State of West Virginia ex rel. Joshua Mena, D.O. v. The Honorable David J. Sims, Judge of the Circuit Court of Ohio CountyandState of West Virginia ex rel. Wheeling Health Right v. The Honorable David J. Sims, Judge of the Circuit Court of Ohio CountyandState of West Virginia ex rel. Wheeling Hospital, Inc. v. The Honorable David J. Sims, Judge of the Circuit Court of Ohio County

FILED
March 20, 2024
C. CASEY FORBES, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS

State of West Virginia ex rel. Joshua Mena, D.O.,
Joshua Lucas, D.O., and Shawdare Kelly, N.P.,
Petitioners

v.) No. 23-260

The Honorable David J. Sims, Judge of the Circuit Court
of Ohio County, Kristin Endicott, Wheeling Hospital, Inc.,
Wheeling Health Right, Inc., Jennifer Cannon, R.N.,
Linda Shelek, APRN-CNP, and John Doe, Inc.,
Respondents

and

State of West Virginia ex rel. Wheeling Health Right
and Linda Shelek,
Petitioners

v.) No. 23-266

The Honorable David J. Sims, Judge of the Circuit Court
of Ohio County, and Kristin Endicott,
Respondents

and

State of West Virginia ex rel. Wheeling Hospital, Inc.
and Jennifer Cannon, RN,
Petitioners

v.) No. 23-271

The Honorable David J. Sims, Judge of the Circuit Court
of Ohio County, Kristin Endicott, Wheeling Health Right Inc.,
Emergency Medicine Physicians of Ohio County, John Doe Inc.,
Joshua Mena, D.O., Joshua Lucas, D.O., Shawdare Kelly, N.P.,
and Linda Shelek, APRN-CNP,
Respondents

1
 MEMORANDUM DECISION
In three consolidated original jurisdiction petitions, several health care providers1 who are
the defendants in a pending medical professional liability action seek a writ of prohibition2
requiring the Honorable David J. Sims, Judge of the Circuit Court of Ohio County, to dismiss the
lawsuit. The providers argue that dismissal is mandatory because the plaintiff, respondent herein
Kristin Endicott, failed to provide them with screening certificates of merit at least thirty days
before she filed her civil complaint, in violation of the pre-suit notice requirements of the West
Virginia Medical Professional Liability Act (“MPLA”). See W. Va. Code § 55-7B-6 (2022)
(quoted below).

We determine that oral argument is unnecessary and that these cases satisfy the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure for issuance of a
memorandum decision rather than an opinion. For the reasons set forth below, we grant a writ of
prohibition and direct the circuit court to dismiss the medical malpractice action without prejudice.

Facts and Procedural History

Ms. Endicott alleges that over the course of six medical visits between August 31, 2020,
and September 16, 2020, the health care providers failed to properly diagnose and treat her for an
infection. She contends that the medical negligence of these providers resulted in an infection
spreading to her heart, necessitating further medical care including emergency heart surgery.

Ms. Endicott served each of the providers with a pre-suit “Notice of Claim and Intent to
Provide Certificate of Merit for Medical Negligence” dated June 30, 2022. These were received
by the providers on/about July 5, 2022. In addition to stating theories of liability, the notices said,
“There is inadequate time to procure a Screening Certificate of Merit prior to the applicable Statute
of Limitations expiring. However, a Screening Certificate of Merit will be provided to you at the
above listed address within sixty days of your confirmed receipt of this notice.” On August 29,
2022, Ms. Endicott filed her civil complaint against the providers in the Circuit Court of Ohio
County. Attached to the filed complaint were two screening certificates of merit. This was the first
time Ms. Endicott had furnished any screening certificates of merit to the providers.

1
For ease of discussion, we refer to the petitioners collectively as the “health care
providers” or “providers.” Petitioners Joshua Mena, D.O., Joshua Lucas, D.O., and Shawdare
Kelly, N.P., are represented by counsel Mark R. Simonton and Alex S. Blevins. Petitioners
Wheeling Health Right and Linda Shelek, APRN-CNP, are represented by counsel David L.
Wyant and Benjamin P. Visnic. Petitioners Wheeling Hospital, Inc. and Jennifer Cannon, R.N.,
are represented by counsel Christine S. Vaglienti and Erin R. Vuljanic. Respondent Kristin
Endicott is represented by counsel Ronald W. Zavolta, Michael P. Zavolta, and Matthew A. Jones.
2
These three petitions for prohibition were consolidated by our Court for purposes of
consideration and decision. The pending medical malpractice action is case number CC-35-2022-
C-138 in the Circuit Court of Ohio County.

