NEIDIG v. VALLEY HEALTH SYSTEM (2025)

Pursuant to West Virginia Code section 51-1A-6(a)(1) (2016), the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) certified the following question to this Court in its January 9, 2024, order: “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.” Neidig v. Valley Health Sys., 90 F.4th 300, 302 (4th Cir. 2024). To align with the language of the Act, pursuant to West Virginia Code section 51-1A-4 (2016) we reformulate the certified question as follows: Does the Medical Professional Liability Act apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury, or death?

Viewing the West Virginia Medical Professional Liability Act (“MPLA” or “the Act”) in its entirety, and in particular the statutory definition of “medical professional liability” as contained in West Virginia Code section 55-7B-2(i), the Act requires a predicate claim arising from the death or injury of a person. Accordingly, where a plaintiff seeks redress only for economic harm and specifically disclaims any form of physical or emotional injury, the Medical Professional Liability Act does not apply. We therefore answer the reformulated certified question in the negative.

I. Facts and Procedural Background

According to the Fourth Circuit's order of certification, the facts are relatively undisputed. Petitioner Elaine Neidig (“Ms. Neidig” or “the petitioner”) had three mammograms at respondent Valley Health System's (“Valley Health” or “respondent”)¹ Outpatient Diagnostic Center at Winchester Medical Center in 2016, 2017, and 2019. In 2019 the Food and Drug Administration determined that some of the mammograms performed at this facility had “image quality deficiencies” that posed a “serious risk to human health.”

The petitioner received a Patient and Referring Healthcare Provider Notification (“PPN”) letter from respondent on December 16, 2019, notifying her of the quality issues with mammograms performed at Winchester Medical Center between June 20, 2017, and August 31, 2019.² The PPN informed the petitioner of the “recommended actions for [the recipient] to take” depending on the date of her last mammogram.

On August 3, 2022, the petitioner brought a putative class action lawsuit in the Circuit Court of Jefferson County, West Virginia, against Valley Health. The complaint alleged that Valley Health advertised that it “is proud to offer the latest technology in breast imaging, including 3D Mammography, Breast Ultrasound, Breast MRI and Molecular Breast Imaging (BGSI).” Further, Valley Health advertised “[t]he new, free-standing Valley Health Cancer Center has a dedicated Breast Center, which houses a comprehensive program for our patients ․ The Breast Center is also conveniently located 100 steps away from the Winchester Medical Center Diagnostic Center.” Per the complaint, “[the petitioner initially] chose to go to Winchester Medical for [a] mammogram based on the marketing and advertising of Valley Health into West Virginia.” According to the complaint, “Winchester Medical Center, during the dates in question, represented itself as an accredited mammography center under the Mammography Quality Standards Act (“MQSA”)”; “represented itself as being able to perform proper and correct mammography examinations”; and further alleged that, “[b]ut for the above representations, [the petitioner] would not have had Winchester Medical Center perform her mammograms.”

The complaint alleged that “[i]n July 2019, federal accreditation inspectors found that Winchester Medical staff were not accurately positioning or compressing women's breasts during mammograms[ ]” and “[t]his resulted in the Food and Drug Administration (“FDA”) declaring that select mammograms performed by Winchester Medical Center had ‘serious image quality deficiencies,’ and that these deficiencies were a ‘serious risk to human health.’ ” The petitioner alleged that the PPN confirms that “[Valley Health] adopted the view that the mammograms performed between June 20, 2017 and August 31, 2019, would be of questionable accuracy and quality” and that “[t]he mammograms provided to [the petitioner] and others were of different, deficient, inferior and lesser value compared to what [Valley Health] had represented them to be.” According to the complaint, “[d]espite the fact that [the petitioner] paid the market rate for the mammograms, the mammograms were worthless[ ]” and “[Valley Health] never reimbursed, refunded, or rebated the costs paid by [the petitioner].”

The complaint asserted consumer protection claims for unfair and deceptive acts and practices pursuant to the West Virginia Consumer Credit Protection Act (“CCPA”); unjust enrichment; and breach of contract based on Valley Health's provision of mammography services that were “different, deficient, inferior, and of lesser value” than promised. The complaint did not claim damages for any physical or emotional injury or death to the petitioner or to any of the putative class members. The petitioner's complaint sought the following damages: actual damages; statutory damages for violation of the CCPA; the petitioner's cost of litigation; compensatory damages for the unjustly depreciated value of purchased mammograms; disgorgement of wrongfully obtained and retained profits; contract damages; and such other relief as the court deemed just and proper.

Respondent removed the case to the United States District Court for the Northern District of West Virginia and moved to dismiss the complaint, arguing that the petitioner failed to comply with the pre-suit notice requirements of the MPLA and that the complaint was barred by the MPLA's two-year statute of limitations. In response, the petitioner argued that her claim was a consumer claim pursuant to the CCPA's bar against unfair and deceptive practices in the conduct of trade or commerce.³ In addition, she contended that her claim was for an economic injury to which the MPLA did not apply; more precisely, that her claim was not based on an “injury of a person” as required by the MPLA.

After considering the arguments of the parties, the United States District Court for the Northern District of West Virginia (“district court”) concluded that the petitioner's claims fell within the MPLA's statutory framework.⁴ Since the complaint was filed beyond the MPLA's statute of limitations, the district court granted respondent's motion to dismiss on statute of limitations grounds. In so ruling, the district court found that the West Virginia Legislature has defined “medical professional liability” broadly and that “[a]lthough [the petitioner's] claims are for unfair and deceptive acts and practices, breach of contract and unjust enrichment, she may not ‘avoid the MPLA with creative pleading[,]’ ” referencing this Court's opinion in State ex rel. West Virginia University Hospitals, Inc. v. Scott, 246 W. Va. 184, 193, 866 S.E.2d 350, 359 (2021).

The petitioner timely appealed the dismissal order to the Fourth Circuit. In her appeal the petitioner again argued that this is a consumer case, not a medical malpractice case. The petitioner disclaimed any physical injury, maintained that the damages she sustained were strictly economic, and therefore contended that her claims fall outside of the scope of the MPLA.

The Fourth Circuit reasoned that the question before the court was whether the petitioner'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 [MPLA].” Accordingly, pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code §§ 51-1A-1 to -13 (2016),⁵ the Fourth Circuit asked this Court to exercise its discretion to answer the following unsettled question of law: “[w]hether 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.” Neidig, 90 F.4th at 302. By order entered August 20, 2024, we accepted the certified question and set this matter for oral argument.⁶

II. Standard of Review

It is well established that “[a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.” Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998); accord Syl. Pt. 1, Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999) (“This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.”). Similarly, “[w]here the issue on an appeal ․ is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Guided by these standards of review, we address the certified question before us.

