USCA4 Appeal: 22-2227 Doc: 50-2 Filed: 01/09/2024 Pg: 1 of 20

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2227

ELAINE NEIDIG, individually and on behalf of all others similarly situated,

Plaintiff – Appellant,

v.

VALLEY HEALTH SYSTEM,

Defendant – Appellee.

------------------------------

WEST VIRGINIA UNITED HEALTH SYSTEM, INC.; WEST VIRGINIA HOSPITAL ASSOCIATION; MOUNTAIN HEALTH NETWORK, INC.; CHARLESTON AREA MEDICAL CENTER, INC.,

Amici Supporting Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:22–cv–00161–GMG)

Argued: December 7, 2023 Decided: January 9, 2024

Before GREGORY, WYNN, and RUSHING, Circuit Judges.

Question certified to the Supreme Court of Appeals of West Virginia by published order. Judge Wynn directed entry of the order with the concurrences of Judge Gregory and Judge Rushing. USCA4 Appeal: 22-2227 Doc: 50-2 Filed: 01/09/2024 Pg: 2 of 20

ARGUED: Anthony J. Majestro, POWELL & MAJESTRO, PLLC, Charleston, West Virginia, for Appellant. Jonathan Tyler Mayhew, BOWLES RICE LLP, Martinsburg, West Virginia, for Appellee. ON BRIEF: Stephen G. Skinner, SKINNER LAW FIRM, Charles Town, West Virginia; Christina Smith, POWELL & MAJESTRO, PLLC, Charleston, West Virginia, for Appellant. Charles F. Printz, Jr., Liana L. Stinson, BOWLES RICE LLP, Martinsburg, West Virginia, for Appellee. Robert M. Sellards, John H. Zickefoose, Bradley D. Dunkle, BAILES CRAIG & SELLARDS PLLC, Huntington, West Virginia, for Amici West Virginia Hospital Association; Mountain Health Network, Inc.; and Charleston Area Medical Center. Christine S. Vaglienti, Assistant Vice President and Senior Litigation Counsel, WEST VIRGINIA UNITED HEALTH SYSTEM, INC., Morgantown, West Virginia, for Amicus West Virginia United Health System, Inc.

ORDER

WYNN, Circuit Judge:

This Court, availing itself of the privilege afforded by the State of West Virginia

through the Uniform Certification of Questions of Law Act,

-1A-1 to -

13, hereby requests that the Supreme Court of Appeals of West Virginia exercise its

discretion to resolve a certified question of law. Pursuant to

-1A-6(a)(1),

we identify the “question of law to be answered” as:

Whether a plaintiff’s claims can fall under the West Virginia Medical

Professional Liability Act if the plaintiff disclaims any form of physical or

emotional injury.

We acknowledge that the Supreme Court of Appeals of West Virginia “may reformulate

the question.”

-1A-6(a)(3); accord

§ 51-1A-4.

It is “appropriate” for this Court to certify “a question of state law to that state’s

highest court . . . when [we are] required to address a novel issue of local law which is

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determinative in the case before [us].” Grattan v. Bd. of Sch. Comm’rs of Balt. City,

(4th Cir. 1986). In our view, “there is no controlling appellate decision,

constitutional provision[,] or statute” of the State of West Virginia,

-1A-

3, that “definitively answers the certified question,” Shears v. Ethicon, Inc.,

(4th Cir. 2023). Moreover, the answer thereto will be “determinative of an issue” in

this “pending cause.”

-1A-3. Accordingly, we exercise our discretion to

sua sponte certify a question of state law. See Shears,

.

I.

Under West Virginia law, a certification order “must contain . . . [t]he facts relevant

to the question, showing fully the nature of the controversy out of which the question

arose.”

-1A-6(a)(2); see Valentine v. Sugar Rock, Inc.,

(W. Va. 2014). “In complying with this requirement, we note that the district court’s

dismissal was for” failure to state a claim on which relief could be granted under Federal

Rule of Civil Procedure 12(b)(6). Bragg v. United States,

(4th Cir.

2012) (per curiam) (unpublished but orally argued) (discussing 12(b)(1) dismissal),

certified question answered,

(W. Va. 2013). Accordingly, “we recount the

facts as alleged in the complaint,” and “also may consider documents attached as exhibits

to the complaint, . . . so long as those documents were integral to the complaint and are

authentic.” Mason v. Mach. Zone, Inc.,

, 317 n.2 (4th Cir. 2017).

