IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2023 Term

_____________

No. 22-0439

_____________

STATE OF WEST VIRGINIA EX REL. CHARLESTON AREA MEDICAL CENTER, 

INC. D/B/A WOMEN AND CHILDREN’S HOSPITAL,

Petitioner,

V.

THE HONORABLE MIKI J. THOMPSON, JUDGE OF THE CIRCUIT COURT OF 

MINGO COUNTY, WEST VIRGINIA; ANGELA LESTER; DENNY SETH LESTER; 

MOUNTS FUNERAL HOME, INC.; AND NICOLE CLINE

Respondents.

________________________________________________

Petition for a Writ of Prohibition

WRIT GRANTED

________________________________________________

Submitted: January 11, 2023

Filed: June 12, 2023

Mark R. Simonton, Esq. 

D.C. Offutt, Jr., Esq. 

Alex S. Blevins, Esq.

Offutt Simmons Simonton, PLLC

Huntington, West Virginia

Attorneys for the Petitioner

Letitia Neese Chafin, Esq. 

H. Truman Chafin, Esq.

Stacey Kohari, Esq. 

The Chafin Law Firm, PLLC

Williamson, West Virginia

Attorneys for the Respondents Angela and 

Denny Seth Lester 

FILED

June 12, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE BUNN delivered the Opinion of the Court.

JUSTICE HUTCHISON and JUSTICE WOOTON dissent and may write separately.

George A. Halkias, Esq. 

Law Offices of Asad U. Khan

Charleston, West Virginia 

Attorney for the Respondent Mounts 

Funeral Home, Inc. 

David F. Nelson, Esq. 

Hendrickson & Long, PLLC

Charleston, West Virginia

Attorney for the Respondent Nicole Cline
i

SYLLABUS BY THE COURT

1. “A writ of prohibition will not issue to prevent a simple abuse of 

discretion by a trial court. It will only issue where the trial court has no jurisdiction or 

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syllabus 

point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

2. “The pre-suit notice requirements contained in the West Virginia 

Medical Professional Liability Act are jurisdictional, and failure to provide such notice 

deprives a circuit court of subject matter jurisdiction.” Syllabus point 2, State ex rel. 

PrimeCare Medical of West Virginia, Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 

(2019).

3. “The primary object in construing a statute is to ascertain and give 

effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s 

Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).

4. “The failure to plead a claim as governed by the Medical Professional 

Liability Act, W. Va. Code § 55-7B-1, et seq., does not preclude application of the Act. 

Where the alleged tortious acts or omissions are committed by a health care provider within 

the context of the rendering of ‘health care’ as defined by W. Va. Code § 55-7B-2(e) (2006) 
ii

(Supp. 2007), the Act applies regardless of how the claims have been pled.” Syllabus point 

4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007).
1

BUNN, Justice:

In this original jurisdiction case, Petitioner Charleston Area Medical Center, 

Inc. d/b/a Women and Children’s Hospital (“CAMC”) seeks a writ prohibiting the Circuit 

Court of Mingo County from enforcing its order denying CAMC’s motion to dismiss the 

amended complaint filed by Respondents Angela and Denny Seth Lester (“the Lesters”) 

for failure to follow the pre-suit notice requirements set forth in the West Virginia Medical 

Professional Liability Act, West Virginia Code §§ 55-7B-1, et seq. (“MPLA”).

The Lesters sued Mounts Funeral Home (“Mounts”), its employee Nicole 

Cline, and CAMC asserting that each negligently mishandled fetal remains following Ms. 

Lester’s treatment at CAMC for a stillbirth. The circuit court denied CAMC’s motion to 

dismiss, finding that the Lesters were not required to comply with the MPLA’s pre-suit 

requirements because a stillborn fetus could not be a “patient” as defined by the MPLA. 

On appeal, CAMC contends that the circuit court erred and the MPLA applies because Ms. 

Lester was a “patient” and handling the fetal remains was a service provided during her 

medical care. We agree and grant the writ of prohibition.
2

I.

