FILED
June 9, 2022
released at 3:00 p.m.
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Zack Damron,
Petitioner,
vs.) No. 20-0862 (Kanawha County 18-C-1391)
Primecare Medical of West Virginia, Inc.,
Respondent.
MEMORANDUM DECISION
Petitioner, Zack Damron, by counsel, Paul M. Strobel, appeals the Circuit Court of
Kanawha County’s dismissal of his complaint against Respondent, PrimeCare Medical of West
Virginia, Inc., who, by its counsel D.C. Offutt, Jr., Anne Liles O’Hare, and Mark R. Simonton,
filed a response. In his petition, Petitioner alleges that the circuit court “erred in dismissing [his]
constitutional claim for deliberate indifference pursuant to 42 U.S.C. § 1983 by requiring a
certificate of merit when it applied the [Medical Professional Liability Act] to [his] cause of
action.”
As more fully explained herein, we agree that the circuit court correctly dismissed the
complaint for lack of subject matter jurisdiction. Therefore, Petitioner did not establish that the
circuit court’s rulings were in error. Having considered the parties’ briefs, oral arguments and the
record on appeal, the Court finds no substantial question of law and no prejudicial error.
Accordingly, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
We review the grant of a motion to dismiss under a de novo standard of review. See Syl.
Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516
(1995) (“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.”). See also Commonwealth, Pa. Fish & Boat Comm’n v. Consol Energy, Inc., 233 W. Va.
409, 413, 758 S.E.2d 762, 766 (2014) (citing Cleckley, Davis and Palmer, Litigation Handbook
on West Virginia Rules of Civil Procedure § 12(b)(1) at 328 (4th ed.2012) (confirming that
appellate review of a dismissal under a Rule 12(b)(1) facial attack is de novo)).
Jurisdiction is the inherent power of a court to decide a case. See Syl. Pt. 2, Vanover v.
Stonewall Cas. Co., 169 W.Va. 759, 289 S.E.2d 505 (1982) (“‘Jurisdiction deals with the power
of the court, while venue deals with the place in which an action may be tried.’ Syllabus Point
7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).”). Under the Medical Professional
Liability Act (“MPLA”), a plaintiff is required to take certain steps to ensure that a circuit court
has jurisdiction to hear a medical negligence suit. See Syl. Pt. 2, State ex rel. PrimeCare Med. of
W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019). (“The pre-suit notice
1
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.”). In an
attempt to avoid application of the MPLA, Petitioner stated in his complaint and amended
complaint that he was not pleading a medical negligence claim and he later agreed that he was
dismissing any MPLA claims.
According to the amended complaint, on or about October 5, 2016, Petitioner, while
incarcerated at the Western Regional Jail in Barboursville, West Virginia, got into a fight with
another inmate. As a result of that fight, Petitioner was injured and was taken to the medical
section of the Western Regional Jail, where his jaw was x-rayed and it was determined that
Petitioner had suffered a broken jaw. Petitioner alleges in his amended complaint that Respondent
was “responsible for facilitating the transportation of inmates for medical care where needed,” that
Respondent “learned through x-rays that [Petitioner’s] jaw was fractured, and “[d]espite [such]
knowledge, [Respondent] delayed sending [Petitioner] to a specialist for treatment.” Ultimately,
Petitioner alleged such “conduct . . . resulted in permanent physical harm and injury to [Petitioner]
and . . . [Respondent’s conduct] amounts to deliberate indifference and/or cruel and unusual
punishment.” Petitioner alleges such conduct amounted to deliberate indifference because by the
time Petitioner was taken to a medical specialist on November 3, 2016, he “was informed that
nothing could be done for his jaw because extensive time had elapsed from the time [sic] his injury.
[Petitioner] now suffers from a misaligned jaw.”
