Pre-Suit Screening Certificate of Merit - West Virginia

SCREENING CERTIFICATE OF MERIT PURSUANT TO W. VA. CODE § 55-7B-6

TABLE OF CONTENTS

1. Caption / Identification
2. Identification of Claim and Defendant
3. Expert's Identity and Qualifications
4. Records and Information Reviewed
5. Familiarity With Applicable Standard of Care
6. Applicable Standard of Care
7. Opinion as to Breach of Standard of Care
8. Opinion as to Causation of Injury or Death
9. Reservation and Limitations
10. Confidentiality and Non-Admissibility
11. Sworn Statement / Jurat
12. Counsel Certification of Service
13. West Virginia Practice Notes
14. Sources and References

1. CAPTION / IDENTIFICATION

SCREENING CERTIFICATE OF MERIT

Pursuant to West Virginia Code § 55-7B-6

2. IDENTIFICATION OF CLAIM AND DEFENDANT

2.1. This Screening Certificate of Merit is submitted in support of the Notice of Claim served on [DEFENDANT NAME] (the "Provider") on [DATE], regarding medical care rendered to [PATIENT NAME] (the "Patient") between [BEGINNING DATE] and [ENDING DATE] at [FACILITY / LOCATION].

2.2. The claim alleges that the Provider departed from the applicable standards of care, and that such departures proximately caused [INJURY / WRONGFUL DEATH] to Patient.

3. EXPERT'S IDENTITY AND QUALIFICATIONS

3.1. I, [EXPERT FULL LEGAL NAME], M.D./D.O./D.D.S./other ("Expert"), submit this Screening Certificate of Merit pursuant to W. Va. Code § 55-7B-6(b) and after being duly sworn, depose and state as follows:

3.2. Practice address: [STREET ADDRESS, CITY, STATE, ZIP].

3.3. Medical degree: I received my [M.D. / D.O. / D.D.S. / other] degree from [INSTITUTION] in [YEAR], completed residency training in [SPECIALTY] at [INSTITUTION] from [YEAR-YEAR], and [completed fellowship training in [SUBSPECIALTY] at [INSTITUTION] from [YEAR-YEAR]].

3.4. Licensure: I am currently licensed to practice [medicine / osteopathy / dentistry / other] in the State(s) of [STATE(S)], License No(s). [####], and I was so licensed during the period relevant to this claim.

3.5. Board certification: I am currently certified by the [BOARD NAME — e.g., American Board of Internal Medicine] in [SPECIALTY], and [where applicable] by the [SUBSPECIALTY BOARD] in [SUBSPECIALTY], with initial certification in [YEAR] and most recent recertification in [YEAR].

3.6. Same-specialty qualification (W. Va. Code § 55-7B-7(a)(5)–(6)): At the time of the alleged medical injury, I was actively engaged in clinical practice [or teaching] in the same field of medicine as the Provider, namely [SPECIALTY / SUBSPECIALTY]. [Where applicable: I am board-certified in the same field as the Provider; or, if the Provider began the practice of medicine prior to the existence of board certification in the specialty, the board-certification requirement does not apply.]

3.7. 60% professional-time qualification (§ 55-7B-7(a)(6)): At the time of the alleged medical injury, I devoted not less than sixty percent (60%) of my professional time annually to the active clinical practice of [SPECIALTY] [and/or to teaching as a member of the faculty of a medical school accredited by the Liaison Committee on Medical Education or American Osteopathic Association].

3.8. Twelve-month engagement (§ 55-7B-7(a)(5)): During the twelve (12) months immediately preceding the alleged negligent act or omission, I was engaged in the treatment of patients [or in teaching] in the same field of medicine as the Provider.

3.9. Rule 702 qualification: I am qualified as an expert under W. Va. R. Evid. 702 by reason of my knowledge, skill, experience, training, and education in [SPECIALTY].

3.10. A current Curriculum Vitae detailing my training, experience, certifications, hospital privileges, publications, and prior testimony is attached as Exhibit 1.

4. RECORDS AND INFORMATION REVIEWED

4.1. In forming the opinions set forth herein, I have reviewed the following medical records and other materials (the "Reviewed Materials"):

• [Hospital / facility records from [FACILITY], dating [DATE RANGE], Bates [####]–[####];]
• [Office / clinic records of [PROVIDER NAME], dating [DATE RANGE];]
• [Imaging studies and radiology reports, including [TYPE/DATE];]
• [Pathology reports and slides, including [TYPE/DATE];]
• [Laboratory results, including [TYPE/DATE];]
• [Operative reports dated [DATE];]
• [Anesthesia records dated [DATE];]
• [Nursing notes dated [DATE RANGE];]
• [Medication administration records (MAR) dated [DATE RANGE];]
• [EMS / ambulance run sheet dated [DATE];]
• [Death certificate / autopsy report dated [DATE];]
• [Deposition transcripts and/or recorded statements, if any;]
• [Photographs, video, or other demonstrative materials;]
• [Pertinent peer-reviewed medical literature, including [LIST];]
• [Other: [SPECIFY]].

