IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS

DIVISION OF SAINT CROIX AT KINGSHILL



REGINA HURTAULT, as personal )

representative of the estate and survivors of )

infant HURTAULT a/k/a RENECIA ) CIVIL NO. 357/1994

LASHANDA WEBBE, a deceased infant, and) ;

REGINA HURTAULT and RODNEY WEBBE ) ACTION FOR WRONGFUL

in their own right, ) DEATH, MEDICAL

) MALPRACTICE, NEGLIGENCE

Plaintiffs, ) EMOTIONAL DISTRESS, LOSS

) OF CONSORTIUM and

vs. ) DAMAGES

)

GOVERNMENT OF THE U.S. VIRGIN )

ISLANDS, )

)

Defendant. )

_) NOT FOR PUBLICATION



Lee J. Rohn, Esq.



Law Office of Lee J. Rohn

1101 King Street, Suite 2

Christiansted, St. Croix

U.S. Virgin Islands 00820

(Attorneys for Plaintiffs)



R. Eric Moore, Esq.



Law Office of R. Eric Moore

Post Office Box 3086

Christiansted, St. Croix



U.S. Virgin Islands 00822

(Attorney for Defendant)

CABRET, P.J.



MEMORANDUM OPINION

(June 027 , 2000)



This matter is before the Court on Defendant’s Motion for Summary Judgment.

Defendant contends that it is entitled to summary judgment because Plaintiff's claims are time-

barred and because Plaintiff did not comply with certain requirements of the Tort Claims Act and

the Health Care Provider Malpractice Act. For reasons which follow, the Court concludes that



Plaintiffs’ Complaint must be dismissed.

HURTAULT v. GOVERNMENT OF THE VIRGIN ISLANDS

Civ. No. 357/1994



OPINION AND ORDER



Page 2



I. FACTS AND PROCEDURAL HISTORY



The evidence of record shows that on January 13, 1992, Plaintiff Regina Hurtault

delivered her infant daughter at the St. Croix Hospital, which is owned by the Virgin Islands

Government. The infant died on or about January 15, 1992.' On January 27, 1992, Plaintiffs

consulted with an attorney and executed a medical authorization for the attorney to obtain

information from the hospital and its staff concerning Plaintiffs’ treatment. At some date prior to

April 13, 1992, Plaintiff filed a notice of intention to file a tort claim with the Governor’s

Office.’



On December 13, 1993, Plaintiffs filed a complaint in Territorial Court against the

Government and several health care providers alleging acts of medical malpractice which caused

the wrongful death of their child ("Civil Number 974-93"). Plaintiffs named the Virgin Islands



Department of Health as a defendant and alleged that as the owner and operator of the hospital, it



| Neither party has conclusively established the specific date the infant died. In

Plaintiffs’ original complaint, they alleged that the infant was born on January 13, 1992, "and

subsequently died." In their Amended Complaint, Plaintiffs likewise fail to allege the date on

which the infant died. In Defendant’s Motion for Summary Judgment, it asserts that on January

13, 1992, Plaintiffs’ infant "died less than two days after birth." In Plaintiffs’ response, they

assert that the infant was born on January 13, 1992 and "died less than two days later." In

Plaintiffs’ Notice of Claim filed with the Government, they assert that they were summoned to

the hospital on January 14, 1992, that hospital personnel were working to restore the infant's

breathing and that after working on the infant, hospital personnel informed them that the infant

was dead. It thus appears that the infant could have died on either the 13th, 14th or 15th or

January.



iT



2 The date of filing is unclear. The file merely contains a letter from the Governor’s

Office dated April 13, 1992, which acknowledges receipt of the Notice:

HURTAULT v. GOVERNMENT OF THE VIRGIN ISLANDS

Civ. No. 357/1994



OPINION AND ORDER



Page 3



is vicariously liable for the acts and omissions of hospital personnel. On December 22, 1993, the

Commissioner of Health ("Commissioner") was served with the complaint and summons for

Civil Number 974-93 through his Executive Assistant, Yvonne H. Smith.



An uncontroverted affidavit in the record shows that as of January 13, 1994, Plaintiffs’

had not filed a proposed complaint with the Commissioner. See V.I. Code Ann. tit. 27, § 1661(b)

(1997) On April 12, 1994, Plaintiffs filed the instant civil action in Territorial Court against

the same defendants asserting essentially identical causes of action as Civil Number 974-93.

Subsequently, in a letter dated January 14, 1994, but not mailed until January 21, 1994, Plaintiffs

sent a copy of the complaint to the Medical Malpractice Action Review Committee under a cover

letter stating that it was for review "prior to filing in Court."* On February 15, 1994, the

Territorial Director of Risk Management notified Plaintiffs’ counsel in a letter that the Medical

Malpractice Action Review Committee voted not to review the proposed complaint because the

two-year statute of limitations had passed for the filing of claims. On January 22, 1997, the



Court dismissed Civil Number 974-93.



3 Civ. No. 974/1993. Affidavit of Patricia D. Steele, then Territorial Director of Risk

Management who was responsible for handling all proposed complaints filed with the

Department of Health. Patricia D. Steele is nowa Judge of the Territorial Court of the Virgin



Islands, Division of St. Croix.



