State of West Virginia ex rel. West Virginia University Hospitals, Inc. v. The Honorable Cindy S. Scott, Judge of the Circuit Court of Monongalia County, West Virginia

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

SEPTEMBER 2021 TERM
FILED
November 22, 2021
released at 3:00 p.m.
No. 21-0230 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

STATE OF WEST VIRGINIA, EX REL.
WEST VIRGINIA UNIVERSITY HOSPITALS, INC.,
Petitioner,

V.

THE HONORABLE CINDY S. SCOTT,
JUDGE OF THE CIRCUIT COURT OF
MONONGALIA COUNTY, WEST VIRGINIA, AND
A.F., A MINOR, BY AND THROUGH HER NEXT FRIENDS,
SARAH F. AND DANIEL F., INDIVIDUALLY
Respondents.

________________________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED AS MOULDED
_________________________________________________________

Submitted: October 6, 2021
Filed: November 22, 2021

Christine S. Vaglienti Michael G. Simon
Assistant VP/Senior Litigation Counsel Kevin M. Pearl
West Virginia United Health Frankovitch, Anetakis, Simon, Decapio
System, Inc. & Pearl, LLC
Morgantown, West Virginia Weirton, West Virginia
Attorney for Petitioner Alan H. Perer
Swensen & Perer
Pittsburgh, Pennsylvania
Attorneys for Respondents,
A.F., Sarah F., and Daniel F.
Thomas J. Hurney, Jr.
Blair E. Wessels
Jackson Kelly PLLC
Charleston, West Virginia
Attorneys for Amici Curiae,
The West Virginia Hospital Association,
The West Virginia Mutual Insurance
Company, a Magmutual Company, and
The West Virginia State Medical
Association

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WOOTON concurs, in part, and dissents, in part, and reserves the right
to file a separate opinion.
 SYLLABUS BY THE COURT

1. “A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syllabus

point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

2. “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1997).

i
 3. “The 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.” Syllabus point 2, State ex rel.

PrimeCare Medical of West Virginia, Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579

(2019).

4. “Ordinarily the denial of a motion for failure to state a claim upon

which relief can be granted made pursuant to West Virginia Rules of Civil Procedure

12(b)(6) is interlocutory and is, therefore, not immediately appealable.” Syllabus point 2,

State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995).

5. “The failure to plead a claim as governed by the Medical Professional

Liability Act, W. Va. Code § 55-7B-1, et seq., does not preclude application of the Act.

Where the alleged tortious acts or omissions are committed by a health care provider within

the context of the rendering of ‘health care’ as defined by W. Va. Code § 55-7B-2(e) (2006)

(Supp. 2007), the Act applies regardless of how the claims have been pled.” Syllabus point

4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007).

6. “Under W. Va. Code, 58-5-1 (1925), appeals only may be taken from

final decisions of a circuit court. A case is final only when it terminates the litigation

between the parties on the merits of the case and leaves nothing to be done but to enforce
ii
by execution what has been determined.” Syllabus point 3, James M.B. v. Carolyn M., 193

W. Va. 289, 456 S.E.2d 16 (1995).

iii
Jenkins, Chief Justice:

This case was brought as a writ of prohibition under the original jurisdiction

of this Court by Petitioner West Virginia University Hospitals, Inc. (“WVUH”). The

Respondents, A.F. and Sarah F. and Daniel F., individually and as next friends of A.F.,

(“Respondents”), filed their original complaint in April of 2020, in which they put forth

multiple causes of action including medical negligence, loss of services and parental loss

of consortium, and corporate negligence stemming from the hands-on nursing care and

treatment of their child, A.F. In response, WVUH filed a combined answer and petition

for declaratory judgment (hereinafter “petition for declaratory judgment”) in which it asked

the Circuit Court of Monongalia County to declare that the West Virginia Medical

Professional Liability Act, West Virginia Code sections 55-7B-1 to -12 (“MPLA”), applies

to the corporate negligence allegations asserted by Respondents in the original complaint.

Before the circuit court ruled on the petition for declaratory judgment,

Respondents filed an amended complaint in which several new corporate negligence claims

against WVUH were added; however, Respondents did not fulfill the pre-suit notice

requirements of the MPLA. In response, WVUH filed a motion to dismiss and strike the

amended complaint (hereinafter “motion to dismiss”) with regard to the newly added

claims. After a hearing was held on the petition for declaratory judgment and the motion

to dismiss, the circuit court denied both.

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 Before this Court, WVUH challenges the circuit court’s rulings and contends

that the circuit court committed clear legal error by: (1) denying the motion to dismiss

because the Respondents failed to comply with the pre-suit notice requirements of the

MPLA, and, therefore, the circuit court was deprived of subject matter jurisdiction;

(2) denying the motion to dismiss because the complaint otherwise fails to state claims

upon which relief can be granted; and (3) withholding declaratory judgment regarding the

MPLA’s applicability to the corporate negligence claims.

Having considered the briefs submitted on appeal, the appendix record, the

parties’ oral arguments, and the applicable legal authority, we conclude that the circuit

court was devoid of subject matter jurisdiction over the claims of corporate negligence

added in the amended complaint due to Respondents’ failure to comply with the pre-suit

notice requirements of the MPLA for these claims. Moreover, we conclude that litigation

of the claims of corporate negligence that were first asserted in the original complaint, for

which the pre-suit notice requirements were satisfied, are governed by the MPLA.

Accordingly, we grant the requested writ of prohibition as moulded. 1

1
We wish to acknowledge the appearance of Amici Curiae the West Virginia
Hospital Association, the West Virginia Mutual Insurance Company, and the West Virginia
State Medical Association, and to express our appreciation for their brief in support of the
position espoused by West Virginia University Hospitals, Inc., herein. We have considered
their arguments and brief in our decision of this case.
2
 I.