4.2. The Reviewed Materials are sufficient in quality and quantity to permit me to form the opinions expressed below to a reasonable degree of medical probability.

5. FAMILIARITY WITH APPLICABLE STANDARD OF CARE

5.1. I am familiar with the standards of medical care applicable to a reasonably prudent [SPECIALTY] practicing under the same or similar circumstances as the Provider in [YEAR(S) OF EVENT], by reason of:

• My education, residency, and [fellowship] training;
• My [##] years of clinical practice as a [SPECIALTY];
• My current and historical hospital privileges at [FACILITIES];
• My active membership in [PROFESSIONAL SOCIETIES — e.g., American College of Physicians, Society of Critical Care Medicine];
• My current familiarity with applicable practice guidelines (e.g., [ACCP / AHA / ACOG / ATS / IDSA / etc.] guidelines), peer-reviewed literature, and continuing medical education in the field; and
• My [teaching / supervisory / quality-review] experience.

6. APPLICABLE STANDARD OF CARE

6.1. The applicable standard of care for a reasonably prudent [SPECIALTY] treating Patient under the circumstances presented required, among other things, that:

• [STANDARD-OF-CARE OBLIGATION 1 — e.g., obtain a complete history, including [SPECIFIC ELEMENT];]
• [STANDARD-OF-CARE OBLIGATION 2 — e.g., timely order [DIAGNOSTIC STUDY] when [TRIGGER];]
• [STANDARD-OF-CARE OBLIGATION 3 — e.g., recognize and respond to [CLINICAL FINDING] within [TIME WINDOW];]
• [STANDARD-OF-CARE OBLIGATION 4 — e.g., consult [SPECIALTY] when [TRIGGER];]
• [STANDARD-OF-CARE OBLIGATION 5 — e.g., obtain informed consent regarding [SPECIFIC RISK];]
• [STANDARD-OF-CARE OBLIGATION 6 — e.g., monitor [PARAMETER] at [INTERVAL];]
• [Other standards reasonably applicable].

7. OPINION AS TO BREACH OF STANDARD OF CARE

7.1. To a reasonable degree of medical probability, the Provider departed from the applicable standard of care in one or more of the following respects:

• [BREACH 1 — e.g., failed to order CT angiography of the chest despite Patient's classic presentation of acute pulmonary embolism (tachycardia, hypoxia, pleuritic chest pain, recent immobility), in violation of the standard requiring prompt imaging in the setting of an elevated Wells score;]
• [BREACH 2 — e.g., misinterpreted the abdominal CT obtained on [DATE] as showing no acute pathology when, in fact, the imaging demonstrated [FINDING];]
• [BREACH 3 — e.g., discharged Patient without arranging follow-up despite an unresolved [FINDING];]
• [BREACH 4 — e.g., failed to obtain timely surgical or [SPECIALTY] consultation;]
• [BREACH 5 — e.g., prescribed [MEDICATION] in a dose contraindicated for Patient's renal function;]
• [BREACH 6 — e.g., failed to disclose the material risk of [SPECIFIC RISK] before obtaining consent for the [PROCEDURE];]
• [Other departures evident from the Reviewed Materials].

8. OPINION AS TO CAUSATION OF INJURY OR DEATH

8.1. To a reasonable degree of medical probability, the breaches identified above were a proximate cause of Patient's injuries [and death], in that:

• [CAUSATION CHAIN 1 — e.g., timely diagnosis and anticoagulation of pulmonary embolism would, more likely than not, have prevented Patient's cardiopulmonary arrest;]
• [CAUSATION CHAIN 2 — e.g., recognition of bowel ischemia at the time of the index CT would have permitted surgical intervention before infarction and sepsis;]
• [CAUSATION CHAIN 3 — e.g., disclosure of the risk of [HARM] would have caused a reasonable patient in Patient's position to decline the procedure;]
• [Other causal links supported by the Reviewed Materials].

8.2. Patient's injuries are not the kind that occur in the absence of negligence and are directly attributable to the departures from the standard of care identified above.

9. RESERVATION AND LIMITATIONS

9.1. The opinions expressed in this Screening Certificate of Merit are based on the Reviewed Materials presently available to me and are subject to revision, supplementation, or modification upon my review of additional records, depositions, or other discovery materials.

9.2. This Screening Certificate of Merit is intended to satisfy the requirements of W. Va. Code § 55-7B-6 and does not constitute the entirety of my expert opinion or trial testimony.

