DIVISION OF ST. THOMAS AND ST. JOHN
                                                 KKRRKKK

RANDOLPH          LIVERPOOL,      Individually and as      _)
ADMINISTRATOR OF THE ESTATE OF         )
EMERALD 0, LIVERPOOL, Deceased         )                        CASE NO. ST-15-CV-00661
CHRISTOPHER LIVERPOOL, MARK            )
LIVERPOOL, ADRIAN LIVERPOOL, MICHAEL )
LIVERPOOL, PAUL BROOKS, and           )
ANDREW LIVERPOOL                      )                         ACTION FOR NEGLIGENCE
                                      )                         AND DAMAGES
                          Plaintiffs                       )
                                                           )    Cite as 2024   Super 45U
         V                                                 )
                                                           )
SEA VIEW NURSING HOME d/b/a ST. THOMAS)
HEALTH CARE MANAGEMENT, INC             )
                                        )                       JURY TRIAL DEMANDED
                          Defendant                        )
                                                           )


                             MEMORANDUM           OPINION AND ORDER

qi       THIS MATTER          is before the Court on Defendant’s Sea View Nursing Home d/b/a St

Thomas       Health   Care Management,    Inc.’s (“Defendant” or “Sea View”),     Motion   to Dismiss

Complaint based on subject matter jurisdiction filed on September 8, 2016.             The Plaintiffs,

Randolph Liverpool, individually and as an administrator of the Estate of Emerald O. Liverpool,

Christopher Liverpool, Mark Liverpool, Adrian Liverpool, Michael Liverpool, Paul Brooks, and

Andrew Liverpool (collectively “Plaintiffs”) filed their Opposition to Sea View’s Motion to

Dismiss Complaint on October 19, 2016. The Plaintiffs’ Reply in Support of the Motion to Dismiss

was subsequently filed on November 22, 2016

                                          I      BACKGROUND

§2       This matter arose from the death of Emerald O. Liverpool (‘Liverpool”        or “Decedent”)

Plaintiffs assert that her death was caused by the negligent care she received while at Sea View
Page 2 of 10

Liverpool was admitted to Sea View Nursing Home in September 2013.                   At that time, she was

bedridden.      Approximately 30 days later, Liverpool was admitted to Schneider Regional Medical

Center Emergency Room for obvious signs of distress and bed sores. Liverpool died in the hospital

on December 20, 2013, a few days after she was admitted to the hospital. Liverpool’s cause of

death was listed as severe dehydration and Decubitus Ulcer.'

3       On December 21, 2015, Plaintiffs filed the complaint in this matter. Plaintiffs allege that

Sea View failed to provide Liverpool with adequate care.          Specifically, Plaintiffs allege that Sea

View, through its agents or employees, failed to timely and regularly feed Liverpool, provide her

with sufficient liquids, monitor her nutrient intake, rotate her regularly, and administer adequate

medication. Plaintiffs further allege that these failures, whether singularly or collectively, are the

proximate cause of Liverpool’s death.       On September 8, 2016, Sea View filed a motion to dismiss

the complaint due to a lack of subject matter jurisdiction, citing the Plaintiffs’ failure to meet the

jurisdictional requirements outlined in the Virgin Islands Medical Malpractice Act (“MMA”). See

27 V.I.C.    § 166i(b).    For the reasons stated below, the Court will grant Sea View’s motion and

dismiss this action for lack of subject matter jurisdiction

                      Il      STANDARD FOR 12(b)(1) MOTION TO DISMISS

4/4.   | Sea View seeks dismissal of the complaint on the basis that the Court lacks subject matter

jurisdiction.     V.I.R. Civ. P. 12 (b)(1) permits a party to seek dismissal of a complaint for lack of

 subject matter jurisdiction.    A party can raise the issue of lack of subject matter jurisdiction at any

 time. Mercer vy. Bryan, 53 V.1. 595, 601 (V.1. 2010)        (“[I]t is well-established that a party may file

 a motion to dismiss for lack of subject matter jurisdiction at any time during the pendency of an
 Page 3 of 10

  action”);     Gittens v, Butler,        77 V.1.        170,    177 (V.I.   Super.   Ct. Dec.    29, 2022) (“Lack of subject

  matter jurisdiction can be raised at any time throughout a judicial proceeding”).                                V.ILR.   Civ.   P

     12(h)(3) also provides that “if the court determines that at any time that it lacks subject-matter

 Jurisdiction, the court must dismiss the action

 {5.     | When the court considers a motion to dismiss for lack of subject matter jurisdiction, “no

 presumptive truthfulness attaches to plaintiffs allegations and the existence of disputed issues of

 material fact will not preclude the trial court from evaluating for itself the merits of the

 jurisdictional claims.”             Thomas v. Blackwood, 

, *3, 

 (V.I

 Super Ct. March 21, 2017) (citing Northshore Realty, Inc. v. First Bank, 62 V.1. 68, 73, 2014 V.