FACTUAL AND PROCEDURAL HISTORY

In October of 2017, Respondent Sarah F. presented to Ruby Memorial

Hospital in Morgantown, West Virginia, to give birth to twins. Eleven hours after the birth,

it is alleged that one of the twins, A.F., was introduced to air bubbles through intravenous

equipment. The air bubbles went into A.F.’s blood stream and were delivered to her liver,

heart, and brain. It is asserted by the Respondents that this unfortunate event was caused

when a WVUH-employed nurse failed to properly prime the intravenous tubing, pump,

and/or equipment and therefore negligently allowed for the introduction of air bubbles into

A.F.’s intravenous tubing. Now, according to Respondents, A.F. is neurologically

impaired and requires twenty-four-hour care.

In November of 2019, Respondents served WVUH with a pre-suit notice of

claim and screening certificate of merit in accordance with the pre-suit notice requirements

of the MPLA. WVUH demanded pre-suit mediation, which ultimately was unsuccessful.

As such, the original complaint was filed in Monongalia County on April 6, 2020. In

response, WVUH filed an answer and petition for declaratory judgment. In its petition,

WVUH asked the circuit court to declare that the MPLA is applicable to the allegations

asserted by Respondents in Count II (corporate negligence) of the original complaint.

Before the circuit court could rule on the petition for declaratory judgment,

Respondents filed an amended complaint adding several new corporate negligence
3
claims—failure to purchase and utilize, failure to document, spoliation of evidence, and

failure to report—against WVUH. However, Respondents did not file any new notice of

claim or certificate of merit as required by the MPLA. See W. Va. Code § 55-7B-6 (eff.

2019). In response, WVUH filed a motion to dismiss with specific regard to the new claims

added to Count II (corporate negligence). A few months later, a hearing was held on the

petition for declaratory judgment and the motion to dismiss. From the bench, and without

explanation, the circuit court denied both. After being asked by WVUH for findings of

fact and conclusions of law, the court issued a new order. It is from this order that WVUH

seeks relief.

II.

STANDARD FOR ISSUANCE OF WRIT

This Court has explained the standard of review applicable to a writ of

prohibition, stating in Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160 W. Va.

314, 233 S.E.2d 425 (1977), that “[a] writ of prohibition will not issue to prevent a simple

abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction

or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Further,

this Court will grant writs of prohibition

to correct only substantial, clear-cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common
law mandate which may be resolved independently of any
disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error
is not corrected in advance.

4
Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by

statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va.

564, 759 S.E.2d 795 (2014).

When considering a writ of prohibition, this Court is guided by the following:

In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). “In

determining the third factor, the existence of clear error as a matter of law, we will employ

a de novo standard of review, as in matters in which purely legal issues are at issue.” State

ex rel. Gessler v. Mazzone, 212 W.Va. 368, 372, 572 S.E.2d 891, 895 (2002). With these

standards in mind, we now examine WVUH’s request for a writ of prohibition.

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 III.

DISCUSSION

In the case sub judice, WVUH has alleged that the circuit court committed

numerous errors. Accordingly, we will review each alleged error in turn.

A. Motion to Dismiss the Additional Corporate Negligence Claims
in Respondents’ Amended Complaint

WVUH’s primary contention is that the Circuit Court of Monongalia County

exceeded its legitimate powers and committed clear legal error in denying its motion to

dismiss the amended complaint. WVUH argues that the motion to dismiss should have

been granted because Respondents failed to comply with the pre-suit notice requirements

of the MPLA, thereby depriving the circuit court of subject matter jurisdiction. In

particular, WVUH argues that the new claims set forth in Respondents’ amended

complaint—failure to purchase and utilize, failure to document, failure to report, and

spoliation of evidence—are inherently governed by the MPLA because the allegedly

negligent acts and omissions occurred within the context of WVUH rendering health care

services. As such, the circuit court was deprived of subject matter jurisdiction when

Respondents filed an amended complaint without providing a notice of claim and screening

certificate of merit in accordance with West Virginia Code section 55-7B-6.

Respondents disagree with the position advocated by WVUH and emphasize

that the alleged corporate decisions and conduct at issue in the amended complaint do not

6
constitute health care services, but rather, are corporate-level decisions unrelated to the

patient’s plan of care. Respondents rely on this Court’s decision in Manor Care, Inc. v.

Douglas, 234 W. Va. 57, 763 S.E.2d 73 (2014), to support their argument that whether a

claim is subject to the MPLA is a fact-intensive query, and that, here, WVUH glosses over

the alleged facts and summarily asserts that the MPLA applies when health care services

are an integral part of the lawsuit, regardless of how the causes of action are characterized.

Specifically, Respondents contend that because the additional causes of action pertain to

non-medical conduct made at the corporate level, they are not subsumed by the MPLA or

its pre-suit notice requirements. Therefore, Respondents maintain that the circuit court had

subject matter jurisdiction and was correct in denying the motion to dismiss.

The MPLA specifically provides that “no person may file a medical

professional liability action against any health care provider without complying with the

provisions of [W. Va. Code § 55-7B-6].” W. Va. Code § 55-7B-6(a). Further, West

Virginia Code section 55-7B-6(b) requires:

At least 30 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. For the purposes of this section, where the medical
professional liability claim against a health care facility is
premised upon the act or failure to act of agents, servants,
employees, or officers of the health care facility, such agents,
servants, employees, or officers shall be identified by area of
professional practice or role in the health care at issue. 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

7
 to whom notices of claim are being sent, together with a
screening certificate of merit.

