May 26, 2020

May 26, 2020

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West Virginia Supreme Court of Appeals Affirms Sufficiency of Pre-Suit Certificate of Merit

The Supreme Court of Appeals of West Virginia recently affirmed a decision from the Circuit Court of Kanawha County confirming the sufficiency of a pre-suit certificate of merit in a wrongful death matter arising under the Medical Professional Liability Act (“MPLA”).  The memorandum decision of Keith v. Lawrence affirms the general trend of West Virginia courts to refuse to dismiss malpractice actions when a defendant contends that the certificate of merit is insufficient under the MPLA.

Keith v. Lawrence, No. 15-0223, arose out of the October 20, 2012, death of Rondall L. Lawrence, Jr.  At the time of his death, Mr. Lawrence was a patient at Charleston Area Medical Center (“CAMC”) under the care of Dr. Robby Keith, a board-certified internal medicine physician specializing in pulmonary and critical care medicine, and Dr. John Deel, a board-certified thoracic surgeon.  Mr. Lawrence’s treatment at CAMC began on April 16, 2012, when he complained of shortness of breath.  His respiratory issues persisted, and he was further evaluated by Drs. Keith and Deel.  On May 1, 2012, a lung biopsy was performed, following which, Mr. Lawrence went into respiratory distress that required he undergo tracheostomy and placement on a ventilator.  Mr. Lawrence subsequently developed subcutaneous emphysema, pneumonia, and renal failure and died.

Christine Lawrence was appointed Administratrix of Mr. Lawrence’s Estate and brought an action against the physicians under the MPLA.  Dr. Barry Singer, a board-certified internal medicine physician with a subspecialty in hematology and oncology, authored pre-suit certificates of merit as to each individual physician.  Ms. Lawrence later filed suit, which was followed by the physicians’ Motions to Dismiss. 

The physicians argued that the screening certificates of merit did not satisfy the requirements of the MPLA at West Virginia Code § 55-7B-6(b).  Specifically, they contended that the certificates of merit were deficient by failing to address: (1) the expert’s familiarity with the standard of care; (2) the expert’s qualifications to offer an opinion on the care provided by petitioners; (3) how the standard of care was breached; and (4) how the alleged breach of the standard of care resulted in the death of Mr. Lawrence.

Affirming the circuit court’s denial of the physicians’ Motions to Dismiss, the Supreme Court found that the certificate of merit met the requirements of the MPLA.  Significantly, the Court noted its holding in Elmore v. Triad Hospitals, Inc., 220 W. Va. 154, 640 S.E.2d 217 (2006) 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.”  

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About this Author

Jace Goins, Professional Liability Attorney, Steptoe Johnson Law Firm

Jace Goins practice is focused primarily on the area of professional liability litigation, and more specifically on the defense of long-term care facilities, physicians, and hospitals. He also represents defendants in the areas of medical device product liability, toxic and mass torts, legal malpractice, and workplace injury. He has also developed expertise in the area of federal preemption of claims against medical device manufacturers.  He has tried numerous cases to verdict in both state and federal court, and is licensed to practice in West Virginia and Kentucky.

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