STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

Ricky Vincent Pendleton, December 7, 2015 

RORY L. PERRY II, CLERK 

Plaintiff Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 15-0014 (Fayette County 13-C-120) 

Wexford Health Sources, Inc. and Carter Gillespie, in his 

Official and Individual Capacity as an Employee Dentist 

for Wexford Health Sources, Inc., contracting with 

Mount Olive Correctional Complex, 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioner Ricky Vincent Pendleton, pro se, appeals the December 9, 2014, order of the 

Circuit Court of Fayette County dismissing with prejudice his civil action against respondents 

alleging dental malpractice. The circuit court dismissed the action based on petitioner’s failure to 

comply with the pre-suit requirements of the Medical Professional Liability Act (“MPLA”). 

Respondents Wexford Health Sources, Inc. and Carter Gillespie, in his official and individual 

capacity as an employee dentist for Wexford Health Sources, Inc. (collectively, “respondents”), by 

counsel Kelly C. Morgan, filed a response, and petitioner filed a reply. 

The Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Petitioner is an inmate at Mount Olive Correctional Complex in Fayette County, West 

Virginia. Respondent Wexford Health Sources, Inc. provides medical and dental services at Mount 

Olive. On May 20, 2010, Respondent Carter Gillespie, a dentist then in Wexford’s employ, filled a 

cavity in petitioner’s tooth and placed a filling in the tooth. On January 11, 2011, petitioner 

reported to Dr. Gillespie that his tooth was overly sensitive. Dr. Gillespie informed petitioner that 

the oversensitivity was likely due to contact with cold liquids. On October 13, 2011, petitioner 

reported that he developed a “bump on [the] gum” above his tooth. Dentist Jean Kennedy 

diagnosed petitioner with a bu fistula, which is a draining abscess, and informed petitioner that he 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

could either have his tooth extracted free of charge or pay for a root canal.1 Petitioner had the tooth 

extracted on February 10, 2012. 

Petitioner filed an inmate grievance alleging that Dr. Gillespie committed malpractice in 

filling petitioner’s cavity on May 20, 2010. The manager of petitioner’s unit denied the grievance, 

stating that “[d]ental has informed that your tooth went too long without [a] filling, [and] once 

filled, the filling was real deep and close to a nerve[.]” Both the Warden of Mount Olive and the 

Commissioner of Corrections affirmed the denial of petitioner’s grievance. 

Subsequently, on May 13, 2013, petitioner filed an action in the Circuit Court of Fayette 

County against respondents alleging dental malpractice. In an effort to comply with the pre-suit 

requirements of the MPLA, petitioner submitted a statement in lieu of a screening certificate of 

merit. See W.Va. Code § 55-7B-6(c). In his statement, petitioner asserted that expert testimony 

would not be needed to establish respondents’ liability for the eventual extraction of his tooth 

because the unit manager’s response to his January 3, 2012, grievance constituted an admission 

that Dr. Gillespie placed the filling “too deep” into tooth four. On October 22, 2014,2 respondents 

filed a motion to dismiss petitioner’s action for a failure to comply with the MPLA’s pre-suit 

requirements and various other grounds.3 

On December 9, 2014, the circuit court dismissed petitioner’s action with prejudice, 

rejecting petitioner’s contention that expert testimony would not be necessary to establish 

respondents’ liability. The circuit court found, as follows: 

Only another dentist can establish whether Dr. Gillespie drilled deeper than 

necessary to fill the cavity in [petitioner’s] tooth. Only another dentist can link the 

eventual need for a root canal to the filling of the tooth rather the deepness of the 

original cavity. Root canals on previously filled teeth are a regular occurrence in 

dentistry. Further, [petitioner’s] allegations that the permanent filling was placed 

“too deep to the nerve” does not indicate that the filing was the proximate cause of 

1

See United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (“[T]hough it is plain that 

an inmate deserves adequate medical care, he cannot insist that his institutional host provide him 

with the most sophisticated care that money can buy.”) (emphasis in original). 

2

There was a delay in serving respondents with petitioner’s compliant. 