(Emphasis added).

This Court has held that “[t]he pre-suit notice requirements contained in the

West Virginia Medical Professional Liability Act are jurisdictional and that failure to

provide such notice deprives a circuit court of subject matter jurisdiction.” Syl. pt. 2, State

ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579

(2019). When jurisdictional challenges are raised, we “must determine . . . whether it is

jurisdictional in the sense of requiring a decision upon facts or a decision upon a pure

question of law.” Lewis v. Fisher, 114 W. Va. 151, 154-55, 171 S.E. 106-07 (1933). “If it

rests upon a determination of fact, prohibition will not lie. If it rests upon the determination

of a question of law, prohibition will lie if the trial court has exceeded its jurisdiction or

usurped a jurisdiction that in law does not exist.” Id. at 155, 171 S.E. at 107.

As noted above, the MPLA instructs that, “no person may file a medical

professional liability action against any health care provided without” submitting the

required pre-suit notice. See W. Va. Code § 55-7B-6(a). WVUH asserts that all of the

Respondents’ causes of action in the amended complaint amount to “health care.” The

Respondents deny this, contending in their brief that the additional causes of action added

in the amended complaint are “corporate-level decisions” and “do not constitute health-

care services rendered by a medical provider.”

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 According to the 2017 version of the MPLA promulgated by the Legislature,

West Virginia Code section 55-7B-2(e) (eff. 2017) defines “health care” as

(1) Any act, service or treatment provided under, pursuant to
or in the furtherance of a physician’s plan of care, a health care
facility’s plan of care, medical diagnosis or treatment;

(2) Any act, service or treatment performed or furnished, or
which should have been performed or furnished, by any health
care provider or person supervised by or acting under the
direction of a health care provider or licensed professional for,
to or on behalf of a patient during the patient’s medical care,
treatment or confinement, including, but not limited to,
staffing, medical transport, custodial care or basic care,
infection control, poisoning, hydration, nutrition and similar
patient services; and

(3) The process employed by health care providers and health
care facilities for the appointment, employment contracting,
credentialing, privileging and supervision of health care
providers.

The aforementioned definition was amended to its current form in 2015,

following this Court’s decision in Manor Care, Inc. v. Douglas, 234 W. Va. 57, 763 S.E.2d

73 (2014). The Legislature amended the MPLA by broadening several statutory

definitions, including “health care.” Essentially, in Manor Care, the plaintiff alleged that

certain decisions made at the long-term care facility, such as failure to allocate a proper

budget to allow the long-term care facility to function properly and maintain adequate

staff, were not based on health care services rendered, or which should have been

rendered, and, therefore, constituted “ordinary” or “corporate” negligence rather than

“medical negligence.” Id. at 74, 763 S.E.2d at 90. The circuit court instructed the jury to

9
allocate its negligence award between “ordinary” or “corporate” negligence and “medical

negligence.” Id. On appeal, this Court upheld the circuit court’s allowance and affirmed

the application of the MPLA to only the claims resulting from the death or injury of a

person for any tort or breach of contract based on “health care” services rendered, or which

should have been rendered. Id. at 75, 763 S.E.2d at 91. This Court found that the MPLA

did not apply to other claims that may have been contemporaneous to or related to the

alleged act of medical professional liability. Id. [omitted sentences]

As stated above, Respondents rely on this Court’s decision in Manor Care to

support their contention that the new causes of action in the amended complaint fall outside

of the definition of “health care,” and therefore are not subject to the pre-suit notice

requirements of the MPLA. We disagree. While Respondents offer conclusory assertions

that the new causes of action at issue are corporate decisions, Respondents fail to address

the major changes made to the MPLA since the opinion in Manor Care was filed in 2014. 2

2
In finding that the MPLA did not provide the exclusive remedy for the
petitioner’s negligence claims in Manor Care, Inc. v. Douglas, 234 W. Va. 57, 763 S.E.2d
73 (2014), the Court concluded that “[c]laims related to business decisions, such as proper
budgeting and staffing . . . do not fall within that [MPLA] statutory scheme.” Id. at 75, 763
S.E.2d at 91. Further, in our discussion of whether the MPLA was applicable to petitioner’s
claims, the Court relied heavily on Syllabus point 3 of Boggs v. Camden-Clark Memorial
Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917 (2004), holding modified by Gray v.
Mena, 218 W. Va. 564, 625 S.E.2d 326 (2005). In Syllabus point 3 of Boggs, we held:
The West Virginia Medical Professional Liability Act,
codified at W. Va. Code § 55-7B-1 et seq., applies only to
claims resulting from the death or injury of a person for any
tort or breach of contract based on health care services
rendered, or which should have been rendered, by a
10
Rather, Respondents attempt to draw comparisons between the conduct at issue in the case

sub judice and the conduct at issue in Manor Care, without any consideration of the

legislative changes that have taken place in the seven years since Manor Care.

Resolution of this matter thus requires us to analyze the current and prior

versions of the MPLA. Therefore, our decision of this case is guided by the rules of

statutory construction. When examining a statute to determine its meaning, this Court has

held that “[t]he primary object in construing a statute is to ascertain and give effect to the

intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va.

