Notice of Claim (30-Day Pre-Suit Notice of Intent to Sue) with Screening Certificate of Merit - West Virginia

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

TABLE OF CONTENTS

1. Header / Service Particulars
2. Statement of Notice and Statutory Basis
3. Identification of Claimant and Patient
4. Identification of All Recipients (Health Care Providers and Facilities)
5. Summary of Pertinent Care and Time Period
6. Theory or Theories of Liability
7. Statement of Injuries and Damages
8. Screening Certificate of Merit
9. Provider's Right to Respond and Pre-Suit Mediation
10. Tolling of Statute of Limitations
11. Confidentiality
12. Reservation of Rights
13. Service
14. Signature Block
15. West Virginia Practice Notes
16. Sources and References

1. HEADER / SERVICE PARTICULARS

[LAW FIRM LETTERHEAD]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED

Certified Mail Article No.: [________________________________]

Date: [__/__/____]

To:

[PROVIDER NAME / TITLE]

[FACILITY OR PRACTICE GROUP]

[STREET ADDRESS]

[CITY, STATE ZIP]

Re: Notice of Claim and Screening Certificate of Merit Pursuant to W. Va. Code § 55-7B-6

Patient: [PATIENT FULL LEGAL NAME]

Date(s) of Care: [BEGINNING DATE] to [ENDING DATE]

Facility/Location: [FACILITY]

2. STATEMENT OF NOTICE AND STATUTORY BASIS

2.1. This letter constitutes the Notice of Claim required by West Virginia Code § 55-7B-6 prior to the commencement of a civil action for medical professional liability. Pursuant to § 55-7B-6, no medical professional liability action may be filed against you until the expiration of thirty (30) days from your receipt of this Notice and the accompanying Screening Certificate of Merit.

2.2. Compliance with § 55-7B-6 is jurisdictional. This Notice and the accompanying Screening Certificate of Merit are intended to satisfy that statutory requirement strictly. See Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005).

3. IDENTIFICATION OF CLAIMANT AND PATIENT

3.1. Claimant: [CLAIMANT FULL LEGAL NAME], residing at [ADDRESS], [in his/her individual capacity / as duly appointed Personal Representative of the Estate of [DECEDENT NAME], deceased / as parent and next friend of [MINOR NAME], a minor].

3.2. Patient: [PATIENT FULL LEGAL NAME], [date of birth __/__/____ / date of death __/__/____].

3.3. Counsel: [ATTORNEY NAME], [LAW FIRM NAME], [ADDRESS], [PHONE], [EMAIL], W. Va. State Bar No. [####].

4. IDENTIFICATION OF ALL RECIPIENTS (HEALTH CARE PROVIDERS AND FACILITIES)

4.1. Pursuant to § 55-7B-6(c), Claimant is concurrently serving Notices of Claim and accompanying Screening Certificates of Merit on the following health care providers and health care facilities:

5. SUMMARY OF PERTINENT CARE AND TIME PERIOD

5.1. The medical care at issue was rendered to Patient between [BEGINNING DATE] and [ENDING DATE] at [FACILITY / FACILITIES].

5.2. Briefly summarized, the care included [SUMMARY — e.g., emergency-department evaluation on [DATE], hospital admission on [DATE], surgical procedure on [DATE], post-operative course through [DATE], discharge on [DATE]].

5.3. The injury or harm complained of arose on or about [DATE] and was discovered (or reasonably should have been discovered) on or about [DATE], for purposes of W. Va. Code § 55-7B-4.

6. THEORY OR THEORIES OF LIABILITY

6.1. Pursuant to § 55-7B-6(c), Claimant identifies the following theory or theories of liability against the recipient identified in Section 1 above:

• Medical Negligence (Departure from Applicable Standard of Care). The recipient breached the standard of care required of a reasonably prudent [SPECIALTY] by, among other things: [BREACH 1; BREACH 2; BREACH 3].
• [Where applicable] Lack of Informed Consent. The recipient failed to disclose material risks, benefits, and reasonable alternatives to [PROCEDURE], including the risk of [SPECIFIC RISK].
• [Where applicable] Vicarious Liability / Apparent Agency. The recipient is liable for the acts and omissions of its actual or apparent agents.
• [Where applicable] Negligent Hiring, Credentialing, Retention, or Supervision. The recipient negligently selected, credentialed, or supervised personnel to whom it granted clinical privileges.
• [Where applicable] Corporate / Institutional Negligence. The recipient breached independent corporate duties of care.
• [Where applicable] Wrongful Death. Claimant brings derivative claims under W. Va. Code § 55-7-5 and § 55-7-6 for the wrongful death of Patient.
• [Where applicable] Other Theories: [SPECIFY].