FACTUAL AND PROCEDURAL HISTORY1

The tragic events that led to this case began on May 17, 2018, when the 

Lesters presented to CAMC where Ms. Lester suffered a stillbirth, after the fetus she was 

carrying died of natural causes.2 The stillbirth resulted in CAMC’s possession of the fetal 

remains, which it placed in a morgue on the labor and delivery floor. The Lesters retained 

Mounts, a funeral home in Mingo County, West Virginia, to carry out the funeral 

arrangements and final disposition of the fetal remains. On May 21, 2018, Mr. Lester 

signed an authorization releasing the remains to Mounts. That same day, Mounts employee 

Nicole Cline, who had taken the day off work, traveled to Charleston, West Virginia, in 

her personal vehicle with her husband, Jeff Cline, to accompany him to a medical 

appointment. 

1 These facts are based upon the allegations contained in the underlying 

amended complaint and the verified discovery responses of Ms. Cline.

2 We have explained that a

“[f]etus” is, “[i]n humans, the product of conception from the end of 

the eighth week to the moment of birth.” [Stedman’s Medical 

Dictionary for the Health Professions and Nursing] 577 [(6th ed. 

2008)]. See also [Taber’s Cyclopedic Med. Dictionary] 914 [(22d ed. 

2013)] (defining “fetus,” in part, as “[t]he unborn human from the 

beginning of the ninth week, i.e., the third month, of gestation until 

birth”).

Saleh v. Damron, 242 W. Va. 568, 569 n.3, 836 S.E.2d 716, 717 n.3 (2019) (some 

alterations in original). In 2022, the Legislature defined “fetus,” in the Unborn Child 

Protection Act, as “the developing human in the postembryonic period from nine weeks 
3

While in Charleston, Ms. Cline received a call from her employer requesting 

that she retrieve the Lesters’ fetal remains from CAMC to bring back to the funeral home 

in Mingo County. Around 4:00 p.m., Ms. Cline arrived at CAMC with her husband to 

collect the fetal remains. A hospital employee escorted Ms. Cline to a small room where 

the CAMC employee placed a small package containing the fetal remains in a basket.3

After Ms. Cline signed paperwork acknowledging her receipt of the remains, the CAMC 

employee accompanied Ms. Cline back to her vehicle with the remains. The CAMC 

employee placed the remains on the back seat of Ms. Cline’s vehicle without the basket. 

Ms. Cline asked to keep the basket, but the CAMC employee refused, saying that it was 

hospital property. Fearful that the remains would shift around or be harmed during 

transport, Ms. Cline instructed her husband to hold the remains in his lap on the drive to 

the funeral home. 

after fertilization until birth.” H.B. 302, 2022 Leg. 3rd Extraordinary Sess. (W. Va. 2022) 

(codified at West Virginia Code § 16-2R-2). 

Additionally, in the Unborn Child Protection Act, the Legislature defined an 

“intrauterine fetal demise” or “stillbirth” as “the unintended or spontaneous loss of a fetus 

after the 19th week of pregnancy.” Id. The Act further defined “miscarriage” as “the 

unintended or spontaneous loss of an embryo or a fetus before the 20th week of pregnancy.” 

Id. Here, both parties refer to the fetus being stillborn. For the purpose of this opinion, the 

distinction between stillbirth and miscarriage is not relevant.

3 Ms. Cline indicated in her verified discovery responses that the CAMC 

employee wore scrubs and “appeared to be a female nurse.”
4

Months later, on January 29, 2020, Mr. Cline posted a public video on 

multiple social media outlets describing the process of loading the fetal remains into the 

personal vehicle, as well as transporting and embalming the remains. The video wrongfully 

suggested that Ms. Lester voluntarily terminated her pregnancy. The Lesters viewed the 

video and became aware of how the fetal remains had been handled and transported. 