Defendant Valley Health System (“Valley Health”) is a health care provider in

West Virginia and other states. It operates six hospitals, including Winchester Medical

Center. Valley Health’s website states its “vision” as being to provide “quality health care”

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and advertises “state-of-the-art technology and knowledgeable staff” at its “imaging

centers and outpatient diagnostic centers,” including for mammograms. J.A. 6–7. 1

Plaintiff Elaine Neidig went to Winchester Medical Center for three mammograms

between March 2016 and June 2019, including one each in December 2017 and June 2019.

During this time, Winchester Medical Center “represented itself as an accredited

mammography center under the Mammography Quality Standards Act” that was “able to

perform proper and correct mammography examinations.” J.A. 8. Neidig “chose to go from

West Virginia to Winchester Medical [Center]” in Virginia “based on the marketing and

advertising of Valley Health into West Virginia,” and she “would not have had Winchester

Medical Center perform her mammograms” but for the above representations. J.A. 8–9.

In July 2019, however, “federal accreditation inspectors found that Winchester

Medical Center staff were not accurately positioning or compressing women’s breasts

during mammograms,” resulting in the Food and Drug Administration declaring that some

mammograms performed by Winchester Medical Center had “serious image quality

deficiencies” that posed a “serious risk to human health.” J.A. 9. Accordingly, the Food

and Drug Administration required Valley Health “to perform a Patient and Referring

Healthcare Provider Notification . . . to alert all at-risk patients and their providers of the

mammography quality problems at the facility.” J.A. 18.

Valley Health provided the required notification to Neidig via a letter dated

December 16, 2019. The letter stated that “there is a serious concern about the quality of

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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the mammography that [Winchester Medical Center] performed between June 20, 2017

and August 31, 2019,” and noted that the Food and Drug Administration “determined that

[Winchester Medical Center] failed to meet the clinical image quality standards established

by [the] facility’s accreditation body.” J.A. 19. The letter clarified that “[t]his does not

necessarily mean that the results [Neidig] and [her] health care provider(s) were given are

wrong,” but noted that “patients may need to have their mammograms . . . reviewed to

determine whether a repeat mammogram at another facility is needed.”

Valley Health

offered to “pay for the reevaluation of [Neidig’s] mammogram(s) and for [her] repeat

mammogram, if needed, at another [Mammography Quality Standards Act]-certified

facility within [its] health network or partner facility.” J.A. 20. But it did not refund the

$1,071 that Neidig paid for the two mammograms she received during the relevant period.

Neidig brought a putative class-action suit against Valley Health in West Virginia

state court in August 2022, and Valley Health removed the case to federal court in

accordance with the Class Action Fairness Act. Neidig brought three claims: unfair and

deceptive acts and practices under the West Virginia Consumer Credit and Protection Act;

unjust enrichment; and breach of contract. She did not allege—and has explicitly

disclaimed—any physical harm resulting from the low-quality mammograms. Nor did she

allege any other form of personal injury, such as negligent infliction of emotional distress.

Valley Health moved to dismiss, in relevant part, on the basis that the complaint

failed to state a claim upon which relief could be granted because it was filed beyond the

two-year statute of limitations provided by West Virginia’s Medical Professional Liability

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Act. There is no dispute that if the Medical Professional Liability Act applies, Neidig’s

claims are untimely. But Neidig argues that the Act does not apply.

The district court agreed with Valley Health that the Medical Professional Liability

Act applied to Neidig’s claims and, therefore, her complaint was filed after the applicable

limitations period had run. Neidig timely appealed.

II.

The question before us is whether Neidig’s claims—although styled as consumer-

protection claims for unfair and deceptive acts and practices, unjust enrichment, and breach

of contract—nevertheless fall within the ambit of the West Virginia Medical Professional

Liability Act. We conclude that the answer to that question is unclear.

The Supreme Court of Appeals of West Virginia has held that courts are required

“to look beyond the labels of causes of action and artful pleading and instead critically

examine the allegations pled to determine whether the plaintiff’s complained-of conduct

falls under the [Medical Professional Liability Act]’s provisions.” State ex rel. Charleston

Area Med. Ctr., Inc. v. Thompson,

, 860 (W. Va. 2023) (quoting Damron v.