III. Discussion

This Court has the power to reformulate certified questions. See W. Va. Code § 51-1A-4 (“The Supreme Court of Appeals of West Virginia may reformulate a question certified to it.”). See also Syl. Pt. 3, in part, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993) (“When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under ․ the Uniform Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. ․”). Accordingly, we reformulate the certified question presented by the Fourth Circuit as follows: Does the Medical Professional Liability Act apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury, or death?

Medical professional liability actions are governed by the MPLA. See, e.g., W. Va. Code § 55-7B-6(a) (stating, in relevant part, that “no person may file a medical professional liability action against any health care provider without complying with the provisions of this section”); State ex rel. Morgantown Operating Co., LLC v. Gaujot, 245 W. Va. 415, 421, 859 S.E.2d 358, 364 (2021) (“[T]he MPLA applies to all actions alleging medical professional liability as that term is defined in the MPLA[.]” (emphasis omitted)). Indeed, this Court has recognized that medical professional liability is one of the two conditions that must exist for the MPLA to apply. See Syl. Pt. 5, State ex rel. W. Va. Div. of Corr. & Rehab. v. Ferguson, 248 W. Va. 471, 889 S.E.2d 44 (2023) (“The Medical Professional Liability Act, W. Va. Code §§ 55-7B-1 to -12, 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. These are separate and distinct conditions. If either of these two conditions is lacking, the Act does not apply.”). 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) (emphasis added).

The definition of “medical professional liability” is divided into two parts. In Scott this Court discerned between anchor claims, described in the first sentence of the statute, and ancillary claims, described in the second. 246 W. Va. at 194, 866 S.E.2d at 360. If no claim espoused by the plaintiff meets the statutory criteria of an anchor claim, it follows that no ancillary claim may be appended to it. See id. (“[To bring ancillary claims under the MPLA,] 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.”).

We have had numerous occasions to analyze and discuss the Act and its provisions in the context of whether the claims asserted fit the statutory definition of “health care”⁷ as an anchor claim, as well as whether the broader language “all in the context of rendering health care” was consistent with asserted ancillary claims. See e.g., Scott, 246 W. Va. at 193-96, 866 S.E.2d at 359-62. Neither party disputes that this claim fits the “health care” portion of an anchor claim, nor do we. But each of our prior cases has contained at least one other claim of bodily injury, emotional injury, or death that resulted from the health care provider's negligent care; accordingly, the requisite damages portion of the statute was satisfied. Had the petitioner in this case claimed a missed diagnosis or emotional distress alongside her breach of contract claim, the parties would not be before this Court or any other arguing whether the Act applied to any of her claims. To be clear, we do not here decide that each of a plaintiff's claims must be based upon bodily injury or death; instead, we determine whether the Act may be applied in the total absence of any claim based upon bodily injury or death.

Because we have never considered the MPLA's application to a case with no claim for physical or emotional injury or death, we find our Act-specific precedent on the scope of “health care” of no practical use here as it pertains to a wholly separate portion of the statute. Thus, the reformulated certified question presents an issue of first impression: Does the Medical Professional Liability Act apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury, or death?

Addressing the operative statutory language, defining an anchor claim for 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,” the petitioner equates “injury of a person” with personal injury. She contends that, by defining “medical professional liability,” in relevant part, as liability for “the death or injury of a person,” the Legislature expressed its intention that the MPLA apply to personal injuries. W. Va. Code § 55-7B-2(i) (emphasis added). By extension, the MPLA has no application to claims for purely economic losses such as those governed by the CCPA. The petitioner maintains that the MPLA does not apply to her claims because she seeks only monetary damages related to her deficient mammograms, i.e., statutory damages for CCPA violations, her cost of litigation, compensatory damages for the depreciated value of her mammograms, disgorgement of wrongfully obtained and retained profits, and contract damages.

Respondent contends that in expressly disclaiming a bodily injury, the petitioner relies on artful pleading to avoid application of the Act, a practice this Court has explicitly condemned as futile, since courts are instructed to apply the Act when the claim asserted is within the Act's scope, regardless of how it is pled. See Syl. Pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007) (“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) (Supp. 2007), the Act applies regardless of how the claims have been pled.”). However, we disagree that this case may be resolved based on the petitioner's alleged artful pleading. The petitioner's lack of bodily injury or death as a damage calls into question whether she has asserted a medical professional liability claim as defined by the Act, which has little to do with the way she pled or labeled her claims. If the petitioner's pleading was indeed strategic to the point of eliminating an entire basis of liability in tort, she has made that choice to her detriment and may not recover those damages in contract, but that does not obviate our need to grapple with the statutory requirements for the Act's application.

Having limited the scope of our analysis to that portion of the statute pertaining to “death or injury to a person,” we are asked whether a claim may still fit the definition of an anchor claim when the plaintiff seeks no damages for any physical or emotional injury. Respondent's arguments in this respect are two-fold. First, respondent argues that for breach of contract claims, specifically, death or injury of a person is not a prerequisite to the Act's application. Second, respondent argues that, if death or injury of a person is a prerequisite, “injury” encompasses both personal and legal injuries.

Respondent would read the first sentence of the statute as creating one class of Act-applicable claims as “health care”-based ⁸ liability for damages in tort resulting from the death or injury of a person, and another, second class of Act-applicable claims as “health care”-based liability stemming from a breach of contract that does not require the death or injury of a person.⁹

The language at issue is the injection of the additional modifier “for any tort or breach of contract” in the middle of an otherwise straightforward sentence: “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.” Without it, the relevant portion of the statute would apply the Act to “any liability for damages resulting from the death or injury of a person based on health care services rendered ․” But the Legislature specifically included the interjecting claim-specific language and we are bound to give it effect. See Syl. Pt. 3, Meadows v. Wal–Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999) (“A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute.”).

While the parties both assert that the language is clear and unambiguously skewed to their respective interpretations of the statute, we find the statute's phrasing warrants a closer look, cognizant that “[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins. Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted). Accord Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949). “A statute that is ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

“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). “It has been emphasized repeatedly that ‘[t]he starting point in every case involving construction of a statute is the language itself.’ ” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 584 (1995) (Thomas, J., dissenting), quoting Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985). See also Bullman v. D & R Lumber Co., 195 W. Va. 129, 135 n.9, 464 S.E.2d 771, 777 n.9 (1995). We therefore turn first to the language of the statute itself, to answer whether the phrase “resulting from the death or injury of a person” applies only to “torts” or whether the Legislature intended to extend that requirement to “breach of contract.”