108, 219 S.E.2d 361 (1975). Further, “[a] statutory provision which is clear and

unambiguous and plainly expresses the legislative intent will not be interpreted by the

courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877,

65 S.E.2d 488 (1951).

health care provider or health care facility to a patient. It does
not apply to other claims that may be contemporaneous to or
related to the alleged act of medical professional liability.
As we noted in State ex rel. PrimeCare Medical of West Virginia, Inc. v.
Faircloth, 242 W. Va. 335, 342 n. 18, 835 S.E.2d 579, 586 n. 18 (2019), “[t]his holding
was based on a prior version of the statute and is no longer correct.” Likewise, because
this Court’s decision in Manor Care was also based on a prior version of the MPLA, we
find that parts of the Manor Care analysis pertaining to the MPLA have been superseded
by statute and are no longer correct statements of the law regarding the scope and
application of the MPLA.

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 Prior to the 2015 amendments, the MPLA defined “health care” as “any act

or treatment performed or furnished, or which should have been performed or furnished,

by any health care provider for, to or on behalf of a patient during the patient’s medical

care, treatment or confinement.” W. Va. Code § 55-7B-2(e) (eff. 2006). This was the

definition in effect when this Court issued the Manor Care decision in 2014. However, in

2015, the Legislature expanded the definition of “health care” to include “[a]ny act, service

or treatment provided under, pursuant to or in the furtherance of a physician’s plan of care,

a health care facility’s plan of care, medical diagnosis or treatment.” W. Va. Code § 55-

7B-2(e)(1) (eff. 2015). The 2015 amendments also expanded the definition of “medical

professional liability.” The prior definition of “medical professional liability” was “any

liability for damages resulting from the death or injury of a person for any tort or breach of

contract based on health care services rendered, or which should have been rendered, by a

health care provider or health care facility to a patient.” W. Va. Code § 55-7B-2(i) (eff.

2006). The 2015 amendment added the following sentence to the definition of “medical

professional liability”: “It also means other claims that may be contemporaneous to or

related to the alleged tort or breach of contract or otherwise provided, all in the context of

rendering health care services.” W. Va. Code § 55-7B-2(i) (eff. 2015) (emphasis added).

This addition to “medical professional liability” combined with the broadened definition

of “health care,” expanded what services, and therefore what claims, are included in the

definition of “medical professional liability.” All of these changes illustrate the

Legislature’s intent for the MPLA to broadly apply to services encompassing patient

care—not just the care itself.

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 Here, Respondents’ amended complaint alleged multiple corporate

negligence causes of action on the part of WVUH stemming from a “corporate-level

decision to forgo installation of industry-recommended air filters on all of its pediatric PIV

systems.” (Emphasis in original). In making this argument under a corporate negligence

classification, and not a claim under the MPLA, Respondents maintain that the additional

causes of action arise from a purchasing decision by a corporate employee or entity and

not a decision involving medical judgment or skill. Once again, we disagree. Upon an

appropriate reading of the MPLA, it is clear that the plain language of the MPLA applies

to the corporate negligence claims.

At first glance it may appear that Respondents’ causes of actions are not

grounded in medical negligence; however, one would be remiss to ignore the legislative

pathway of the MPLA. As stated above, “medical professional liability” no longer

encompasses only health care services rendered or that should have been rendered. It also

includes “other claims that may be contemporaneous to or related to the alleged tort or

breach of contract or otherwise provided, all in the context of rendering health care

services.” W. Va. Code § 55-7B-2(i) (emphasis added).

Finding that the MPLA does not apply to Respondents’ corporate negligence

claims would be contrary to the Legislature’s intent in enacting—and amending—the

MPLA, and it would also be contrary to this Court’s prior holdings. See, e.g., Syl. pt. 4,

Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007) (“The failure to plead

13
a claim as governed by the Medical Professional Liability Act, W. Va. Code § 55-7B-1, et

seq., does not preclude application of the Act. Where the alleged tortious acts or omissions

are committed by a health care provider within the context of the rendering of ‘health care’

as defined by W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies regardless

of how the claims have been pled.”). Accord Minnich v. MedExpress Urgent Care, 238

W. Va. 533, 796 S.E.2d 642 (2017); Gray v. Mena, 218 W. Va. 564, 625 S.E.2d 326

(2005).

It goes without saying that Respondents cannot avoid the MPLA with

creative pleading. The corporate negligence claims in Respondents’ original complaint

squarely fall within the MPLA’s definitions because they relate to acts performed by health

care providers, or persons supervised by health care providers or licensed professionals,

regarding staffing. See W. Va. Code § 55-7B-2(e)(2). Then, in the amended complaint,

Count II (corporate negligence) was amended to add the following claims:

h. The Defendant failed to purchase and utilize air filters for
its pediatric PIV (peripheral intravenous systems), which
would have prevented the air embolism that resulted in the
catastrophic injuries to [minor child] on October 12, 2017.
Said air filters have been recommended and widely used for
years prior to October 12, 2017. Defendant made a
corporate purchasing decision not to purchase and equip all
pediatric PIV systems in the NICU with these potentially
lifesaving devices. Defendant’s failure to purchase and
utilize said filters negligently exposed all minor patients in
the NICU, including the minor Plaintiff herein, to
unnecessary and preventable risks;
i. Defendant’s medical record, including the minor Plaintiff’s
discharge summary, misrepresented the diagnosis and