2
 The providers filed motions to dismiss asserting that Ms. Endicott failed to comply with
the MPLA. They argued that even though the MPLA permitted her an additional sixty days to
obtain screening certificates of merit, the statute nonetheless required that the screening certificates
had to be served on them thirty days prior to the filing of the lawsuit. See W. Va. Code § 55-7B-
6(b) and (d).3 Because Ms. Endicott simultaneously served the screening certificates with the civil

3
West Virginia Code § 55-7B-6 (2022) provides, in relevant part:

(a) Notwithstanding any other provision of this code, no person may file a
medical professional liability action against any health care provider without
complying with the provisions of this section.

(b) 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. . . . 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 . . . .

(d) . . . if a claimant or his or her counsel has insufficient time to obtain a
screening certificate of merit prior to the expiration of the applicable statute of
limitations, the claimant shall comply with the provisions of subsection (b) of this
section except that the claimant or his or her counsel shall furnish the health care
provider with a statement of intent to provide a screening certificate of merit within
60 days of the date the health care provider receives the notice of claim. The
screening certificate of merit shall be accompanied by a list of the medical records
otherwise required to be provided pursuant to subsection (b) of this section.

....

(f) Any health care provider who receives a notice of claim pursuant to the
provisions of this section may respond, in writing, to the claimant or his or her
counsel within 30 days of receipt of the claim or within 30 days of receipt of the
screening certificate of merit if the claimant is proceeding pursuant to the
provisions of subsection (d) . . . of this section. The response may state that the
health care provider has a bona fide defense and the name of the health care
provider’s counsel, if any.

(g) Upon receipt of the notice of claim or of the screening certificate of
merit, if the claimant is proceeding pursuant to the provisions of subsection (d) . . .
of this section, the health care provider is entitled to prelitigation mediation before
a qualified mediator upon written demand to the claimant.

....

3
complaint, the providers argued that they were denied the opportunity to evaluate the claims and
possibly engage in pre-litigation mediation as permitted by West Virginia Code § 55-7B-6(f) and
(g).4

The circuit court denied the motions to dismiss by order entered January 30, 2023. The
court ruled that Ms. Endicott timely served the June 30, 2022, notices of claim and intent to procure
screening certificates of merit, and she served the screening certificates on the healthcare providers
within sixty days of her notices of claim. As such, the court found that Ms. Endicott demonstrated
a good faith and reasonable effort to comply with the MPLA.

Analysis

The health care providers seek a writ prohibiting the circuit court from enforcing its June
30, 2022, order. They assert that the lawsuit must be dismissed. “Prohibition lies only to restrain
inferior courts from proceeding in cases over which they have no jurisdiction, or, in which, having
jurisdiction, they are exceeding their legitimate powers . . . .” Syl. Pt. 1, in part, Crawford v. Taylor,
138 W. Va. 207, 75 S.E.2d 370 (1950); accord Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160
W. Va. 314, 233 S.E.2d 425 (1977) (recognizing that prohibition lies when trial court lacks
jurisdiction).

Our Court has repeatedly recognized that compliance with the pre-suit notice requirements
of West Virginia Code § 55-7B-6 is a mandatory prerequisite to the filing of a medical malpractice
lawsuit.

Pursuant to W. Va. Code § 55-7B-6(a) and (b) [2003], no person may file a
medical professional liability action against any health care provider unless, at least
thirty days prior to the filing of the action, he or she has served, by certified mail,
return receipt requested, a notice of claim on each health care provider the claimant
will join in the litigation.

Syl. Pt. 4, State ex rel. PrimeCare Medical of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d
579 (2019). Moreover,

(i)(1) . . . any statute of limitations applicable to a cause of action against a
health care provider upon whom notice was served for alleged medical professional
liability shall be tolled from the date of mail of a notice of claim to 30 days
following receipt of a response to the notice of claim, 30 days from the date a
response to the notice of claim would be due, or 30 days from the receipt by the
claimant of written notice from the mediator that the mediation has not resulted in
a settlement of the alleged claim and that mediation is concluded, whichever last
occurs. . . .

(Emphasis added.)
4
See supra note 3.

4
 [t]he MPLA clearly prohibits the filing of a medical professional liability
action against a health care provider prior to serving, by certified mail, return
receipt requested, a notice of claim upon each health care provider the claimant will
join in the litigation. In addition to the notice of claim, unless a claimant is
proceeding under West Virginia Code § 55-7B-6(c), the claimant must also serve a
screening certificate of merit upon each health care provider the claimant will join
in the litigation, prior to filing a civil action.

Syl. Pt. 4, Tanner v. Raybuck, 246 W. Va. 361, 873 S.E.2d 892 (2022) (emphasis added).5 Critical
to the case pending before us, we have held that “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.” PrimeCare Medical, 242 W. Va. at
342, 835 S.E.2d at 586, Syl. Pt. 2.

