One of the most common defenses asserted in motions to dismiss medical malpractice claims is that the plaintiff failed to properly give pre-suit notice of the impending medical professional liability action as required by the West Virginia Medical Professional Liability Act (MPLA). Typically, this argument is premised on a plaintiff’s failure to provide a screening certificate of merit. The failure to provide pre-suit notice has consistently been held in West Virginia to be grounds for dismissal. However, a recent decision in the Fourth Circuit Court of Appeals has changed this when actions premised on violations of the MPLA are brought in federal court.
In Pledger v. Lynch (4th Cir. July 21, 2021), the plaintiff appealed the Northern District Court of West Virginia’s decision that dismissed plaintiff’s claim for failure to comply with the pre-suit notice requirements of the MPLA. On appeal, the Fourth Circuit held that the failure to comply with West Virginias MPLA’s screening certificate of merit requirement was not grounds for dismissal of the plaintiff’s federal-court FTCA action because certificate requirements like West Virginia's did not govern actions in federal court. Specifically, the 4th Circuit found that the screening requirement conflicted with and were supplanted by the Federal Rules of Civil Procedure 8, 11, and 12. The Court reversed the dismissal of the FTCA medical negligence claim remanded the case back to the Northern District Court of West Virginia.
The Southern District Court of West Virginia recently followed this 4th Circuit precedent in Jane Doe #5 v. Raleigh Gen. Hosp., LLC, (S.D. W. Va. Sept. 30, 2021). In Doe #5, the plaintiff instituted her action against the defendants in state court, asserting numerous different state causes of action. After Raleigh General Hospital removed the case to federal court, it moved to dismiss the action because the pre-suit notice letter Plaintiff provided, and later supplemented, was insufficiently specific to meet the MPLA’s notice requirements. While the motion was pending, the decision in Pledger was entered and the Southern District Court made the parties argue whether Pledger applied in their case. Raleigh General Hospital argued that the holding of Pledger did not apply in their case because the Pledger court declined to address the MPLA’s application to analogous supplemental jurisdiction questions and because “the growing consensus that certificate requirements like West Virginia’s do not govern actions in federal court” observed in Pledger only applied to federal question actions. The Court disagreed. The Southern District Court held that the decision in Pledger directly addressed the controversy in the case and that even if the Court found that Doe’s pre-suit notice was insufficient, Pledger would prevent the Court from dismissing the action because the Federal Rules of Civil Procedure exclusively address pleading requirements in federal court.
Thus, the holdings of Pledger and Doe #5 are the death knell for the requirement of needing screening certificates of merit in MPLA claims when the action is filed or removed to federal court. In order to keep this a viable defense, the action must remain in state court.
Article By: Associate Samuel M. Bloom