Here, the structure of the statute operates to apply the language “resulting from death or injury of a person” to both tort and breach of contract claims. W. Va. Code § 55-7B-2(i). Use of the disjunctive “or” is the fulcrum of respondent's argument. See Carper v. Kanawha Banking & Trust Co., 157 W. Va. 477, 517, 207 S.E.2d 897, 921 (1974) (“Recognizing the obvious, the normal use of the disjunctive ‘or’ in a statute connotes an alternative or option to select.”). Courts, however, have recognized that “conjunctions are versatile words, which can work differently depending on context.” Pulsifer v. United States, 601 U.S. 124, 151 (2024). The Legislature's use of “or” between “any tort” and “breach of contract” in West Virginia Code § 55-7B-2(i) simply designates alternative types of claims, it does not convey that the phrase “resulting from death or injury of a person” applies only to “any tort.” Upon review, respondent's approach asks this Court to read a word and punctuation into the statute that are not there.

We restate the operative language before examining it: “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.” W. Va. Code § 55-7B-2(i).

While neither party disputes that any liability under this portion of the definition must be “based on health care services rendered, or which should have been rendered,” respondent's reading does not apply this fundamental criterion to the “any tort” segment of the definition. Id. Respondent's construction requires the insertion of the word “from” and an additional comma, which do not appear in the statute, to clarify that liability—whether grounded in contract or tort—must be “based on health care services rendered, or which should have been rendered.” Thus, the definitional language would have to be modified to state: any liability for damages resulting from the death or injury of a person for any tort or [from] 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. Of course, the word “from” and the additional comma do not appear where respondent needs them to appear for its position to be grammatically or legally correct. Modifying a statute in this way to change its meaning exceeds this Court's authority. See Syl. Pt. 11 Brooke B. v. Ray C., 230 W. Va. 355, 738 S.E.2d 21 (2013) (“It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.”); Syl. Pt. 1, Consumer Advoc. Div. v. Pub. Serv. Comm'n, 182 W. Va. 152, 386 S.E.2d 650 (1989) (“A statute, or an administrative rule, may not, under the guise of ‘interpretation,’ be modified, revised, amended or rewritten.”).

This is particularly true here, where the Act is in derogation of the common law. Phillips v. Larry's Drive-In Pharm. Inc., 220 W. Va. 484, 491, 647 S.E.2d 920, 927 (2007) (“[B]y its own terms, the entire MPLA is an act designed to be in derogation of the common law.”). We have long held that “ ‘[s]tatutes in derogation of the common law are strictly construed.’ Syllabus Point 1, Kellar v. James, 63 W. Va. 139, 59 S.E. 939 (1907).” Phillips, 220 W. Va. at 486, 647 S.E.2d at 922, Syl. Pt. 3. Thus, “ ‘[s]tatutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used. Nothing can be added otherwise than by necessary implication arising from such terms.’ Syllabus Point 3, Bank of Weston v. Thomas, 75 W. Va. 321, 83 S.E. 985 (1914).” Phillips, 220 W. Va. at 486, 647 S.E.2d at 922, Syl. Pt. 4.

Even though we conclude the statutory language itself demonstrates that liability based on “death or injury to a person” is a threshold requirement for an MPLA anchor claim, this conclusion is further bolstered by considering legislative intent as expressed in the stated purpose for the Act and as reflected in other language used therein.

In the introductory “[l]egislative findings and declaration of purpose” of the MPLA, the Legislature emphasizes the need to protect West Virginia citizens from, and compensate them for, injuries or death caused from negligence or incompetence by health care providers. W. Va. Code § 55-7B-1. This emphasis reflects the Legislature's intent that the MPLA apply only to medical professional liability actions against health care providers or health care facilities that involve the death or injury of a person. For example, in this declaration of purpose, the Legislature recognizes that “[a]s in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest[.]” Id. (emphasis added). The Legislature further pronounces that

Our system of litigation is an essential component of this state's interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence, and any limitation placed on this system must be balanced with and considerate of the need to fairly compensate patients who have been injured as a result of negligent and incompetent acts by health care providers[.]

Id. (emphasis added). See also id. (observing the “unpredictable nature of traumatic injury health care services often results in a greater likelihood of unsatisfactory patient outcomes, a higher degree of patient and patient family dissatisfaction and frequent malpractice claims, creating a financial strain on the trauma care system of our state”). Finally, after acknowledging health care providers’ need for “reasonably priced and extensive liability coverage,” the Legislature lists three purposes for the MPLA, one of which is to provide West Virginia citizens with “[c]ompensation for injury and death.” Id. (emphasis added).¹⁰

By associating the term “injury” with the term “death,” the Legislature shows that it uses “injury” in the context of a physical or personal injury. See Syl. Pt. 4, in part, Wolfe v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975) (“It is a fundamental rule of construction that, in accordance with the maxim Noscitur a sociis, the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated.”). See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 197 (2012) (commenting that [a]lthough most associated-words cases involve listings ․ [a]n association is all that is required.”). In this regard, it is noteworthy that pursuant to the MPLA, the term “injury” is synonymous with “medical injury” and both terms are defined as “injury or death to a patient arising or resulting from the rendering of or failure to render health care.” W. Va. Code § 5-7B-2(h) (emphasis added) (defining “injury” and “medical injury”).¹¹

The association of “injury” with “death” is repeated throughout the Act. See, e.g., W. Va. Code § 55-7B-3(a) (establishing the “necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care” (emphasis added); Id. at -3(a)(2) (requiring proof that a failure to follow the accepted standard of care “was a proximate cause of the injury or death” (emphasis added)); Id. § 55-7B-4(a) (using the term “injury or death” in stating the limitations period for a medical professional liability action against a health care provider other than a nursing home (emphasis added)); Id. at -4(b) (referring to “injury or death” when identifying the limitations period for a medical professional liability action against a nursing home or similar facility (emphasis added)); Id. § 55-7B-5(d) (permitting an MPLA action based on the prescription or dispensation of controlled substances only when certain facts are alleged and proven by a preponderance of the evidence and when the prescription or dispensation “was a proximate cause of the injury or death” (emphasis added)); Id. § 55-7B-7a(c) (providing for a rebuttable presumption “that inadequate staffing or inadequate supervision was a contributing cause of the patient's fall and injuries or death arising therefrom,” when certain criteria is met (emphasis added)); Id. § 55-7B-9b (acknowledging that the Act's limitations on third-party claims does not “prevent a derivative claim for loss of consortium arising from injury or death to the patient arising from the negligence of a health care provider within the meaning of this article” (emphasis added).

