STATE OF WEST VIRGINIA EX REL. PRIMECARE MEDICAL OF WEST VIRGINIA, INC., Petitioner
THE HONORABLE LAURA V. FAIRCLOTH, JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY; THE ESTATE OF CODY LAWRENCE GROVE; JOSHUA DAVID ZOMBRO; and THE WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, Respondents
Submitted: September 4, 2019
PROCEEDING IN PROHIBITION
R. Simonton, Esq. D.C. Offutt, Jr., Esq. Anne Liles
O'Hare, Esq. Offutt Nord Ashworth, PLLC Huntington, West
Virginia Counsel for the Petitioner
G. Taylor, Esq. Law Office of Paul G. Taylor Martinsburg,
West Virginia Counsel for the Respondent Estate of Cody
Lawrence Grove FILED November 12, 2019 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST
Michael W. Taylor, Esq. James W. Marshall III, Esq. Bailey
& Wyant, PLLC Charleston, West Virginia Counsel for the
Respondent Joshua David Zombro
Anthony J. Delligatti, Esq. Matthew R. Whitler, Esq. Pullin,
Fowler, Flanagan, Brown & Poe, PLLC Martinsburg, West
Virginia Counsel for the Respondent West Virginia Regional
Jail and Correctional Facility Authority
BY THE COURT
"A writ of prohibition will not issue to prevent a
simple abuse of discretion by a trial court. It will only
issue where the trial court has no jurisdiction or having
such jurisdiction exceeds its legitimate powers. W.Va.
Code, 53-1-1." Syl. Pt. 2, State ex rel.
Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425
pre-suit notice requirements contained in the West Virginia
Medical Professional Liability Act are jurisdictional, and
failure to provide such notice deprives a circuit court of
subject matter jurisdiction.
"Where . . . 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, in part, Blankenship v. Ethicon, Inc., 221 W.Va.
700, 656 S.E.2d 451 (2007).
Pursuant to W.Va. Code § 55-7B-6(a) and (b) , no
person may file a medical professional liability action
against any health care provider unless, at least thirty days
prior to the filing of the action, he or she has served, by
certified mail, return receipt requested, a notice of claim
on each health care provider the claimant will join in the
circuit court has no authority to suspend the West Virginia
Medical Professional Liability Act's pre-suit notice
requirements and allow a claimant to serve notice after the
claimant has filed suit. To do so would amount to a judicial
repeal of W.Va. Code § 55-7B-6 .
West Virginia Medical Professional Liability Act (the
"MPLA") says that no person may
file a medical professional liability action against a health
care provider unless he or she first serves a notice of claim
on every health care provider that he or she will join in the
action. W.Va. Code § 55-7B-6 . The Respondent
Estate of Cody Lawrence Grove (the
"Estate") sued the Respondent
Joshua David Zombro ("Officer
Zombro") and the Respondent West Virginia
Regional Jail and Correctional Facility Authority (the
"Regional Jail Authority") in the
Circuit Court of Berkeley County. Later, the Estate amended
its complaint to join the Petitioner, PrimeCare Medical of
West Virginia, Inc., ("PrimeCare")
as a defendant. PrimeCare is a health care provider, and the
amended complaint charges PrimeCare with medical professional
liability. Yet the Estate did not serve a notice of claim
before it filed the amended complaint.
PrimeCare moved to dismiss the amended complaint, the circuit
court, instructed the Estate to serve notice under the MPLA.
After a purported notice was served, the circuit court denied
the motion to dismiss.
on the record before us, the arguments of the parties, and
the applicable law, we find that the circuit court erred by
failing to dismiss the Estate's claims against PrimeCare
for lack of subject matter jurisdiction. Accordingly, we
grant the writ of prohibition and vacate the circuit
court's order denying PrimeCare's motion to dismiss.
We further remand this case to the circuit court and direct
it to enter an order dismissing the Estate's claims
FACTUAL AND PROCEDURAL BACKGROUND
Grove committed suicide on December 8, 2015, at the Eastern
Regional Jail and Corrections Facility ("Eastern
Regional Jail") where he was an inmate. At the
time, Officer Zombro was a correctional officer at Eastern
Regional Jail, and the Regional Jail Authority was
responsible for the jail's operation and
management.According to the Estate, Mr. Grove was able
to commit suicide because Officer Zombro failed to conduct
one or more "safety checks" on Mr. Grove.
December 7, 2017-one day short of two years after Mr.
Grove's suicide-the Estate sued Officer Zombro and the
Regional Jail Authority in the circuit court of Berkeley
County. The Estate sought damages for (1) deprivation of
state constitutional rights, (2) negligent supervision, (3)
negligent training and retention, (4) negligent and
intentional infliction of emotional distress, (5) general
negligence, and (6) wrongful death. The Estate also asked the
court to enjoin the Regional Jail Authority from similar acts
March 14, 2018, the Estate moved to amend the complaint to
add PrimeCare as a defendant. The circuit court granted the
motion to amend on April 25, 2018, and the Estate filed an
amended complaint on May 10, 2018.
amended complaint asserts the same six causes of action and
requests the same injunctive relief. It is sometimes
difficult to discern which allegations apply to PrimeCare,
because the amended complaint rarely accuses PrimeCare by
name. Indeed, most allegations simply charge
"Defendants" with doing one thing or failing to do
another. The amended complaint, for instance, alleges that
"because of Cody Grove's prior incarcerations at the
[Eastern Regional Jail], Defendants knew or should
have known Cody Grove was addicted to heroin and a possible
suicide risk" (emphasis added).
amended complaint specifically alleges that PrimeCare
"provided medical screening and monitoring of Eastern
Regional Jail inmates on behalf of, and in concert
with," the Regional Jail Authority. Elsewhere the
amended complaint alleges that PrimeCare (and the Regional
(a) negligently failed to supervise . . . [Officer] Zombro;
(b) negligently failed to properly train . . . [Officer]
(c) negligently retained employment of . . . [Officer]
(d) negligently fired . . . [Officer] Zombro;
(e) negligently staffed [Eastern Regional Jail];
(f) negligently failed to intervene on [Mr. Grove]'s