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Carter v. United States

United States District Court, S.D. West Virginia, Huntington Division

October 2, 2019

RODNEY CARTER, Plaintiff,
v.
UNITED STATES, Defendant.

          MEMORANDUM OPINION AND ORDER

          Cheryl A. Aifert, United States Magistrate Judge.

         Pending are Defendant's Motion to Strike Plaintiff's Demand for A Jury Trial, (ECF No. 13), and Defendant's Motion to Dismiss, (ECF No. 15). Plaintiff has filed a response to the Motion to Dismiss, (ECF No. 18), and Defendant has filed a reply memorandum. (ECF No. 19). For the following reasons, the Court ORDERS that:

1. Defendant's Motion to Strike is GRANTED. (ECF No. 13). Title 28 U.S.C. § 2402 clearly indicates that tort claims against the United States for money damages “shall be tried by the court without a jury.” Id.; also Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (holding that “in tort actions against the United States … Congress has similarly provided that trials shall be to the court without a jury.”) (citing 28 U.S.C. § 2402).
2. With respect to the Motion to Dismiss, the United States argues that Plaintiff's complaint alleges medical malpractice, but Plaintiff has failed to file the requisite pre-suit paperwork; therefore, the complaint must be dismissed. (ECF Nos. 15, 16). Specifically, the United States contends that the alleged wrongdoing in this case occurred in the State of West Virginia and, therefore, the case is governed by West Virginia's Medical Professional Liability Act (“MPLA”), W.Va. Code § 55-7B-1 et seq. Under § 55-7B-6 of the MPLA, a plaintiff is required to submit to the accused medical provider a Notice of Claim and a Screening Certificate of Merit at least thirty days before the plaintiff can file a lawsuit. According to the United States, Plaintiff submitted a federal Form 95 in February 2018, but did not provide the Notice of Claim or Screening Certificate required by West Virginia law.

         The United States is correct that, even though this is a federal lawsuit, Plaintiff must follow the mandates of W.Va. Code § 55-7B-6 before filing a medical negligence complaint against the United States for care rendered at the Veterans Administration Medical Center. See Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009) (“The FTCA does not itself provide for a substantive cause of action. Rather, in assessing FTCA claims, we apply the substantive law of the state where the alleged tort took place....”). W.Va. Code § 55-7B-6 sets out all of the prerequisites for filing a medical negligence claim as follows:

(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.
(b) At least 30 days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. For the purposes of this section, where the medical professional liability claim against a health care facility is premised upon the act or failure to act of agents, servants, employees, or officers of the health care facility, such agents, servants, employees, or officers shall be identified by area of professional practice or role in the health care at issue. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider who:
(1) Is qualified as an expert under the West Virginia rules of evidence;
(2) Meets the requirements of § 55-7B-7(a)(5) and § 55-7B-7(a)(6) of this code; and
(3) Devoted, at the time of medical injury, 60 percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or specialty in an accredited university.
If the health care provider executing the screening certificate of merit meets the qualifications of subdivisions (1), (2), and (3) of this subsection, there shall be a presumption that the health care provider is qualified as an expert for the purpose of executing a screening certificate of merit. The screening certificate of merit shall state with particularity, and include: (A) The basis for the expert's familiarity with the applicable standard of care at issue; (B) the expert's qualifications; (C) the expert's opinion as to how the applicable standard of care was breached; (D) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death; and (E) a list of all medical records and other information reviewed by the expert executing the screening certificate of merit. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The health care provider signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection limits the application of Rule 15 of the Rules of Civil Procedure. No. challenge to the notice of claim may be raised prior to receipt of the notice of claim and the executed screening certificate of merit.
(c) Notwithstanding any provision of this code, if a claimant or his or her counsel believes 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, the claimant or his or her counsel shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit. The statement shall be accompanied by the list of medical records and other information otherwise required to be provided pursuant to subsection (b) of this section.
(d) Except for medical professional liability actions against a nursing home, assisted living facility, their related entities or employees, or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, if a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within 60 days of the date the health care provider receives the notice of claim. The screening certificate of merit shall be accompanied by a list of the medical records otherwise required to be provided pursuant to subsection (b) of this section.
(e) In medical professional liability actions against a nursing home, assisted living facility, their related entities or employees, or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, if a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a ...

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