IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

June 05, 2023 11:45 am
ST-2020-CV-00269
TAMARA CHARLES
CLERK OF THE COURT

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

Defendants.

BEATRICE FLEMING, )
)
Plaintiff, )
) Case No. ST-2020-CV-00269
VS. )
)
DR. BRIAN BACOT, M.D., DR. LIONEL MITCHELL, ) ACTION FOR
M.D., and DR. LINDA JACKSON, M.D. ) MEDICAL MALPRACTICE
)
)
)

Cite as 

MEMORANDUM OPINION
ql THIS MATTER is before the Court upon Defendants Dr. Brian Bacot and Dr. Linda
Jackson’s (separately, “Bacot” and “J skeen); Motion to Dismiss, pursuant to Virgin Islands Rule
of Civil Procedure 12(b)(6), filed on October 19, 2021 (“Motion”).! Plaintiff Beatrice Fleming
(“Fleming”) filed an Opposition to Motion to Dismiss on October 22, 2021 (“Opposition”).
qj2 For the reasons set forth herein, the motion will be denied because Fleming satisfied the
pre-filing requirements of a medical malpractice case by filing an initial complaint, ninety days in

advance, with the Office of the Commissioner of Health.

' The third defendant, Dr. Lionel Mitchell, did not file a motion to dismiss. A footnote in the Motion to Dismiss states
there is no return of service for Lionel Mitchell, MD. However, Defendants’ counsel filed an answer on behalf of
Lionel Mitchell on May 24, 2021 - five months before filing the current Motion.
Fleming v. Bacot, et al

Case No. ST-2020-CV-00269 Cite as 

Memorandum Opinion — Motion to Dismiss
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FACTS
q3 Fleming brought this action for medical malpractice against Bacot, Jackson, and Dr. Lionel

Mitchell (“Mitchell”)? on July 6, 2020 (“Verified Complaint”). The Verified Complaint states that
the Court has jurisdiction pursuant to V.I. Code Ann. tit. 4, § 76(a), but acknowledges that the
Medical Malpractice Action Review Committee (“Committee’’) has primary jurisdiction pursuant
to V.I. Code Ann. tit. 27, § 166i(b).

q4 Fleming’s Verified Complaint alleges that on or about August 8, 2018, Jackson performed
surgery on her to treat a swan neck deformity on her right thumb. Fleming then experienced
complications from that operation and received subsequent, separate treatment from Bacot and
Mitchell. Fleming alleges that she did not receive an adequate standard of medical care from
Defendants - neither during surgery nor in the follow up care. The Verified Complaint provides
details of the consequence of the treatment received, along with a timeframe of the events.
Defendants Bacot, Fleming, and Mitchell filed an Answer on May 24, 2021.

DISCUSSION

q5 Bacot and Jackson move to dismiss the Verified Complaint for failing to state a claim upon
which relief could be granted under Rule 12(b)(6); but their actual argument is that the Court lacks
subject matter jurisdiction, which is better presented pursuant to Rule 12(b)(1). The crux of Bacot
and Jackson’s argument is that the matter must be dismissed because Fleming did not file an initial
complaint with the Committee, within the Office of the Commissioner of Health (“OCH”), prior

to commencing the suit at hand, as required by 27 V.LC. § 166i.°

° The Defendants are private physicians who treated Fleming at the Global Foothills Building, in Estate Thomas, St.
Thomas, USVI.

3 Title 27, § 166i(b) of the Virgin Islands Code provides as follows:
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q6 Fleming counters that she met the pre-filing requirements of Section 166i because, on April
1, 2020, George Hodge, Jr., Esq., Fleming’s counsel, personally hand-delivered the initial
complaint to Celia Sebastien (‘Sebastien’) at the Risk Management office of the OCH. Fleming
further claims Sebastien dated, signed her name, and accepted the initial complaint, on behalf of
the Committee. Further, Fleming asserts that Sebastien stamped “RECEIVED” on the upper
margin of the first page of the initial complaint.

q7 Fleming then waited the required ninety days and, when no expert opinion was produced,
Fleming filed her Verified Complaint with the Court on July 6, 2020. A photocopy of this “stamped
complaint” with Sebastian’s signature is attached to Fleming’s Opposition. Fleming also included
an email from Sebastien confirming receipt of the initial complaint on April 1, 2020. Pl.’s Opp’n
Ex. 1A.