10. CONFIDENTIALITY AND NON-ADMISSIBILITY

10.1. Pursuant to W. Va. Code § 55-7B-6(g), this Screening Certificate of Merit, together with the underlying Notice of Claim, any response thereto, and the results of any pre-suit mediation, are confidential and are not admissible as evidence in any court proceeding, except as the court, upon hearing, may otherwise determine to prevent a miscarriage of justice.

11. SWORN STATEMENT / JURAT

I, [EXPERT NAME], M.D./D.O./other, declare and affirm under oath that I have read the foregoing Screening Certificate of Merit; that the matters set forth herein are true and correct to the best of my knowledge, information, and belief; and that the opinions expressed are held to a reasonable degree of medical probability.

[________________________________]

[EXPERT NAME], [DEGREE]

Date: [__/__/____]

STATE OF [________________________________]

COUNTY OF [________________________________], to-wit:

Taken, subscribed, and sworn to before me by [EXPERT NAME], [DEGREE], this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

[NOTARY SEAL]

12. COUNSEL CERTIFICATION OF SERVICE

I, [ATTORNEY NAME], counsel for Claimant, hereby certify that on this [____] day of [_______________], 20[____], I caused a true and correct copy of this Screening Certificate of Merit, together with the Notice of Claim and all referenced exhibits, to be served upon the Provider by certified mail, return receipt requested, addressed as follows:

[PROVIDER NAME / FACILITY]

[ADDRESS]

[________________________________]

[ATTORNEY NAME], W. Va. State Bar No. [####]

[LAW FIRM NAME]

[ADDRESS]

Telephone: [NUMBER]

Email: [EMAIL]

13. WEST VIRGINIA PRACTICE NOTES

• Jurisdictional nature. Compliance with § 55-7B-6 is jurisdictional. Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005), and progeny require strict compliance; substantial compliance is generally insufficient. Defective COMs (e.g., missing the same-specialty showing, lacking the 60%-time recital, omitting the records list) are routinely the basis of motions to dismiss.
• Same-specialty rule. § 55-7B-7(a)(5) requires the expert to have been engaged in the same field of medicine as the defendant in the 12 months immediately preceding the alleged negligent act. Where the defendant is a sub-specialist, match the sub-specialty; where the defendant treated a condition outside the defendant's specialty, the expert should be qualified in the relevant practice area.
• 60% professional-time rule. § 55-7B-7(a)(6) requires at least 60% of the expert's professional time be devoted to active clinical practice or teaching in the relevant field. Document this expressly in the COM and CV; conclusory recitations are vulnerable.
• Board certification. § 55-7B-7(a)(6) requires the expert to be board-certified in the same field as the defendant where the defendant is board-certified, with a narrow exception for experts who began practice before board certification existed in the specialty.
• Separate COM per defendant. § 55-7B-6(b) requires a separate COM for each provider/facility. Sharing a COM across defendants is a frequent fatal defect.
• Confidentiality. § 55-7B-6(g) renders the COM and the pre-suit exchange confidential and inadmissible at trial except where nondisclosure would cause a miscarriage of justice.
• Tolling. Where the Notice of Claim and COM are served less than 30 days before expiration of the statute of limitations, § 55-7B-6 extends the limitations period an additional 30 days from the date of service.
• Alternative pathways. § 55-7B-6(d) provides limited relief where information necessary for a COM is in the defendant's exclusive control; § 55-7B-6(e) addresses claims based wholly on lack of informed consent or res ipsa loquitur. These are narrow and disfavored exceptions; use the standard COM where possible.
• Consistency with Complaint. The COM should align with the factual narrative and theories of liability pleaded in the eventual Complaint. Inconsistencies invite Rule 11 and dispositive motions.

14. SOURCES AND REFERENCES

• W. Va. Code § 55-7B-6 — Pre-suit notice and certificate of merit — https://code.wvlegislature.gov/55-7B-6/
• W. Va. Code § 55-7B-7 — Expert qualifications — https://code.wvlegislature.gov/55-7B-7/
• W. Va. Code § 55-7B-2 — Definitions — https://code.wvlegislature.gov/55-7B-2/
• W. Va. R. Evid. 702 — Testimony by expert witnesses
• Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005)
• Stanley v. United Hospital Center, Inc., 219 W. Va. 783 (2006) — strict compliance with § 55-7B-6
• Westmoreland v. Vaidya, 222 W. Va. 205 (2008) — sufficiency of COM
• Gray v. Mena, 218 W. Va. 564 (2005) — pre-suit requirements

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in West Virginia must review and customize this document before service. The pre-suit certificate-of-merit framework is jurisdictional and the qualifications of the executing expert must be carefully verified against W. Va. Code § 55-7B-7 and current case law.