Opinion

Donta Wade v. University Physicians & Surgeons, Inc., Marshall Health Network, Inc., Holly Nauert, D.O., and Lee Van Horn, M.D.

Court
Intermediate Court of Appeals of West Virginia
Filed
Apr 29, 2025
Status
Published
Nature of suit
Civil-Other
Cited by
0 cases
Authority
More cited than 35.0%

The opinion

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

DONTA WADE,

April 29, 2025

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

v.) No. 24-ICA-378 (Cir. Ct. Cabell Cnty. Case No. CC-06-2024-C-179)

UNIVERSITY PHYSICIANS & SURGEONS, INC.,

MARSHALL HEALTH NETWORK, INC.,

HOLLY NAUERT, D.O., and

LEE VAN HORN, M.D.,

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Donta Wade appeals the Circuit Court of Cabell County’s August 22,

2024, order which dismissed his amended complaint for failure to comply with the pre-suit

notice requirements of the Medical Professional Liability Act (“MPLA”). Respondents

University Physicians & Surgeons, Inc., Holly Nauert, D.O., and Lee Van Horn, M.D.,

jointly filed a response in support of the circuit court’s order. Respondent Marshall Health

Network, Inc. (“Marshall”) also filed a response in support of the circuit court’s order. Mr.

Wade did not file a reply.1

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2024). After considering the parties’ arguments, the record on appeal, and the

applicable law, this 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.

Mr. Wade filed his amended complaint on May 20, 2024. In the amended complaint,

Mr. Wade asserts that he was being treated by respondents University Physicians &

Surgeons, Inc., and Marshall Health Network, Inc., when he asked to have his primary care

provider switched. As a result, he was assigned to respondent Dr. Holly Nauert, who was

a resident physician. The amended complaint alleges that Mr. Wade asked Dr. Nauert at

the beginning of each appointment whether the information shared with her would be

1

Mr. Wade is self-represented. University Physicians & Surgeons, Inc., Holly

Nauert, D.O., and Lee Van Horn, M.D., are represented by Perry W. Oxley, Esq., Brian D.

Morrison, Esq., and Zachary T. Ramey, Esq. Marshall is represented by Robert M. Sellards,

Esq., Ralph J. Hagy, Esq., and John H. Zickefoose, Esq.

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confidential, to which the doctor replied that it would be and that no one would have access

to the information unless they became his doctor.

After several appointments with Dr. Nauert, Mr. Wade requested his last ten years

of medical records from University Physicians & Surgeons, Inc., and Marshall. The records

reflected that after each appointment with Dr. Nauert, the resident physician would discuss

the appointment and treatment of Mr. Wade with the attending physician, respondent Dr.

Lee Van Horn. The gist of the amended complaint is that it was tortious for Dr. Nauert to

discuss Mr. Wade’s health information with the attending physician and for Marshall to

assign Dr. Nauert when he asked for a new primary care physician.

Based on this conduct, Mr. Wade asserted causes of action for: Count I Negligent

Infliction of Emotional Distress; Count II Invasion of Privacy; Count III Breach of

Contract; Count IV Negligent Oversight; Count V Embarrassment; Count VI Unfair and

Deceptive Business Practices; Count VII Willful Misconduct/Punitive Damages; Count

VIII Reckless Endangerment; Count IX Humiliation; and Count X Breach of Duty. None

of the causes of action contain substantive allegations but instead all state, “Plaintiff

reincorporates by reference the allegations contained within the previous paragraphs as if

more fully set forth within. At all relevant times the Defendants, jointly and severally, acted

willfully, wantonly, and with deliberate indifference to the Plaintiffs’ [sic] rights. As a

result of the Defendants’ misconduct the Plaintiff suffered damages.” The amended

complaint sought $1,000,000,000.00 in damages.

On June 10, 2024, Drs. Nauert and Van Horn moved to dismiss on the basis that the

claims fail as a matter of law; Mr. Wade failed to comply with the pre-suit notice

requirements for medical professional liability cases; and the amended complaint fails to

assert sufficient facts to create causes of action. On the same date, Marshall and University

Physicians & Surgeons separately moved to dismiss on the basis that the claims fail as a

matter of law; Mr. Wade failed to comply with the pre-suit notice requirements for medical

professional liability cases; and that they were entitled to sovereign immunity.

On July 3, 2024, Mr. Wade filed his Statement in Lieu of Screening Certificate of

Merit which asserted that a certificate of merit was not needed in this matter because the

causes of action are based on well-established legal theories which do not require expert

testimony.

A hearing was held on the motions to dismiss on August 5, 2024. Following the

hearing, the circuit court entered its Order Granting Defendants’ Motions to Dismiss. In

that order, the circuit court concluded that Mr. Wade’s claims were covered by the MPLA

and as such he was required to comply with the pre-suit notice requirements which required

him to provide the respondents with a screening certificate of merit thirty days before he

filed his case. The circuit court rejected Mr. Wade’s argument that he did not need a

certificate of merit because his statement in lieu specifically stated that the respondents

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“breached the applicable standard of care between a patient and a Health Care Facility and

its Health-care providers.” Further, even if a certificate of merit was not required, Mr.

Wade’s statement in lieu was not timely provided. The circuit court held that it did not have

subject matter jurisdiction and dismissed Mr. Wade’s case without prejudice. It is from this

order that Mr. Wade appeals.2

“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, Inc., 194 W.

