The defenses available to healthcare providers in federal court are more limited after a recent Fourth Circuit ruling. In Pledger v. Lynch, [1] the plaintiff appealed the dismissal of his medical malpractice claim against the United States, which were filed in district court under the Federal Tort Claims Act (FTCA).
The FTCA allows a plaintiff to sue the federal government for negligence under the substantive law of the state in which the action arose – in this case West Virginia. Based on this principle, the government sought to dismiss the plaintiff’s malpractice claim for failure to comply with a provision of West Virginia’s Medical Professional Liability Act, W. Va. Code § 55-7B-6(a)-(b) (MPLA).
Among other hurdles, the MPLA requires a plaintiff to obtain an expert certification that his medical malpractice claim is valid before filing suit in West Virginia. Here, the plaintiff, a pro se inmate, failed to do so. As a result, the trial court agreed with the government that the MPLA barred the plaintiff from recovery, dismissing his malpractice claim.
On appeal, a split panel reversed this decision. Writing for the majority, Judge Harris explained that disposing of a claim in federal court based on a state filing requirement conflicted with the Federal Rules of Civil Procedure. To reach this conclusion, the Court explained that, where a potential conflict between the application of state or federal law arises, the Court applies a two-step process from Shady Grove v. Allstate. [2]
Under Shady Grove, the Court first asks “whether the Federal Rules answer[] the question in dispute.” Next, “[i]f the Federal Rules do answer that question, then they govern, notwithstanding [the competing state law] – unless, at step two of the analysis, [the court] finds the relevant Federal Rules invalid under the Constitution or the Rules Enabling Act.”[3]
Accordingly, the question presented was whether valid Federal Rules establish that the plaintiff did not need to obtain an expert certificate of merit before filing and maintaining his medical malpractice suit in federal court.
1. Application of the Shady Grove test.
Under the first step, the majority begins with the premise that “the Federal Rules of Civil Procedure generally govern all civil actions in federal court.” More specifically, Rules 8, 9, 11, and 12 set the standard for filing a complaint in federal court that can withstand a motion to dismiss.
To start, Rule 8 requires only a short and plain statement of the case that establishes jurisdiction and explains the relief sought. Rule 9 adds that, except for claims alleging fraud or mistake, a plaintiff need not “state with particularity the circumstances giving rise to their claims.”
To test whether these requirements have been met, Rule 12 covers the defects in a complaint that may give rise to dismissal. But, notably, Rule 12 neither mentions state certification requirements nor suggests that they may be the basis for dismissal.
Rather, in federal court, the only certification needed for filing a complaint arises from Rule 11. This condition is met when the party or his attorney signs the complaint, attesting that the claim is legally sufficient and factually supported. Further, the Court notes that Rule 11 and the MPLA share a common purpose – avoiding frivolous lawsuits.
In sum, the Court found that the Federal Rules addressed the same procedural and policy concerns as the MPLA’s certification requirement. And, in doing so, the Federal Rules did not require an expert to certify the claim before filing.
Step two is much shorter. The Court explained that “[t]he Federal Rules of Civil Procedure enjoy presumptive validity.” Thus, there is no constitutional or statutory problem with the Federal Rules overriding the MPLA in this setting. With both Shady Grove steps met, the Court held that West Virginia’s certification requirement was an improper basis for dismissing the plaintiff’s claim.
2. The losing arguments that had won in the past.
It’s worth noting two arguments that the Fourth Circuit rejected in reaching this holding. In fact, similar arguments have prevailed in district courts and withstood appellate review before.[4]
First, the United States argued that the MPLA’s certification provision was not a pleading requirement. Instead, it was a prerequisite for service. Because Rules 8, 9, 11, and 12 address pleadings, the government argued they do not supersede or conflict with the MPLA’s certification requirement. In response, the Fourth Circuit explained that similar hairsplitting between pleading and service requirements had already been rejected. Moreover, even if a certificate of merit were a service requirement, it provides no basis for dismissal under the Federal Rules of Civil Procedure.
The second argument advanced by the United States was FTCA-specific. The government claimed that, because the FTCA incorporates substantive state law from the venue in which the claim arises, the MPLA should apply here. The Fourth Circuit quickly dispensed with this argument, explaining that the certification requirement was procedural and, therefore, not applicable to FTCA claims.
3. Is Pledger a discreet procedural ruling that applies only to medical malpractice claims brought in federal court, or something more?
Under the narrowest view, Pledger addressed only West Virginia’s statute as applied to a modest number of FTCA claims. But the reasoning in Pledger should apply more broadly to malpractice claims brought throughout the Fourth Circuit. Indeed, Rules 8, 9, 11, and 12 don’t change for claims brought under diversity or supplemental jurisdiction. And similar statutes from other states, including Va. Code § 8.01-20.1, don’t appear to conflict any less with those Federal Rules.
For appellate lawyers, this case may have an even broader impact. In his dissent, Judge Quattlebaum explains that, traditionally, Shady Grove had been a narrow test to resolve irreconcilable conflicts of law. Here, however, he thinks the Court deemed the conflict irreconcilable too quickly. By then turning to Shady Grove, the Court employed a test that tends to displace state law in federal litigation. As a result, Judge Quattlebaum “fear[s] the implications of the majority’s decision are quite broad, potentially rendering inapplicable many state-law provisions, even those we consider to be substantive.” From this view, Pledger represents a fundamental change in the Fourth Circuit’s choice-of-law framework.
The actual scope of Pledger is yet to be seen. But medical malpractice and correctional medicine litigants should recognize that expert certification requirements may no longer apply to medical malpractice cases in the Fourth Circuit. Meanwhile, appellate lawyers should keep an eye on this case to see if it marks the expansion of Shady Grove that Judge Quattlebaum fears.
Chris defends healthcare providers and handles appeals of medical cases being pursued in federal court. If you have questions about how Shady Grove was applied or need assistance with a litigation matter, contact Chris at cquirk@sandsanderson.com.
[1] 5 F.4th 511 (4th Cir. 2021).
[2] Pledger, 5 F.4th at 518 (citing Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, (2010)) (citations and quotation marks omitted).
[3] Pledger, 5 F.4th at 518 (citing Shady Grove, 559 U.S. at 398).
[4] See, e.g., Winston v. United States, 2013 U.S. Dist. LEXIS 129355, *9, 2013 WL 4829292 (E.D. Va. Sep. 9, 2013) (dismissing an FTCA claim for failure to comply with Virginia’s certification requirement under Va. Code § 8.01-20.1), aff’d sub nom. Winston v. U.S., Fed. Bureau of Prisons, 568 F. App’x 198 (4th Cir. 2014).