6.2. The factual basis for the foregoing theories, including the manner in which the standard of care was breached and the resulting injury, is set forth with particularity in the Screening Certificate of Merit accompanying this Notice.

7. STATEMENT OF INJURIES AND DAMAGES

7.1. As a direct and proximate result of the conduct described above, Patient sustained [DESCRIBE INJURY — e.g., permanent neurological injury; loss of organ function; surgical complications; sepsis; wrongful death].

7.2. Claimant has incurred and will incur damages including: past and future medical, hospital, rehabilitative, and prescription expenses; lost wages and loss of earning capacity; physical pain, mental anguish, and emotional distress; permanent injury and loss of enjoyment of life; [loss of consortium / funeral and burial expenses, where applicable]; and other damages recoverable under the West Virginia Medical Professional Liability Act.

7.3. Claimant's recovery for noneconomic damages will be subject to the limits prescribed by W. Va. Code § 55-7B-8, as adjusted for inflation, except as otherwise provided in § 55-7B-8(b) (catastrophic injury) and § 55-7B-8(d) (insurance threshold).

8. SCREENING CERTIFICATE OF MERIT

8.1. Accompanying this Notice and incorporated herein is a Screening Certificate of Merit, executed under oath by [EXPERT NAME], M.D./D.O., a board-certified [SPECIALTY], who satisfies the qualifications of W. Va. Code §§ 55-7B-6(b) and 55-7B-7, including the same-specialty requirement, the 60% professional-time requirement, and the board-certification requirement.

8.2. The Screening Certificate of Merit states with particularity (i) the basis for the expert's familiarity with the applicable standard of care; (ii) the expert's qualifications; (iii) the expert's opinion as to how the standard of care was breached; (iv) the expert's opinion as to how the breach proximately caused injury or death; and (v) a list of all medical records and other information reviewed by the expert, in compliance with § 55-7B-6(b).

8.3. [If proceeding under § 55-7B-6(d) or (e), substitute the following: Pursuant to W. Va. Code § 55-7B-6(d), Claimant is unable at this time to provide a complete Screening Certificate of Merit because [REASON — e.g., the medical records necessary for expert review are in the exclusive control of the recipient and have not been produced despite written request]. Claimant will supplement the Screening Certificate of Merit within sixty (60) days of receipt of the responsive medical records.]

9. PROVIDER'S RIGHT TO RESPOND AND PRE-SUIT MEDIATION

9.1. Pursuant to W. Va. Code § 55-7B-6(f), the recipient may respond in writing to this Notice within thirty (30) days of receipt. Any response should be directed to undersigned counsel at the address shown above.

9.2. Pursuant to § 55-7B-6, the recipient may also propose pre-suit mediation. Claimant [is open to / declines to engage in / will consider on receipt of a proposal for] good-faith pre-suit mediation, without waiver of any rights.

9.3. The recipient is encouraged to forward this Notice and the accompanying Screening Certificate of Merit promptly to its professional liability insurance carrier and defense counsel.

10. TOLLING OF STATUTE OF LIMITATIONS

10.1. To the extent this Notice is being served less than thirty (30) days before the expiration of the applicable statute of limitations under W. Va. Code § 55-7B-4, Claimant invokes the tolling provision of § 55-7B-6, which extends the limitations period an additional thirty (30) days from the date of service of this Notice.

10.2. This invocation of statutory tolling is without waiver of, and is in addition to, any other applicable tolling doctrine, including discovery, fraudulent concealment, minor tolling, or unsound-mind tolling.

11. CONFIDENTIALITY

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

11.2. Nothing herein waives the apology-statute protection of W. Va. Code § 55-7-11a; expressions of sympathy, apology, condolence, or benevolence by the recipient relating to the discomfort, pain, suffering, injury, or death of Patient remain inadmissible as admissions of liability.