3

The other grounds asserted in respondents’ motion to dismiss were the following: (1) 

failure to serve respondents within 120 days as required by Rule 4(k) of the West Virginia Rules of 

Civil Procedure; (2) filing the action outside of the statute of limitations; and (3) failure to 

prosecute the action pursuant to Rule 41(b) of the Rules of Civil Procedure. The circuit court 

granted respondents’ motion on all grounds. However, having found that petitioner’s failure to 

comply with the pre-suit requirements of the MPLA sufficient to sustain a dismissal with prejudice 

under the specific facts and circumstances of this case, we do not address the other grounds 

addressed by the circuit court. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the eventual choice between a root canal and an extraction. [Petitioner’s] cavity in 

tooth #4 was obviously quite deep. Based on [petitioner’s] Complaint, it appears 

that Dr. Gillespie may have attempted to save the tooth rather than force 

[petitioner] to choose between a root canal and extraction in May, 2010. To make 

the leap to dental malpractice, [petitioner] would need an expert to establish that his 

original cavity was not too deep, that Dr. Gillespie drilled too deep, that the 

deepness of the filling was the proximate cause of the fistula on his gum, and that 

with proper treatment of tooth #4, [petitioner] would not have been faced with the 

choice of a root canal or extraction. Simply alleging causation is nothing more than 

an attempt to bypass the pre-suit screening requirements of the [MPLA]. 

Petitioner now appeals the December 9, 2014, dismissal with prejudice of his action under 

the MPLA. “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is 

de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 

773, 461 S.E.2d 516, 519 (1995). Dismissal of an action filed pursuant to the MPLA is proper 

when the plaintiff fails to comply with the MPLA’s pre-suit screening requirements. Davis v. 

Mound View Health Care, Inc., 220 W.Va. 28, 32, 640 S.E.2d 91, 95 (2006) (noting that the 

mandatory term “shall” is used in West Virginia Code § 55-7B-6). A circuit court has the 

discretion to designate a dismissal for a failure to comply with the MPLA’s pre-suit screening 

requirements as being with prejudice. See Syl. Pt. 3, Davis, 220 W.Va. at 29, 640 S.E.2d at 92 

(holding that when dismissal order does not specify that dismissal is with prejudice, dismissal will 

be deemed as being without prejudice). 

One of the MPLA’s pre-suit screening requirements is the obligation of the plaintiff to 

obtain a screening certificate of merit by an expert witness setting forth the theory of malpractice 

to be asserted. See W.Va. Code § 55-7B-6(b). The plaintiff can submit statement in lieu of a 

screening certificate of merit if “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.” Id. § 55-7B-6(c). 

On appeal, petitioner asserts that no screening certificate of merit was required pursuant to 

the MPLA because “Dr. Gillespie admitted that . . . [he] drill[ed] too deep.” For this assertion, 

petitioner relies on the unit manager’s response to his January 3, 2012, inmate grievance, in which 

the unit manager stated that “Dental has informed that your tooth went too long without [a] filling, 

[and] once filled, the filling was real deep and close to a nerve[.]” We determine that petitioner 

misrepresents what the unit manager stated. While petitioner repeatedly refers to his filling being 

drilled “too deep,” the actual phrase the unit manager used was “real deep,” which appears to be 

nothing more than a factual statement. Furthermore, the unit manager’s response suggests that the 

probable cause for the eventual extraction of petitioner’s tooth was that it “went too long without 

[a] filling.” Therefore, we agree with the circuit court that expert testimony would be required to 

prove petitioner’s theory of malpractice. 

Respondents argue that the circuit court’s finding that petitioner’s failure to comply with 

the MPLA’s pre-suit screening requirements is sufficient to sustain a dismissal with prejudice. 

Under the specific facts and circumstances of this case, we agree. A principal consideration for a 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

court in determining the sufficiency of a pre-suit notice under the MPLA is whether “a party 

challenging or defending the sufficiency of a notice and certificate has demonstrated a good faith 

and reasonable effort” to further the MPLA’s purposes of “preventing the making and filing of 

frivolous medical malpractice claims and lawsuits; and promoting the pre-suit resolution of 

non-frivolous medical malpractice claims.” Davis, 220 W.Va. at 32, 640 S.E.2d at 95 (quoting Syl. 

Pt. 6, Hinchman v. Gillette, 217 W.Va. 378, 380, 618 S.E.2d 387, 389 (2005)). We determine that 

by falsely stating that Dr. Gillespie admitted that he drilled the filling in petitioner’s tooth “too 

deep,” petitioner’s statement in lieu of a screening certificate of merit did not represent a good faith 

and reasonable effort to further the purposes of the MPLA. Accordingly, we conclude that the 

circuit court did not err in dismissing petitioner’s action under the MPLA with prejudice. 

For the foregoing reasons, we affirm the circuit court’s December 9, 2014, order 

dismissing petitioner’s action. 

Affirmed. 

ISSUED: December 7, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

4