Petitioner’s amended complaint contained five separate causes of action. Count one sought
damages for a violation of West Virginia’s Constitution. Count two claimed Respondent was
deliberately indifferent to Petitioner’s medical needs. Count three alleged intentional infliction of
emotional distress and/or outrageous conduct. Count four maintained a claim for negligence and
count five was a claim alleging violation of policy and procedure. Although Petitioner maintains
in both his original complaint and the amended complaint (hereinafter collectively, “complaint”)
that “[t]he complaint as currently drafted does not assert a claim for medical negligence,” prior to
the filing of the original complaint, Petitioner submitted a Notice of Claim, pursuant to West
Virginia Code § 55-7B-6(c) 1 to place Respondent on notice of a potential medical malpractice
1
The provisions of West Virginia Code §§ 55-7B-1 – 55-7B-12 are known as the MPLA.
West Virginia Code § 55-7B-6(c) (2017) provides a statutory exception which allows a claimant
to not provide a screening certificate of merit when alleging an MPLA claim:
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.
2
claim and to assert his position that a screening certificate of merit would be unnecessary to sustain
his claim. See W. Va. Code § 55-7B-6(c) (2017).
Respondent filed a motion to dismiss, or in the alternative, for summary judgment, alleging
that: 1) Petitioner was required to provide a screening certificate of merit, 2) the amended
complaint was filed outside the statute of limitations, 3) Petitioner could not recover damages for
violations of the West Virginia Constitution, 4) the complaint did not state a claim for deliberate
indifference, and 5) the claims against John Doe defendants did not comply with pleading
requirements. The parties agreed that Count I should be dismissed as Petitioner could not recover
monetary damages under the West Virginia Constitution. As to the other issues raised in the
motion, the circuit court denied the motion to dismiss, giving Petitioner sixty days to provide a
screening certificate of merit and to amend his complaint to comply with the MPLA. Additionally,
Petitioner was given thirty days to “substantiate a viable Eighth Amendment claim by filing a
screening certificate of merit.” Further, Petitioner was ordered to provide a short and plain
statement of the claims against the John Doe Defendants.
Thereafter, Petitioner filed no amended complaint to address any of the issues noted by the
circuit court and Respondent renewed its motion to dismiss. In Petitioner’s response he maintained
that he had pled a cause of action arising from deliberate indifference, rather than negligence.
Petitioner further asserted that his deliberate indifference claim is not subject to the MPLA and
that he had properly pled such claim. Respondent’s motion alleged that the facts pled in the
amended complaint stated a claim for medical negligence and that Petitioner’s “deliberate
indifference claim is merely a contemporaneous claim ultimately relating to the rendering, or
failure to render, health care services.”
The circuit court dismissed Petitioner’s amended complaint. 2 In its order, the circuit court
agreed with Respondent that the amended complaint sounded in negligence, rather than deliberate
indifference:
22. All of Plaintiffs claims in this action, regardless of how
they are pled, stem solely from the rendering, or alleged failure to
render, ‘health care’ and therefore sound in terms of medical
negligence.
23. Accordingly, Plaintiff is not permitted to hide behind the
guise of a constitutional claim in order to avoid the mandatory
application of the MPLA or otherwise excuse his failure to provide
a [s]creening [c]ertificate of [m]erit.
Id. The Legislature has amended section 2 since the lawsuit in question was filed but such
amendments are not relevant to this appeal.
2
The only issue raised in this appeal alleges that the circuit court erred in dismissing the
deliberate indifference claim.
3
On appeal, Petitioner urges this Court to reverse the circuit court’s ruling, maintaining that
the circuit court improperly applied the MPLA to Petitioner’s deliberate indifference claim.
However, the circuit court did not conclude that the MPLA applied to Petitioner’s deliberate
indifference claim. Rather, it concluded that Petitioner had not actually pled a deliberate
indifference claim, citing that the allegations were under the “guise” of a deliberate indifference
claim. Thus, we believe that this matter should be resolved on the issue of whether Petitioner
alleged facts giving rise to a claim of deliberate indifference or whether the allegations in his
complaint are, instead, merely claims of medical negligence. Here, we agree with the circuit court
that Petitioner truly pled a medical negligence claim couched as a deliberate indifference claim.
Our precedent relative to the MPLA requires a circuit court, and this Court, to look beyond the
labels of causes of action and artful pleading and instead critically examine the allegations pled to
determine whether the plaintiff’s complained-of conduct falls under the MPLA’s provisions.
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.
Syl. Pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007).
