SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
SAMUEL FERDINAND, Civil No SX 2022 CV 025
PLAINTIFF ACTION FOR DAMAGES
V % JURY TRIAL DEMANDED
ABD HAMMOUDEH MD
DEFENDANT CITE AS 2022 VI SUPER 0.3 S
Appearances
Lee J Rohn, Esq
LEE J ROHN AND ASSOCIATES LLC
St Croix, U S Virgin Islands
For Plaintiff
Jennifer P Brooks, Esq
HAMILTON MILLER & BIRTHISEL LLP
Miami, Florida
For Defendant
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
1] 1 THIS MATTER is before the Court for review sua sponte
BACKGROUND
1| 2 On January 28, 2022, Plaintiff Samuel Ferdinand (hereinafter “Plaintiff”) filed a verified
complaint against Defendant Abd Hammoudeh, M D (hereinafter “Defendant ’) In his complaint,
Plaintiff alleged, inter alia, that “Defendant [] is upon information, a licensed Dentist, who is
employed at the Frederiksted Health Clinic ” that ‘[o]n March 24 2021, Plaintiffappeared to have
his tooth extracted by [Defendant] ’ that ‘ Defendant [] negligently and below the standard of care
failed to designate and extract the correct tooth,’ and that “[a]s a result, the wrong tooth of the
Plaintiff was extracted ” (Compl 11$ 3 6 8 ) The Complaint did not specify the name(s) of the
cause of action(s) Plaintiff is pursuing against Defendant to wit, Plaintiff did not set forth any
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counts in separate numbered paragraphs with separate designation of the specific names of each
count' but based on the allegations, the Court deduced that Plaintiff alleged a cause of action for
negligence
1] 3 On February 20 2022 Plaintiff filed a notice whereby Plaintiff advised the Court that
Defendant was served on February 15, 2022, Governor of the Virgin Islands Albert Bryan Jr was
sewed on February 15, 2022, and Attorney General of the Virgin Islands Denise George was
served on February 18, 2022
1] 4 On March 9, 2022, Defendant filed an answer and affirmative defenses
15 On March 10, 2022, Plaintiff and Defendant filed a stipulated confidentiality agreement
and agreed protective order
DISCUSSION
1] 6 Plaintiff did not specifically state in his complaint that this is a medical malpractice action
Nevertheless, based on the allegations, the Court finds that Plaintiff’s claim may implicate the
Virgin Islands Medical Malpractice Act (hereinafter “VIMMA”) and the pre filing requirements
contained therein
1 Whether this is a Medical Malpractice Action for the Purposes of the Medical
Malpractice Act
1] 7 As an initial matter, the Court must determine whether Plaintiff’s claim constitutes medical
malpractice for purposes of the VIMMA l nder the VIMMA, medical malpractice “means any
tort or breach of contract based on health care or professional services rendered, or which should
have been rendered by a health care provider to a patient,” Title 27 V I C § 166(f), health care
' Rule 8 of the Virgin Islands Rules of Civil Procedure requires “a short and plain statement of the claim showing that
the pleader is entitled to relief because this is a notice pleading jurisdiction and the pleading shall be set forth in
separate numbered paragraphs as provided in Rule |0(b) with separate designation of counts and defenses for each
claim identified in the pleading VI R Clv P 8(a)(2)
Ferdinand v Hammoua'eh
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“means any act, or treatment performed or furnished, or which should have been performed or
furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical
care, treatment or confinement,” Title 27 V I C § 166(b), and health care provider ‘means a
person, corporation, facility or institution who must be licensed by this territory to provide health
care or professional medical services including a medical, osteopathic, chiropractic or naturopathic
physician, hospital, dentist, registered or licensed practical nurse to include the Advanced Practice
Registered Nurse, optometrist, podiatrist, physical therapist, psychologist, paramedical personnel,
emergency medical technician, pharmacist and laboratory technician,” Title 27 V I C § 166(c)
Here, Plaintiff’s claim is a tort based on health care or professional services rendered by Defendant
as his dentist to him as a patient Thus, Plaintiff’s claim constitutes medical malpractice as defined
by the VIMMA and is subject to the requirements of the VIMMA
2 Jurisdictional Prerequisites of the VIMMA
1| 8 The VIMMA establishes a pre filingjurisdictional requirement before a plaintiff may
commence a medical malpractice action under the jurisdiction of the Superior Court Daley Jeffers
v Graham 69 V I 93] 936 (V I 2018) (citing Brady v Cmtron 55 V I 802 815 (V I
2011) (concluding that section 166i imposes pre filing jurisdictional limitations on the Superior
( ourt's ability to hear medical malpractice claims» More specifically, the VIMMA provides that
‘[n]0 action against a health care provider may be commenced in court before the claimant's
proposed complaint has been filed with the [Medical Malpractice Action Review] Committee and
the [Medical Malpractice Action Review] Committee has received the expert opinion as required
by this section, provided, that if said opinion is not received by the [Medical Malpractice Action
Review] Committee within ninety days from the date the complaint was filed with the [Medical