Primecare Med. of W. Va., Inc., No. 20-0862,

, at *3 (W. Va. June 9,

2022) (memorandum decision)); accord State ex rel. W. Va. Univ. Hosps., Inc. v. Scott,

, 359 (W. Va. 2021) (holding that plaintiffs “cannot avoid the [Medical

Professional Liability Act] with creative pleading”).

The Medical Professional Liability Act “applies only when two conditions are

satisfied, that is, when a plaintiff (1) sues a ‘health care provider’ or ‘health care facility’

for (2) ‘medical professional liability’ as those terms are defined under the Act.” State ex

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rel. W. Va. Div. of Corr. & Rehab. v. Ferguson,

, 53 (W. Va. 2023). When

those conditions are present, the action must be brought under the Medical Professional

Liability Act, even if another cause of action would otherwise apply. E.g., Minnich v.

MedExpress Urgent Care, Inc.-W. Va.,

(W. Va. 2017).

There is no dispute that Valley Health is a health care provider, so only the second

prong is at issue here—that is, whether Neidig has sued Valley Health for medical

professional liability.

The Medical Professional Liability Act defines “[m]edical professional liability” as

any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.

-7B-2(i). Neidig does not dispute that a mammogram is a “health care

service” for purposes of the Act. Cf. J.A. 9–10 (complaint referring to mammograms as

health care). But she alleges that the harm she is seeking to remedy is purely as a consumer,

rather than as a “patient.” She also explicitly disclaims any physical injury arising from her

mammograms. 2

2 The parties dispute how Neidig could prove her claims based on the quality of the mammograms she received. Valley Health asserts that those claims require medical expert testimony as to the standard of care. Cf.

-7B-7(a) (“The applicable standard of care and a defendant’s failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court.”). At oral argument, Neidig’s counsel represented that she could prove her claims without medical expert testimony because Valley Health was required to send a Patient and Referring

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This case thus presents an opportunity to flesh out the boundaries of the Medical

Professional Liability Act. The Act’s legislative history makes clear “the Legislature’s

intent for the [Medical Professional Liability Act] to broadly apply to services

encompassing patient care—not just the care itself.” Scott, 866 S.E.2d at 359; see

Ferguson, 889 S.E.2d at 53 (noting that in West Virginia, “in interpreting a statute it is the

duty of the court to look to the purpose of the enactment as well as to the language

employed” (quoting Metro. Life Ins. Co. v. Hill,

, 188 Syl. Pt. 2 (W. Va.

1934))). This is because the Act is intended to strike a “balance” between “fairly

compensat[ing] patients who have been injured as a result of negligent and incompetent

acts by health care providers” and protecting providers from high liability-coverage costs.

-7B-1; see Ferguson, 889 S.E.2d at 53 (“The Legislature passed the

Healthcare Provider Notification, which, in Neidig’s view, conclusively shows that Valley Health misrepresented the quality of the healthcare it offered. Regardless, this dispute would not appear to be dispositive.

In State ex rel. Charleston Area Medical Center, Inc. v. Thompson, the Supreme Court of Appeals of West Virginia concluded that the Medical Professional Liability Act applied over the dissents of Justices Hutchison and Wooton, each of whom emphasized that no expert testimony was required in the circumstances of that case. See Thompson, 888 S.E.2d at 863 (Hutchison, J., dissenting) (noting that the defendant medical center’s “alleged misconduct—having absolutely nothing to do with the provision of health care— is within the experience and judgment of the average juror”); id. (Wooton, J., dissenting) (“Whether [the medical center] was negligent . . . is a matter that requires no expert testimony. It requires only the judgment of a lay person, using his or her ordinary understanding of the concept of ‘reasonable care.’”); cf.

-7B-6(b) to (c) (requiring plaintiff bringing claim under the Act to serve on each defendant a “screening certificate of merit” including an “expert’s opinion as to how the breach of the applicable standard of care resulted in injury or death,” unless “the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care”).

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[Medical Professional Liability Act] in an effort to remedy what it perceived as a crisis in

mounting lawsuits against professional health care providers and health care facilities that

led to difficulty in procuring reasonable liability insurance for the medical community.”).