,        *7 (V.I.      Super.    Ct. 2014)).           Because no presumption of truthfulness attaches to the

 plaintiffs’ allegations in deciding a motion to dismiss for lack of subject matter jurisdiction, the

 court may consider other relevant evidence outside the pleadings to determine the existence of

 Jurisdiction. Francis v. Gov't            of the V.1., 2014 V.1. LEXIS 43, *2, 

 (V.I. Super

 Ct. July 10, 2014). When subject matter jurisdiction is challenged, the plaintiff has the burden of

 persuasion. Thomas v. Blackwood, 2017 V.1. LEXIS 55 at *3

                                               Ill.       DISCUSSION & ANALYSIS

46         Sea View has moved the Court to dismiss this action due to a lack of subject matter

jurisdiction.     Sea View argues that it is a healthcare provider under 27 V.I.C.                             § 166(c), and

Liverpool has failed to comply with the jurisdictional requirements set forth in 27 V.LC.                               § 166i(b)

of the MMA.          Sea View states that pursuant to 27 V.I.C.                  § 166i(b), an action against a health care

provider      must      first   be     filed      with     the    Medical     Malpractice        Action   Review      Committee

(“Committee”), and Plaintiffs must wait for an expert opinion or ninety days after filing a proposed
Page 4 of 10

complaint before filing a complaint with the court, whichever comes first.2                           Sea View,   citing

Brady v. Cintron, 55 V.1.             802 (V.I. 2011),     posits that since Liverpool’s complaint is a medical

malpractice action and Plaintiffs have failed to comply with Section                         166i(b), then this matter

should be dismissed           for failure to comply         with the non-waivable jurisdictional requirements

contained in 27 V.I.C.             § 166i(b).   /d. at 815 (holding that the Legislature intended the pre-filing

requirements to be jurisdictional)

q7          Here,     Plaintiffs       have     not    stated       that   they   complied     with     the   pre-filing

requirements nor provided proof that they filed their proposed complaint with the Committee.                           In

opposition to Sea View's motion, Plaintiffs argue that this case is about negligence, not medical

malpractice. Therefore, Plaintiffs claim they are not required to meet the pre-filing jurisdictional

requirements under 27 V.I.C.              § 166i(b)

8           In deciding Sea View’s motion to dismiss, the court must consider (1) whether Sea View

is a health care provider under the MMA, (2) whether Liverpool’s claims fall under the MMA, and

(3) whether the case should be dismissed for lack of subject matter jurisdiction

                a.   Whether Sea View is a Healthcare Provider under the MMA

99          “{I]n order to qualify as a health care provider under the MMA, a person, corporation,

facility, or institution must be licensed by the Virgin Islands to provide health care or professional

medical services.” Brady v. Cintron,              55 V.I. at 821.      Sea View claims it was a health care provider




 27 V.LC.     § 166i(b) provides
        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
Page 5 of 10

under the MMA         at the times referenced in the complaint.           Title 27 V.I.C.     § 166(c) defines health

care provider as follows

         “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
         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.’

Thus, as long as an entity is licensed by the Virgin Islands to provide health care or professional

medical services, it is a health care provider under the MMA

ql0.     Sea View has submitted proof of its business license, certificate of need license, and

insurance information as exhibits to its motion to support its position that it is an entity licensed to

provide health care services in the Virgin Islands.              The documents submitted indicate that when

Liverpool resided at Sea View, it was licensed to provide home health care services and operate

as a skilled nursing facility.     In October 2012 and 2013, the Department of Health issued Sea View

certificate of need licenses to provide long-term nursing and rehabilitation services to residents of

the facility. Given the record before the Court, the skilled nursing and rehabilitation services

provided by Sea View fall within Section 166(c).4 Christopher v. Gov. Juan F. Luis Hospital &

Medical Center, 

, *8, 

 (V.I. Super. Ct. 2016) (stating that




3 The list of health care providers in Section 166(c) is not exhaustive. The use of the word “including” before the list
of specialized professions indicates that the list is only a subset of the universe of healthcare providers. Moreover
“courts have consistently construed statutes that utilize the word   ‘includes’ and its variants as only representing a
non-exhaustive list, with the listed items only serving as examples.” Atlantic Human Resource Advisors, LLC \
Espersen, 76 V.1. 583, 606 (V.I. 2022)
* Plaintiffs do not dispute that Sea View falls within the definition of a “health care provider” under the MMA
Page 6 of 10

an entity qualifies as a “health care provider” if it is a corporation that must be licensed in the