14
 cause of the minor Plaintiff’s cardiac arrest and subsequent
injuries by failing to identify the iatrogenic air embolism as
the cause of the minor Plaintiff’s cardiac arrest and
subsequent injuries. The corporate policy of not requiring
a discharge summary to include the iatrogenic air embolism
in the patient’s diagnosis is negligent. Failure to include
the iatrogenic “never event” in a discharge summary likely
impacts the regulatory status of the hospital; possible
financials and fundraising, including reimbursement of
hospital charges; liability costs; and the quality of patient
care, including patients such as minor Plaintiff herein;
j. Defendant hospital committed spoliation of the peripheral
line tubing that was used at the time of the infusion which
resulted in the air embolism. Pursuant to the Defendant’s
Medical Device Incident Reporting Program, the device in
use at the time of the injury is to be labeled and maintained
by the Biomedical Engineering Department. The
Defendant failed to properly train its providers of the policy
or enforce the policy. Moreover, all devices involved in the
Sentinel Event need to be maintained for inspection and
testing. As a result of the spoliation of the tubing, the
integrity of the tubing, and other pertinent information
relative to the cause of the air embolism is not accessible to
the Plaintiffs;
k. It is believed and therefore averred that the Defendant
hospital failed to report any Sentinel Event to regulatory
bodies, including the Joint Commission and/or the West
Virginia Department of Health and Human Resources. The
lack of reporting to regulatory agencies reduces the
likelihood of regulatory investigations, remedial
requirements, and has a direct effect on the quality of care,
including the quality of care provided to the minor Plaintiff.

Respondents’ Amended Compl., at ¶¶ h-k. Respondents contend that the additional

allegations in their amended complaint “state[] claims against [WVUH] for its own

corporate conduct and decisions, separate from the individualized health care provided to

[the minor child].” However, upon our inquiry in the case sub judice, we simply cannot

15
accept Respondents’ attempt to frame the aforementioned allegations as being unrelated to

the provision of health care services.

As stated above, understanding the amendments to the MPLA and the

changing landscape of medical malpractice cases is significant to the resolution of this case.

Now, when a complaint contains a cause of action that meets the definition of “health care”

under West Virginia Code section 55-7B-2(e), claims that are either “related to” or

“contemporaneous to” the medical injury being asserted, “all in the context of rendering

health care services,” meet the definition, and are encompassed in “medical professional

liability” as it is defined in West Virginia Code section 55-7B-2(i). The “health care” claim

is the “anchor;” it gets you in the door of MPLA application to allow for inclusion of claims

that are “contemporaneous to or related to” that claim, but still must be in the overall

context of rendering health care services. It is not a broad stroke application that because

a claim is contemporaneous to or related to health care that it falls under the MPLA. To

put a finer point on it, you must have the anchor claim (fitting the definition of “health

care”) and then make the showing that the ancillary claims are (1) contemporaneous with

or related to that anchor claim; and (2) despite being ancillary, are still in the context of

rendering health care.

In the instant case, we find that each of Respondents’ new claims, as pled in

their amended complaint, is either an anchor claim or an ancillary claim that falls within

the context of rendering health care. Upon review of the amended complaint, it is clear

16
that the Respondents accuse WVUH of negligence arising from the medical care and

treatment of the minor child. In particular, Respondents blame WVUH—an undisputed

health care provider—for causing injury to their child by (1) failing to purchase and utilize

air filters, (2) failing to document certain diagnoses in the patient’s medical record, (3)

committing spoliation of the line tubing, and (4) failing to report an alleged Sentinel Event.

Here, although characterized as corporate negligence, Respondents’ entire amended

complaint arises from and is factually related to the medical care and treatment provided

to the minor child by WVUH—the anchor health care claim. But, as noted, simply because

an ancillary claim can be related to the underlying claim does not mean that it necessarily

arises “in the context of rendering health care.” Examining each of these claims in turn,

we conclude that they are either “health care” or “in the context of rendering health care”

insofar as they are pled that way.

We recognize that to be governed by the MPLA, contemporaneous or related

claims must still be grounded “in the context of rendering health care services.” Because

the additional corporate negligence claims set forth in the amended complaint are based on

the health care provided to the minor child—the core basis of the amended complaint—we

conclude that the MPLA applies to those additional corporate claims.

1. Failure to Purchase and Utilize. Respondents’ first new allegation

is that WVUH failed to purchase and utilize air filters for its pediatric PIV systems, which

would have allegedly prevented the air embolism that resulted in injuries to the minor child.

17
While failure to equip the PIV machines with air filters might have been a corporate

decision, it is nonetheless one made in contemplation that the machine either needed one

or did not to properly function in rendering care to patients. We conclude, therefore, that

the decision to purchase medical equipment and whether that decision had an ultimate

effect on the care and treatment of a patient is a claim that inherently arises in “the context

of rendering health care.” This claim falls well within “the context of rendering health

care” because its adjudication requires expert testimony that the failure to use an air filter

was required by the standard of care, below the standard of care, and caused the injury.

2. Failure to Document. The second additional corporate negligence

allegation is that WVUH failed to properly document the minor child’s cause of injuries in

the discharge summary. While documentation may not appear to be “health care” in a

traditional sense of the word, it does implicate the provision of “health care” under the

amended MPLA. It is not an ancillary claim, but an anchor “health care” claim in and of

itself. Deciding what to document—or what not to document—in a patient’s medical

record is a decision solely in the purview of physician, nurse, or other medical professional

providing care to a patient. The medical record is then used in addressing further needs of

the patient, and in developing a treatment plan. As pled, this claim implicates the definition

of health care because it takes issue with the way the physician “misrepresented” the

diagnosis or should have made additional conclusions (i.e., the cause). Like the purchase

of air filters, this claim implicates a medical professional inquiry insofar as those

allegations assume the cause of the cardiac arrest and subsequent injuries, and the same

18
must be proven to prevail on this claim. That does not change simply because a “corporate

policy” is invoked. As such, we find that the decision and discretion involved in preparing

a discharge summary is squarely a “health care” claim.