At the same time, “[w]hile the reach of the [Medical Professional Liability Act] may

indeed be broad, it is not limitless.” Trivett v. Summers Cnty. Comm’n, __ S.E.2d __, No.

22-0202,

, at *11 n.14 (W. Va. Nov. 8, 2023) (quoting Thompson, 888

S.E.2d at 866 (Wooton, J., dissenting)). In fact, the Supreme Court of Appeals has also

emphasized that the Act “is in derogation of the common law and as such, its provisions

must be given narrow construction.” State ex rel. Morgantown Operating Co. v. Gaujot,

, 370 (W. Va. 2021).

Two decisions of the Supreme Court of Appeals of West Virginia are particularly

relevant for evaluating whether Neidig’s claims are for “medical professional liability”

under the Act: State ex rel. West Virginia University Hospitals, Inc. v. Scott and State ex

rel. Charleston Area Medical Center, Inc. v. Thompson. However, neither decision

definitively resolves the certified question because neither explicitly addresses whether the

Act applies in the absence of any personal injury.

Scott established that the statutory definition of “medical professional liability”

encompasses two types of claims: “anchor claim[s]” and “ancillary claims.” Scott, 866

S.E.2d at 360. According to Scott, anchor claims are health care-related claims. Id.

Ancillary claims are those “that are ‘contemporaneous to or related to’ [the health care]

claim, but still must be in the overall context of rendering health care services.” Id. (quoting

-7B-2(i)). A plaintiff can have more than one anchor claim. E.g.,

at

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354, 361 (noting multiple anchor claims, including medical negligence and failure to

document). And an anchor claim is required before an ancillary claim can fall under the

Medical Professional Liability Act.

(“[Y]ou must have the anchor claim (fitting

the definition of ‘health care’) and then make the showing that the ancillary claims are (1)

contemporaneous with or related to that anchor claim; and (2) despite being ancillary, are

still in the context of rendering health care.”).

Scott emphasized, however, that anchor “health care” claims were not limited to

those directly alleging medically tortious actions (such as medical negligence), but could

also include a wide variety of actions, including corporate negligence. In Scott, a couple

sued a hospital after a nurse introduced air bubbles into their newborn’s bloodstream via

intravenous equipment, leading to an air embolism that caused the infant serious

neurological impairment.

. The couple brought claims not only for medical

negligence, but also for corporate negligence. Their corporate-negligence claims were for

1) the decision not to purchase and utilize air filters for the intravenous system; 2) the

failure to document the cause of the child’s injuries correctly in the discharge summary; 3)

spoliation of evidence, specifically, the peripheral line tubing used in the intravenous

system; and 4) the failure to report the incident properly to regulators.

; see

at

359–61. The Supreme Court of Appeals concluded that the Medical Professional Liability

Act applied to all four corporate-negligence claims, with the first two qualifying as anchor

claims and the latter two as ancillary claims. 3

.

3 Unlike for the other three corporate-negligence claims, Scott does not explicitly

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In concluding that the failure-to-purchase and failure-to-document claims qualified

as anchor claims themselves—even though those claims did not directly allege traditional

medical-malpractice torts—Scott emphasized that those claims nonetheless implicated

“medical judgment or skill” and were thus “‘health care’ claim[s].”

at 359–60; see

. The Court explained that although corporate-level decisionmakers were behind the

failure to purchase the air filters, they made that choice “in contemplation that the

machine[s] either needed [the air filters] or did not to properly function in rendering care

to patients.”

(emphasis added). The Court further noted that the claim’s

adjudication would require expert testimony to establish that the failure to use an air filter

fell below “the standard of care, and caused the injury.”

Therefore, the Court concluded

that the failure-to-purchase claim “inherently [arose] in ‘the context of rendering health

care.’”

