By Zach Pyers, Esq. and Brandon Harmony, Esq.

The Supreme Court of Appeals of West Virginia’s decision in Tanner v. Raybuck, 2022 W. Va. LEXIS 280, recently ruled that circuit courts must dismiss complaints alleging medical professional liability when a plaintiff files a complaint without previously serving a certificate of merit (“COM”), unless a plaintiff’s cause of action is based on a well-established legal theory not requiring expert testimony.

According to W. Va. Code § 55-7B-6(a) and (b), no person may file a medical professional liability action against any health care provider without first serving a notice of claim, including a COM. A COM includes a qualified health care provider’s opinions regarding how the applicable standard of care was breached and how it caused injury or death. The plaintiff must serve notice on each health care provider that the plaintiff will join in litigation at least thirty days before filing the complaint. W. Va. Code § 55-7B-6(c) provides one exception to the COD requirement when the medical claim is well-established such that it does not require expert testimony.

In Raybuck, the Supreme Court of Appeals of West Virginia examined whether it was proper for a circuit court to dismiss a complaint based on the plaintiff’s failure to serve a COM before filing their complaint. The Tanners served Dr. Raybuck with a notice of claim that did not include a COM. Approximately one month after filing suit, the Tanners served Dr. Raybuck with a COM. The next day, Dr. Raybuck filed a motion to dismiss the complaint, and the court granted that motion.

The Tanners requested the Supreme Court of Appeals of West Virginia to appeal the circuit court’s order granting Dr. Raybuck’s motion to dismiss. The court determined that circuit courts must dismiss complaints that lack a proper COM because failure to provide proper pre-suit notice, including a COM, deprives a circuit court of subject-matter jurisdiction. When a court lacks subject matter jurisdiction, it cannot take further action other than dismissing the case.

The Raybuck decision is important because it helps provide a means to enforce the COM requirement.

If you would like a copy of the Raybuck decision or have any questions with respect to courts dismissing complaints lacking a previously submitted COM, please contact a member of Reminger’s Medical Malpractice Liability Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. THIS IS AN ADVERTISEMENT

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