Va. 770, 461 S.E.2d 516 (1995). Moreover, “[t]he trial court, in appraising the sufficiency

of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.

Va. 530, 236 S.E.2d 207 (1977). “On appeal of a dismissal based on granting a motion

pursuant to West Virginia Rules of Civil Procedure 12(b)(6), the allegations of the

complaint must be taken as true.” Syl. Pt. 1, Wiggins v. Eastern Associated Coal Corp.,

178 W. Va. 63, 357 S.E.2d 745 (1987). Further, because we must decide whether the circuit

court was correct in applying the MPLA to this matter, our review is guided by the Supreme

Court of Appeals of West Virginia's (“SCAWV”) recognition, in syllabus point one

of Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995), that “[w]here

the issue on an appeal from the circuit court is clearly a question of law or involving an

interpretation of a statute, we apply a de novo standard of review.” With these standards in

mind, we now consider the issues raised on appeal.

On appeal, Mr. Wade advances eight assignments of error, which are interrelated

and call for this Court to determine one question: Did the circuit court err in dismissing the

complaint based on Mr. Wade’s failure to comply with the MPLA’s pre-suit notice

requirements?

In that regard, the SCAWV has held that:

[t]he failure to plead a claim as governed by the Medical Professional

Liability Act, W. Va. Code § 55-7B-1, et seq., does not preclude application

of the Act. Where the alleged tortious acts or omissions are committed by a

health care provider within the context of the rendering of “health care” as

defined by W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies

regardless of how the claims have been pled.

Syl. Pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007).

2

Mr. Wade also moved for reconsideration which was denied by the circuit court.

3

Where the alleged offensive action was committed within the context of rendering

“health care,” the statute applies. Id. at 707, 656 S.E.2d at 458. Here, it is clear from Mr.

Wade’s amended complaint that the alleged offensive actions were committed by

healthcare providers within the context of rendering healthcare to Mr. Wade and therefore

the MPLA applies to Mr. Wade’s claims.3 See State ex rel. CAMC, Inc. v. Thompson, 248

W. Va. 352, 360, 888 S.E.2d 852, 860 (2023) (Invasion of privacy claims based on

unauthorized disclosure of information related to the provision of medical care implicate

the MPLA.)

West Virginia Code § 55-7B-6 (2022) provides that no person may file a medical

professional liability action without first providing a notice of claim and screening

certificate of merit at least thirty days prior. However, § 55-7B-6(c) provides that if a

plaintiff believes that no screening certificate of merit is necessary because their case is

based upon a well-established legal theory which does not require expert testimony

supporting a breach of the applicable standard of care, the plaintiff can file a statement in

lieu of a screening certificate of merit. “Because a statement that no screening certificate

of merit is required pursuant to W. Va. Code § 55-7B-6(c) is clearly ‘in lieu of’ providing

such a certificate of merit, such statement should be served no later than the applicable

statutory deadline for providing a certificate of merit pursuant to W. Va. Code § 55-7B-6.”

Syl. Pt. 5, State ex rel. Hope Clinic, PLLC v. McGraw, 245 W. Va. 171, 858 S.E.2d 221

(2021).

Here, whether the standard of care permits a resident physician to consult with an

attending physician after treatment of a patient or whether the standard of care allows for

assignment of a resident physician as a primary care provider are matters that require expert

testimony and are not within the province of lay people. See McLaughlin v. Murphy, No.

17-0453, 2018 WL 2175705, at *6 (W. Va. May 11, 2018) (memorandum decision) (circuit

court correctly found that a certificate of merit was necessary “because petitioner's

allegations involved complex medical issues.”). Accordingly, a statement in lieu of a

screening certificate of merit was not appropriate in this matter. Further, it is undisputed

that Mr. Wade failed to provide his statement in lieu of screening certificate of merit thirty

days prior to filing his complaint. Post-suit notice is insufficient to cure the jurisdictional

deficiency created by the failure to comply with the pre-suit notice requirements of the

MPLA. McGraw, 245 W. Va. at 179, 858 S.E.2d at 229. Therefore, the circuit court did

not err in dismissing Mr. Wade’s complaint for failure to comply with the pre-suit notice

requirements of the MPLA.

3

The Court notes that Marshall has argued that it is not a healthcare provider and

therefore not subject to Mr. Wade’s claims for medical professional liability. However, for

the purpose of evaluating a motion to dismiss, we take the allegations in the complaint as

true. Syl. Pt. 1, Wiggins v. Eastern Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745

(1987). Mr. Wade’s complaint specifically alleges that he was a patient of Marshall.

4

In addition, this Court concludes that Mr. Wade failed to state a claim. To survive a

motion to dismiss for failure to state a claim, the complaint must set forth enough

information to outline the elements of a claim or permit inferences to be drawn that these

elements exist. Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., 244

W. Va. 508, 521, 854 S.E.2d 870, 883 (2020). Here, as mentioned previously, Mr. Wade’s

amended complaint sets forth ten causes of action. However, none of the causes of action

contain substantive allegations and nothing in the remainder of the complaint outlines the

elements of any of the claims listed by Mr. Wade or permits inferences to be drawn that

the elements exist. Mr. Wade has failed to set forth enough information to outline the

elements of his claims or permit inferences to be drawn that the elements of his claims exist

and accordingly, Mr. Wade has failed to state a claim.

Therefore, we affirm the circuit court’s August 22, 2024, order.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen

Judge Daniel W. Greear

Judge S. Ryan White

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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