finding that circuit court properly dismissed medical malpractice action 34 against nursing home for failure to comply with pre-suit notice requirements of MPLA
How later courts described this case
- finding that circuit court properly dismissed medical malpractice action 34 against nursing home for failure to comply with pre-suit notice requirements of MPLA
- holding that when dismissal order does not specify that dismissal is with prejudice, dismissal will be deemed as being without prejudice
- medical malpractice case dismissed because of insufficient prelitigation notice or certificate of merit may be refiled pursuant to savings statute when party has “demonstrated a good faith and reasonable effort to further the statutory purposes of preventing the making and filing of frivolous medical malpractice claims and lawsuits” [internal quotation marks omitted]
- "Where a medical malpractice action is dismissed for failure to comply with the pre-suit notice of claim provision set forth in W. Va.Code § 55-7B-6(b) (2003
Written by the judges who cited it.
The opinion
DAVIS, C.J.,
dissenting.
In this ease, the plaintiffs complaint was dismissed solely upon the grounds that she did not serve a notice of claim on the defendant, thirty days before filing the action, as required by the Medical Professional Liability Act. On appeal to this Court, the plaintiff challenged the dismissal of her complaint on the grounds that the pre-suit requirements of the Act were unconstitutional. In resolving this case, the majority opinion decided not to address the constitutional issue raised by the plaintiff. Instead, the majority affirmed the dismissal on the basis that the plaintiff could refile her complaint after complying with the Act.
As I stated in Hinchman, the pre-suit requirements of the Act encroach upon this Court’s constitutional authority to promulgate procedural rules for litigating in the courts of this State. Consequently, and for the reasons more fully set out in my concurring opinion in Hinchman v. Gillette, 217 W.Va. 378, 387 , 618 S.E.2d 387, 396 (2005) (Davis, J., concurring), I respectfully dissent.