West Virginia Code § 55-7B-6(b) required Ms. Endicott to serve each health care provider
with a notice of claim “together with a screening certificate of merit” “[a]t least 30 days prior to
the filing of [her] medical liability action . . . .” It is undisputed that Ms. Endicott failed to comply
with this directive. She did not serve any screening certificate on the providers prior to filing her
lawsuit, let alone the full thirty days before filing suit. Although Ms. Endicott exercised the option
in West Virginia Code § 55-7B-6(d) to have an additional sixty days in which to obtain screening
certificates of merit, this did not relieve her of the statutory obligation to serve those certificates at
least thirty days before filing her lawsuit.6

Ms. Endicott argues that she satisfied the overall purpose of the MPLA by serving the
screening certificates of merit on the providers within the promised sixty days. However, we
rejected a similar argument in Tanner, where a plaintiff exercised the right to an additional sixty
days to obtain a screening certificate, but she filed her lawsuit before serving the screening
certificate on the defendant provider. See Tanner, 246 W. Va. at 366-67, 873 S.E.2d at 897-98.
We explained that

[i]f a complaint is filed after the notice of claim, but before the screening
certificate of merit, the purpose of pre-suit notice requirements is undermined
because the health care provider is not afforded an opportunity to review the context
of the purported deviation from the standard of care and settle meritorious claims
before suit is filed against them. Likewise, the point of the screening certificate of
merit – to prevent the filing of frivolous claims unsupported by an expert’s

5
West Virginia Code § 55-7B-6(c) allows a plaintiff to proceed without a screening
certificate of merit if the case is grounded on “a well-established legal theory of liability which
does not require expert testimony supporting a breach of the applicable standard of care . . . .”
However, Ms. Endicott has not relied upon this exception and the providers deny that it would
apply to the medical negligence claims asserted in this case.
6
Exercising the option for the additional sixty days to obtain the screening certificates of
merit allowed Ms. Endicott additional time to file the complaint. See W. Va. Code § 55-7B-6(d)
& (i)(1), supra note 3.

5
 assurances that the claim is not, in fact, frivolous – is missed when the complaint is
filed before that safeguard is in place.

Id. at 367, 873 S.E.2d at 898; e.g., State ex rel. Miller v. Stone, 216 W. Va. 379, 383, 607 S.E.2d
485, 489 (2004) (“Legislature’s clear intent in enacting W. Va. Code § 55-7B-6 was to mandate
that a plaintiff in a medical malpractice claim file his or her certificate of merit at least 30 days
prior to filing his or her medical malpractice claims so as to allow health care providers the
opportunity to demand pre-litigation mediation.”). We reiterated in Tanner that a circuit court “has
no authority to suspend” the MPLA’s “pre-suit notice requirements and allow a claimant to serve
notice after the claimant has filed suit. To do so would amount to a judicial repeal of” West
Virginia Code § 55-7B-6. Tanner, 246 W. Va. at 362, 873 S.E.2d at 893, Syl. Pt. 9 (quoting
PrimeCare Medical, 242 W. Va. at 337, 835 S.E.2d at 581, Syl. Pt. 5). While the screening
certificate in Tanner was served after the lawsuit was filed, and the screening certificates in this
case were served simultaneously with the filing of the lawsuit, the result is the same—these health
care providers were denied the pre-litigation opportunity to evaluate the claims.

Clearly, this lawsuit was filed in violation of the MPLA and the circuit court should have
dismissed the complaint for lack of subject matter jurisdiction. See PrimeCare Medical, 242
W. Va. at 337, 835 S.E.2d at 581, Syl. Pt. 2. The providers are entitled to a writ of prohibition. See
id. at 345, 835 S.E.2d at 589 (granting writ of prohibition and vacating circuit court order that had
denied motion to dismiss for failure to comply with MPLA).

The providers make the additional argument that the dismissal of this case should be with
prejudice. However, a dismissal for lack of subject matter jurisdiction is not a decision on the
merits and is, therefore, generally a dismissal without prejudice. See Tanner, 246 W. Va. at 368,
873 S.E.2d at 899. We conclude that this dismissal should be without prejudice.

Conclusion

For the foregoing reasons, we conclude that the circuit court erred by failing to dismiss Ms.
Endicott’s complaint based upon her failure to comply with the MPLA’s pre-suit notice
requirements. Accordingly, we grant a writ of prohibition and vacate the circuit court’s January
30, 2023, order denying the providers’ motions to dismiss. We remand this case to the circuit court
with directions to enter an order dismissing the complaint without prejudice.

Writ granted.

ISSUED: March 20, 2024

CONCURRED IN BY:

Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn

6
DISSENTING:

Chief Justice Tim Armstead

Armstead, Chief Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral
argument to thoroughly address the errors alleged. Having reviewed the parties’ briefs and the
issues raised therein, I believe a formal opinion of this Court was warranted, not a memorandum
decision. Accordingly, I respectfully dissent.

7