3. Spoliation of Evidence and Failure to Report. The next allegations

are that (1) WVUH committed spoliation of the peripheral line tubing that was used at the

time of the infusion; and (2) WVUH failed to report a Sentinel Event. We conclude they

are ancillary claims that, as pled, are in the context of rendering health care. Respondent

averred to the circuit court in seeking leave to amend its complaint that all of the claims

added in the amended complaint fall under the umbrella of the “corporate negligence”

Count II in the original complaint.

The failure to report to the Joint Commission and the West Virginia

Department of Health and Human Resources implicates a purported duty owed to a third-

party to report sentinel events to allow for appropriate oversight and investigation into the

provision of health care to facilitate quality health care, and the allegation that WVUH

failed in executing that duty to a third-party. Specifically, the amended complaint states:

[i]t is believed and therefore averred that the Defendant
hospital failed to report any Sentinel Event to regulatory
bodies, including the Joint Commission and/or the West
Virginia Department of Health and Human Resources. The
lack of reporting to regulatory agencies reduces the likelihood
of regulatory investigations, remedial requirements, and has a
direct effect on the quality of care, including the quality of care
provided to the minor Plaintiff.

19
 Classifying events as Sentinel Events and reporting to those agencies is “in

the context of rendering health care.” The same is true as to the spoliation claim. As to

the spoliation claim, the amended complaint states:

Defendant hospital committed spoliation of the peripheral line
tubing that was used at the time of the infusion which resulted
in the air embolism. Pursuant to the Defendant’s Medical
Device Incident Reporting Program, the device in use at the
time of the injury is to be labeled and maintained by the
Biomedical Engineering Department. The Defendant failed to
properly train its providers of the policy or enforce the policy.
Moreover, all devices involved in the Sentinel Event need to
be maintained for inspection and testing. As a result of the
spoliation of the tubing, the integrity of the tubing, and other
pertinent information relative to the cause of the air embolism
is not accessible to the Plaintiffs.

The MPLA protects health care providers when they are acting as such. 3 The

allegations as set forth in the complaint do not accuse the health care providers of stepping

outside the shoes of “health care providers” and into the shoes of conspirators such that

these customary acts of reporting to the Joint Commission/WVDHHR and disposing of

used medical equipment are outside “the context of rendering health care” even if they

were done negligently.

3
Boggs v. Camden-Clark Mem. Hosp. Corp., 216 W. Va. 656, 663, 609
S.E.2d 917, 924 (2004). Of course, Boggs has been legislatively overruled post-2015
amendments and the MPLA now all-but-expressly incorporates negligent hiring claims
which were referenced in Boggs as distinctly not healthcare. Nevertheless, the legislative
intent remains.

20
 While the resolution of the motion to dismiss these claims is not properly

before the Court, whether these claims fall under the purview of the MPLA is properly

before us, and analyzing whether a negligent spoliation claim falls under the purview of

the MPLA is a pointless academic exercise when the cause of action does not exist in this

State. 4 This State does, however, recognize the tort of intentional spoliation and

Respondents’ claim does not even begin to set forth the elements required in proving that

claim. 5

4
Syl. pt. 2, Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003) (“West
Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation
is the result of the negligence of a party to a civil action.”). But see id. at Syl. pt. 5
(recognizing negligent spoliation claim as a cause of action against third-party).
5
Id. at Syl. pts. 9, 10, and 11:

9. West Virginia recognizes intentional spoliation of
evidence as a stand-alone tort when done by either a party to a civil
action or a third party.

10. Intentional spoliation of evidence is defined as the
intentional destruction, mutilation, or significant alteration of
potential evidence for the purpose of defeating another person’s
recovery in a civil action.

11. The tort of intentional spoliation of evidence consists of the
following elements: (1) a pending or potential civil action;
(2) knowledge of the spoliator of the pending or potential civil action;
(3) willful destruction of evidence; (4) the spoliated evidence was
vital to a party’s ability to prevail in the pending or potential civil
action; (5) the intent of the spoliator to defeat a party’s ability to
prevail in the pending or potential civil action; (6) the party’s inability
to prevail in the civil action; and (7) damages. Once the first six
elements are established, there arises a rebuttable presumption that but
for the fact of the spoliation of evidence, the party injured by the
spoliation would have prevailed in the pending or potential litigation.
21
 Furthermore, the Respondents rely on Boggs v. Camden-Clark Mem’l Hosp.

Corp., 216 W. Va. 656, 662, 609 S.E.2d 917, 923 (2004), superseded by statute as stated

in State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d

579 (2019), to support their contention that spoliation of evidence does not constitute

“medical professional liability” or “health care” under the MPLA. However, this reliance

is flawed. In Boggs, this Court held that the MPLA (2003 version) did not apply to the

patient’s spoliation of evidence claim, among others, as those claims “were only

contemporaneous or related to the alleged act of medical professional liability.” Id. at 663,

609 S.E.2d at 924. The Boggs Court held in Syllabus point 3, that,

The West Virginia Medical Professional Liability Act, codified
at W. Va. Code § 55-7B-1 et seq., applies only to claims
resulting from the death or injury of a person for any tort or
breach of contract based on health care services rendered, or
which should have been rendered, by a health care provider or
health care facility to a patient. It does not apply to other
claims that may be contemporaneous to or related to the alleged
act of medical professional liability.

However, the Boggs case was decided ten years before the MPLA’s amendments in 2015.

In those amendments, the language was explicitly changed to allow for “claims that may

be contemporaneous to or related to the alleged tort . . . all in the context of rendering health

care services.” Thus, we find the reliance on Boggs to be misplaced. Therefore, for these

The spoliator must overcome the rebuttable presumption or else be
liable for damages.

