Janet Patterson v. Charles L. Wylie, DDS

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Janet Patterson,
Plaintiff Below, Petitioner FILED
October 11, 2019
vs) No. 18-1002 (Marshall County 18-C-151) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Charles L. Wylie, DDS,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Janet Patterson, by counsel David L. Delk, appeals the October 10, 2018, order
of the Circuit Court of Marshall County granting Respondent Charles L. Wylie, DDS’s motion to
dismiss. Respondent, by counsel John R. Merinar Jr., filed a response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

Petitioner was a dental patient of respondent on July 12, 2016, when respondent
performed a bite adjustment on petitioner. Petitioner served a notice of claim on respondent on
June 25, 2018, stating that her claim

is for failure to obtain informed consent from [petitioner] prior to performing a
bite adjustment on her, thereby leading to a multitude of healthcare issues as a
result of this breach of the standard of care. No screening certificate of merit is
required for this claim because the cause of action is based upon a well-
established theory of liability which does not require expert testimony supporting
a breach of the applicable standard of care.

Petitioner filed her complaint against respondent on July 25, 2018, alleging that
respondent performed a bite adjustment on petitioner without petitioner’s knowledge or consent.
She further alleged that following that adjustment she “experienced complications, pain, and
discomfort which resulted in emotional distress, loss of enjoyment and unnecessary and
unwarranted future dental/medical expenses.” Petitioner went on to assert that in providing
dental health care to petitioner, respondent failed to exercise that degree of care, skill, and
learning required or expected of reasonable, prudent health care providers, including that he
deviated from “applicable standards of care . . . .” She alleged that respondent’s fault included

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the failure to obtain petitioner’s informed consent “and by other acts which may be determinable
as more information is obtained.”

Respondent filed a motion to dismiss petitioner’s complaint on August 10, 2018, to
which petitioner submitted a response. The circuit court entered its order granting respondent’s
motion to dismiss on October 10, 2018. In that order, the circuit court determined that the causes
of action in petitioner’s complaint extend beyond the failure of respondent to obtain informed
consent so a screening certificate of merit was required pursuant to West Virginia Code § 55-7B-
6(b). It also found that an expert is needed to describe what breach of the standard of care
resulted in petitioner’s “complications, pain and discomfort.” The circuit court held that it lacked
subject matter jurisdiction over petitioner’s claims so dismissal of the complaint was warranted.
Petitioner appeals from that order.

“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770,
461 S.E.2d 516 (1995). Dismissal of an action filed pursuant to the Medical Professional
Liability Act (“MPLA”) is proper when the plaintiff fails to comply with the MPLA’s pre-suit
screening requirements. See Davis v. Mound View Health Care, Inc., 220 W. Va. 28, 32, 640
S.E.2d 91, 95 (2006) (noting that the mandatory term “shall” is used in West Virginia Code §
55–7B–6).

The circuit court’s dismissal of petitioner’s complaint is due to her failure to file a
screening certificate of merit as required by West Virginia Code § 55-7B-6(b) (2017). In 2018,
the statute provided as follows:

At least thirty days prior to the filing of a medical professional liability action
against a health care provider, the claimant shall serve by certified mail, return
receipt requested, a notice of claim on each health care provider the claimant will
join in litigation. The notice of claim shall include a statement of the theory or
theories of liability upon which a cause of action may be based, and a list of all
health care providers and health care facilities to whom notices of claim are being
sent, together with a screening certificate of merit. The screening certificate of
merit shall be executed under oath by a health care provider qualified as an expert
under the West Virginia Rules of Evidence and shall state with particularity: (1)
The expert’s familiarity with the applicable standard of care in issue; (2) the
expert’s qualifications; (3) the expert’s opinion as to how the applicable standard
of care was breached; and (4) the expert’s opinion as to how the breach of the
applicable standard of care resulted in injury or death. A separate screening
certificate of merit must be provided for each health care provider against whom a
claim is asserted. The person signing the screening certificate of merit shall have
no financial interest in the underlying claim, but may participate as an expert
witness in any judicial proceeding. Nothing in this subsection may be construed to
limit the application of Rule 15 of the Rules of Civil Procedure.

Petitioner argues that she was not required to file a screening certificate of merit because
the claim she pled falls under the exception set forth in West Virginia Code § 55-7B-6(c):

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 Notwithstanding any provision of this code, if a claimant or his or her counsel,
believes that no screening certificate of merit is necessary because the cause of
action is based upon a well-established legal theory of liability which does not
require expert testimony supporting a breach of the applicable standard of care,
the claimant or his or her counsel shall file a statement specifically setting forth
the basis of the alleged liability of the health care provider in lieu of a screening
certificate of merit.

***

As we have previously recognized,

[u]nder W.Va. Code, 55–7B–6 [2003] the purposes of requiring a pre-suit
notice of claim and screening certificate of merit are (1) to prevent the making
and filing of frivolous medical malpractice claims and lawsuits; and (2) to
promote the pre-suit resolution of non-frivolous medical malpractice claims. The
requirement of a pre-suit notice of claim and screening certificate of merit is not
intended to restrict or deny citizens’ access to the courts.

Syl. Pt. 2, Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005).

Petitioner argues that under this Court’s holding in Cline v. Kresa-Reahl, 229 W. Va.
203, 728 S.E.2d 87 (2012), she was not required to provide a screening certificate of merit
because her claim is based upon respondent’s alleged failure to obtain consent from petitioner for
a bite adjustment. As we set forth in Cline,

Significantly, this Court went on to hold [in Cross v. Trapp] that since it was
adopting the patient need standard, expert testimony was not required “to
establish the scope of a physician’s duty to disclose medical information to his or
her patient[.]” Syl. Pt. 5, in part, [Cross v. Trapp, 170 W. Va. 459, 294 S.E.2d 446
(1982)]. However, the Court was very clear that irrespective of the foregoing,

expert medical testimony would ordinarily be required to establish
certain matters including: (1) the risks involved concerning a
particular method of treatment, (2) alternative methods of
treatment, (3) the risks relating to such alternative methods of
treatment and (4) the results likely to occur if the patient remains
untreated.
Syl. Pt. 5, in part, id.(emphasis added).
Cline at 208, 728 S.E.2d at 92.

While petitioner identified her claim in the notice of claim as a failure to obtain consent,
as the circuit court found in its dismissal order, petitioner’s complaint addresses not only a claim
of failure to obtain consent but also claims of medical negligence. Petitioner does not contend

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that the failure to obtain consent resulted in injury or the breach of multiple standards of care.
Instead, she alleges that she sustained physical injury as a result of respondent’s alleged
negligence following his failure to obtain consent for the bite adjustment. Therefore, we find no
error in the circuit court’s grant of respondent’s motion to dismiss petitioner’s complaint based
upon her failure to include a screening certificate of merit.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:
Justice Margaret L. Workman

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