The Legislature's intent that the death or injury of a person is a required element of medical professional liability claims pursuant to the Act is further reflected in the limitations period for MPLA actions, which is phrased in terms of a “medical injury to a person.” See id. § 55-7B-4(a) (addressing the limitations period for a “cause of action for medical injury to a person alleging medical professional liability against a health care provider” (emphasis added)); Id. at -4(b) (discussing the limitations period for a “cause of action for medical injury to a person alleging medical professional liability against a nursing home” or similar facility (emphasis added)). The MPLA does not provide or even reference a limitations period for a medical professional liability action that is based solely on economic damages, i.e., an action in which the plaintiff has disclaimed any personal injury, indicating that the Legislature has neither contemplated such an action nor required it to be filed in compliance with the MPLA.

Finally, the MPLA's mandatory prerequisites for filing a medical professional liability action include a screening certificate of merit, which

shall be executed under oath by a health care provider who:

(1) Is qualified as an expert under the West Virginia rules of evidence;

(2) Meets the requirements of § 55-7B-7(a)(5)[12] and § 55-7B-7(a)(6)[13] of this code; and

(3) Devoted, at the time of medical injury, 60 percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or specialty in an accredited university.

W. Va. Code § 55-7B-6(b). The only circumstance in which the Act permits a medical professional liability action to proceed without a screening certificate of merit is where “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. at -6(c). This requirement for a screening certificate of merit, executed by a medical professional who possess certain medical expertise and experience in active clinical practice or teaching, has no rational purpose in the context of a medical professional liability action in which the plaintiff only claims an economic injury. To the extent that “[i]t is always presumed that the legislature will not enact a meaningless or useless statute,” Syl. Pt. 4, State ex rel. Hardesty v. Aracoma, 147 W. Va. 645, 129 S.E.2d 921 (1963), we reject respondent's argument that the MPLA's applies to injuries that are purely economic.

With particular focus on the statutory definition of “medical professional liability” contained in West Virginia Code section 55-7B-2(i), and consistent with the legislative purpose for the MPLA as a whole, we now hold that the Medical Professional Liability Act does not apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury, or death. Hence, we answer the reformulated certified question in the negative.

IV. Conclusion

For the foregoing reasons, we answer the reformulated certified question as follows: Does the Medical Professional Liability Act apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury, or death? Answer: No.

Reformulated Certified Question Answered.

I concur in the majority's analysis and write separately to emphasize that the clear statutory language necessitates the conclusion that for the Act to apply, damages “resulting from death or injury of a person” must be shown whether a plaintiff seeks to impose liability in “tort or breach of contract,” despite the Legislature's use of the disjunctive “or.” As noted by the majority, courts have recognized that “conjunctions are versatile words, which can work differently depending on context.”¹ And here, Respondent relies so wholly on that disjunctive that it altogether ignores the context in which “or” is used, asking this Court to read statutory language in ad hoc fashion that flies in the face of traditional grammar rules and measured legislative drafting.

To begin, the definition of “medical professional liability,” reads, in relevant portion: “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.”²

The prepositional phrase “for damages” modifies the preceding noun, “liability.” The definition is thereafter set up in a stairstep modification of the noun phrase “liability for damages.” The participial phrase “resulting from the death or injury of a person” functions as an adjective containing the prepositional phrase “from the death or injury” with the compound object “death or injury” that is then modified by the prepositional phrase “of a person.” As a whole, the participial phrase “resulting from the death or injury of a person” modifies the preceding noun phrase, “liability for damages,” consistent with the grammar rule that “if a participial phrase does not start a sentence, it should modify the noun, pronoun, or noun phrase that most closely precedes it.”³

Next, is the prepositional phrase “for any tort or breach of contract,” which also functions as an adjective to describe the noun phrase “liability for damages.” Importantly, that prepositional phrase contains a compound object: “tort” or “breach of contract.”⁴ This compound object most closely precedes and is modified by the participial phrase “based on health care services rendered or which should have been rendered.”

Next come the prepositional phrases “by a health care provider or health care facility” (also containing a compound object, “health care provider” or “health care facility”) and “to a patient,” neither of which are at issue in this case but operate within the statute to describe who renders the health care services and to whom they are rendered.

As recognized by the majority, for Respondent's construction of the sentence to be grammatically correct, at minimum the word “from” would need to be inserted before “breach” to create two distinct prepositional phrases, i.e., any liability for damages resulting from the death or injury of a person for any tort or from breach of contract. Respondent does not dispute that damages are an integral component of liability under the Act. Rather, its assertion is that the damages can “result[ ] from ․ breach of contract based on health care services rendered, or which should have been rendered.” But in picking and choosing which words to utilize, Respondent pays no heed to the import of this statute's structure, required phrasal cohesion, or the grammatical influence of the prepositional and participial phrases on one another.

In this way, the enacted statute's key phrases and resulting modification can best be visualized as follows:

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

In the enacted version, “resulting from the death or injury of a person” applies to both “any tort” and “breach of contract” because all liability for damages—whether flowing from tort or breach of contract—must result from the death or injury of a person. The participial phrase that follows “for any tort or breach of contract”—“based on health care services rendered or which should have been rendered” —then also refers back to both “any tort” or “breach of contract” as the compound object because, as a participial phrase, it modifies “the noun, pronoun, or noun phrase that most closely precedes it.” Stated another way, grammatically, “any tort or breach contract” must be kept together for the statute to operate properly with the phrases that precede and follow it, but Respondent's read would separate them with grammatical consequences that change the meaning of the statute:

Liability

For damages

resulting

from the death or injury of a person for any tort

or

[from] 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

The statute is simply not structured to accommodate Respondent's desired interpretation, first and foremost, because it would read out the participial phrase “resulting from the death or injury of a person” altogether. But insertion of the word “from” to correct the statute grammatically fares no better because grammatical consequences spill over into substantive ones when “tort or breach of contract” is disconnected.