Virgin Islands to provide health care or professional medical services).°

qjl1.       Facilities in the Virgin Islands that provide health care services and professional medical

services have consistently been found to be health care providers for the purposes of the MMA

See Ference v. V1. Family Sports & Fitness Center, Inc.,                 45 V.1. 345, 352 (V.I. Super. Ct. 2004);

Labeet vy. Acute Alternative Medical Group,              72 V.1. 250, 252 (V.1.        Super.   Ct. 2019); Thomas 1

Blackwood, 

, *6 (V.1. Super. Ct. 2017). Similarly, this Court finds Sea View

to be a health care provider under the MMA.              As a residential nursing facility, Sea View provided

specialized long-term nursing and rehabilitation services to the aged, infirm and disabled persons.°

               b.   Whether Plaintiffs’ claims fall under the definition of “malpractice” as defined
                    in $1669)

ql2.        Having found Sea View to be a health care provider under the MMA, the Court must now

determine whether Plaintiffs’ claims fall within the scope of “malpractice” as defined in 27 V.I.C

§ 166(f).     Title 27 V.I.C.     § 166(f) defines malpractice as “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.”      Plaintiffs assert three counts in their complaint. In Count I, Plaintiffs allege



> Title 19 Chapter 15 of the Virgin Islands Code, which covers Licensing, Inspection and Regulation of Health
Facilities and Health Services, defines health care services as
            Health care service” means clinically related services (i.e., diagnostic, treatment, or rehabilitative) and
           includes alcohol, drug abuse, and behavioral health services, home health care services and homemaker
          services, ambulance services, including ambulance, boat and other medical transportation, pharmacies,
           laboratories, radiology services, and medical and prosthetic supply services, including institutional health
          services and pre-hospital emergency ambulance services
  Health facility is defined as
           Health facility” means hospitals, health care clinics, health centers, skilled nursing facilities, behavioral
         health facilities, kidney disease treatment centers (including freestanding hemodialysis units), intermediate
         care facilities, ambulatory surgical facilities, rehabilitation facilities, health maintenance organizations, and
         hospice care facilities
Page 7 of 10

that Sea View and/or its agents and employees breached their duty to provide adequate care to

Liverpool by their         “‘(a) failure to feed [her] timely and regularly; (b) failure to provide sufficient

liquid to Decedent; (c) failure to monitor Decedent’s nutrients intake; (d) failure to regularly rotate

Decedent and (e) failure to administer adequate medicine.”’’           In Count II, Plaintiffs allege a claim

for emotional distress because of the actions or inactions of Sea View. Count III alleges negligence

based on Sea View’s agents or employees:           (a) administering insulin to Liverpool despite knowing

she was allergic; (b) failing to rotate her in a timely and regular manner; and (c) neglecting to

provide proper nutrition, food, and liquid.®

413.      Plaintiffs contend this is a suit strictly for negligence, not medical malpractice.      They state

that in this case, Liverpool,        a 67-year-old female who was bedridden, went to Sea View for

respite so that her daily needs could be attended to, to ensure she would be given food and liquids

in a timely and regular manner, to make sure her body was moved and rotated regularly to avoid

bed sores and to facilitate the proper healing of the ones she had.°

qi4.    | When deciding whether a complaint states a claim for negligence or medical malpractice,

the court must examine the services or treatment provided by the health care provider and the

circumstances that led to the injury. In Labeet v. Acute Alternative Medical Group,"              the plaintiff

similarly argued that its lawsuit was not a medical malpractice action covered by the MMA                but a

simple negligence claim that just happened to occur in a medical office. 

, 252.                 The

court, in finding that Labeet’s action was a medical malpractice action, explained that

         The Plaintiff was at a facility for the purpose of health care related sleep tests and services
         that needed to be rendered by the Defendants as health care providers. As such, his causes

7 Pls.’s Compl. at fff] 22 and 23
8 Pls.’s Compl. at $i] 26-31
 Page 8 of 10

          of action are torts based on health care or professional services rendered by the Defendants
          to the Plaintiff as a patient. This includes the Plaintiffs claims for intentional and negligent
          infliction of emotional distress even though those claims were not expressly listed in the
          Complaint as medical malpractice. As such, all of the Plaintiff's claims constitute medical
          malpractice as defined by the MMA


