Davis says med mal wait period is unconstitutional

By Steve Korris | Nov 30, 2006


CHARLESTON – Supreme Court of Appeals Chief Justice Robin Davis believes a law requiring 30 days notice before the filing of a medical malpractice suit violates the West Virginia Constitution, but the other Justices would rather not say what they believe.

Justices Brent Benjamin, Joseph Albright, Spike Maynard and Larry Starcher dodged the constitutional question in a Nov. 9 decision that Benjamin signed.

The four chose to ignore an argument from plaintiff Sarina Davis that the Legislature exceeded its powers by requiring advance notice of a malpractice suit.

They agreed that Circuit Judge John Madden should not have dismissed her suit, but they excused Madden's decision as harmless error.

They invited plaintiff Davis to refile her suit and start over.

Chief Justice Davis wrote in dissent that the 30 day notice encroaches on the Court's constitutional authority to write the rules of litigation.

A week later, three Justices triggered another protest from Davis with an unsigned decision in a Greenbrier County case.

The Nov. 16 decision appeared to uphold the constitutionality of the 30 day notice, but Davis would not let it stand that way as a point of law.

She wrote that the announcement of a new point of law requires a signed opinion, rather than a "per curiam" opinion.

She wrote, "Consequently, it is inappropriate for the per curiam opinion in this case to attempt to constitutionally validate the pre-suit notice requirements, when the Court has expressly declined to address the issue in the authored opinion…"

She called the Nov. 16 opinion gratuitous and unwise.

The Legislature passed the 30 day notice in 2001, as part of the Medical Professional Liability Act. The act sought to restrain increases in malpractice insurance costs.

Under the act, a prospective plaintiff must give each prospective defendant not only 30 days notice but also a certificate of merit outlining a theory of liability.

Upon receiving notice a health care provider may demand mediation before litigation.

Legislators expected that advance notice and certificates of merit would deter frivolous suits and promote mediation and negotiation.

The strategy apparently succeeded, for malpractice insurance rates have stabilized. (See accompanying article.)

Still, the constitutional question lingers.

In the Marshall County case, Sarina Davis sued Mound View Health Care nursing home as administratrix of the estate of her grandmother, Elizabeth Weston.

Weston lived at Mound View, bed ridden, from 1999 to 2003. She died at Reynolds Memorial Hospital after surgery on a fractured femur.

Her granddaughter retained an attorney, who filed suit March 21, 2005. The attorney, however, had not sent 30 day notices or certificates of merit.

The attorney, not identified in the Court record, had not even sent notice of the suit to the nursing home.

In June 2005, the attorney shut down her law practice and transferred the case to Ronald Kasserman of Wheeling.

Kasserman filed an amended complaint and served it on Mound View.

Mound View moved to dismiss for failure to serve a 30 day notice.

Kasserman opposed the motion and asked Judge Madden to declare the 30-day requirement unconstitutional.

Madden declined to address constitutional issues. He granted the motion to dismiss.

His order did not indicate whether he dismissed with prejudice or without it. If he dismissed with prejudice, Sarina Davis could not refile the suit.

Kasserman appealed, still seeking to have the law declared unconstitutional.

Before the Supreme Court of Appeals, Charles Bailey, Robert Martin and Jason Winnell represented the nursing home.

In the majority opinion Benjamin wrote that Madden failed to consider the Court's 2005 decision in Hinchman v. Gillette, holding that the Legislature did not intend to restrict or deny access to the courts.

Benjamin wrote, "Notwithstanding, whatever error the circuit court may have committed in dismissing Appellant's action without undertaking an analysis of the considerations set forth in Hinchman, such possible error is harmless…"

Because Madden did not specify dismissal with prejudice, he wrote, the Court would deem it to be without prejudice and the plaintiff could refile the suit.

He wrote, "In light of this Court's longstanding policy of not addressing the constitutionality of statutes unless necessary for the determination of the case, we decline to address Appellant's constitutional challenge herein."

Chief Justice Davis disagreed, pointing out in dissent that the plaintiff challenged the dismissal on constitutional grounds.

She wrote, "As I stated in Hinchman, the pre-suit requirements of the Act encroach upon this Court's constitutional authority to promulgate procedural rules for litigating in the courts of this state."

Plaintiff Davis can refile the suit, but first she must serve a 30 day notice.

In the Greenbrier County case, Larry Elmore prepared to sue physician John Johnson in 2003 as administrator of the estate of his wife, Dorothy Elmore.

Elmore claimed Johnson failed to diagnose an infection that caused his wife's death in 2002.

Elmore also planned to sue Greenbrier Valley Medical Center and BJSM Med, owner of the clinic that employed Johnson.

On May 30, 2003, Elmore sent 30 day notices to the medical center. A clerk put Johnson's notice in his mailbox.

Johnson received the notice June 4, his next day to work at the medical center.

A few days later, Elmore learned that Johnson did not work at the medical center. Elmore sent another notice to the clinic.

Elmore filed suit June 30, 2003.

Johnson moved to dismiss. He argued that Elmore filed suit 26 days after the notice reached him, instead of 30 days.

In December 2003, Circuit Judge James Rowe granted the motion to dismiss.

Elmore asked Rowe to reconsider, asserting that the clerk who put the notice in Johnson's box acted as his agent.

In 2005 Rowe stuck by his earlier ruling. He wrote that, "…no fact has been presented to or exists before this Court to support an employment, authorized agency relationship or apparent agency relationship..."

Meanwhile, Elmore dropped his claims against the medical center and the clinic.

Last December Elmore appealed Rowe's dismissal. Julie Garvin and Robert Welsh of Charleston represented Elmore before the Supreme Court of Appeals.

Barry Taylor and Max Corley III of Huntington represented Johnson.

The majority's unsigned opinion held that one part of the law starts the 30 day period at the moment of mailing while another part starts it at the moment of receipt.

The majority held that Rowe should have resolved the confusion in Elmore's favor.

They declared that Elmore complied with the plain meaning of the act when he mailed the notices to the medical center.

They wrote, "…we find no reason to penalize Appellant with dismissal of his suit when the record fails to show that Appellant was not acting in good faith…"

They wrote, "There is nothing in the record to suggest – and Appellee does not allege – that Appellant's claim is frivolous or that his actions impeded pre-suit resolution of the claim."

They advised Rowe that if Johnson should ask for mediation in a reasonable time, Rowe should honor the request before proceeding in court.

Their opinion put Chief Justice Davis in the odd position of agreeing and protesting at the same time.

She wrote, "I concur in the judgment, but I respectfully reject the reasoning used by the majority opinion to reach this result."

She wrote that the majority indicated that the notice requirements were valid and outside the scope of the Court's authority.

She wrote that this troubled her because the majority in the Mound View case declined to address the constitutional issue.

She warned against construing Elmore as a decision "on the important issue of whether or not the pre-suit notice requirements are an encroachment on our constitutional authority to promulgate rules of procedure for the trial courts of this state."

She wrote, "I believe the pre-suit notice requirements are unconstitutional. Therefore, I would have reversed this case upon that ground."

The last word will come from Benjamin. He concurred in part and dissented in part, reserving the right to file a separate opinion.

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