Background
In April 2021, Brooke Morton was admitted to J.W. Ruby Memorial Hospital (operated by West Virginia University Hospitals, Inc., “WVUH”) for an induced labor at 37 weeks due to cystic fibrosis-induced diabetes. Her son, Brody William Morton, was delivered by emergency cesarean section with no vital signs. Hospital staff resuscitated him, but Brody died in the NICU five hours later. Mrs. Morton suffered severe postpartum hemorrhaging requiring intensive care. Mr. Morton also alleged that he was misled into consenting to an autopsy he believed would be performed by the state medical examiner, only to learn the hospital had performed it — and that Brody’s internal organs were not preserved, foreclosing a second autopsy.
The Mortons served WVUH with two pre-suit notices under the West Virginia Medical Professional Liability Act (MPLA), W. Va. Code §§ 55-7B-1 to -12, accompanied by screening certificates of merit. The first covered the Estate’s claim for obstetric negligence. The second covered the parents’ claims for emotional distress, spoliation, fraudulent inducement regarding the autopsy consent, and falsification of medical records — claims the Mortons explicitly stated they did not believe fell within the MPLA, but for which they provided notice “out of an abundance of caution.” WVUH responded with a Hinchman letter identifying alleged deficiencies in the certificates. The Mortons supplemented with amended and additional certificates. After mediation with the co-defendant (WVUBOG, which settled) failed as to WVUH, WVUH moved to dismiss for lack of subject matter jurisdiction, arguing the certificates of merit were deficient.
The circuit court denied the motion as to the emotional distress claims, concluding the MPLA did not apply to them and therefore the sufficiency of the screening certificates was moot. WVUH petitioned the Supreme Court of Appeals for a writ of prohibition, arguing the circuit court clearly erred in its MPLA analysis and was proceeding without subject matter jurisdiction due to deficient pre-suit notice.
The Court’s Holding
The Supreme Court of Appeals, per Chief Justice Bunn, denied the writ. The court drew a critical distinction between two categories under its prior precedents: (1) a total failure to provide pre-suit notice, which under State ex rel. PrimeCare Medical v. Faircloth, 242 W. Va. 335 (2019), is jurisdictional and warrants a writ of prohibition as of right; and (2) a challenge to the sufficiency of pre-suit notice that was in fact provided, which is governed by the discretionary framework of Hinchman v. Gillette, 217 W. Va. 378 (2005). Because the Mortons had served both a notice of claim and screening certificates of merit — however allegedly deficient — no jurisdictional gap existed that could support a writ.
The court held that even assuming the MPLA applied to the Mortons’ claims, a challenge to the adequacy of a screening certificate of merit’s contents does not implicate subject matter jurisdiction. The Hinchman framework — which requires healthcare providers to raise specific deficiencies in writing and give plaintiffs an opportunity to cure before suit — is calibrated to filter frivolous claims and facilitate pre-suit resolution without denying citizens’ access to courts. A finding that a certificate is merely deficient in content, as opposed to entirely absent, does not strip the circuit court of jurisdiction to proceed. Accordingly, the court declined to issue a writ on jurisdictional grounds and also found no basis for exercising its discretionary prohibition authority, since the circuit court’s ruling did not constitute clear legal error given the absence of a total notice failure.
Key Takeaways
- Under West Virginia law, complete failure to provide MPLA pre-suit notice is jurisdictional (per Faircloth) and supports a writ of prohibition as of right; alleged insufficiency of a notice that was provided is not jurisdictional and does not support such a writ.
- Plaintiffs who are uncertain whether the MPLA applies to their claims should follow Gray v. Mena‘s guidance and provide pre-suit notice prophylactically — doing so, as the Mortons did here, forecloses a defendant’s strongest jurisdictional argument even if the notice’s adequacy remains contested.
- A writ of prohibition challenging denial of a motion to dismiss on MPLA pre-suit-notice grounds will not issue where the plaintiff served some form of notice and certificate; the sufficiency dispute is properly resolved by the circuit court under Hinchman, with appellate review available through direct appeal.
- Defects not raised with specificity in a timely Hinchman letter are waived; WVUH’s preserved objections did not overcome the threshold jurisdictional analysis.
Why It Matters
This decision clarifies a frequently litigated fault line in West Virginia medical malpractice practice: when a jurisdictional writ of prohibition is available to a healthcare defendant challenging pre-suit compliance. By confining the jurisdictional rule of Faircloth to cases of complete notice absence, the court signals that disputes over certificate-of-merit adequacy belong in the ordinary course of circuit court litigation — not in the Supreme Court of Appeals on an extraordinary writ — unless the certificate is entirely missing. This limits a litigation tactic that defendants have used to short-circuit malpractice suits before discovery even begins.
For practitioners, the ruling reinforces that plaintiffs in borderline MPLA cases should serve prophylactic pre-suit notice even when the MPLA’s applicability is genuinely in dispute. It also underscores the procedural value of the Hinchman process: a defendant that wants to preserve sufficiency objections must raise them specifically in a timely written request and cannot later bootstrap those objections into a jurisdiction-stripping argument before an appellate court on prohibition.