In July 2021, the Lesters filed a complaint in the Circuit Court of Mingo 

County, naming Mounts and Ms. Cline as defendants. They filed an amended complaint in 

November 2021 adding CAMC as a defendant. The amended complaint alleged four 

separate counts of negligence against CAMC: (1) general negligence, (2) negligent 

infliction of emotional distress, (3) negligent mishandling of a corpse; and (4) negligent 

supervision. The Lesters claimed that CAMC negligently placed the fetal remains in the 

back of a personal vehicle filled with groceries and that they suffered “serious emotional 

distress due to the careless actions of [CAMC] in negligently delivering, transporting[,] 

and mishandling” the remains. Furthermore, the Lesters contended that CAMC negligently 

released the fetal remains to be placed in a personal vehicle “without proper equipment, 

and by allowing unauthorized persons to be involved with the transportation and handling 

of” the remains. Finally, the Lesters asserted that CAMC negligently supervised its 

employee who placed the fetal remains in the back seat of Ms. Cline’s personal vehicle. 

CAMC then filed a motion to dismiss for lack of subject matter jurisdiction 

pursuant to Rule 12(b)(1) West Virginia Rules of Civil Procedure, arguing that it is a health 
5

care provider under the MPLA and that the Lesters’ claims were related to the rendering 

of health care services as defined in the MPLA.4 CAMC contended that the MPLA applied 

to the Lesters’ claims against it and that the Lesters failed to provide CAMC with the 

required pre-suit notice, which deprived the circuit court of subject matter jurisdiction to 

decide the claims against CAMC. 

In response, the Lesters argued that the MPLA did not apply to their claims 

because the fetal remains were not a patient of CAMC, and consequently, the Lesters were 

not required to comply with the MPLA’s pre-suit notice requirements. CAMC filed a reply,

and the circuit court conducted a hearing on the motion. On March 29, 2022, the circuit 

court entered an order denying CAMC’s motion to dismiss concluding that it had subject 

matter jurisdiction over the Lesters’ claims against CAMC because the Lesters’ claims did 

not trigger the pre-suit notice requirements of the MPLA. Specifically, the circuit court 

concluded that the MPLA did not apply because the fetal remains were, at all relevant 

times, deceased and not a patient of CAMC. The circuit court further found that the Lesters’

amended complaint made allegations of privacy violations against CAMC,

5 and that those

4 CAMC also asserted that the case should be dismissed pursuant to Rule 

12(b)(6) of the West Virginia Rules of Civil Procedure for failure to state a claim. CAMC 

alleged that the amended complaint failed to set forth what duty or duties CAMC owed to 

the Lesters. The circuit court denied this portion of the motion as well, but this issue is not

presently before the Court. 

5 The amended complaint enumerated several counts but did not set forth a 

separate count for an alleged privacy violation. Rather, the circuit court relied on the 

following language from the amended complaint to find a privacy violation claim: 
6

allegations pertaining to the improper disclosure of medical information did not fall within 

the definition of “health care.” Thus, the circuit court found that the MPLA was not 

applicable to the purported privacy claims. 

CAMC filed this amended petition for a writ of prohibition on June 22, 2022,

challenging the circuit court’s March 29, 2022 order denying its motion to dismiss.6

II.

STANDARD FOR ISSUANCE OF WRIT

This Court has long held that “[a] writ of prohibition will not issue to prevent 

a simple abuse of discretion by a trial court. It will only issue where the trial court has no 

jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 

Defendant, CAMC d/b/a Women and Children’s Hospital 

negligently mishandled the corpse of the Plaintiff’s infant by 

releasing the body to be transported in a private vehicle, and 

by placing the body in the back seat of the private vehicle 

without proper equipment, and by allowing unauthorized 

persons to be involved with the transportation and handling of 

the Plaintiffs’ infant’s corpse in violation of West Virginia 

Code § 64-84-10.

6 CAMC filed an original petition with this Court on June 7, 2022; however, 

the petition failed to name the real parties in interest as respondents in addition to the 

presiding judicial officer.