Legal Standard

q8 The pre-filing requirements of Section 166i are considered jurisdictional issues.’ Here,
although the instant Motion is made pursuant to Rule 12(b)(6), Bacot and Jackson do not argue
that Fleming failed to state a claim upon which relief could be granted; rather, they challenge the

Court’s jurisdiction over the matter, asserting that Fleming did not satisfy the pre-filing

No action against a health care provider may be commenced in court before the claimant's proposed
complaint has been filed with the Committee and the Committee has received the expert opinion as
required by this section, provided, that if said opinion is not received by the Committee within ninety
days from the date the complaint was filed with the Committee, the claimant may commence his
action against the health care provider in court; Provided further, That the commencement of the
court action shall not prevent the Committee from obtaining the expert opinion.

* Raymond-Benjamin v. Assefa, 

; Daley-Jeffers v. Graham, 69 V.1. 931 (V.I. 2018); Williams v. Juan F. Luis
Hosp. Through Gov't of the V.I., 

; Richardson y. Schneider Med. Reg’l Ctr., Super. Ct. Civ. No.
ST-17-CV-254, 

 (V.I. Super. Ct. December 4, 2017) (unpublished); Racz v. Cheetham, 

; Missar v. Bucher, 

 (V.I. Super. Ct. 2004).
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requirements of Section 166i(b) before commencing this action. Indeed, all the case law cited by
Bacot and Fleming contemplate the same issue at hand but under Rule 12(b)(1).

q9 As such, the Court will consider the instant Motion to Dismiss as one made under the more
appropriate Rule 12(b)(1) standard. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1350 (3d ed. 2023) (‘{C]ourts should treat an improperly identified motion that
actually challenges the court's authority or competence to hear the action as if it properly raised
the jurisdictional point.); cf Moreno v. Kansas City Steak Company, LLC, Civ. No. 17-CV-02029-
DDC-KGS, 

, at *3 (D. Kan. July 13, 2017) (unpublished) (“{I]f the question
whether the court should dismiss plaintiffs Complaint for failure to exhaust her administrative
remedies is jurisdictional, then the court must consider defendant's motion as one under Rule
12(b)(1).””); Oldham v. ACLU Found. of Tenn., Inc., 

, 613 n.3 (M.D. Tenn. 1994)
(converting Rule 12(b)(6) motion to Rule 12(b)(1) motion, while noting that “a party is not to be
prejudiced for misidentifying a Rule 12(b)(1) motion’’); Riddle v. Trans World Airlines, Inc., 

 (W.D. Mo. 1981).°

Analysis

410 Generally, motions arguing that the Court lacks subject matter jurisdiction because the

plaintiff failed to meet the jurisdictional prerequisites of Section 166i are considered as factual .

>On August 22, 2022, the Court entered an order notifying the parties that Defendants’ Motion to Dismiss would be
converted to a motion for summary judgment in order for the Court to consider the attachments to Plaintiff's
Opposition. As a result, the Court allowed the Defendants an opportunity to file a response to Fleming’s Opposition,
but they did not file a response. Nevertheless, on further review of the Motion, the Court has determined that it can
consider the attachments without converting the motion to one for summary judgment since the motion is being
considered under V.I. R. Civ. P. 12(b)(1). See Williams v. Juan F. Luis Hosp. through Gov’t of the V.I., 

, 96 (Regarding a Rule 12(b)(1) factual challenge, the Court considered attachments outside the complaint to
determine whether it had subject matter jurisdiction.).

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challenges to the complaint. Daley-Jeffers v. Graham, 

, 938, 939 n.8 (V.I. 2018);
Williams v. Juan F. Luis Hosp. through Gov’t of the V.I., 

, 96; Hansen vy.
Governor Juan F. Luis Hosp. & Med. Ctr., Super. Ct. Civ. No. SX-15-CV-509, 

,
at *3 (V.I. Super. Ct. June 22, 2018) (unpublished); contra Racz v. Cheetham, 

,
416 (When the complaint alleged, on its face, that plaintiff had submitted a complaint with the
Committee to satisfy Section 166i, the Court considered the challenge to the complaint as a facial
one.).

qil The Court finds the 12(b)(1) challenge to be a factual attack. Here, the parties have
thoroughly briefed the matter, Defendants have filed an Answer, and “the only legal reason why
the Superior Court might not have jurisdiction . . . depends on facts, including whether [Fleming]
filed the proposed complaint with the Committee at least 90 days before filing in court, and
whether the Committee failed to respond within the statutory period.” Daley-Jeffers, 69 V.I. at 939
n.8 (emphasis in original); see Williams, 2019 VI Super at {6 (“Defendants have not challenged
any facts within the Complaint, except whether the Plaintiff filed her Complaint in accordance
with [Section 166i], a fact asserted by the Plaintiff outside of the Complaint... .”). Accordingly,
as a Rule 12(b)(1) factual challenge, the plaintiff carries the burden of proving the Court has
janigictan, and the Court may weigh the evidence presented to aitiety itself of its power to hear
the case. Williams, 2019 VI Super at {§5-6; Christopher v. Gov. Juan F. Luis Hosp. & Med. Ctr.,
Super. Ct. Civ. No. SX-16-CV-97, 

, at *5 (V.I. Super. Ct. October 12, 2016)
(unpublished).