(quoting

-7B-2(i)).

state whether the decision not to purchase and utilize air filters for the intravenous system constitutes an anchor or ancillary claim. For several reasons, we understand Scott to have treated that claim as an anchor claim. First, Scott analyzes the ancillary claims together, while analyzing the failure-to-purchase and failure-to-document claims individually. Scott, 866 S.E.2d at 361. Second, the discussion of the failure-to-document claim, which follows the failure-to-purchase claim, refers back to the failure-to-purchase analysis in concluding that the failure-to-document claim is an anchor claim. Id. Third, the failure-to-purchase claim appears to be even more obviously an anchor health care claim than the failure-to- document claim is, given that the air filters in question “would have allegedly prevented the air embolism that resulted in injuries to the minor child,” and thus bear a greater causal relationship to the injuries than do the post-injury failure-to-document allegations. Id.; accord id. at 366, 370 (Wooton, J., concurring in part and dissenting in part) (agreeing that the failure-to-purchase claim, but not the other corporate-negligence claims, fell under the Medical Professional Liability Act). Accordingly, we assume herein that the failure-to- purchase claim was an anchor claim.

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Scott reached the same conclusion for the failure-to-document claim, which was

based on the provider’s incorrect documentation of the infant’s injuries in the discharge

summary. The Court explained that while “documentation may not appear to be ‘health

care’ in a traditional sense of the word,” documentation in a patient’s medical record

involves medical judgment or skill. Id. (“Deciding what to document—or what not to

document—in a patient’s medical record is a decision solely in the purview of [the]

physician, nurse, or other medical professional providing care[.]”). Additionally, “[l]ike

the [claim related to the] purchase of air filters, [the failure-to-document] claim

implicate[d] a medical professional inquiry” because “the cause of the [infant’s] cardiac

arrest and subsequent injuries” would need to “be proven to prevail on th[at] claim.” Id.

Accordingly, the claim “implicate[d] the provision of ‘health care’ under the” Medical

Professional Liability Act, meaning that it was “not an ancillary claim, but an anchor

‘health care’ claim in and of itself.” Id.

By contrast, Scott concluded that the spoliation-of-evidence and failure-to-report

claims were “ancillary” because while they did not themselves implicate health care

decisions, they were claims “contemporaneous to or related to” the anchor claims that arose

“in the context of rendering health care.” Id. at 363 (quoting Boggs v. Camden-Clark Mem’l

Hosp. Corp.,

(W. Va. 2004)); see

at 361–62. They consequently

also fell under the Medical Professional Liability Act.

Thompson provides further guidance regarding the anchor-claim test. There, the

plaintiff suffered a stillbirth arising from natural causes. Thompson, 888 S.E.2d at 855.

This left the defendant medical center in possession of the fetal remains, which it released

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to a funeral home by giving the remains to the funeral home’s employee to transport in her

personal vehicle. Id. at 855–56. The plaintiff sued the medical center, funeral home, and

funeral home’s employee, asserting against the medical center “claims of negligence,

negligent infliction of emotional distress, negligent mishandling of a corpse, and negligent

supervision.” Id. at 860; see id. at 856.

The two questions before the Supreme Court of Appeals were whether the plaintiff’s

claim involved a “patient” under the Medical Professional Liability Act—since the claims

all arose after the fetus’s death—and if so, whether the medical center’s “handling of the

fetal remains constitute[d] ‘health care’ within the meaning of the [Act].” Id. at 857–58.

The plaintiff argued that the Act did not apply because a deceased individual is not a

“patient” under the Act. Id. at 858. But the Supreme Court of Appeals concluded that the

Act applied because the claims “all ar[o]se in the context of the alleged mishandling of the

fetal remains as health care services” provided to the plaintiff as a patient in her own right

during her hospitalization related to the stillbirth. Id. at 860; see id. at 858–59.

In so holding, Thompson reasoned that the defendant medical center “obtained the

fetal remains . . . . as a direct result of providing health care” to the plaintiff, and so the

claims arising out of the mishandling of those remains were based on health care services.

Id. at 859. Therefore, it described the “anchor claim” as the “handling of fetal remains as a

result of a stillbirth delivery,” meaning at minimum the cause of action for negligent

mishandling of a corpse qualified as an anchor claim. Id. at 861. Thompson also concluded

that, to the extent the plaintiff had asserted a separate violation-of-privacy cause of action,

such a claim constituted an ancillary claim that fell under the Medical Professional Liability

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Act. Id. at 860–61 (concluding that the Act “applies to any [claim based on the] alleged

unauthorized disclosure of medical information” because such a claim “would be

contemporaneous and related to the anchor claim—handling of fetal remains as a result of

a stillbirth delivery”).

