By: Colton J. Koontz
In a recent post,[i] we highlighted the Fourth Circuit’s decision in Pledger v. Lynch, 5 F.4th 511, 520 (4th Cir. 2021). There, the Fourth Circuit held that the notice and certification requirements[ii] of West Virginia’s Medical Professional Liability Act (“MPLA”) are incompatible with the Federal Rules of Civil Procedure and therefore do not apply in federal court. Pledger’s holding sets the federal courts apart from the state courts, where 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.”[iii] Thus, in state court, if a plaintiff files suit but fails to comply with the MPLA’s pre-suit notice and certification requirements the action must be dismissed. Under Pledger, the same case, filed in federal court, will not be dismissed.
The MPLA’s pre-suit notice and certification requirements play integral roles in streamlining medical professional liability claims. The notice requirement compels prospective plaintiffs to notify healthcare providers of their intent to sue, fostering open communication and encouraging pre-litigation settlements. In tandem, the certification requirement mandates that a qualified medical expert thoroughly evaluate the case, issuing a certification of merit only if there is a reasonable probability that the healthcare provider’s actions deviated from the accepted standard of care. Taken together, the MPLA’s notice and certification requirements help facilitate the prompt resolution of medical professional liability claims and ensure that only cases with a reasonable likelihood of malpractice proceed to formal litigation. The Fourth Circuit’s decision to forego these requirements allows unwarranted claims to proceed to litigation without certification and decreases the likelihood of pre-suit settlements, making it more difficult and costly for providers to defend medical professional liability claims filed in federal court.
Fortunately for providers, not all plaintiffs can invoke the jurisdiction of the federal courts. Generally, federal courts obtain subject matter jurisdiction over a case in one of two ways: federal question jurisdiction and diversity jurisdiction. Federal question jurisdiction arises when a case involves a federal law or constitutional issue, granting federal courts the authority to hear and decide matters arising under federal law.[iv] On the other hand, diversity jurisdiction comes into play when the parties involved in a case are from different states, with a minimum amount in controversy.[v] Diversity jurisdiction is intended to avoid local bias and promote fairness by allowing the federal court to act as a neutral forum in which to resolve disputes among residents of different states.
Thus, out-of-state plaintiffs could bring claims against in-state providers in federal court, avoiding the MPLA’s pre-suit notice and certification requirements. Conversely, West Virginia plaintiffs will typically be required to bring medical professional liability claims in state court, where the MPLA’s pre-suit notice and certification requirements continue to apply. If both the plaintiff and the defendant/provider reside in the same state,[vi] there is no diversity jurisdiction, and because medical professional liability claims arise under state law, such claims do not themselves provide federal question jurisdiction.[vii]
In sum, the Fourth Circuit’s decision to disregard the MPLA’s pre-suit notice and certification requirements makes it more difficult and costly for providers to defend medical professional liability claims in federal court. While in-state plaintiffs generally cannot invoke the jurisdiction of the federal courts, out-of-state plaintiffs can, allowing them to avoid the MPLA’s pre-suit notice and certification requirements. Of continued concern is whether the rule applied in Pledger–which disregards state laws that conflict with the federal rules of civil procedure–will extend to other provisions of the MPLA which require plaintiffs to have expert witnesses, status conferences at which the court determines the need for expert testimony, and other measures that govern the litigation of MPLA claims.
[i] C. Koontz. The Fourth Circuit Rejects Pre-Suit Notice and Screening Requirements in Medical Professional Liability Actions. Jackson Kelly, Health Law Monitor, November 28, 2023. (available at https://www.jacksonkelly.com/health-law-monitor-blog/the-fourth-circuit-rejects-pre-suit-notice-and-screening-requirements-in-medical-professional-liability-actions).
[ii] Under 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 (30) days prior to filing a medical professional liability action. W. Va. Code § 55-7B-6(b). 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. Id. 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. Id.
[iii] 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)).
[iv] 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).
[v] 28 U.S.C. § 1332(a) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between–(1) citizens of different States; . . . .”).
[vi] Note, “a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business[.]” 28 U.S.C. § 1332 (emphasis added).
[vii] Federal question jurisdiction may lead to supplemental jurisdiction, allowing the federal court to address related state law claims that are part of the same case or controversy. Thus, in some cases, in-state plaintiffs can invoke federal question jurisdiction by, for example, bringing medical professional liability claims against the United States under the Federal Tort Claims Act. See Pledger, 5 F.4th at 513 (Claims brought against the United States under Federal Tort Claims Act (FTCA) by federal prisoner); 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.”).