Mounts filed a response stating that neither the motion to dismiss the 

amended complaint nor the writ of prohibition directly concern it. Nevertheless, Mounts’s

position is that the MPLA does not apply to CAMC under the circumstances of this case.

Ms. Cline did not file a response to the petition for writ of prohibition. 
7

53-1-1.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 

(1977). We have made clear that “[t]he pre-suit notice requirements contained in the West 

Virginia Medical Professional Liability Act are jurisdictional, and failure to provide such 

notice deprives a circuit court of subject matter jurisdiction.” Syl. pt. 2, State ex rel. 

PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019). 

When a petition raises a jurisdictional challenge, “we ‘must 

determine . . . whether it is jurisdictional in the sense of requiring a decision upon facts or 

a decision upon a pure question of law.’” State ex rel. W. Va. Univ. Hosps., Inc. v. Scott, 

246 W. Va. 184, 191, 866 S.E.2d 350, 357 (2021) (alteration in original) (citation omitted).

“If it rests upon a determination of fact, prohibition will not lie.” Id. (quotations and citation 

omitted). If, however, the challenge “rests upon the determination of a question of law, 

prohibition will lie if the trial court has exceeded its jurisdiction or usurped a jurisdiction 

that in law does not exist.” Id. (quotations and citation omitted). Because this case presents 

a question of law, we apply a de novo standard of review in determining whether the circuit 

court exceeded its jurisdiction under the MPLA. See Syl. pt. 1, Chrystal R.M. v. Charlie 

A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the 

circuit court is clearly a question of law or involving an interpretation of a statute, we apply 

a de novo standard of review.”). With these standards in mind, we now consider whether

the MPLA deprives the circuit court of subject matter jurisdiction over the Lesters’ claims 

against CAMC. 
8

III.

DISCUSSION

As we have repeatedly cautioned, “the MPLA commands that, ‘no person 

may file a medical professional liability action against any health care provider without’

providing pre-suit notice. W. Va. Code § 55-7B-6(a) (emphasis added).” Faircloth, 242

W. Va. at 342, 835 S.E.2d at 586. CAMC alleges that all the claims against it are based in 

medical professional negligence; however, the Lesters disagree.

7

7 The Lesters contend that CAMC did not argue below that the MPLA applies 

because Ms. Lester received health care and the handling of the fetal remains was a part of 

that health care. However, we are not persuaded by this argument for several reasons. First, 

CAMC filed a motion to dismiss for lack of subject matter jurisdiction below. Second, in 

its motion to dismiss, CAMC noted that the “claims derive from CAMC’s rendering of 

health care services to Plaintiff, Angela Lester.” Third, we have explained that 

“[l]ack of jurisdiction of the subject matter may be raised in 

any appropriate manner . . . and at any time during the 

pendency of the suit or action.” McKinley v. Queen, 125 

W. Va. 619, 625, 25 S.E.2d 763, 766 (1943) (citation omitted).

As to the appropriate manner by which the lack of subject 

matter jurisdiction is raised, we have said that “[l]ack of 

jurisdiction may be raised for the first time in this court, when 

it appears on the face of the bill and proceedings, and it may be 

taken notice of by this court on its own motion.” Syl. Pt. 3, 

Charleston Apartments Corp. v. Appalachian Elec. Power Co., 

118 W. Va. 694, 192 S.E. 294 (1937)[.]

State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619 S.E.2d 209, 

213 (2005) (alterations in original).
9

Central to this case are two questions: (1) was there a patient involved and, 

if so, (2) does CAMC’s handling of the fetal remains constitute “health care” within the 

meaning of the MPLA. Because these two questions are inextricably related under the 

circumstances of the present matter, we will address them together. 

The MPLA defines “medical 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.

W. Va. Code § 55-7B-2(i) (eff. 2017).

8 The MPLA defines “patient” as “a natural person 

who receives or should have received health care from a licensed health care provider under 

a contract, expressed or implied.” W. Va. Code § 55-7B-2(m) (eff. 2017). “The primary 

object in construing a statute is to ascertain and give effect to the intent of the Legislature.” 

Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 

(1975). This Court has observed that “[w]e look first to the statute’s language. If the text, 

given its plain meaning, answers the interpretive question, the language must prevail and 

further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep’t, 195 W. Va. 573, 

8 While the Legislature amended West Virginia Code § 55-7B-2 in 2022, the 

changes have no bearing on the analysis in this opinion.
10

587, 466 S.E.2d 424, 438 (1995). By the plain language of the statute, the MPLA applies 

when the action arises from “health care” rendered to “a patient.”

The parties disagree whether this matter involves a “patient.” The Lesters 

assert that the only possible patient was the non-living fetal remains, and that this Court’s

prior holdings indicate that a deceased individual does not fall within the definition of a

“patient” under the MPLA. CAMC argues that the patient at issue in this case is Ms. Lester. 

We agree with CAMC.

In support of their position, the Lesters rely on Ricottilli v. Summersville 

Memorial Hospital, 188 W. Va. 674, 425 S.E.2d 629 (1992). In Ricottilli, a child died 

within hours of being admitted to CAMC. Id. at 676, 425 S.E.2d at 631. The child’s mother, 

individually and as a representative of the child’s estate, later filed a complaint against 

CAMC asserting a claim for outrageous conduct or negligent infliction of emotional 

distress and medical professional negligence based only upon conduct following the death 

of the child and CAMC’s alleged mishandling of the child’s autopsy. Id. CAMC moved to 

dismiss the claims alleging a statute of limitations bar and failure to state a claim. Id.

Without stating the basis for its decision, the circuit court granted the motion to dismiss.

Id.

The mother appealed. Id. Because the circuit court’s reasoning was unclear, 

this Court considered both of CAMC’s arguments. Id. Relevant to this appeal, the Ricottilli
11

Court examined whether the two-year statute of limitations found in the MPLA applied to 

the second cause of action which was grounded in negligence. Id. We found that “[b]y 

definition, a deceased individual does not qualify as a ‘patient’ under the Medical 

Professional Liability Act (‘Act’), West Virginia Code §§ 55-7B-1 to -11 (Supp. 1992), 

and therefore cannot be the basis for a cause of action alleging medical professional liability 

pursuant to the Act.” Syl. pt. 1, id. Therefore, the two-year statute of limitations pursuant 

to the MPLA was not applicable to the negligence claim. Id.

However, we find the Lesters’ reliance on Ricottilli to be misplaced. The 

facts of Ricottilli are distinguishable because it involved the alleged mishandling of an 

autopsy of a deceased prior patient.

9 The allegations in the amended complaint in the 

present matter arise from the alleged mishandling of fetal remains following health care 

given to Ms. Lester. Consequently, we must examine whether Ms. Lester was a patient, 

and if so, under this narrow set of facts, whether the alleged mishandling of the fetal

remains was a part of the health care services rendered to her. 

Without question, Ms. Lester satisfies the definition of “patient” for the

purposes of the MPLA because she is a natural person who went to CAMC for assistance 

9 Additionally, as discussed below, Ricottilli was decided prior to the 

Legislature’s 2015 amendments broadening what is encompassed under the MPLA. While 

the definition of patient has not changed, we acknowledge the “changing landscape of 

medical malpractice cases” since the amendments. State ex rel. W. Va. Univ. Hosps., Inc. 

v. Scott, 246 W. Va. 184, 194, 866 S.E.2d 350, 360 (2021).
12

by a licensed health care provider related to the delivery of her stillborn fetus.10 Because 

we find that Ms. Lester was a patient, we must next consider whether the alleged 

mishandling of the fetal remains constitutes health care. West Virginia Code § 55-7B-2, in 

relevant part, defines “health care” as: 

. . . .

(2) Any act, service, or treatment performed or furnished, or 

which should have been performed or furnished, by any health 

care provider or person supervised by or acting under the 

direction of a health care provider or licensed professional for, 

to[,] or on behalf of a patient during the patient’s medical care, 

treatment[,] or confinement, including, but not limited to,

staffing, medical transport, custodial care[,] or basic care, 

infection control, positioning, hydration, nutrition[,] and 

similar patient services[.]

