On August 6, 2025, the West Virginia Intermediate Court of Appeals reinforced the strict procedural requirements under the West Virginia Medical Professional Liability Act (“MPLA”) in Summers v. Moore (24-ICA-385). The Court confirmed that failure to provide a valid certificate of merit from a qualified expert deprives a circuit court of subject matter jurisdiction. Such dismissals, however, are ordinarily without prejudice, preserving a claimant’s ability to refile. The decision also clarified that once jurisdiction is lacking, courts may not consider substantive defenses such as statutory immunity.
Victor Summers filed a medical malpractice and negligence suit against Dr. Edward Moore after a malfunctioning ultraviolet (UV) germicidal light at Dr. Moore’s office caused thermal burns and blistering. In 2022, Summers served Dr. Moore with a notice of claim, and a screening certificate of merit pursuant to West Virginia Code § 55-7B-6(c) (2022) of the MPLA. The screening certificate of merit set forth alleged deficiencies in Dr. Moore’s use of UV lights and was executed by Tiffanie Bova, a registered nurse with certifications in nursing, nursing home administration, and wound care and a background in corporate compliance with healthcare facilities. However, Ms. Bova did not have education, training, or experience in dentistry and never worked in a dental office.
Dr. Moore sought dismissal, arguing that Mr. Summers failed to comply with the MPLA’s pre-suit notice requirements and Dr. Moore was entitled to immunity pursuant to the COVID-19 Jobs Protection Act. The Circuit Court agreed, holding that Ms. Bova was not qualified to issue a screening certificate of merit under the MPLA because her “professional background as a wound care nurse, corporate compliance officer, and nursing supervisor in long-term care facilities does not qualify her as an expert in dentistry or UV lighting specific to dental settings.” Given this finding, the circuit court concluded that Mr. Summers failed to comply with the MPLA’s pre-suit notice requirements and therefore, the circuit court lacked subject matter jurisdiction. Additionally, the circuit court determined that Dr. Moore was immune from liability pursuant to the COVID-19 Jobs Protection Act.
The West Virgina Intermediate Court of Appeals affirmed the Circuit Court’s decision that the screening certificate of merit was invalid. In making this determination, the Court looked to the text of the statute, which requires an expert witness to “maintain a current licenses to practice medicine” and who is “engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient” to execute the screening certificate. See W. Va. Code § 55-7B-7(a)(5)-(6). Using the language of the MPLA, the Appellate Court determined that Ms. Bova did not meet either of the requirements. Accordingly, it concluded that Mr. Summers’ screening certificate of merit did not comply with the requirements of the MPLA.
As a result of the Appellate Court concluding that the screening certificate of merit was invalid, by law, and such invalidity deprived the Circuit Court of subject matter jurisdiction. E.g., State ex rel. PrimeCare Med. of W. Va. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019). This jurisdictional requirement is concrete, and a court shall not make any exceptions. Id.
However, although the Appellate Court agreed with the Circuit Court’s dismissing of the case due to the lack of jurisdiction, it determined the Circuit Court erred in two respects. First, once jurisdiction was absent, the Circuit Court should not have addressed Dr. Moore’s immunity. Second, the Circuit Court’s order dismissing with prejudice was invalid because it was heavily influenced by its improper consideration of Dr. Moore’s immunity and West Virginia law disfavors barring claims on procedural technicalities. Altogether, the Appellate Court upheld the Circuit Court’s order to dismiss the case but ordered it without prejudice and vacated any order determining Dr. Moore’s immunity.
This decision underscores the critical importance of compliance with the MPLA, as procedural defects can result in dismissal. The Court emphasizes that without strict compliance, it cannot consider substantive defenses. However, the ruling does reassure claimants that these types of dismissals are generally without prejudice, preserving the ability to refile if the requirements are later satisfied. Should you have any questions regarding this decision, please feel free to contact our West Virginia licensed lawyers.