12. RESERVATION OF RIGHTS

12.1. Claimant expressly reserves the right to amend, supplement, or expand this Notice; to add additional providers and facilities; to assert additional theories of liability; and to take such other action as discovery and additional investigation may warrant. No statement, omission, or characterization in this Notice shall constitute a waiver of any claim, defense, or right.

13. SERVICE

13.1. This Notice of Claim, together with the Screening Certificate of Merit, is being served upon the recipient by certified mail, return receipt requested, on the date set forth above. Counsel will retain proof of service for filing as an exhibit to any subsequent Complaint.

14. SIGNATURE BLOCK

Sincerely,

[________________________________]

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

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, WV ZIP]

Telephone: [NUMBER]

Facsimile: [NUMBER]

Email: [EMAIL]

Counsel for Claimant

Enclosures:

• Screening Certificate of Merit of [EXPERT NAME], M.D./D.O., with Curriculum Vitae (Exhibit 1)
• Authorization for Release of Medical Records (HIPAA-compliant)
• Schedule of all recipients of Notice of Claim (Section 4 above)

cc (without enclosures, where appropriate):

• [Recipient's known professional liability insurer]
• [Recipient's known counsel]
• [Co-counsel for Claimant]

15. WEST VIRGINIA PRACTICE NOTES

• Jurisdictional compliance. § 55-7B-6 is a jurisdictional pre-condition. Hinchman v. Gillette, 217 W. Va. 378 (2005); Stanley v. United Hospital Center, Inc., 219 W. Va. 783 (2006). A defective or omitted Notice / COM bars suit, and the eventual Complaint is subject to dismissal.
• 30-day waiting period. Suit may not be filed earlier than 30 days after the recipient's receipt of the Notice and COM. The waiting period runs from receipt, not transmission; calendaring should use the certified-mail return-receipt date.
• Recipient list. § 55-7B-6(c) requires the Notice to identify all providers and facilities receiving notices. Inconsistent recipient lists across parallel notices are a frequent target of motion practice.
• One COM per provider. A separate Screening Certificate of Merit is required for each provider/facility against whom a claim is asserted (§ 55-7B-6(b)).
• Expert qualifications. § 55-7B-7 imposes strict same-specialty, 60%-professional-time, and (where applicable) board-certification requirements. Document each in the COM.
• SOL tolling. Service of the Notice within fewer than 30 days before SOL expiration extends the limitations period by 30 days from service (§ 55-7B-6).
• Confidentiality and apology. § 55-7B-6(g) and § 55-7-11a both protect the pre-suit dialogue and any apology against later admissibility.
• Records request. Couple the Notice with a HIPAA-compliant authorization to expedite production of complete records, particularly where the COM was prepared on partial records.
• State and federal employees. For state-employed providers, evaluate W. Va. Code § 55-17-3 (state-actor pre-suit notice) and the Court of Claims process. For federal providers (VA, IHS, federally qualified health centers under FTCA coverage), the Federal Tort Claims Act SF-95 administrative claim process supplants the state pre-suit framework — do NOT use this template for FTCA claims.
• Long-term care. Nursing-home and certain long-term-care claims may carry a one-year statute of limitations under § 55-7B-4(b); recalculate timing carefully before invoking the 30-day tolling extension.
• Insurance coverage. Investigate whether the recipient maintains the $1 million per-occurrence professional liability coverage required for the noneconomic damages cap to apply (§ 55-7B-8(d)).

16. 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-4 — Statute of limitations / repose — https://code.wvlegislature.gov/55-7B-4/
• W. Va. Code § 55-7B-8 — Cap on noneconomic damages — https://code.wvlegislature.gov/55-7B-8/
• W. Va. Code § 55-7-11a — Apology / expressions of sympathy inadmissible — https://code.wvlegislature.gov/55-7-11a/
• W. Va. Code § 55-17-3 — Pre-suit notice for actions against the State (where applicable)
• Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005)
• Stanley v. United Hospital Center, Inc., 219 W. Va. 783 (2006)
• Westmoreland v. Vaidya, 222 W. Va. 205 (2008)
• Gray v. Mena, 218 W. Va. 564 (2005)

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. Pre-suit notice and certificate-of-merit compliance under W. Va. Code § 55-7B-6 is jurisdictional; defective or omitted notice bars suit.