W.Va. SC: Error by plaintiff's lawyers cause of suit's dismissal
Jessica M. Karmasek May. 31, 2012, 6:45am
CHARLESTON - The West Virginia Supreme Court of Appeals this week shot down a medical malpractice complaint against a Charleston Area Medical Center neurologist.
The state's high court, in its 24-page decision Tuesday, upheld a Kanawha County Circuit Court's ruling dismissing a complaint by plaintiff Loretta Cline.
Cline alleged that, in part, defendant Dr. Kiren Jean Kresa-Reahl negligently failed to advise Henry Cline of the availability of certain medications to treat his stroke, of which he later died.
Kresa-Reahl was the neurologist on-call at CAMC's emergency room on Feb. 21, 2009, when Henry Cline came in complaining of a headache, one-sided weakness and difficulty speaking.
Prior to filing her complaint, Cline, represented by Richard Lindsay and Matthew Lindsay of Tabor Lindsay and Associates in Charleston, refused to provide a pre-suit screening certificate of merit pursuant to the requirements of the state's Medical Professional Liability Act, or MPLA.
Cline's lawyers asserted her claim fell within the exception to such requirements set forth in state code as an "informed consent" claim.
The circuit court disagreed, finding that the complaint did not state a recognized informed consent claim and, therefore, the plaintiff's failure to provide a screening certificate of merit warranted dismissal without prejudice.
The state Supreme Court said it found "no reversible error" in the lower court's ruling.
"Petitioner had multiple opportunities, both pre- and post-suit to correct her deficient pre-suit compliance, but refused to do so," Justice Margaret Workman wrote for the Court.
Cline's lawyers also were free to re-file the complaint pursuant to the savings statute after complying with the pre-suit requirements of the MPLA, the Court noted.
"While this Court has made clear that the pre-suit requirements should not be used to make suits under the MPLA a 'game of forfeits,' the pre-suit objection procedure was specifically established to give the plaintiff 'an opportunity to address and correct the alleged defects and insufficiencies,'" Workman wrote.
The justice continued, "This Court further noted that 'there would seem to be no sense or utility in allowing amendment of a pre-suit notice and certificate after suit is filed' since its purpose is to avert frivolous claims and promote pre-suit resolution.
"As illustrated above, this Court has been exceedingly protective of a litigant's access to the courts under the MPLA, reversing draconian results which prevented litigation of otherwise meritorious claims; however, commensurately, we have expressly and repeatedly warned litigants to err on the side of caution in complying with the MPLA.
"Therefore, this Court can hardly discern any reversible error when a trial court applies the plain language of the statute and our case law, which application properly results in dismissal, but with no discernible prejudice to the litigant," Workman concluded.