22
reasons, and all of the reasons put forth above, we conclude that the spoliation claim is an

ancillary claim that, as pled, is within “the context of rendering health care.” 6

Thus, because we conclude that the MPLA clearly applies to the additional

causes of action in Respondents’ amended complaint, we must also conclude that the

circuit court was deprived of subject matter jurisdiction. Here, there is no dispute that

Respondents did not serve a notice of claim or a screening certificate of merit consistent

with West Virginia Code section 55-7B-6 prior to filing their amended complaint. Thus,

in light of these findings, we conclude that Respondents were required to comply with the

pre-suit notice requirements of the MPLA, and because they failed to do so, the circuit

court is devoid of subject matter jurisdiction to consider the claims alleged in the

Respondents’ amended complaint. 7

6
Our analysis discusses the distinction between intentional spoliation and
the spoliation claim as pled in the instant case. The ultimate resolution of this issue is
based strictly on the factual scenario, as set forth above, and the manner in which the
allegations were pled in this matter.
7
In the alternative, WVUH also argues that, aside from the failure to fulfill
the pre-suit requirements of the MPLA, Respondents’ amended complaint should also have
been dismissed for the independent reason that it failed to state claims upon which relief
could be granted. WVUH alleges that the new causes of action—failure to purchase and
utilize, failure to document, spoliation of evidence, and failure to report—were merely
added to the amended complaint without sufficient allegations to sustain their
corresponding essential elements.

Because our ultimate resolution of the motion to dismiss issue concludes that
the circuit court did not have subject matter jurisdiction over the new claims due to the
Respondents’ failure to comply with the pre-suit notice requirements of the MPLA, we
need not further consider this matter.

23
 B. Declaratory Judgment

Lastly, WVUH contends that the circuit court exceeded its legitimate powers

and committed clear error when it denied WVUH’s request for declaratory relief—namely,

a determination that the MPLA applies to all of Respondents’ causes of action in the

original complaint. 8 Prior to the filing of the amended complaint, WVUH petitioned the

circuit court to declare that the MPLA applies to the allegations asserted by Respondents

in Count II (corporate negligence) of the original complaint, despite Respondents’ attempt

to characterize the claims as corporate negligence. In the original complaint, Count II

(corporate negligence) included the following causes of action: negligent hiring, negligent

staffing, negligent failure to train, negligent failure to supervise, negligent failure to have

proper protocols, failure to protect, and failure to correct. Before the circuit court ruled on

the petition for declaratory judgment, Respondents amended Count II (corporate

negligence), and added additional causes of action: failure to purchase and utilize, failure

to document, spoliation of evidence, and failure to report. Unlike the original complaint,

Respondents did not serve a notice of claim or screening certificate of merit before filing

the amended complaint.

8
For clarification, WVUH’s petition for declaratory judgment sought a
declaration from the circuit court that the corporate negligence claims in Respondents’
original complaint were encompassed by the MPLA. The petition for declaratory judgment
was filed before Respondents’ amended complaint; therefore, in discussing the circuit
court’s order denying the petition for declaratory judgment, it should be noted that any
declaratory relief would only be applicable to the claims in the original complaint.
24
 In denying the petition for declaratory judgment, the circuit court concluded

that the request was premature and that certain issues required factual development.

However, the circuit court also found “that a declaratory decree on this issue will be of

practical assistance” and that WVUH “may renew this [p]etition after discovery is more

fully developed.” WVUH disagrees with the circuit court’s reasoning and argues that the

circuit court had an obligation to decide the MPLA’s applicability as a threshold issue

because the petition presented a pure issue of law and no factual development will change

whether Respondents’ claims are governed by the MPLA.

In response, Respondents contend that the circuit court properly denied the

petition for declaratory judgment because factual development and discovery are needed

to determine the applicability of the MPLA. Moreover, Respondents argue that WVUH

improperly seeks an advisory opinion from this Court declaring that each of the above

claims are subject to the MPLA.

A petition for declaratory judgment is a proper means for adjudicating the

legal rights of parties subject to a lawsuit. West Virginia Code section 55-13-1 (eff. 1941)

states:

Courts of record within their respective jurisdictions
shall have power to declare rights, status and other legal
relations whether or not further relief is or could be claimed.
No action or proceeding shall be open to objection on the
ground that a declaratory judgment or decree is prayed for. The
declaration may be either affirmative or negative in form and

25
 effect; and such declarations shall have the force and effect of
a final judgment or decree.

Furthermore, “[a]ny person . . . whose rights, status or other legal relations are affected by

a statute, municipal ordinance, contract or franchise, may have determined any question of

construction or validity arising under the instrument, statute, ordinance, contract or

franchise and obtain a declaration of rights, status or other legal relations thereunder.”

W. Va. Code § 55-13-2 (eff. 1941). As Justice Cleckley noted in his concurrence in Cox

v. Amick,

A circuit court should always ask whether granting the
relief would serve a useful purpose, or put another way,
whether the sought after declaration would be of practical
assistance in setting the underlying controversy to rest. The
hardship prong turns on whether the challenged action creates
a real or immediate dilemma for the parties.

Thus, the factors discussed above must [sic] not be
applied mechanically but, rather, with flexibility. In granting
declaratory relief, a circuit court should be reasonably
convinced that allowing the case to proceed, here and now,
would serve a useful purpose and would be of great practical
assistance to all concerned. Not only should the utility of the
decree be obvious, but the utility should have special force in
the challenged and underlying action.

195 W. Va. 608, 619, 466 S.E.2d 459, 470 (1995) (Cleckley, J., concurring) (footnote

omitted).