Scott and Thompson could be read to require Neidig’s claims to be brought under

the Medical Professional Liability Act, and indeed, Valley Health urges just that result.

After all, Neidig’s claims ultimately rest in some way on the quality of health care Valley

Health provided, even if she disclaims any medical injury. Cf. Minnich,

(“The critical inquiry is whether the subject conduct that forms the basis of the lawsuit is

conduct related to the provision of medical care.”).

But Neidig seeks to distinguish Scott and Thompson because both involved some

form of underlying personal injury—the physical injury to the infant in Scott, and the

emotional distress experienced by the plaintiff in Thompson—which, she argues, is

required by the Act’s statutory reference to the “death or injury of a person . . . based on

health care services rendered.”

-7B-2(i) (emphasis added). In contrast,

Neidig disclaims any personal injury and only asserts legal and economic injuries.

However, because Scott and Thompson focused on the meaning of other statutory

terms not at issue here when evaluating anchor claims, they did not address how we should

understand “injury of a person.” Nor did they clearly delineate which portion of the Act’s

definition of “medical professional liability” refers to anchor claims. And because we have

located no West Virginia case evaluating the Medical Professional Liability Act’s

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application in the absence of any personal injury, we think there remains an open question

as to how the statute applies in this case. Shears,

.

Recall that the Medical Professional Liability Act defines “[m]edical professional

liability” as

any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.

-7B-2(i). Scott explains that the Act’s reference to “other claims that may

be contemporaneous to or related to the alleged tort or breach of contract . . . , all in the

context of rendering health care services,”

encompasses “ancillary claims,” Scott, 866

S.E.2d at 360. But that leaves two segments of the definition of “medical professional

liability” unaccounted for: first, “any liability for damages resulting from the death or

injury of a person for any tort or breach of contract based on health care services rendered,

or which should have been rendered, by a health care provider or health care facility to a

patient”; and second, “other claims that may be . . . otherwise provided, all in the context

of rendering health care services.”

-7B-2(i).

Thompson appears to analyze its anchor claims arising from the mishandling of the

fetal remains under the first of these statutory segments. See Thompson, 888 S.E.2d at 860

(concluding the Medical Professional Liability Act applies because the complaint alleges

claims regarding “health care services rendered, or which should have been rendered, by a

health care provider or health care facility to a patient” (quoting

-7B-

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2(i))). But Scott arguably finds one anchor claim to fall under the second segment. See

Scott, 866 S.E.2d at 361 (seeming to conclude that the failure-to-purchase claim is an

anchor claim because it “is a claim that inherently arises in ‘the context of rendering health

care’”). And Scott could be interpreted to mean that an anchor claim need not be tied to a

personal injury; while Scott’s failure-to-document anchor claim did pertain to a physical

injury in that case, it postdated the injury and thus did not cause it. In any event, neither

Scott nor Thompson explicitly holds that anchor claims must fall under the first of these

statutory segments, nor does either explain how we should understand “injury of a person.”

If anchor claims are required to fall under the first sentence of the statutory

definition of “medical professional liability”—as Neidig asserts—then the meaning of

“injury of a person” becomes central. The Medical Professional Liability Act defines

“[i]njury” as “injury or death to a patient arising or resulting from the rendering of or failure

to render health care.”

-7B-2(h). This definition, in the medical context,

most naturally points to a physical injury, particularly because § 55-7B-2(h) provides a

single definition defining “Injury” and “Medical injury” together. Id. (emphasis added).

The definition of “[m]edical professional liability” at issue here similarly places “injury”

alongside “death,” again most naturally encompassing physical injury arising from medical

malpractice. Id. § 55-7B-2(i).

On the other hand, the West Virginia legislature has used the term “personal injury”

in other statutes, e.g.,

, so the lack of such a reference here may be

telling. Further, the statute’s reference to “liability for damages resulting from

the . . . injury of a person for any . . . breach of contract based on health care services

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rendered” might most naturally be read to refer to legal injuries, even if we could imagine

situations where a breach of contract could lead to a physical injury, particularly in the

medical context.

