WV Supreme Court Reinforces Mandatory Pre-Suit Requirements in Medical Professional Liability Actions
July 12, 2022
West Virginia’s Medical Professional Liability Act (MPLA), W. Va. Code 55-7B-6(b), provides that at least thirty days before filing suit, a claimant must serve two pre-suit documents - a Notice of Claim and a Certificate of Merit - on each health care provider they intend to sue. Timely compliance with the statute can “toll” or extend the applicable statute of limitations. In Adkins v. Clark, No. 21-0300, 2022 WL 2128341 (W. Va. June 14, 2022), the Supreme Court of Appeals of West Virginia made clear that to toll the statute of limitations, a claimant must strictly comply with the statute.
First, a brief review of W. Va. Code 55-7B-6(b) which requires service of two documents at least thirty days before filing suit (1) A Notice of Claim, which must describe the theories of liability asserted and include a list of all health care providers and health care facilities to whom notices are being sent, and (2) a Certificate of Merit, which must be signed by a qualified expert witness and state how the expert is familiar with the applicable standard of care at issue, the expert’s qualifications, the expert’s opinion as to how the applicable standard of care was breached and how the breach resulted in injury or death, and a list of all medical records and other information reviewed by the expert. A separate certificate must be provided for each health care provider against whom a claim is asserted.
The timely service of the Notice of Claim and Certificate of Merit tolls or extends the applicable statute of limitations. In other words, if the pre-suit papers are served within the applicable statute of limitations, the claim will be considered timely. The MPLA also provides protection where a claimant who does not have enough time to procure a certificate of merit; there, by timely notice, the claimant can gain additional sixty days if a timely notice is filed.
A health care provider who receives a Notice of Claim and Certificate of Merit has the right to respond within thirty days and can assert defense or demand mandatory pre-suit mediation. If mediation is not demanded, the claimant has thirty days to file suit. If mediation is demanded, the statute is extended until thirty days after mediation concludes or is declared unsuccessful.
In a series of decisions, the Supreme Court of Appeals of West Virginia has held that failure to comply with this statute means the circuit court does not have subject matter jurisdiction to consider the case, and the complaint must be dismissed.
The latest decision enforcing the mandatory nature of the pre-suit requirements is Adkins v. Clark, No. 21-0300, 2022 WL 2128341 (W. Va. June 14, 2022). Adkins is important because the Court held that where a health care provider does not expressly demand mediation after receiving the pre-suit papers, the claimant must then file suit within thirty days. A health care provider’s request for medical records or other information is not a demand for mediation which extends the statute of limitations. The Court held:
The failure of a healthcare provider to unequivocally decline pre-suit mediation in a response to a notice of claim does not serve to toll the statute of limitations beyond the statutorily prescribed time periods set forth in the provisions of West Virginia Code § 55-7B-6(i).
Adkins underwent surgery, performed by Dr. Clark, on March 22, 2018, but due to an injury during the procedure had a second surgery on March 28. Adkins complied with W. Va. Code § 55-7B-6(d) by sending Dr. Clark a timely Notice of Claim on February 27, 2020, asserting she required an additional 60 days to get a certificate of merit under. Due to emergency orders extending deadlines, including statutes of limitation, her sixty-day deadline was extended and on May 18, 2020, she timely served a revised notice of claim and certificate of merit, received by the doctor on May 26. Dr. Clark’s defense counsel had requested medical records on May 13, 2020, which Adkins later provided on August 31, 2020. On November 13, 2020, Adkin’s counsel inquired whether Clark was seeking pre-suit mediation; in a November 17, 2020, letter, Dr. Clark’s counsel responded “no” and asserted that the statute of limitations had expired. Adkins then filed suit and the circuit court dismissed her complaint because the statute of limitations expired.
The Supreme Court examined the MPLA and found that under W. Va. Code § 55-7B-6(i)(1), three circumstances “begin the thirty-day clock to file the complaint if the statute of limitations has expired” are receipt of a response from the health care provider, no response from the health care provider after 30 days, notification from a mediator that settlement was unsuccessful. Therefore, since Dr. Clark did not request mandatory mediation within thirty days after he received the Notice of Claim, the tolling of the statute of limitations ceased thirty days later (from the date a response would have been due). The statute of limitations therefore ran in late July 2020 and Ms. Adkins’ complaint, which was not filed until November 2020 was not timely and had to be dismissed.
The Court rejected Ms. Adkins’ argument that the May 13 request for medical records suggested that Dr. Clark “was considering a request for mandatory mediation” because “the MPLA does not require any response whatsoever to a notice of claim and/or screening certificate of merit. Similarly, there is no requirement that the healthcare provider unequivocally reject prelitigation mediation before a plaintiff may file a complaint – the plaintiff must simply wait thirty days to give the healthcare provider the opportunity to request it.” The Court found that “Ms. Adkins’s reading of these statutes would dictate a rule that a health care provider can take all the time in the world to decide whether to exercise the right to presuit mediation and leave the plaintiff in limbo in the meantime. That runs contrary to the requirement that a response to a notice of claim and certificate of merit demanding prelitigation mediation under West Virginia Code § 55-7B-6(g), if the healthcare provider chooses to make such a demand, must be made within thirty days, consistent with West Virginia Code § 55-7B-6(f).”
Adkins also argued that mandatory mediation’s purpose to allow resolution of meritorious cases is undermined where the statute of limitations is “strictly applied” while the parties are communicating. But the Court found that absent an agreement to extend the statute of limitations, “we are not at liberty to read into the MPLA an indefinite tolling of the statute of limitations, just as we are not permitted to read into the MPLA an indefinite opportunity for a healthcare provider to demand prelitigation mediation before a complaint may be filed.”
Last, the Court examined whether the statue of limitations should have been extended under two recognized “equitable modification” rules: equitable tolling, which focuses on plaintiff’s excusable ignorance of the limitation period, and equitable estoppel, which focuses on acts of the defendant. The Court found that neither applied. “As to equitable tolling, we have already explained that plaintiff’s reading of the statutory framework surrounding the tolling provisions is unsupportable.” And as to equitable estoppel, “[t]he facts of this case do not give us any cause to conclude that some affirmative act of Dr. Clark indicated a willingness to waive a statute of limitations defense inducing Ms. Adkins to forego filing her complaint in a timely manner.”
Adkins v. Clark continues the Court’s strict application of the statutory requirement for pre-suit Notice of Claim and Certificate of Merit. The statute of limitations will not be extended where a plaintiff’s fails to strictly comply with the time frames established by statute.