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CHARLESTON, W.Va. (AP) - FedEx or the U.S. Postal Service? Twenty-seven days notice or 30 days?
Tuesday's oral arguments in a state Supreme Court appeal of a dismissed lawsuit over a woman's death in a Parkersburg hospital focused on these seemingly small - but potentially deciding - issues.
Bernard Boggs' lawsuit was dismissed in Wood County Circuit Court last year because he had failed to give the defendants - Camden-Clark Memorial Hospital Corp., Dr. Manish I. Koyawala and United Anesthesia Inc. - 30 days to demand pre-lawsuit mediation after they received an expert's certificate of merit.
"There is no prejudice here other than maybe they would have had three more days to consider pre-lawsuit mediation,'' said Boggs' attorney Christopher Regan.
Boggs had originally sent notice of the lawsuit but had failed to include a signed expert's certificate of merit. The signed certificate was later sent via FedEx, but the circuit judge agreed that this was in violation of state code, which requires the filings to be sent through the U.S. Postal Service.
"Those administrative issues'' were enough to dismiss the case without considering the merits of the lawsuit, Regan said.
"It was a clear-the-decks kind of ruling,'' he said.
C. Benjamin Salango, attorney for Koyawala and United Anesthesia, said Regan was "making light'' of important procedural issues.
Legal documents are not valid until signed, and the last few days in the 30-day period are the most important in deciding a defendant's strategy, Salango said.
Regan argued that it is unfair to require plaintiffs to file notice in medical malpractice cases, when parties in other types of lawsuits are not required to do so.
In a countersuit against Boggs, for instance, Camden-Clark Memorial Hospital was not required to file any special notice, Regan said.
Making individuals "jump through hoops'' to file medical malpractice lawsuits discourages plaintiffs and violates equal access to justice, he argued.
The notice rules were intended by the Legislature to reduce frivolous medical malpractice lawsuits by forcing plaintiffs to get an expert to certify the validity of the claim within a relatively short timeframe, said Don Sensabaugh, another attorney for the doctor United Anesthesia.
The notice rules "do not impede the right to file suit...,'' he said. "Those are things that plaintiffs must do to file a lawsuit.
The disputed circumstances surrounding the death of Boggs' wife, 50-year-old Hilda Boggs, at Camden-Clark Memorial Hospital are not part of the Supreme Court appeal. The teacher was hospitalized after breaking her ankle in a fall at Mineral Wells Elementary School in September 2001.
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