Insertion of the word “from,” to respondent's end, operates for the specific purpose of placing “breach of contract” on its own step so as not to bear the “death or injury to a person” modifier from the immediately preceding participial phrase. But if “tort or breach of contract” is not viewed together for purposes of describing the participial phrase “resulting from the death or injury of a person” it cannot then be used as a compound object for purposes of the rest of the statute. In the enacted version, “for any tort or breach of contract” is immediately followed by the participial phrase “based on health care services rendered or which should have been rendered.” Grammatically, “based on health care services rendered or which should have been rendered” modifies “any tort or breach of contract” —but only where “any tort or breach of contract” operates as a compound object (read, on the same step, not each object on its own step). In Respondent's version, the insertion of the additional preposition “from” disjoins the compound object, causing the participial phrase beginning “based on health care services” to only modify the lone object, “breach of contract” as “the noun, pronoun, or noun phrase that most closely precedes it.” So, while insertion of “from” fixes the problem with the phrase that precedes “breach of contract,” it creates a new one with the phrase that follows it.

The majority appropriately identifies the alarms that sound from this seemingly innocuous grammatical change: “torts” would no longer carry a requirement that they are “based on health care services rendered or which should have been rendered”—language this Court has recognized as the hallmark of actions under the Medical Professional Liability Act. To fix the problems “from” creates on the back end of the stairstep structure, we would then also need to insert additional verbiage to clarify that the resulting damages—whether contract or tort based—are “based on health care services rendered, or which should have been rendered,” not just resulting from a breach of contract.

Most egregiously, Respondent's construction requires the insertion of a word that does not appear in the statute—something we cannot do.⁵ But it also makes a straightforward sentence—a “bramble of prepositional phrases [that] may excite the grammar teacher,” to be sure—clumsy in style and form.⁶ As shown above, the sentence follows a predictable pattern of interjecting participial phrases to modify the objects (nouns) in the key prepositional phrases that immediately precede them. Respondent's approach to reach its own ends does not function within the statute's structure.

“True, in the business of statutory interpretation we do not always bow to linguistic rules. A court's job, after all, is to discern the statute's meaning not grade its grammar, and sometimes a law's meaning can be clear even when the grammar's downright awful. But until a clue emerges suggesting otherwise, it's not unreasonable to think that [the Legislature] used the English language according to its conventions.”⁷ This Court has previously declined to casually disregard traditional grammar rules based on the assumption that the Legislature “haphazardly structured” a statute, emphasizing that “ ‘a court's proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself ․ [and] where [ ] that examination yields a clear answer, judges most stop.’ ”⁸

In this statutory definition, the Legislature appears to have taken a measured, grammatical approach to incorporate its intended, requisite elements of “liability” under the Act as (1) damages; (2) resulting from the death or injury of a person; (3) for any tort or breach of contract; (4) based on health care services rendered or which should have been rendered; (5) by a health care provider or health care facility; and (6) to a patient. It is no hard thing, then, to decline the invitation to add words to the statute that are not there, or to practice “sophisticated syntactical somersaults” to that end; “this reading of the statute—like most good ones—flows from plain old grade school grammar[.]”⁹ In all instances, we give effect to the Legislature's intent expressed by statutory language. And where, as here, examination of the language yields a clear answer, we stop.

The West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 – 12 (“MPLA”), is, by design, a broad and encompassing measure designed to govern civil actions arising from the provision, or failure to provide, adequate health care services to our citizens. The majority's opinion in this case improperly limits the scope and coverage of the MPLA. Accordingly, I dissent from the majority's answer to the certified question from the United States Court of Appeals for the Fourth Circuit because I believe that, by following the majority's opinion, a plaintiff may avoid application of the MPLA by utilizing artful pleading, a result that has previously been soundly rejected by this Court. Ms. Neidig creatively couches her claims as unfair and deceptive acts and practices pursuant to the West Virginia Consumer Credit Protection Act (W. Va. Code §§ 46A-6-101 – 110), breach of contract, and unjust enrichment. What the majority opinion fails to recognize is that the petitioner's unfair and deceptive acts and practices, breach of contract, and unjust enrichment claims are all based upon a deviation from the standard of care for a mammogram. In other words, Ms. Neidig will, essentially, have to establish a medical negligence claim in order to prevail. The majority incorrectly centers its attention, not upon the nature of the petitioner's factual allegations, but upon her characterization of the type of damages she seeks. Additionally, the petitioner's breach of contract claim is an anchor claim that falls within the terms of the MPLA. As such, I firmly believe that the United States District Court for the Northern District of West Virginia was correct in its decision that the petitioner's claims fall squarely within the scope of the MPLA. Because the MPLA applies to this case and the allegations in the petitioner's complaint fall outside the one-year statute of limitations governing the MPLA, the petitioner's complaint should be dismissed. Accordingly, I would answer the Fourth Circuit's original certified question in the affirmative.

As noted by both the majority and Justice Walker's concurrence, for the MPLA to apply, a cause of action must fall within the Act's definitions of “medical professional liability” and “health care.” Under the Act, “medical professional liability” is defined broadly to mean:

[A]ny 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.

Id. § 55-7B-2(i) (emphasis added). The Legislature has defined the term “injury” to mean “injury or death to a patient arising or resulting from the rendering of or failure to render health care.” Id. § 55-7B-2(h). Finally, “health care,” is defined, in relevant part, as:

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.

Id. § 55-7B-2(e)(2). We have stated that a health care claim is the necessary anchor from which MPLA application flows:

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.

State ex rel. W. Va. Univ. Hosps., Inc. v. Scott, 246 W. Va. 184, 194, 866 S.E.2d 350, 360 (2021).

I. Ms. Neidig's Complaint

In her complaint, Ms. Neidig has alleged a breach of contract based on the failure of health care services rendered, namely mammography services, to comply with the applicable standard of care. The parties agree that mammography services are health care. The issue in dispute in this case is that Ms. Neidig claims that she seeks only “economic” damages for the inadequacy of the mammogram, and that, therefore, the MPLA is inapplicable. However, the factual circumstances giving rise to her claims stem from her allegations that she did not receive adequate and appropriate health care when she received mammograms from Valley Health. While Ms. Neidig does not expressly characterize her claim as a claim for “Medical Professional Negligence,” we have previously held that artful pleading will not defeat the application of the MPLA. See Syl. Pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007):

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

The Court has further stated that:

As Ethicon makes clear, a plaintiff cannot avoid the MPLA by virtue of failing to expressly allege a malpractice claim. If a claim falls squarely under the MPLA, the manner in which a complaint is drafted will not prevent the invocation of the MPLA. See, e.g., Ethicon, 221 W. Va. at 707, 656 S.E.2d at 458 (approving circuit court's analysis that plaintiffs’ labeling “as ‘products’ claims does not change the fundamental [MPLA] basis of this tort action”); Gray v. Mena, 218 W. Va. 564, 570, 625 S.E.2d 326, 332 (2005) (permitting plaintiff who opted not to bring MPLA action opportunity to amend complaint and comply with MPLA requirements rather than upholding dismissal for non-compliance with MPLA filing requirements). As we stressed in Ethicon, “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.” 221 W. Va. at 702–03, 656 S.E.2d at 453–54 (emphasis supplied).

