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State ex rel. Primecare Medical of West Virginia, Inc. v. Faircloth

Supreme Court of Appeals of West Virginia

November 12, 2019

STATE OF WEST VIRGINIA EX REL. PRIMECARE MEDICAL OF WEST VIRGINIA, INC., Petitioner
v.
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

         ORIGINAL PROCEEDING IN PROHIBITION

          Mark R. Simonton, Esq. D.C. Offutt, Jr., Esq. Anne Liles O'Hare, Esq. Offutt Nord Ashworth, PLLC Huntington, West Virginia Counsel for the Petitioner

          Paul 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 VIRGINIA

          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

         SYLLABUS BY THE COURT

         1. "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 (1977).

         2. The 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.

         3. "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).

         4. Pursuant to W.Va. Code § 55-7B-6(a) and (b) [2003], 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 litigation.

         5. A 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 [2003].

          ARMSTEAD, JUSTICE.

         The 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 [2003]. 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.

         When 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.

         Based 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 against PrimeCare.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Cody 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.[1]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.

         On 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 and omissions.

         On 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.

         The 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).

         The 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 Jail Authority)

(a) negligently failed to supervise . . . [Officer] Zombro;
(b) negligently failed to properly train . . . [Officer] Zombro;
(c) negligently retained employment of . . . [Officer] Zombro;
(d) negligently fired . . . [Officer] Zombro;
(e) negligently staffed [Eastern Regional Jail];
(f) negligently failed to intervene on [Mr. Grove]'s ...

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