-7B-2(i) (emphasis added). Additionally, as noted,

Thompson appears to conclude that the negligent mishandling of fetal remains allegedly

caused an “injury of a person,” even though the only asserted injury to the plaintiff was

emotional, rather than physical, harm. Yet the Supreme Court of Appeals could

conceivably have concluded that an emotional injury fell within the definition of “injury

of a person” without implying that a purely legal or economic injury would.

Putting aside the “injury” language, the second segment of the definition of

“[m]edical professional liability” arguably creates a wide opening for anchor claims to be

defined as “other claims that may be . . . otherwise provided, all in the context of rendering

health care services.”

Yet we have found no West Virginia case law explicitly pointing

to that language. And if an anchor claim can fall under that sentence, the language used

tells us little about the boundaries of what can constitute an anchor claim. A claim for an

erroneously high copay charge, for example, would facially seem to qualify as one that is

“otherwise provided . . . in the context of rendering health care services,” yet such a claim

might not constitute an anchor claim under Scott because it does not implicate a medical

judgment.

It is therefore unclear to us from the statutory language, as well as from Scott and

Thompson, whether a plaintiff who is asserting no personal injury—physical or

emotional—may nevertheless be required to abide by the Medical Professional Liability

Act in certain circumstances. As a result, “there is no controlling appellate decision . . . or

17 USCA4 Appeal: 22-2227 Doc: 50-2 Filed: 01/09/2024 Pg: 18 of 20

statute . . . that definitively answers the certified question.” Shears,

.

Moreover, the answer thereto is “determinative” of the proper statute under which Neidig’s

claims arise and the corresponding limitations period.

-1A-3.

Accordingly, certification is appropriate.

III.

In light of the foregoing, we request that the Supreme Court of Appeals of West

Virginia exercise its discretion to resolve the certified question of law discussed herein.

Pursuant to

-1A-6(a)(4), we note that all of the parties in this matter are

represented by counsel, whose names and addresses are as follows:

Counsel for the Plaintiff, Elaine Neidig:

Anthony J. Majestro, Esquire Christina L. Smith, Esquire POWELL & MAJESTRO, PLLC 6XLWH3í 405 Capitol Street P.O. Box 3081 Charleston, WV 25331

Stephen Gibson Skinner, Esquire SKINNER LAW FIRM P.O. Box 487 Charles Town, WV 25414

Counsel for the Defendant, Valley Health System:

Jonathan Tyler Mayhew, Esquire Charles Francis Printz, Jr., Esquire Liana Stinson, Esquire BOWLES RICE, LLP 101 South Queen Street P.O. Drawer 1419 Martinsburg, WV 25402

18 USCA4 Appeal: 22-2227 Doc: 50-2 Filed: 01/09/2024 Pg: 19 of 20

Counsel for Amicus, West Virginia United Health System, Inc.:

Christine Sayre Vaglienti, Esquire WEST VIRGINIA UNIVERSITY HOSPITALS, INC. 1238 Suncrest Towne Centre Drive Morgantown, WV 26505

Counsel for Amici, West Virginia Hospital Association, Mountain Health Network, Inc., and Charleston Area Medical Center, Inc.:

Bradley David Dunkle, Esquire Robert Sellards, Esquire John Howard Zickefoose, Esquire BAILES CRAIG & SELLARDS PLLC 401 10th Street Huntington, WV 25701

Accordingly, pursuant to the privilege made available to this Court by the West

Virginia Uniform Certification of Questions of Law Act, it is hereby ORDERED:

(1) That the question set forth herein be certified to the Supreme Court of Appeals

of West Virginia for resolution;

(2) That the Clerk of this Court transmit to the Supreme Court of Appeals of West

Virginia, under the official seal of this Court, a copy of this Order of Certification;

and

(3) That the Clerk of this Court provide the original or copies of all or such portion

of the record before this Court as may be requested by the Supreme Court of Appeals

of West Virginia, with any and all such requests being effective upon notification

by ordinary means from the Clerk of the Supreme Court of Appeals.

Shears,

; see

-1A-5.

19 USCA4 Appeal: 22-2227 Doc: 50-2 Filed: 01/09/2024 Pg: 20 of 20

This Order of Certification is entered by Judge Wynn, with the concurrences of

Judge Gregory and Judge Rushing.

QUESTION CERTIFIED

FOR THE COURT:

_________________________ James Andrew Wynn United States Circuit Judge

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