West Virginia Supreme Court Affirms Another Med Mal Dismissal.The Supreme Court of Appeals of West Virginia issued a Memorandum Decision in Clay v. Ruby Memorial Hospital. This case involved the pre-suit service of the Notice of Claim and Certificate of Merit required by § 55-7B-6(b) of the Medical Professional Liability Act (“MPLA”). Clay was scheduled to undergo a four-vessel coronary artery bypass surgery at Ruby Memorial Hospital. Clay asserted that he suffered various medical injuries due to medical claims of negligence.

While unrepresented by counsel, Clay sent a Notice of Claim to Ruby Memorial Hospital; however, did not provide a pre-suit Certificate of Merit or a statement of intent to do so within sixty days. Ruby Memorial objected to the Notice as insufficient and expressly informed Clay of the pre-suit requirements including a Certificate of Merit under the MPLA.

Clay then sent another Notice (again without a Certificate of Merit) to Ruby Memorial, as well as a treating doctor and the West Virginia University Board of Governors.

Clay, still pro se, filed suit in less than 30 days without serving the Certificate of Merit. The Defendants moved to dismiss.  Clay then obtained counsel, after which the trial court had a hearing on the motions.

The circuit court dismissed the case in its entirety on two grounds: (1) Clay’s failure to provide the requisite Certificate of Merit after being expressly put on notice of that requirement; and (2) the claim was barred by the 2-year statute of limitation because the service of the Notice of Claim tolled the statute “until thirty days after the receipt of

[defendant’s] response to the Notice of Claim” which was March 28, 2016. Since suit was filed on April 6, it was time-barred.

West Virginia Code § 55-7B-6(a) mandates that “no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.” That statute further provides that:

[a]ny health care provider who receives a notice of claim pursuant to the provisions of this section may respond, in writing, to the claimant or his or her counsel within thirty days of receipt of the claim or within thirty days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) of this section. . . .

W. Va. Code § 55-7B-6(e).

Affirming dismissal, the Supreme Court rejected Clay’s claim that he made an excusable error and should be allowed a reasonable time to correct it because he was explicitly advised that such requirement was necessary to proceed in light of the complex medical issues involved. Furthermore, the Court likewise found that the claims were time-barred.

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