The purpose of a declaratory judgment “is to avoid the expense and delay

which might otherwise result, and in securing in advance a determination of legal

questions which, if pursued, can be given the force and effect of a judgment or decree

26
without the long and tedious delay which might accompany other types of

litigation.” Harrison v. Town of Eleanor, 191 W. Va. 611, 615, 447 S.E.2d 546, 550 (1994)

(quoting Crank v. McLaughlin, 125 W. Va. 126, 133, 23 S.E.2d 56, 60 (1942)). Using this

as our guide, we proceed to determine whether the circuit court committed clear legal error

in denying WVUH’s petition for declaratory judgment.

Per our discussion above—regarding to the applicability of the MPLA to the

corporate negligence claims in Respondents’ amended complaint—we emphasized that

litigants cannot characterize claims as corporate or general negligence in an attempt to

circumvent the parameters of the MPLA. See Discussion, supra, at III.A. Rather, the

determination of the MPLA’s applicability is a threshold legal issue, and to defer the

ruling—as the circuit court suggested in its order—would “amount to a judicial repeal of

W. Va. Code § 55-7B-6.” State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242

W. Va. 335, 345, 835 S.E.2d 579, 589 (2019).

Above, in concluding that the MPLA applies to the causes of action in

Respondents’ amended complaint, we referred repeatedly to the 2015 amendments to the

MPLA. In particular, we noted the definition of “medical professional liability,” and the

fact that it no longer encompasses only health care services rendered or that should have

been rendered. It also includes “other claims that may be contemporaneous to or related

to the alleged tort or breach of contract or otherwise provided, all in the context of rendering

27
health care services.” W. Va. Code § 55-7B-2(i) (emphasis added). We find that the same

reasoning and analysis is helpful in the resolution of the issue sub judice.

After reviewing the Count II (corporate negligence) causes of action in the

original complaint, we agree with WVUH. The corporate negligence claims in

Respondents’ original complaint include the following: negligent hiring, negligent staffing,

negligent failure to train, negligent failure to supervise, negligent failure to have proper

protocols, failure to protect, and failure to correct. A review of the MPLA’s definition of

“health care” illustrates that the definition encompasses these claims:

(2) Any act, service or treatment performed or furnished, or
which should have been performed or furnished, by any health
care provider or person supervised by or acting under the
direction of a health care provider or licensed professional for,
to or on behalf of a patient during the patient’s medical care,
treatment or confinement, including, but not limited to,
staffing, medical transport, custodial care or basic care,
infection control, positioning, hydration, nutrition and similar
patient services; and

(3) The process employed by health care providers and health
care facilities for the appointment, employment, contracting,
credentialing, privileging and supervision of health care
providers.

W. Va. Code § 55-7B-2(e) (emphasis added).

When denying declaratory judgment, it is clear that the circuit court ignored

the plain language of the statute. A reading of West Virginia Code section 55-7B-2(e)

illustrates that Respondents’ corporate negligence causes of action in their original

28
complaint fall within the purview of the MPLA as they relate to “staffing” and “[t]he

process employed by health care providers and health care facilities for the appointment,

employment, contracting, credentialing, privileging and supervision of health care

providers.” Further, as to the allegations of infirm policies to prevent the event and to

prevent harm, those allegations are fairly subsumed by both § 55-7B-2(e)(1) and (2) in the

plan of care and allegations aimed at what should have been done or what procedures

should have been implemented to prevent this event from occurring.

Therefore, due to the plain language of the statute and our detailed discussion

of the MPLA’s applicability set forth above, we conclude that the circuit court committed

clear error in denying WVUH’s petition for declaratory judgment.

IV.

CONCLUSION

For the reasons set forth above, we conclude that the Circuit Court of

Monongalia County committed clear legal error (1) by failing to dismiss Respondents’

claims against WVUH in the amended complaint because, to the extent the MPLA’s pre-

suit notice requirements were not complied with, the circuit court lacked subject matter

jurisdiction; and (2) in denying WVUH’s petition for declaratory judgment. Accordingly,

we grant the writ of prohibition and vacate the circuit court’s order denying WVUH’s

motion to dismiss and the order denying declaratory judgment. We further remand this

29
case to the circuit court and direct the circuit court to enter an order (1) dismissing

Respondents’ amended complaint as to the four additional corporate negligence claims

asserted against WVUH; and (2) granting the petition for declaratory judgment.

Writ granted as moulded. 9

9
As this Court noted in State ex rel. PrimeCare Medical of West Virginia,
Inc. v. Faircloth, 242 W. Va. 335, 345, 835 S.E.2d 579, 589 (2019): “Rule 12(h)(3) of the
West Virginia Rules of Civil Procedure clearly states that a circuit court must dismiss an
action ‘[w]henever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter[.]’” The Faircloth Court further detailed that

[w]hen such a dismissal occurs, “the medical malpractice
action may be re-filed pursuant to W. Va. Code § 55-2-18
(2001) after compliance with the pre-suit notice of claim and
screening certificate of merit provisions of W. Va. Code § 55-
7B-6 (2003).” Syl. Pt. 3, in part, Davis [v. Mound View Health
Care, Inc.], 220 W. Va. 28, 640 S.E.2d 91 [(2006)]. We note,
however, that our savings statute only authorizes “a party [to]
refile the action if the initial pleading was timely filed[.]”
W. Va. Code § 55-2-18(a) [2001]. This ability to re-file, when
such re-filing is otherwise timely, is consistent with this
Court’s finding that “[t]he 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, in
part, Hinchman [v. Gillette], 217 W. Va. 378, 618 S.E.2d 387
[(2005)].

Faircloth at 345 n. 24, 835 S.E.2d at 589 n. 24.

30