W. Va. Code § 55-7B-2(e) (eff. 2017) (emphasis added). 

The plain language of the statute demonstrates its broad application. We 

recently examined the definition of “health care” and found that in 2015, the Legislature 

broadened the acts and services encompassed in that term. See Scott, 246 W. Va. at 192,

866 S.E.2d at 358 (“However, in 2015, the Legislature expanded the definition of ‘health 

care’ to include ‘[a]ny act, service or treatment provided under, pursuant to or in the 

furtherance of a physician’s plan of care, a health care facility’s plan of care, medical 

diagnosis or treatment.’ W. Va. Code § 55-7B-2(e)(1) (eff. 2015).” (alteration in original) 

10 The parties do not dispute that CAMC is a health care provider pursuant to 

the definition under the MPLA. 
13

(emphasis added)); Faircloth, 242 W. Va. at 342, 835 S.E.2d at 586 (“[W. Va. Code 

§ 55-7B-2] contains similarly broad definitions of ‘health care,’ ‘health care facility,’ and 

‘health care provider.’”). Given the breadth of the definition of health care, this Court has 

found a wide variety of acts and services to be health care for the purpose of the MPLA. 

See e.g., Scott, 246 W. Va. at 195, 866 S.E.2d at 361 (“While documentation may not 

appear to be ‘health care’ in a traditional sense of the word, it does implicate the provision 

of ‘health care’ under the amended MPLA. It is not an ancillary claim, but an anchor ‘health 

care’ claim in and of itself.”).11 

CAMC obtained the fetal remains during Ms. Lester’s hospitalization 

through the administration of health care services to its patient, Ms. Lester. CAMC came 

into possession of the fetal remains as a direct result of providing health care to Ms. Lester. 

Furthermore, after CAMC obtained the fetal remains, it continued to act on behalf of Ms. 

Lester in maintaining the remains in the hospital morgue on the labor and delivery floor 

and then transferring the remains to the funeral home for final disposition. Therefore, we 

find that the handling and transfer of the fetal remains was an act or service performed or 

furnished by a health care provider, CAMC, on behalf of Ms. Lester during her care, 

11 C.f. Brown v. Ohio Valley Health Servs. & Educ. Corp., No. 20-0156, 2021 

WL 2023532, at *3 (W. Va. May 20, 2021) (memorandum decision) (finding that the 

MPLA applied to the petitioners’ claims even though the petitioners were not the patient

involved because they stated claims for medical professional liability).
14

treatment, or confinement.12 See W. Va. Code § 55-7B-2(e)(2). The limited record further 

supports this conclusion. CAMC did not have a separate medical record for the fetal 

remains, but the form releasing the remains was included in the medical record of Ms. 

Lester.

13

Upon review of the amended complaint, we find that the Lesters’ four 

enumerated counts against CAMC are subject to the MPLA. The amended complaint 

alleges claims of negligence, negligent infliction of emotional distress, negligent 

mishandling of a corpse, and negligent supervision that all arise in the context of the alleged 

mishandling of the fetal remains as health care services to Ms. Lester. It is of no 

significance that the Lesters have not explicitly pled a medical professional negligence 

claim because the Court looks beyond the plaintiff’s labels for the causes of action. This 

Court has held that 

[t]he failure to plead a claim as governed by the Medical 

Professional Liability Act, W. Va. Code § 55-7B-1, et seq., 

12 CAMC obtained the fetal remains during Ms. Lester’s hospitalization and 

CAMC represented in its petition to this Court that Ms. Lester “remained . . . hospitalized 

as a patient at [CAMC] until May 21, 2018—the day of the events at issue[.]” The Lesters 

have not disputed this statement. 