Minnich v. MedExpress Urgent Care, Inc.-W. Va., 238 W. Va. 533, 537, 796 S.E.2d 642, 646 (2017). “It goes without saying that [a plaintiff] cannot avoid the MPLA with creative pleading.” Scott, 246 W. Va. at 193, 866 S.E.2d at 359.

Thus, this Court must look at the allegations in the petitioner's complaint to determine “what factual circumstances” give rise to her causes of action. Contrary to the majority's position, the petitioner's complaint clearly contains allegations that the mammography services she received were a “risk” to human health. Specifically, she contends that:

1. She went to Winchester Medical Center to obtain a mammogram.

2. Valley Health advertised it had “a dedicated Breast Cancer Center, which houses a comprehensive program for our patients” and because of its “enhanced detection methods and advanced cancer care treatment, Valley Health [has] committed to beating cancer.”

3. Valley Health had the most advanced mammogram technology.

4. Valley Health represented that it was “an accredited mammography center under the Mammography Quality Standards Act” and was capable of “perform[ing] proper and correct mammography examinations.”

5. The Food and Drug Administration found that Valley Health staff “was not accurately positioning or compressing women's breasts during mammograms.”

6. The resulting Food and Drug Administration report found there to be “serious image quality deficiencies” that posed a “serious risk to human health.”

7. Further, the Food and Drug Administration found that the mammograms were of “reduced quality” and required Valley Health to notify its patients that they had “failed to meet the clinical image quality standards” of their accreditation body.

8. That the mammograms were “different, deficient, inferior” and of a “lesser value” than what Valley Health had represented.

9. “The mammograms provided to Ms. Neidig were not ‘quality health care.’ ”

10. Valley Health represented that “their facilities and procedures were of a character and grade approved of by the” Food and Drug Administration.

11. Valley Health misrepresented that their mammography services “satisf[ied] federal standards for accreditation” and “met federal standards for accreditation.”

12. Valley Health was unjustly enriched by receiving money for something they did not provide.

13. Valley Health breached its contract by providing mammography services that were “different, deficient, inferior, and of lesser value” than what was bargained for.

14. Valley Health also breached its contract by providing mammograms that had “serious image quality deficiencies” and were a “serious risk to human health.”

Further, the complaint seeks the following damages:

1. Actual damages;

2. Statutory damages for violations of the [West Virginia Consumer Credit Protection Act], as authorized by W. Va. Code § 46A-6-106;

3. [Ms. Neidig]’s cost of litigation, including attorney's fees, court costs, and fees, pursuant to W. Va. Code §§ 46A-5-106, 46A-5-104;

4. Compensatory damages for the unjustly depreciated value of purchased mammograms;

5. Disgorgement of wrongfully obtained and retained profits;

6. Contract damages; and,

7. Such other and further relief as this Court may deem just and proper.

The petitioner's allegations and prayer for relief, regardless of her “artful” pleading, present a textbook MPLA case. In the very recent past, this Court has found that a complaint that contained allegations arising “from the alleged mishandling of fetal remains following health care,” fell within the MPLA. State ex rel. Charleston Area Med. Ctr., Inc. v. Thompson, 248 W. Va. 352, 358, 888 S.E.2d 852, 858 (2023). Additionally, this Court has determined that corporate negligence claims fall within the MPLA, when the underlying factual allegations “relate to acts performed by health care providers.” Scott, 246 W. Va. at 193, 866 S.E.2d at 359. Those findings are because, “[b]y the plain language of the statute, the MPLA applies when the action arises from ‘health care’ rendered to ‘a patient.’ ” Thompson, 248 W. Va. at 358, 888 S.E.2d at 858.

Based upon the factual allegations in her complaint and the damages she seeks in her prayer for relief, Ms. Neidig plainly alleges she did not receive adequate and appropriate health care when Valley Health allegedly did not provide the quality of mammogram services for which she contracted. To demonstrate this, Ms. Neidig points to the Food and Drug Administration standards under the Mammography Quality Standards Act, cited in her complaint. See 42 U.S.C. § 263b(b). This Act requires a “ ‘facility’ mean[ing] a hospital, outpatient department, clinic, or other facility ․ that conducts breast cancer screening or diagnosis through mammography services” to obtain a certificate to provide radiological equipment for imaging of the breast, interpretation of those images, and processing of film produced by the equipment. 42 U.S.C. §§ 263b(a)(3)(A) & 263b(b)(1). These quality standards under the Mammography Quality Standards Act are set forth in 21 C.F.R. § 900.12 and demonstrate the rigorous expectations for mammography facilities to be certified in the United States.

Under West Virginia law, to prove a medical negligence case, a plaintiff must establish “that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care[.]” W. Va. Code § 55-7B-3(a). Failure to meet the standard of care is defined as:

(1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and

(2) Such failure was a proximate cause of the injury or death.

Id. Here, Ms. Neidig places the standard of care into contention when she alleges that Valley Health failed to provide mammography services that satisfied the Food and Drug Administration requirements under the Mammography Quality Standards Act. Plainly, the Mammography Quality Standards Act establishes the standard of care and is precisely what Ms. Neidig alleges was breached. Under any interpretation, Ms. Neidig's allegations of “the worst kind of health care” are squarely based upon a “breach of contract based on health care services rendered.” W. Va. Code § 55-7B-2(i). Thus, Ms. Neidig's breach of contract claim is the anchor claim that “gets you in the door” and all of her other claims are ancillary claims to that anchor. It is abundantly clear that Ms. Neidig's complaint is an MPLA claim in sheep's clothing.

II. Ms. Neidig's Injury

Because the Legislature defined the term “injury” within the MPLA to include the word “injury,” and that word is unambiguous, this Court is tasked to apply its plain meaning. See Syl. Pt. 1, in part, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“[A] statute that is clear and unambiguous will be applied and not construed.”). Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.”). Appalachian Power Co. v. State Tax Dep't of W. Va., 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995) (“We 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.”). With this standard in mind, it is clear that the plain meaning of “injury” in West Virginia includes legal injuries:

2. Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation are those as may fairly and reasonably be considered as arising naturally – that is, according to the usual course of things – from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of its breach.

3. Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation must be proved with reasonable certainty.

Syl. Pts. 2 & 3, Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro, 158 W. Va. 708, 214 S.E.2d 823 (1975) (damages sought for breach of paving contract) (emphasis added). In fact, an injury-in-fact is a necessary predicate to any civil action:

Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an ‘injury-in-fact’—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.

