# Davis v. Mound View Health Care, Inc.

> West Virginia Supreme Court · November 9, 2006 · 220 W. Va. 28

URL: https://www.frixlaw.com/law-library/cases/9578680

## Case

- **Full name:** Sarina L. DAVIS, Administratrix of the Estate of Elizabeth K. Weston, Deceased Plaintiff Below, Appellant, v. MOUND VIEW HEALTH CARE, INC., Defendant Below, Appellee
- **Court:** West Virginia Supreme Court
- **Decided:** November 9, 2006
- **Citations:** 220 W. Va. 28; 640 S.E.2d 91; 2006 W. Va. LEXIS 101
- **Precedential status:** Published
- **Opinion:** Dissent by Davis
- **Judges:** Benjamin, Davis
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9578680

## How later opinions describe it (automated extraction)

- 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
- noting that the mandatory term “shall” is used in West Virginia Code § 55-7B-6

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9578680. Public record. Not legal advice.