13 This Court has previously noted that “‘[a] motion under Rule 12(b)(2) of 

the West Virginia Rules of Civil Procedure [relating to dismissal for lack of personal 

jurisdiction] cannot be converted to a Rule 56 motion for summary judgement, even though 

a trial court considers matters outside the pleadings in deciding the Rule 12(b)(2) motion.’ 

[Syl. pt. 4, Easterling v. Am. Optical Corp., 207 W. Va. 123, 529 S.E.2d 588 (2000).] A 

motion for dismissal based on Rule 12(b)(1) grounds, being jurisdictional, merits the same 

treatment.” Elmore v. Triad Hosps., Inc., 220 W. Va. 154, 157 n.7, 640 S.E.2d 217, 220

n.7 (2006) (per curiam) (some alterations in original).
15

does not preclude application of the Act. Where the alleged 

tortious acts or omissions are committed by a health care 

provider within the context of the rendering of “health care” as 

defined by W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the 

Act applies regardless of how the claims have been pled.

Syl. pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007). See also

Damron v. Primecare Med. of W. Va., Inc., No. 20-0862, 2022 WL 2078178, at *3 (W. Va. 

June 9, 2022) (memorandum decision) (“Our precedent relative to the MPLA requires a 

circuit court, and this Court, 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 MPLA’s provisions.”). We have

concluded that “the determination of whether a cause of action falls within the MPLA is 

based upon the factual circumstances giving rise to the cause of action, not the type of 

claim asserted.” Blankenship, 221 W. Va. at 702-03, 656 S.E.2d at 453-54. Applying the 

definitions in Section 2 of the MPLA, the Lesters’ amended complaint alleges claims that 

fall within the definition of “medical professional liability” because the acts or omissions 

in question were “health care services rendered, or which should have been rendered, by a 

health care provider or health care facility to a patient.” W. Va. Code § 55-7B-2(i). In this 

case, health care services were rendered to CAMC’s patient, Ms. Lester, while attending 

to her stillbirth. 

Aside from the four enumerated counts in the amended complaint, the circuit 

court also found that the Lesters stated a claim for privacy violations against CAMC based 

upon unauthorized disclosure of medical information. Assuming without deciding that a 
16

privacy claim has been sufficiently pled,14 we find that the MPLA also applies to any 

alleged unauthorized disclosure of medical information. 

Prior to the 2015 amendments to the MPLA, specifically to the definition of 

a “medical professional liability” claim, this Court held that,

[t]he West Virginia Medical Professional Liability Act, 

codified at W. Va. Code § 55-7B-1 et seq., applies only to 

claims 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 does not apply to 

other claims that may be contemporaneous to or related to the 

alleged act of medical professional liability.

Syl. pt. 3, Boggs v. Camden–Clark Mem’l Hosp. Corp., 216 W. Va. 656, 609 S.E.2d 917 

(2004), superseded by statute as stated in State ex rel. PrimeCare Med. of W. Va., Inc. v. 

Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019) (emphasis added). Relying on this 

holding, we later concluded that allegations which pertain to the improper disclosure of 

medical records do not implicate the MPLA. See R.K. v. St. Mary’s Med. Ctr., Inc., 229 

W. Va. 712, 723, 735 S.E.2d 715, 726 (2012).

However, more recently, in Scott, we found that any reliance on Boggs is 

now “misplaced” because it was decided ten years prior to the Legislature’s 2015 

14 To be clear, the question presented by the writ of prohibition is whether 

the MPLA applies to the Lesters’ claims, not whether those claims have been sufficiently 

pled. We make no findings as to whether the Lesters sufficiently pled a privacy claim in 

their amended complaint. 
17

amendments to the MPLA which specifically included contemporaneous or related claims 

in the context of rendering health care services in the definition of a medical professional 

liability action. See Scott, 246 W. Va. at 197, 866 S.E.2d at 363. We explained the amended 

definition of “medical professional liability” as follows:

Now, when a complaint contains a cause of action that meets 

the definition of “health care” under West Virginia Code 

section 55-7B-2(e), claims that are either “related to” or 

“contemporaneous to” the medical injury being asserted, “all 

in the context of rendering health care services,” meet the 

definition, and are encompassed in “medical professional 

liability” as it is defined in West Virginia Code section 

55-7B-2(i). The “health care” claim is the “anchor;” it gets you 

in the door of MPLA application to allow for inclusion of 

claims that are “contemporaneous to or related to” that claim, 

but still must be in the overall context of rendering health care 

services. It is not a broad stroke application that because a 

claim is contemporaneous to or related to health care that it 

falls under the MPLA. To put a finer point on it, you 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, 246 W. Va. at 194, 866 S.E.2d at 360. Here, we are compelled to find that if a privacy 

claim was asserted based upon unauthorized disclosure of medical information through 

placing the fetal remains in a private vehicle with an unauthorized person, it would be 

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

a stillbirth delivery. Therefore, the MPLA applies to the Lesters’ privacy violation claim 

as well.
18

Because we find that the Lesters’ claims against CAMC are subject to the 

MPLA and there was no required pre-suit notice, we must conclude that the circuit court 

was deprived of subject matter jurisdiction. Section 55-7B-6(a) of the MPLA requires that, 

to maintain claims for medical professional liability, a plaintiff must comply with the 

MPLA’s pre-suit notice requirements. See W. Va. Code § 55-7B-6(a). This Court has held 

that “[t]he pre-suit notice requirements contained in the West Virginia Medical 

Professional Liability Act are jurisdictional, and failure to provide such notice deprives a 

circuit court of subject matter jurisdiction.” Syl. pt. 2, Faircloth, 242 W. Va. 335, 835 

S.E.2d 579. It is undisputed that the Lesters did not comply with the pre-suit notice 

requirements. Consequently, the circuit court lacked subject matter jurisdiction and should 

have dismissed the Lesters’ claims. 

IV.

CONCLUSION

As set forth above, this Court concludes that the circuit court erred by 

denying CAMC’s motion to dismiss the Lesters’ claims. The Lesters failed to comply with 

the MPLA’s pre-suit notice requirements, which deprived the circuit court of subject matter 

jurisdiction to proceed. Therefore, we grant the petition for a writ of prohibition, vacate the 

circuit court’s order denying CAMC’s motion to dismiss, and remand this case to the circuit 

court with directions to enter an order dismissing the Lesters’ claims against CAMC.15

15 In State ex rel. PrimeCare Medical of West Virginia, Inc. v. Faircloth this 

Court noted that “Rule 12(h)(3) of the West Virginia Rules of Civil Procedure clearly states 
19

Writ granted.

that a circuit court must dismiss an action ‘[w]henever it appears by suggestion of the 

parties or otherwise that the court lacks jurisdiction of the subject matter[.]’” 242 W. Va. 

335, 345, 835 S.E.2d 579, 589 (2019) (alterations in original). We further explained that

[w]hen such a dismissal occurs, “the medical 

malpractice action may be re-filed pursuant to W. Va. Code 

§ 55-2-18 (2001) after compliance with the pre-suit notice of 

claim and screening certificate of merit provisions of W. Va. 

Code § 55-7B-6 (2003).” Syl. Pt. 3, in part, Davis [v. Mound 

View Health Care, Inc.], 220 W. Va. 28, 640 S.E.2d 91 

[(2006)]. We note, however, that our savings statute only 

authorizes “a party [to] refile the action if the initial pleading 

was timely filed[.]” W. Va. Code § 55-2-18(a) [2001]. This 

ability to re-file, when such re-filing is otherwise timely, is 

consistent with this Court’s finding that “[t]he requirement of 

a pre-suit notice of claim and screening certificate of merit is 

not intended to restrict or deny citizens’ access to the courts.” 

Syl. Pt. 2, in part, Hinchman [v. Gillette], 217 W. Va. 378, 618 

S.E.2d 387 [(2005)].

Faircloth, 242 W. Va. at 345 n.24, 835 S.E.2d at 589 n.24 (some alterations in original).