As Ethicon makes clear, a plaintiff cannot avoid the MPLA by
virtue of failing to expressly allege a malpractice claim. If a claim
falls squarely under the MPLA, the manner in which a complaint is
drafted will not prevent the invocation of the MPLA. See,
e.g., Ethicon, 221 W.Va. at 707, 656 S.E.2d at 458 (approving
circuit court’s analysis that plaintiffs’ labeling “as ‘products’ claims
does not change the fundamental [MPLA] basis of this tort
action”); Gray v. Mena, 218 W.Va. 564, 570, 625 S.E.2d 326, 332
(2005) (permitting plaintiff who opted not to bring MPLA action
opportunity to amend complaint and comply with MPLA
requirements rather than upholding dismissal for non-compliance
with MPLA filing requirements). As we stressed in Ethicon, “the
determination of whether a cause of action falls within the MPLA is
based upon the factual circumstances giving rise to the cause of
action, not the type of claim asserted.” 221 W.Va. at 702–03, 656
S.E.2d at 453–54 (emphasis supplied).
Minnich v. MedExpress Urgent Care, Inc.-W. Va., 238 W. Va. 533, 537, 796 S.E.2d 642, 646
(2017). “It goes without saying that [a plaintiff] cannot avoid the MPLA with creative
pleading.” State ex rel. W. Va. Univ. Hosp. v. Scott, 246 W. Va. 184, ___, 866 S.E.2d 350, 359
(2021).
Thus, the circuit court correctly observed that Petitioner’s complaint was a claim for
4
medical negligence, not the distinct cause of action for deliberate indifference. Claims for medical
negligence must comply with the pre-suit notice requirements of the MPLA, and because
Petitioner did not comply with those requirements, the circuit court appropriately dismissed the
claim for lack of subject-matter jurisdiction in accordance with this Court’s holding in Faircloth,
242 W. Va. 335, 835 S.E.2d 579.
This distinction is clear when we look closely at the basic elements of an MPLA claim and
compare them to a deliberate indifference claim. The MPLA 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, positioning,
hydration, nutrition and similar patient services; . . .
W. Va. Code § 55-7B-2 (e)(1)-(2) (emphasis added). Moreover, “medical professional liability” is
defined as:
[A]ny 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. 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.
Id. § 55-7B-2(i). In this regard, this Court held in syllabus point four of Gray that “the West
Virginia Legislature’s definition of medical professional liability, found in West Virginia Code §
55-7B-2(i) (2003) (Supp.2005), includes liability for damages resulting from the death or injury
of a person for any tort based upon health care services rendered or which should have been
rendered. . . .” Syl. Pt. 4, Gray, 218 W. Va. at 566, 625 S.E.2d at 328, in part. Finally, West
Virginia Code § 55-7B-3 provides, in pertinent part, that
(a) The following are necessary elements of proof that an injury or
death resulted from the failure of a health care provider to follow the
accepted standard of care:
(1) The health care provider failed to exercise that degree of care,
skill and learning required or expected of a reasonable, prudent
5
health care provider in the profession or class to which the health
care provider belongs acting in the same or similar circumstances;
and
(2) Such failure was a proximate cause of the injury or death.
Id.; see Syl. Pt. 5, Scott, 246 W. Va. 184, 866 S.E.2d 350, in part (“‘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).”)
In contrast, a deliberate indifference claim is distinctly different from a medical negligence
claim. A deliberate indifference claim flows from the Eighth Amendment’s prohibition against
cruel and unusual punishment. The United States Supreme Court has discussed the basis of an
Eighth Amendment claim, holding:
The Amendment embodies “broad and idealistic concepts of
dignity, civilized standards, humanity, and decency . . . ,” Jackson
v. Bishop, 404 F.2d 571, 579 (C.A.8 1968), against which we must
evaluate penal measures. Thus, we have held repugnant to the
Eighth Amendment punishments which are incompatible with “the
evolving standards of decency that mark the progress of a maturing
society.” Trop v. Dulles, supra, at 101, 78 S.Ct. at 598; see
also Gregg v. Georgia, supra, at 172-173, 96 S.Ct. at 2925 (joint
opinion); Weems v. United States, supra, 217 U.S. at 378, 30 S.Ct.
at 553, or which “involve the unnecessary and wanton infliction of
pain,” Gregg v. Georgia, supra, at 173, 96 S.Ct. at 2925 (joint
opinion); see also Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947); Wilkerson v. Utah,
supra, 99 U.S. at 136.
