Kemit Lewis v. Virgin Islands Government Hospital and Health Facilities Corporation, Dr. Leslie Burton, and Dr. Ramesch Lakhram

• Court: Superior Court of The Virgin Islands
• Decided: March 22, 2022
• Docket: SX-21-CV-893
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX KEMIT LEWIS I Civil No SX 2021 CV 893

PLAINTIFF ACTION FOR DAMAGES

V JURY TRIAL DEMANDED VIRGIN ISLANDS GOVERNMENT HOSPITAL AND HEALTH FACILITIES CITE AS 2022 VI SUPER 33 CORPORATION 1DR LESLIE BURTON AND DR RAMESCH LAKHRAM

DEFENDANTS

Appearances Lee J Rohn, Esq LEE J ROHN AND ASSOCIATES LLC St Croix U S Virgin Islands For Plamnff

MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

(II 1 THIS MATTER is before the Court for review sua sponte

BACKGROUND

<|[ 2 On December 28 2022 Plaintiff Kemit Lewis (hereinafter Plaintiff ) filed a verified

complaint against Defendant Virgin Islands Government Hospital and Health Facilities

Corporation (hereinafter “VIGHHFC ) Defendant Dr Leslie Burton (hereinafter ‘ Burton ), and

Defendant Dr Ramesch Lakhram (hereinafter Burton and together with Defendant VIGHHFC

' The Virgin Islands Government Hospitals and Health Facihties’ is the correct name and not the Virgin Islands Hospitals and Health Facilities Corporation See Title [9 V I C § 243(a) ( There is hereby created the Virgin Islands Government Hospitals and Heahh Facilities Corporation The corporation is a body corporate and politic constituting a public benefit corporation of the Government of the Virgin Islands ’) As such the Court will amend the caption to correctly reflect the name of Defendant Virgin Islands Government Hospitals and Health Facilities See V I R Clv P [5 2 ( The court may amend any process or pleading for any omission or detect therein or for any variance between the complaint and the evidence adduced at the trial ) Lewuv VIGHHFC er a1 SX 202i CV 893 Memorandum Opinion and Order 2022 VI SUPER 33 Page 2 of I l

and Defendant Burton Defendants ) In his complaint Plaintiff alleged inter alia that Dr

Burton was the Emergency Room and admitting physician of Plaintiff (Compl ‘|[ 6) Dr

Lakhram was a consulting physician of Plaintiff” (Compl (ll 7) On July 26 2019 Plaintiff was

taken to the Emergency Room of the Juan F Luis Hospital with serious and life threatening

conditions (Compl ‘11 8), “Plaintiff continued treatment due to Defendants’ medical malpractice

until January 2020 (Compl ‘|[ 18) Defendant [VIGHHFC] failed to maintain the equipment at

its hospital (Compl ‘|[ 19) Defendant [VIGHHFC] negligently hired supervised and retained

the physicians (Compl ‘1[ 20) ‘The Defendant physicians failed to properly examine consult

test treat diagnose the Plaintiff (Compl ‘|[ 21) and ‘As a result Plaintiff suffered physical

injuries, medical expenses, loss of income loss of capacity to earn income scarring, mental

anguish pain and suffering and loss of enjoyment of life, all of which are expected to continue

into the foreseeable future (Compl ‘ll 22) The complaint did not specify the name(s) of the cause

of action(s) Plaintiff is pursuing against Defendants to wit Plaintiff did not set forth any counts

in separate numbered paragraphs with separate designation of the specific names of each count1

but based on the allegations, the Court deduced that Plaintiff alleged a cause of action for

negligence against Defendants

‘ll 3 On March 14 2022 and March 15 2022 Plaintiff filed notices of proof of service whereby

Plaintiff advised the Court that Defendant Governor Albert Bryan, Jr Defendant Burton, “Denise

George Counts Esq , Attorney General of the Virgin Islands and Christopher Finch as the