Malpractice Action Review] Committee the claimant may commence his action against the health
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care provider in court ” Title 27 V I C § l66i(b) “The proposed complaint shall be deemed filed
when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health ”
Title 27 V I C § 166i(c) In Brady the Virgin Islands Supreme Court noted that [t]he purpose of
the MMA and the Committee review process is to eliminate claims lacking merit and encourage
prompt settlement of meritorious claims” and “[i]t specifically seeks to prevent actions from being
filed in courts until after the statutory requirements of the MMA are fulfilled ’ 55 VI at 813
(internal quotation marks and citation omitted); see Title 27 V I C § 166i(a) (“There is established
within the Office of the Commissioner of Health a Medical Malpractice Action Review Committee
(referred to in the rest of this section as “the Committee”) the purpose of which shall be to arrange
for expert review of all malpractice claims before actions based upon such claims are commenced
in court ’)
1| 9 Here, there is no indication from the complaint that Plaintiff has complied with the pre
filing requirements of the VIMMA Thus, it is unclear whether the Court has subject matter
jurisdiction over this matter “It is well established that a court may consider the issue of subject
matter jurisdiction sua sponte This is because, prior to considering the merits of a matter before
it, a court is obligated to examine whether it has subject matter jurisdiction over the dispute ”
Clarke v Lopez, 73 V I 512, 1] 9 (V I 2020) (internal quotation marks and citations omitted), see
V I R CIV P l2(h)(3) (“If the court determines at any time that it lacks subject matter
jurisdiction, the court must dismiss the action ”) As such, the Court will grant Plaintiff leave to
amend her complaint to include allegations regarding the pre filing requirements of the VIMMA
Given that the pre filing requirements of the VIMMA concerns the Court’s subject matter
jurisdiction over this matter, the Court will require Plaintiff to plead facts demonstrating his
compliance with the pre filing jurisdictional requirements of the VIMMA, such as the date he filed
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a proposed complaint with the Medical Malpractice Action Review Committee and the date the
expert opinion was received (or that ninety days has elapsed since the filing of his proposed
complaint)2 so that the Court can “examine whether it has subject matter jurisdiction over the
dispute, ’ Clarke, 73 V I 512, 1[ 9, a single conclusory allegation that Plaintiff has complied with
all the pre filing jurisdictional requirements of the VIMMA will not suffice The Court will reserve
ruling Plaintiff and Defendant’s March 10 2022 stipulated confidentiality agreement and agreed
protective order pending the Court’s determination that the Court has subject matter jurisdiction
over this matter
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that, within thirty (30) days from the date of entry of this Memorandum
Opinion and Order, Plaintiff shall file a proposed first amended complaint and plead facts
demonstrating his compliance with the pre filing jurisdictional requirements of the VIMMA The
proposed first amended complaint shall be drafted in compliance with the Virgin Islands Rules of
Civil Procedure including, but not limited to, setting forth counts in separate numbered
paragraphs with separate designation of the specific names of each count in the pleadings as
required under Rule 8 of the Virgin Islands Rules of Civil Procedure And it is further
ORDERED that Plaintiff shall file (i) a redline copy of the new proposed first amended
complaint reflecting the changes made to the initial complaint and (ii) a clean copy of the new
2 The VIMMA provides that “[u]pon receipt by the [Medical Malpractice Action Review] Committee of an expert
opinion, the Commissioner of Health shall immediately forward a copy of the opinion to the plaintiff and defendant
Title 27 V l C § l66i(d)(4)
Ferdmand v Hammoudeh
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Memorandum Opinion and Order 2022 VI SUPER ‘5
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proposed first amended complaint, in compliant with Rule 15 1 of Virgin Islands Rules of Civil
Procedure, which requires “[a] party moving to amend a pleading [to] attach a complete and
properly signed—ncopy of the pr0posed amended pleading to the motion papers and “must
reproduce the entire pleading as amended specifically delineating the changes or additions and
may not incorporate any prior pleading by reference ” V I R CIV P 15 1
DONE and so ORDERED this \X- day of March 2022
ATTEST %afl/d XM—
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
curt Clerk SapeFHsorI
Dated 3//é;/2Qé 9’
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
Samuel Ferdinand, Case Number: SX-2022-CV-00025
Plaintiff Action: Tort
v.
Dr. ABD Hammoudeh, MD,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: Lee J. Rohn Jennifer Q. Miller Brooks
Please take notice that on March 19, 2022
a(n) Memorandum Opinion and OPrder
dated March 18, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: March 19, 2022 Tamara Charles
Clerk of the Court
By:
Janeen Maranda
Court Clerk II