12 “The Superior Court has jurisdiction over . . . actions against healthcare providers, provided

pre-filing requirements are satisfied, under [Section 166i] .. . .” Richardson v. Schneider Med.
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Reg’l Ctr., Super. Ct. Civ. No. ST-17-CV-254, 

, at *1 (V.I. Super. Ct. December
4, 2017) (unpublished). Under Section 166i, “[n]o action against a health care provider may be
commenced in court before the claimant's proposed complaint has been filed with the Committee
....”27 V.LC. § 166i(b).° Once the initial complaint is delivered to the Committee, the Committee
has ninety days to obtain an expert opinion on the complaint; if none is received within that
timeframe, “the claimant may commence his action against the health care provider in court... .”
Id.

413 Here, Fleming maintains that the initial complaint was appropriately delivered to the
Committee and that she waited the ninety-day period before filing the Verified Complaint with the
Court. Indeed, the Verified Complaint was a duplicate of the same stamped initial complaint that
was hand delivered to Sebastien at the OCH. Moreover, Fleming included, as an exhibit to her
Opposition. the email exchange between Attorney Hodge and Sebastien, who confirmed feceipt of
the initial complaint on April 1, 2020. P1.’s Opp’n, Ex. 1A.

q14  Fleming’s Complaint details the alleged malpractice and the pain and suffering she
allegedly endured. But the Complaint is silent on the filing with OCH. Nevertheless, under the
laws of the Virgin Islands there is no indication that a plaintiff must go above what is delineated
under Section 166i(b). In fact, a complaint need not directly allege its compliance with Section
166i(b). Daley-Jeffers, 69 V.I. at 939 n.9 (“Naturally, the proposed complaint filed with

Committee will not include language demonstrating compliance with section 166i. [Thus, a]

° And “[t]he proposed complaint shall be deemed filed when a copy is delivered or mailed by registered or certified
mail to the Commissioner of Health... .” 27 V.LC. § 166i(c). Delivery is not defined by the V.I. Code, but it has
been defined as “[t]he formal act of voluntarily transferring something”. Delivery, Black’s Law Dictionary (11th ed.
2019).
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proposed complaint resubmitted to the Superior Court will be equally devoid of such purported
jurisdiction language which . . . section 166i does not require.’’).

q1S The Court finds that Fleming has satisfied her burden of demonstrating the Court has
jurisdiction over this action because an initial complaint was delivered to the OCH, and the
requisite ninety-day period elapsed before she filed her suit in this Court. Therefore, Fleming

satisfied the pre-filing requirement set forth in Section 166i.

Statute of Limitations

{16 Claims brought against health care providers for medical malpractice must be filed within
two years from the date of the alleged act, omission, or neglect. 27 V.I.C. § 166d. The statute of
limitations on these claims, in general, begins to run when the patient knows that the existence and
the cause of her injury constitutes medical malpractice. Williams, 2019 VI Super at 412 (citing
Frederick v. Ellet, Super Ct. Civ. No. ST-11-CV-381, 

, at *2, (V.I. Super. Ct.
February 14, 2014)). Here, Fleming filed the Verified Complaint on July 6, 2020, and Fleming
alleges that ihe initial malpractice incident — Jackson’s surgery — occurred on or about August 8,
2018. Therefore, Fleming filed suit within two years of her surgery and at the first plausible date
she received medically deficient treatment.
CONCLUSION

417  Asaresult of the analysis above, Defendants Bacot and Jackson’s Motion to Dismiss must
be denied. The Court finds that Fleming has provided enough allegations to put Defendants on
notice of the claims brought against them. Moreover, the Court can draw reasonable inferences to

find that the requirement of § 166i(b) was met. Therefore, Bacot and Jackson’s Motion must be
Fleming v. Bacot, et al

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denied. An Order consistent with this Memorandum Opinion will be entered contemporaneously

herewith.

DATED: June S , 2023 3 7 2e— Jef itlee

Kathleen Mackay
ATTEST: Judge of the Superior Court
TAMARA CHARLES of the Virgin Islands
Clerk of the Court
BY: n>
-(- LATOYA CAMACHO

Court Clerk Supervisor ©lo/ Ol/ AZ