On Wednesday, March 20, 2024, the Supreme Court of Appeals of West Virginia issued a memorandum decision in three consolidated petitions involving a medical malpractice lawsuit in Judge David J. Sims’s court in Ohio County.

Judge David J. Sims of the Circuit Court of Ohio County had denied motions to dismiss a medical malpractice lawsuit filed by Kristin Endicott against several healthcare providers, including Wheeling Hospital, Wheeling Health Right, physicians Joshua Mena and Joshua Lucas, and nurse practitioner Shawdare Kelly.

The defendants argued the lawsuit should be dismissed because Endicott failed to comply with the pre-suit notice requirements of West Virginia’s Medical Professional Liability Act (MPLA). The MPLA mandates that plaintiffs serve healthcare providers with a notice of claim and screening certificate of merit attesting to the validity of the claims at least 30 days before filing a medical malpractice lawsuit.

While Endicott had sent notice of her intent to sue to the defendants 60 days before the statute of limitations expired, as allowed by the MPLA, she did not provide any screening certificates of merit until filing her complaint in Judge Sims’s court. The defendants contended this deprived them of opportunities the MPLA affords to providers, such as reviewing claims and engaging in pre-litigation mediation.

However, Judge Sims denied the motions to dismiss, finding Endicott made a reasonable effort to comply with the MPLA by serving the screening certificates within 60 days as the law permits. The healthcare providers then filed prohibition petitions with the Supreme Court, seeking to prohibit Judge Sims from letting the lawsuit proceed.

In a memorandum decision, the Supreme Court of Appeals sided with the healthcare providers. The majority opinion held the pre-suit notice requirements of the MPLA are mandatory and jurisdictional. By failing to serve screening certificates at least 30 days before filing, as required by the MPLA, Endicott deprived Judge Sims’s court of subject matter jurisdiction over the lawsuit.

The Court vacated Judge Sims’s order denying dismissal and directed the circuit court to dismiss Endicott’s complaint without prejudice due to lack of jurisdiction. In a dissenting opinion, Chief Justice Tim Armstead argued the case should have been set for full briefing and oral argument to thoroughly address the errors alleged.

The ruling shows Judge Sims was found to have exceeded his authority in denying dismissal of a lawsuit that was filed in violation of the statutory prerequisites for medical malpractice claims under the MPLA. It remains to be seen whether Endicott will refile her claims in compliance with the MPLA’s pre-suit notice requirements in Judge Sims’s Ohio County Circuit Court.

Judge Sims is a jurist in the First Judicial Circuit (Brooke, Hancock, and Ohio Counties) of West Virginia. He was appointed to the bench in 2012 and has been re-elected multiple times.

A copy of the original filing can be found here.