Acting Governing Board of Defendant [VIGHHFC] were served

Rule 8 of the Virgin Islands Rules 0t Civil Procedure requires a short and plain statement of the claim showing that the pleader is entitled to reliet because this is a notice pleading jurisdiction and the pleading shall be set forth in separate numbered paragraphs as provided in Rule 10(b) with separate designation of counts and defenses for each claim identified in the pleading VI R Clv P 8(a)(2) Lenzsv VIGHHFC eta! SX 2021 CV 893 Memorandum Opinion and Order 2022 VI SUPER 33 Page 3 of l I DISCUSSION

‘l[ 4 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 Virgin Islands Torts

Claim Act (hereinafter VITCA )

l VIMMA

a Whether the VIMMA is Applicable

9[ 5 As an initial matter, the Court must determine whether Plaintiff’s claim constitutes medical

malpractice for purposes of the VIMMA Under 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

‘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 5 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,paramedicalpersonnel

emergency medical technician pharmacist and laboratory technician Title 27 V I C § 166(c)

Here Plaintiff 5 claim is a tort based on health care or professional services rendered by Defendant

Burton and Defendant Lakhram as Plaintiff’s admitting physician and Plaintiff s consulting

physician respectively, to Plaintiff as a patient at Juan F Luis Hospital, a hospital managed by Lem“ VIGHHFC er a1 SK 2021 CV 893 Memorandum Opinion and Order 2022 VI SUPER 33 Page 4 of 1 1 Defendant VIGl-IHFC Thus Plaintiff’s claim constitutes medical malpractice as defined by the

VIMMA and is subject to the requirements of the VIMMA

b Pre Filing Requirements of the VIMMA

‘I[ 6 The VIMMA establishes a pre filing jurisdictional requirement before a plaintiff may

commence a medical malpractice action under the jurisdiction of the Superior Court Daley Jeflers

v Graham 69 V I 931 936 (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

Court 5 ability to hear medical malpractice claims» More specifically the VIMMA provides that

[n]o action against a health care provider may be commenced in court before the claimants

proposed complaint has been filed with the [Medical Malpractice Action Review] Committee and

the [Medical Malpractice Action Review] Committee has received the expeit 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

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 § l66i(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 § 1661(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 Lenin) VIGHHFC eta! SX 202! CV 89? Memorandum Opinion and Order 2022 VI SUPER 33 Page 5 of i I

for expert review of all malpractice claims before actions based upon such claims are commenced

in court )

1] 7 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 ‘ll 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 5 subject matter

jurisdiction over this matter the Court will require Plaintiff to plead facts demonstrating his

compliance with the pre filingjurisdictional requirements of the VIMMA such as the date he filed

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? so that the Court can examine whether it has subject matter jurisdiction over the

dispute Clarke 73 V I 512 ‘ll 9 a single conclusory allegation that Plaintiff has complied with

all the pre filing jurisdictional requirements of the VIMMA will not suffice

3 The VIMMA provides that [ulpon receipt by the [Medical Malpractice Action Review] Committee of an expert opinion, the Commissioner of Health shall immediately forward a Lopy of the opinion to the plaintiff and defendant ” Title 27 V I C § I66i(d)(4) L€WIS v VIGHHFC er a1 SX 2021 CV 89% Memorandum Opinion and Order 2022 VI SUPER 33 Page 6 of l 1 2 VITCA

a Whether the VITCA is Applicable

1| 8 The Revised Organic Act grants sovereign immunity to the Government of the Virgin

Islands for tort claims See Title 48 U S C § 1541(b) ( That no tort action shall be brought against

the government of the Virgin Islands or against any officer or employee thereof in his official

capacity without the consent of the legislature constituted by this Act [48 USCS § 1541 et seq ] )

The VITCA provides the mechanism by which persons may sue the Government in tort in the

courts of the Virgin Islands Fleming v Cruz 62 V I 702 718 (V I 2015) see Title 33 V I C §

3408(a) ( Subject to the provisions of section 3416 of this chapter the Government of the United