Estelle v. Gamble, 429 U.S. 97, 102-3 (1976). In Estelle, Mr. Gamble, who was incarcerated,
requested medical treatment for “chest pains” over a period of four days. Id. at 101. After multiple
refusals, he was finally taken to the prison doctor, who diagnosed him with an irregular heartbeat
requiring hospitalization. Id. After he was returned to prison, Mr. Gamble again complained of
“chest pains” and was not taken to the doctor for two days. Id. Based on these facts, the Supreme
Court found that:
[A]n inadvertent failure to provide adequate medical care cannot be
said to constitute “an unnecessary and wanton infliction of pain” or
to be “repugnant to the conscience of mankind.” Thus, a complaint
that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice
does not become a constitutional violation merely because the
6
victim is a prisoner. In order to state a cognizable claim, a prisoner
must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. It is only such
indifference that can offend “evolving standards of decency” in
violation of the Eighth Amendment.
Id. at 105-06.
We have recognized claims for deliberate indifference, finding that:
“[d]eliberate indifference to the serious medical needs of prisoners constitutes unnecessary and
wanton infliction of pain which is proscribed by the prohibition on cruel and unusual punishment
in the Federal and State Constitutions.” Syl. Pt. 4, Nobles v. Duncil, 202 W. Va. 523, 505 S.E.2d
442 (1998).
While such claims have been recognized by this Court, Petitioner’s complaint simply fails
to allege facts giving rise to such a claim. From Petitioner’s amended complaint it is evident that
he did, in fact, receive medical treatment. He was taken to the medical unit in the regional jail and
found to have sustained a broken jaw and was subsequently seen by a specialist twenty-six days
later. Such delay, in and of itself, does not constitute deliberate indifference. Indeed, we have
affirmed that “mere disagreement with the prescribed course of treatment” is insufficient to justify
the relief requested by Petitioner. Massey v. Mirandy, No. 16-0784, 2017 WL 3643014, at *1 (W.
Va. Aug. 25, 2017) (memorandum decision).
Federal Courts have addressed this issue. The United States District Court for the Middle
District of North Carolina stated:
Significantly, an “error of judgment” on the part of prison
medical staff, or “inadvertent failure to provide adequate medical
care, while perhaps sufficient to support an action for malpractice,
will not constitute a constitutional deprivation redressable under §
1983.” Boyce v. Alizaduh, 595 F.2d 948, 953 (4th Cir.1979),
abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319,
109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Mere negligence or
medical malpractice is not sufficient to establish deliberate
indifference. See West v. Atkins, 487 U.S. 42, 49 n. 8, 108 S.Ct.
2250, 101 L.Ed.2d 40 (1988); Estelle v. Gamble, 429 U.S. 97, 105–
06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Rather, “it is obduracy and
wantonness, not inadvertence or error in good faith, that characterize
the conduct prohibited by the Cruel and Unusual Punishments
Clause, whether that conduct occurs in connection with establishing
conditions of confinement [or] supplying medical needs.” Whitley v.
Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
Wynn v. Mundo, 367 F. Supp. 2d 832, 837 (M.D.N.C.), aff’d, 142 F. App’x 193 (4th Cir. 2005)
(internal footnote omitted). Other courts have reached similar conclusions:
7
“[A] delay in treatment based on a bad diagnosis or erroneous
calculus of risks and costs, or a mistaken decision not to treat based
on an erroneous view that the condition is benign or trivial or
hopeless, or that the treatment is unreliable, or that the cure is as
risky or painful or bad as the malady” does not amount to deliberate
indifference. Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir.2000).
Madera v. Ezekwe, No. 10 CV 4459 (RJD) (LB), 2013 WL 6231799, at *11 (E.D.N.Y. Dec. 2,
2013).