Id, at 253.    It is evident from the allegations in the complaint that Liverpool went to Sea View, a

health care provider that specialized in providing nursing and rehabilitation services to the aged,

infirm, and disabled persons, because she needed specialized care and attention

4/15.     Asa patient of Sea View, Liverpool received or should have received healthcare services

from    Sea View, a licensed healthcare provider.''                 Both parties agree that it was the duty of Sea

View to “feed Decedent,            to ensure that Decedent received proper nutrient[s] including medication

and to regularly rotate Decedent.””’? These are the very health care services that Plaintiffs claim

Sea View allegedly failed to provide or was negligent in providing, leading to Liverpool’s death

416.      While the counts in Plaintiffs’ Complaint do not include the word “malpractice,”                      the statute

defines malpractice as “any tort.”             Brady v. Cintron,      55 V.1. at 826 (“The MMA              applies to all

torts and contract claims brought against health care providers.””); Thomas v. Blackwood, 2017                         V.1

LEXIS at *7 (“Under Section 166(f), the definition of malpractice encompasses any tort based on

healthcare or professional             services rendered.”).        Based    on the allegations in the complaint,

Liverpool’s injuries arise from the alleged inadequate health care services she received from Sea

View.    All of Plaintiffs’      claims are tort claims and, therefore, fit within the definition of § 166(f)

The Court finds that all of Plaintiffs’ claims fall under the MMA and are subject to the statutory

jurisdictional requirements of the MMA


'' Pursuant to 27 V.I.C.   § 166(i),   “patient” means   “a natural person who receives or should have received health care
Page 9 of 10

              c.     Whether the Complaint Must be Dismissed

417.    Title 27 V.I.C.      § 166i(b) provides that “[nJo action against a health care provider may be

commenced in court before the claimant’s proposed complaint has been filed with the Committee.”

The requirements of section 166i(b) are controlling.        Here, it is undisputed and unchallenged that

Plaintiffs did not file a proposed complaint with the Committee.           Since Plaintiffs have failed to

satisfy the mandatory prefiling jurisdictional requirements of the MMA, this court lacks subject

matter jurisdiction to hear the case and must dismiss Plaintiffs’ complaint.             Brady v. Cintron,   55

VI. at 820 (holding that the plaintiff's failure to comply with the nonwaiveable jurisdictional

conditions of section 166i “created a bar to her malpractice action”); Labeet v. Acute Alternative

Medical Group, 72 V1.          at 254 (explaining failure to file a proposed complaint with the Medical

Malpractice Action Review           Committee divested the Court of jurisdiction to hear the medical

malpractice        claims, necessitating dismissal);   Thomas   y. Blackwood,     2017     V.1.   LEXIS   at *8

(“[Plaintiff] did not satisfy any of the jurisdictional prerequisites before filing her Complaint.        Ergo,

the matter must be dismissed for lack of subject matter jurisdiction.)

                                              CONCLUSION

418.    Even though Liverpool may have been admitted to Sea View for a “short respite,” she was

admitted as a patient into a health care facility, of a licensed health care provider, to obtain

professional health care services.       The Court finds that Sea View is a health care provider under

Section 166(c) of the Medical Malpractice Act. The Court further finds that all of Plaintiffs’ claims

fall within the scope of “malpractice” as defined in 27 V.LC.         § 166(f).   Plaintiffs do not contest

that they failed to file a proposed complaint with the Committee.        More so, there is no evidence in

the record that they filed a proposed complaint with the Committee before filing their complaint
Page 10 of 10

with the Court on December 21, 2015. Since the Plaintiffs have failed to satisfy the non-waivable

jurisdictional prerequisites of section 166i, this Court lacks subject matter jurisdiction to hear the

Plaintiffs’ malpractice claims, and Sea View’s motion to dismiss shall be granted.       Accordingly,

it is hereby

          ORDERED      that Defendant’s Motion to Dismiss Complaint is GRANTED;              and it is

further

          ORDERED     that Plaintiffs’   Complaint is DISMISSED     WITH     PREJUDICE;      and it is

further

          ORDERED     that a copy of this Memorandum       Opinion and Order shall be directed to

the counsel of record; and it is further

          ORDERED     that the Clerk of the Court shall CLOSE this matter



Dated: October 28, 2024                               hoe            “Oloome,                wie
                                                            Carol Thomas Jac
                                                          Judge of the Superior Cott
                                                              of the Virgin Islands
ATTEST
Tamara Charles
Clerk of the Court
     }
By
     Latoya     CAémacho OMY.
     Court Clerk Supervis