4 Civ. No. 974-1993. Defendant’s Motion for Summary Judgment Exhibits "A" and "B."

HURTAULT v. GOVERNMENT OF THE VIRGIN ISLANDS

Civ. No. 357/1994



OPINION AND ORDER



Page 4



II. DISCUSSION



As stated above, Defendant has moved for summary judgment arguing that, inter alia,

Plaintiffs failed to comply with the requirements of the Health Care Provider Malpractice Act

(the "Act). See V.I. Code Ann. tit. 27, §§ 166-166/ (1997). Specifically, Defendant argues that

Plaintiffs’ violated section 166i(b) of the Act, which provides in relevant part that "[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 and the Committee has received the expert opinion

as required by this section[.]" Title 27, §166i(b) (emphasis added). The purpose of the

Committee "[is] to arrange for expert review of all malpractice claims before actions based upon

such claims are commenced in court." Berry v. Curreri, 837 F.2d 623, 625-26 (3d Cir. 1988).

"The Committee review process is designed to eliminate claims lacking merit and encourage

prompt settlement of meritorious claims. Id. at 626.



Under subsection 166i(c), the "proposed complaint shall be deemed filed when a copy is

delivered or mailed by registered or certified mail to the Commissioner of Health, who shall



immediately forward a copy to each health care provider named as a defendant." Title 27, §



166i(c) (emphasis added). See also Green v. Moorehead, 20 V.I. 534 (D.V.I. 1984) ("Under the

statute, filing occurred when the complaint was posted[.]"). Significantly, courts have |



consistently held that a plaintiff's compliance with the proposed complaint filing requirements is_

a jurisdictional prerequisite to filing a civil action based on the claims presented in the proposed



complaint. See Berry, 837 F.2d at 626; Abdallah v. Callender, 28 V.I. 416, 422-23, 1 F.3d 141

HURTAULT v. GOVERNMENT OF THE VIRGIN ISLANDS

Civ. No. 357/1994



OPINION AND ORDER



Page 5



(3d Cir. 1993); Freeman v. Government of the Virgin Islands, 25 V.I. 360, 362 (D.V.I. 1990).

Furthermore, because the Act is a waiver of the government’s sovereign immunity, "[a] person

desiring to proceed under the act must strictly adhere to the procedural requirements of the act



before a demand may be pressed. VL. Telephone Corp. v. Government of the Virgin Islands, 13



V.I. 405 (D.V.I. 1977).". Quinones v. Charles Harwood Mem. Hosp., 20 V.I. 356, 361, 573

F.Supp. 1101 (D.V.1. 1983) (Emphasis added).



In this case, Plaintiffs assert that they complied with the Act’s proposed complaint filing

requirement on December 22, 1993, when the Commissioner of Health was served with the

Complaint in Civil Number 974/1993. The Court disagrees.



The Complaint served on the Commissioner’s assistant that day was not a "proposed

complaint" in any respect. Rather, this Complaint was the original pleading commencing Civil

Action Number 974/1993 and it named the Department of Health as a defendant. Plaintiff has

not pointed to anything which would have alerted the Commissioner that the pleading was a

“proposed complaint," and the fact that it raised allegations of the Department's vicarious

liability and was served with a summons belies Plaintiff's assertion that it was filed for expert

review by the Committee. The only response which Plaintiff could have reasonably expected

from service of this pleading was that the Commissioner would, as required by the summons,



|

"file his answer or other defenses with the Clerk of this Court, and to serve a copy thereof upon



the plaintiff's attorney within twenty (20) days after service of this summons."?



5 Civil Action Number 974/1993, Summons directed to Dr. Alfred O. Heath,

Commissioner of Department of Public Health; Exhibit "5" to Plaintiffs’ Opposition to

HURTAULT v. GOVERNMENT OF THE VIRGIN ISLANDS

Civ, No. 357/1994



OPINION AND ORDER



Page 6



Plaintiffs also asserts that the Committee received a copy of the Complaint on December

28, 1993. Plaintiff cites no evidence supporting this assettion and they ignore the affidavit

testimony of the Territorial Director of Risk Management who was responsible for handling all

proposed complaints. In her affidavit, dated January 13, 1994, the Director states: "That a review

of the records of the Office of the Commissioner of Health and the Territorial Office of Risk

Management indicates that no Proposed Complaint has been filed in the above matter as required

by Title 27, V.I. Code §166i, et seq. "° Again, Plaintiffs have pointed to no evidence

controverting that affidavit.



Finally, to the extent that Plaintiffs rely on the January 1994 filing of their proposed

complaint, it is clear that this filing was untimely. The cover letter was dated January 14, 1994,

two days after they filed the instant Complaint in Territorial Court, and the envelope was

postmarked January 21, 1994, more than one week after Plaintiffs filed the instant Complaint in



the Territorial Court. See Green v. Moorehead, 20 V.I. 534 (D.V.I. 1984)



IH. CONCLUSION

For the reasons stated above, the Court concludes that Plaintiffs’ Complaint in this action

must be dismissed. The law requires strict adherence to the procedural requirements of the



Health Care Providers Malpractice Act. That Act requires a Plaintiff to file a proposed complaint



|

|



Defendant’s Motion for Summary Judgment.



6 Civ. No. 974/1993. Affidavit of Patricia D. Steele, then Territorial Director of Risk



Management who was responsible for handling all proposed complaints filed with the

Department of Health. Patricia D. Steele is now a Judge of the Territorial Court of the Virgin

Islands, Division of St. Croix. *

HURTAULT v. GOVERNMENT OF THE VIRGIN ISLANDS



Civ. No. 357/1994



OPINION AND ORDER



Page 7



with the Commissioner for expert review before a trial court can obtain subject-matter



jurisdiction over an action based on the claims contained ‘in the complaint. In this case, Plaintiffs



failed to file a proposed complaint with the Commissioner before they filed their Complaint in



the Territorial Court. Accordingly, the Court does not have jurisdiction over this matter.



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