Similarly, the Second Circuit Court of Appeals found:
We agree that the mere malpractice of medicine in prison
does not amount to an Eighth Amendment
violation. See Estelle, 429 U.S. at 107, 97 S.Ct. 285; Hathaway, 37
F.3d at 66. This principle may cover a delay in treatment based on a
bad diagnosis or erroneous calculus of risks and costs, or a mistaken
decision not to treat based on an erroneous view that the condition
is benign or trivial or hopeless, or that treatment is unreliable, or that
the cure is as risky or painful or bad as the malady. See,
e.g., Estelle, 429 U.S. at 105-106, 97 S.Ct. 285 (holding that
“inadvertent failure to provide adequate medical care” or
“negligen[ce] in diagnosing or treating a medical condition” does
not constitute deliberate indifference on the part of prison officials).
Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000).
In this case, Petitioner repeatedly alleges in his amended complaint that Respondent was
“responsible for facilitating transportation of inmates for medical care where needed,” “fail[ed] to
obtain medical care for [Petitioner] [which] was an ongoing and continuous act,” and “failed to
obtain timely medical care for [Petitioner].” Such allegations clearly set forth a claim of medical
negligence rather than a case of deliberate indifference. In examining the complaint as a whole,
the crux of its allegations assert a claim of medical negligence based primarily on the alleged
failure to transport Petitioner to visit a medical specialist. These types of allegations fall squarely
within the confines of the MPLA. See W. Va. Code §§ 55-7B-2 to -3. 3
3
Indeed, obtaining an appointment to see a medical specialist is a herculean task for the
average person and the logistical issues and resulting delays that must be addressed to transport a
prisoner to a specialist appointment outside the secure confines of the jail do not rise to deliberate
indifference. In Madera, the United States District Court for the Eastern District of New York
cited various examples where courts have “refused to find deliberate indifference where delays in
treatment were caused by circumstances that were outside the control of the charged officials.”
Madera 2013 WL 6231799, at *12. Specifically, the Madera court found:
8
What Petitioner pled was a claim for the negligent failure to provide medical care. He
chose to not pursue his claim as a straight-forward medical negligence case. The circuit court
accurately described the Petitioner’s deliberate indifference claim as an attempt to “hide behind
the guise of a constitutional claim.” As the circuit court also correctly concluded, Petitioner’s
claims “stem solely from the rendering, or alleged failure to render, ‘health care’ and therefore
sound in terms of medical negligence.” See Syl. Pt 4, Ethicon, 221 W. Va. at 702, 656 S.E.2d at
453. We agree with the circuit court that the allegations, as pled, make out a claim for medical
negligence, not deliberate indifference. Because determination of the character of a claim
sounding in medical negligence cases must be determined at the outset of a case to resolve issues
of subject matter jurisdiction pursuant to this Court’s holding in Faircloth, and Petitioner did not
comply with the pre-suit notice requirements even after additional opportunity to do so, the circuit
court appropriately dismissed the claim for lack of subject-matter jurisdiction.
Affirmed.
ISSUED: June 9, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
The logistical difficulties involved in scheduling outpatient
appointments and transporting prisoners to outside facilities can
present one such circumstance. See, e.g., Matos v. Gomprecht, 2012
WL 1565615, at *8 (E.D.N.Y. Feb.14, 2012) (Orenstein,
M.J.), adopted by the District Court at 2012 WL 1565523
(E.D.N.Y. May 2, 2012) (Garaufis, J.); Henderson v. Sommer, 2011
WL 1346818, at *4 (S.D.N.Y. Apr.1, 2011) (Berman,
J.); Alvarez, 2010 WL 1965892, at *2–4, *10–11. So too can the
denial of recommended procedures by an outside review
board. See Matos, 2012 WL 1565615, at *9; cf. St. John v.
Arnista, 2007 WL 3355385, *4, 7 (D.Conn. Nov.9, 2007) (Eginton,
J.). Intervening medical problems can also justify delays in
treatment. See Pizarro v. Gomprecht, 2013 WL 990998, at *14
(E.D.N.Y. Feb.13, 2013) (Bloom, M.J.), adopted by the District
Court at 2013 WL 990997 (E.D.N.Y. Mar.13, 2013) (Matsumoto,
J.); Alvarez, 2010 WL 1965892, at *4, *10–11.
Madera 2013 WL 6231799, at *12.
9