act “during the patient’s medical

care, treatment, or confinement…” and any related claims. W. Va. Code Ann. § 55-7B-2(e). It

also covers “[t]he process employed by health care providers and health care facilities for the

appointment, employment, contracting, credentialing, privileging, and supervision of health care

providers.” Id. In Scott, the Court went on to find that the MPLA was applicable to corporate

negligence claims regarding a decision to forgo installation of industry-recommended air filters

on all its pediatric PIV systems because “they relate[d] to acts performed by health care

providers, or persons supervised by health care providers or licensed professionals, regarding

staffing.” Scott, 2021 WL 5446109, at *7 (citing W. Va. Code § 55-7B-2(e)(2)). Here, Plaintiffs’

claim that a ‘special relationship’ existed between Plaintiffs and SMMC which imposed a

fiduciary duty of care on SMMC to protect them from the intentional tortious acts of Dr. Scaife

is even more clearly within the confines of providing health care. As discussed above, all the

allegations against Dr. Scaife involve actions surrounding health care decisions and a failure to

conduct himself as a reasonable OB-GYN. It is from these very actions that SMMC allegedly

failed to protect Plaintiffs.

Plaintiffs “cannot avoid the MPLA with creative pleading.” Scott, 2021 WL 5446109, at

*7. Because the complaint contains a cause of action that meets the definition of health care

under West Virginia law, claims “related to” or “contemporaneous to” the injury asserted are

encompassed in “medical professional liability.” See id. Because the claims regarding SMMC’s

negligence (and subsequent harms) are based on health care provided to the Plaintiffs, as

discussed above, the MPLA is applicable. Further, “[t]he pre-suit notice requirements contained

in the [MPLA] are jurisdictional, and failure to provide such notice deprives a circuit court of

subject matter jurisdiction.” Faircloth, Syl Pt. 2, 835 S.E.2d 579. Thus, failure to comply with

the MPLA is fatal to Plaintiffs’ claims against SMMC at this time, because it deprives both a

state court and this Court of jurisdiction.®

IV. CONCLUSION

For the foregoing reasons, the Motions to Substitute (ECF No. 3) and to Dismiss (ECF

Nos. 6 and 8) are GRANTED. Plaintiffs’ Motion to Amend (ECF No. 20) and Request for

Remand (ECF No. 24) are therefore DENIED AS MOOT. The Court accordingly DISMISSES

the Complaint in its entirety and REMOVES this matter from the docket of the Court.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented parties.

ENTER: January 24, 2022

: LA,

4. ee

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

8 To the extent that Plaintiffs contend that, should Court find that the MPLA is

applicable, it should allow them to meet the MPLA’s pre-suit notice requirement rather than

dismiss the case, this contention 1s completely unfounded given that the requirements are

jurisdictional.

-14-