Syl. Pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002) (emphasis added). The fact that legal injuries are compensable is grounded in the long-established definitions of the word “injury” in Black's Law Dictionary: “[t]he violation of another's legal right, for which the law provides a remedy; a wrong or injustice ․ Any harm or damage.” INJURY, Black's Law Dictionary (12th ed. 2024). Thus, contrary to the conclusion reached by the majority opinion, the plain language of the word “injury” includes both legal and medical injuries. As such, the MPLA applies not only to medical injuries but to injuries sustained through the causes of action pled by Ms. Neidig.

The majority's narrow reading of the term “injury” to include only bodily injury is inconsistent not only with the express language of the MPLA but also with what is clearly the broad and encompassing nature of the MPLA statutory scheme. Indeed, while the majority attempts to extensively parse the definition of medical professional liability, it essentially ignores the initial broad term of such definition that states its application to “any liability for damages” arising from an MPLA claim. W. Va. Code § 55-7B-2(i) (emphasis added). Had the Legislature intended to limit “injury” to bodily injury, it could certainly have used such express term, either in the initial passage of the MPLA or in later revisions of the act. Instead, it declined to limit application of the MPLA in its subsequent amendments which clearly expanded the MPLA's application. Therefore, the majority's painstaking efforts to justify its decision to limit “injury” to bodily injury fail to accurately capture the Legislature's intent. The petitioner's complaint clearly alleges “injury” directly resulting from the failure of Respondent to provide adequate health care services and, thus, falls within the broad and encompassing scope of the MPLA.

III. MPLA Statutory Construction

Both the majority opinion and Justice Walker's concurrence conclude that the operative language in the definition of “medical professional liability” should be read in such a way that severely limits the phrase “breach of contract based on health care services rendered” within the core provisions of the MPLA. Neither the plain language of the statutes nor the rules of grammar support such a construction. Particularly, both of the opinions offered by those in the majority spend an enormous amount of time discussing the grammatical rules applicable to the preposition “from” in the prepositional phrase “damages resulting from the death or injury of a person for any tort or breach of contract based upon health care services rendered.” (Emphasis added). Unlike the conclusion reached by the majority opinions, these rules plainly state that a preposition does not have to be restated to apply to compound objects. Indeed, it is recommended that such duplicative drafting be omitted:

When possible, omit a repeated preposition or object in favor of a compound construction, but don't if the omission would make the construction unparallel.

(a) Compound object. If a preposition might be repeated with a different object, the better style is to use the preposition once with a compound object – unless a miscue might otherwise occur.

Ex.: Commercial speakers have extensive knowledge of the market and their products. (Rather than of the market and of their products.)

Ex.: The creditor may use the note to pay its own debts, sell to another creditor, or post as security for its own obligations. (Rather than repeating to before each infinitive phrase).

Bryan Garner, The Redbook: A Manual on Legal Style § 11.45 (a) (4th Ed. 2018). Notably, Garner's second example includes the intervening prepositional phrases of “to another creditor” and “for its own obligations.” Even with these intervening phrases, the original preposition “to” applies to all subsequent objects of the sentence. This structure is very similar to the portion of West Virginia Code § 55-7B-2(i), which applies the preposition “from” to both of the compound objects “the death or injury of a person for any tort” and “breach of contract based on health care services rendered.”

In effect, what the majority has done is move the words “breach of contract based on health care services rendered” into the second sentence of West Virginia Code § 55-7B-2(i), relegating it to ancillary claim status. See Scott, 246 W. Va. at 194, 866 S.E.2d at 360 (Ancillary claims are those that “are either ‘related to’ or ‘contemporaneous to’ the medical injury being asserted.”). Ancillary claims flow from the language in the second sentence that states that “medical professional liability” “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).

However, this court is duty-bound to give every word in a statute meaning. “[I]n the construction of a statute every word must be given some effect and the statute must be construed in accordance with the import of its language.” Wilson v. Hix, 136 W. Va. 59, 68, 65 S.E.2d 717, 723 (1951). “[N]o part of a statute is to be treated as meaningless and we must give significance and effect to every section, clause, word or part of a statute as well as the statute as a whole.” Mitchell v. City of Wheeling, 202 W. Va. 85, 88, 502 S.E.2d 182, 185 (1998). “It is the duty of the courts to give a statute the interpretation called for by its language when this can reasonably be done; and the general rule is that no intent may be imputed to the legislature other than that supported by the face of the statute itself.” State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 144 – 45, 107 S.E.2d 353, 358 (1959). From its plain language, the Legislature intended both claims for “the death or injury of a person for any tort” and claims for “breach of contract based on health care services rendered” to be anchor claims. To say otherwise contorts the rules of statutory and grammatical construction and neglects to give meaning to every word in the statute, leaving “breach of contract” claims “based on health care services rendered” to drift in the wind.

IV. Conclusion

The majority has misinterpreted and erroneously limited the MPLA by holding that Ms. Neidig's claims are outside of its clear and encompassing provisions. In doing so, the majority has ignored the factual allegations contained in Ms. Neidig's complaint and relegated claims arising from a “breach of contract for health care services rendered” to an ancillary claim under the MPLA.¹ Although this Court has stated that “[w]e are not a superlegislature, and we refuse to pretend to be one,” Beasley v. Sorsaia, 247 W. Va. 409, 415, 880 S.E.2d 875, 881 (2022), the majority has, in effect, rewritten the language of the MPLA in a hyper-technical manner. The majority's conclusion flies in the face of the clear and encompassing intent of the act which is to address a broad range of claims related to provision, or failure to provide, health care. I therefore would answer “Yes” to the Fourth Circuit's original certified question asking “[w]hether plaintiff's claims can fall under the West Virginia Medical Professional Liability Act if the plaintiff disclaims any form of physical or emotional injury,” and respectfully dissent from the majority's opinion.²

FOOTNOTES

1.   Respondent operates Winchester Medical Center and six other hospitals.

2.   Winchester Medical Center participates in the Mammography Accreditation Program governed by the American College of Radiology. The Center temporarily lost its accreditation to perform mammography, but its accreditation has since been reinstated.

3.   The CCPA definition of “unfair or deceptive acts or practices” includes:(E) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;․(G) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model if they are of another;W. Va. Code § 46A-6-102(7) (2023).

4.   In dismissing the complaint, the district court relied on the second sentence of West Virginia Code section 55-7B-2(i), which provides “[i]t 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.”

