Health Law Monitor
The Fourth Circuit Rejects Pre-Suit Notice and Screening Requirements in Medical Professional Liability Actions
November 28, 2023
By: Colton J. Koontz
West Virginia’s Medical Professional Liability Act (“MPLA”), W. Va. Code § 55-7B-1, et seq., implements tort reform in medical malpractice actions. Pursuant to the MPLA, plaintiffs must serve two documents, a Notice of Claim and Screening Certificate of Merit, on each health care provider they intend to sue at least thirty days prior to filing a medical professional liability action.[1] The Notice of Claim must describe the theory or theories of liability upon which the action will be based and include a list of all health care providers and/or facilities receiving the notice.[2] The Screening Certificate of Merit must (1) be signed by a qualified expert witness, (2) explain how the expert is familiar with the applicable standard of care, (3) describe the expert’s qualifications, (4) provide the expert’s opinion as to how the applicable standard of care was breached (5) provide the expert’s opinion as to how the breach resulted in injury or death to the plaintiff, and (6) list the medical records or other information reviewed by the expert.[3]
The Supreme Court of Appeals of West Virginia has held that “[t]he 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.”[4] In line with this precedent, federal district courts have traditionally required plaintiffs to comply with the pre-suit requirements of the MPLA, or at least make a good faith effort to do so.[5] The Fourth Circuit, however, has recently held that the notice and certification requirements of West Virginia’s MPLA are incompatible with the Federal Rules of Civil Procedure and therefore do not apply in federal court. Pledger v. Lynch, 5 F.4th 511, 520 (4th Cir. 2021).
In Pledger, a federal prisoner brought a medical malpractice action against prison officials under the Federal Tort Claims Act (“FTCA”). Because the MPLA’s liability standards applied to the prisoner’s medical malpractice claims, defendants argued that the prisoner’s action should be dismissed for failing to comply with the pre-suit requirements of the MPLA. While the district court dismissed the prisoner’s medical malpractice claims because he did not provide a Screening Certificate of Merit before filing suit, the Fourth Circuit reversed, applying Shady Grove[6] and holding that the Federal Rules of Civil Procedure superseded the MPLA’s pre-suit notice and certification requirements.
Defendants have since attempted to distinguish Pledger, arguing that its holding is only applicable where medical negligence claims are brought under the FTCA, invoking federal question jurisdiction. See Johnson v. W. Virginia Univ. Bd. of Governors, No. 2:21-CV-00380, 2022 WL 908496, at *13 (S.D.W. Va. Mar. 28, 2022). In Johnson, however, the Southern District of West Virginia rejected this argument, finding it “completely misguided” because it ignored the Shady Grove “analysis supporting the Fourth Circuit's conclusion that the Federal Rules of Civil Procedure supplanted the MPLA's pre-suit requirements in federal court.” The Southern District explained that the tension between the Federal Rules and the MPLA’s pre-suit notice requirements is equally present in diversity cases and does not dematerialize simply because there is no federal question. Id. Accordingly, the court held that “[i]n cases involving medical negligence under the MPLA in federal court, Pledger’s holding is categorical.” Id; see also Norwood v. Jividen, No. 2:20-CV-00299, 2022 WL 4461020, at *7 (S.D.W. Va. Aug. 8, 2022), report and recommendation adopted, No. 2:20-CV-00299, 2022 WL 4453355 (S.D.W. Va. Sept. 23, 2022) (“Although noting that the context of Pledger was a medical malpractice claim brought against federal officials under the Federal Tort Claims Act (“FTCA”), the undersigned believes that the rationale in Pledger extends to all medical malpractice claims brought in federal court.”).
The Fourth Circuit continues to stand by Pledger and has relied on Pledger to hold that the Virginia Medical Malpractice Act's expert certification requirement is also inapplicable in federal court. Nellson v. Doe, No. 21-6206, 2023 WL 3336689, at *6 n. 3 (4th Cir. May 10, 2023) (“After the district court issued its order, however, we held in Pledger that such state-law requirements ‘are inconsistent with the Federal Rules of Civil Procedure, and thus displaced by those rules in federal court.’ 5 F.4th at 513–14. Accordingly, that part of the district court's ruling was in error, and we do not rely on that ground here.”); Dunn v. United States Dep't of Veterans Affs., No. 20-2105, 2022 WL 898037, at *1 (4th Cir. Mar. 28, 2022) (“In light of our recent decision in Pledger . . . we conclude that the district court's dismissal based on the Virginia Medical Malpractice Act's expert certification requirement was erroneous.”).
Thus, while failure to comply with the MPLA’s pre-suit notice requirements can be fatal to plaintiffs’ medical professional liability claims in state court, the federal courts no longer require plaintiffs to provide a Notice of Claim and Screening Certificate of Merit in medical professional liability actions.
[1] W. Va. Code § 55-7B-6(b).
[2] Id.
[3] Id.
[4] Syl. Pt. 2, State ex rel. Charleston Area Med. Ctr., Inc. v. Thompson, 248 W. Va. 352, 888 S.E.2d 852, 854 (2023) (quoting Syl. Pt. 2, State ex rel. PrimeCare Med. of W. Virginia, Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579, 581 (2019)).
[5] See, e.g., Sayre v. United States, No. CIV.A. 2:09-0295, 2009 WL 4825197, at *3 (S.D.W. Va. Dec. 9, 2009) (dismissing complaint without prejudice for failing to provide certificate of merit); Ward v. LiNA Med. USA, Inc., No. 2:20-CV-00334, 2021 WL 45388, at *6 (S.D.W. Va. Jan. 5, 2021) (“The court finds that this was a good faith and reasonable attempt to meet the requirements of the statute. Thus, dismissal based on failure to comply with the pre-suit requirements is unwarranted.”); Giambalvo v. United States, No. 1:11CV14, 2012 WL 984277, at *5 (N.D.W. Va. Mar. 22, 2012) (holding that plaintiff’s failure to file a certificate of merit was procedural rather than substantive, that plaintiff has demonstrated a good faith reasonable effort to comply, and that he should be afforded reasonable opportunity to cure the deficiency).
[6] In Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 421 (2010) the Supreme Court of the United States set forth a two-step framework for federal courts to apply when resolving conflicts between the Federal Rules of Civil Procedure and state law. Under the first step of the Shady Grove analysis, a court must ask if the state law and federal rule answer the same question. Id. at 398. If so, the court moves forward to the second step of the analysis, under which the federal rule controls unless it is ultra vires. Id. at 399.