5.   This Court's review of a certified question is authorized by West Virginia Code section 51-1A-3 (1996) which provides:The Supreme Court of Appeals of West Virginia may answer a question of law certified to it by any court of the United States ․ if the answer may be determinative of an issue in a pending cause in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state.

6.   Respondent asked this Court to use its discretion as afforded by West Virginia Code section 51-1A-4 and our established jurisprudence to reformulate the certified question as follows:Whether a claim that arises from “health care” rendered to a “patient,” and that necessarily depends upon proof that a “health care provider” or “health care facility” failed to follow the accepted standard of care, falls under the West Virginia Medical Professional Liability Act, regardless of how it has been pled or the type of damages being sought.We decline to adopt respondent's proposed reformulated question and instead adopt the reformulated question discussed supra, which follows the language of the “medical professional liability” definition.

7.   West Virginia Code § 55-7B-2(e) defines “health care” as:(1) Any 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;(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; and(3) The process employed by health care providers and health care facilities for the appointment, employment, contracting, credentialing, privileging, and supervision of health care providers.

8.   Insofar as the statutory definition of “health care” is not at issue, we abbreviate that portion of the statute but do not intend to diminish the nuances of that statutory definition as contrasted with “in the overall context of rendering health care” in the portion of the statute relating to ancillary claims.

9.   Per respondent, the MPLA's definition of “medical professional liability” includes liability for damages resulting from three types of claims: (1) the “death or injury of a person for any tort ․ based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient”; (2) “breach of contract based on health care services rendered, or which should have been rendered, by any health care provider to a patient”; and (3) “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. To the extent that respondent argues that Petitioner's claims may also fall within the “otherwise” portion of the definition of medical professional liability, we observe that the portion of the statute containing the “otherwise” catchall pertains to ancillary claims. Here, our analysis does not reach that question because we conclude that in the absence of a death or personal injury, there is no anchor claim to which it may be tethered, and thus need not decide whether Petitioner's claim would fit the statutory definition of an ancillary claim.

10.   Notably absent from the statement of legislative intent is any expression of a need to protect patients from the economic pitfalls of bad contracts with health care providers – that is, except to the extent contract-based liability has caused an injury or death along the lines of lack of informed consent. But see supra note 9 regarding ancillary claims.

11.   “Medical injury” was added as a term being defined along with “injury” in the 2022 amendments to the MPLA, thereby clarifying that “injury” is synonymous with “medical injury.” W. Va. Code § 5-7B-2(h). Notably, the language of the definition was not changed. See State Auto. Mut. Ins. Co. v. Youler, 183 W. Va. 556, 569-70, 396 S.E.2d 737, 750-51 (1990) (clarification of Legislature's original intent permissible to inform pre-amendment application).

12.   West Virginia Code § 55-7B-7(a)(5) requires that[a] proposed expert witness may only be found competent to testify if the foundation for his or her testimony is first laid establishing that: ․ (5) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness's license has not been revoked or suspended in the past year in any state;

13.   Pursuant to West Virginia Code § 55-7B-7(a)(6),[a] proposed expert witness may only be found competent to testify if the foundation for his or her testimony is first laid establishing that: ․ (6) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient.

1.   Pulsifer v. United States, 601 U.S. 124, 151 (2024).

2.   W. Va. Code § 55-7B-2(i).

3.   See Shires Housing, Inc. v. Brown, 172 A.3d 1215, 1225 (Vt. 2017) (Skoglund, J., dissenting) (citing Bryan Garner, The Redbook: A Manual on Legal Style § 10.29(B) (2d Ed. 2006)).

4.   See Republic-Vanguard Ins. Co. v. Mize, 292 S.W.3d 214, 219-20 (Tex. App. 2009) (“A preposition is a word that usually indicates a temporal, spatial or logical relationship between the object of the preposition and the subject of the sentence. Most often, prepositions come before their object. A conjunction joins together sentences, clauses, phrases or words; therefore, use of the phrase ‘and/or’ following a preposition, creates a prepositional phrase with a compound object. Therefore, ‘of the “insured” and/or any “subcontractor” ’ is a prepositional phrase with a compound object, modifying the subject of the sentence, ‘employee,’ by both ‘the insured’ and ‘any subcontractor.’ ”).Though in Republic-Vanguard, the statute at issue contained “and/or,” compound objects may be joined by either “and” or “or” to the same effect because they are used as coordinating conjunctions: “coordinating conjunctions join words or group of words of equal grammatical rank, such as two nouns, two verbs, two phrases, or two clauses.” The Chicago Manual of Style § 5.198, p. 287 (17th ed. 2017). See, e.g., Kokomo Urb. Dev., LLC v. Heady, 125 N.E.3d 15, 20 (Ind. T.C. 2019) (“Furthermore, Kokomo Urban's argument ignores the actual grammatical structure of Indiana Code § 6-1.1-20.6-1.6’s phrase ‘after the application of all exemptions under IC 6-1.1-10 or any other provision.’ The word ‘exemptions’ in that phrase is modified by the prepositional phrase ‘under IC 6-1.1-10 or any other provision.’ ‘Under,’ the preposition, is followed by the compound object ‘IC 6-1.1-10 or any other provision.’ ”).

5.   See Syl. Pt. 11, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21 (2013) (“It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.”).

6.   U.S. v. Rentz, 777 F.3d 1105, 1106 (10th Cir. 2015).

7.   Id. at 1109.

8.   State v. Woodrum, 243 W. Va. 503, 509-10, 845 S.E.2d 278, 284-85 (2020) (quoting Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019)).

9.   Rentz, 777 F.3d at 1110.

1.   Footnote 9 of the majority opinion states, “[h]ere, our analysis does not reach that question because we conclude that in the absence of a death or personal injury, there is no anchor claim to which it may be tethered, and thus need not decide whether Petitioner's claim would fit the statutory definition of an ancillary claim.”

2.   The majority reformulates the certified question to ask “[d]oes the Medical Professional Liability Act apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury or death?” While I think reformulation was unnecessary, and I believe the reformulated certified question mischaracterizes the petitioner's prayer for relief in that such prayer includes a demand for “actual damages,” “contract damages” and “[s]uch other and further relief as this Court may deem just and proper,” I would, nonetheless, also answer the reformulated certified question as “Yes” for the reasons set forth in this separate opinion.

WOOTON, Chief Justice:

JUSTICE WALKER concurs and reserves the right to file a separate opinion. JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion. JUSTICE TRUMP, deeming himself disqualified, did not participate in the decision of this case. JUDGE PERRI JO DECHRISTOPHER sitting by temporary assignment.