States Virgin Islands hereby waives its immunity from liability and action and hereby assumes

liability with respect to injury or loss of property or personal injury or death caused by the

negligent or wrongful act or omission of an employee of the Government of the United States

Virgin Islands while acting within the scope of his office or employment under circumstances

where the Government of the United States Virgin Islands if a private person would be liable to

the claimant in accordance with the law of the place where the act or omission occurred The

Government consents to have the liability determined in accordance with the same rule of law as

applied to actions in the courts of the Virgin Islands against individuals or corporations, Provided

That the claimant complies with the provisions of this chapter ) Here because Plaintiff sued

Defendant VIGHHFC and its employees Defendant Burton and Defendant Lakhram and they are

included in the definition of the VITCA the VITCA is applicable to the facts of this case See Title

33 V I C § 3401 ( As used in this chapter the term Government of the Virgin Islands includes

the Virgin Islands Government Hospitals and Health Facilities Corporation [and] Employee of

the Government includes elected or appointed officials employees members of Governing Lents v VIGHHFC er al 8X 2021 CV 893 Memorandum Opinion and Order 2022 VI SUPER 33 Page 7 of l I

Boards and Commissions and other persons acting on behalf of the Government of the United

States Virgin Islands )

b Pre Filing Requirements of the VITCA

‘|[ 9 The VITCA provides that [n]o judgment shall be granted in favor of any claimant unless

such claimant shall have complied with the provisions of this section [3409] ’ Title 33 V I C §

3409 The provision applicable to this case is section 3409(c)

[A] claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the Government of the United States Virgin Islands while acting as such officer or employee shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the accrual of such claim

Title 33 V I C § 3409(c) The VITCA further provides the requirements concerning the notice of intention The claim or notice of intention shall be filed in the Office of the Governor and a copy shall be served upon the Attorney General and a written receipt therefor shall be issued with the date of filing indicated thereon The claim shall state the time when and the place where such claim arose the nature of same and items of damage or injuries claimed to have been sustained and the total sum claimed The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated The claim and notice of intention to file a claim shall be verified

Title 33 V IC § 3410 ‘11 10 The Court recognizes that unlike the VIMMA the Virgin Islands Supreme Court has not

yet determined whether the pre filing requirements of the VITCA are jurisdictional or claims

processing rules See e 3 Alexander v Wilson 73 VI 528 ‘|[ 13 ( It remains an issue of first

impression in the Virgin Islands whether the pertinent provisions of the VITCA are jurisdictional,

or claims processing rules which may be waived ’ ) Fleming v Cruz 62 V I 702, 718 n 13 (V I

2015) ( In this case, we do no decide whether the VITCA 5 claim filing requirements are

jurisdictional We leave a decision on whether the VITCA 5 claim filing mandates are Lem: v VIGHHFC er al 8X 2021 CV 893 Memorandum Opinion and Order 2022 VI SUPER 33 Page 8 of 1 1

jurisdictional for another day ) However, in Richardson v Knud Handsen Mem 1 Hosp 744 F

2d 1007 1010 (3d Cir 1984) the Third Circuit Court of Appeals held that compliance with the

pre filing requirements under the VITCA are jurisdictional and Richardson remains binding on

the Virgin Islands Superior Court See e g Yuxzang Peng v Wzllzams 67 V I 482 485 n 2 (V I

Super Ct July 24 2017) 4 Christopher v Gov Juan F LUIS Hosp & Med Ctr 2016 165 *1 l

4 In Yummg Peng the Court addressed the issue of whether Richardson is still binding on Virgin Islands Superior Court In Richardson the Third Circuit Court of Appeals exercising its power as the ti nal arbiter of Virgin Islands local law held that the terms under which the Government of the Virgin islands consented to waive its immunity from tort liability, as embodied in the VITCA are jurisdictional and It follows that the terms may not be waived 744 F 2d at 1010 The Supreme Court of the Virgin Islands has made it clear that decisions rendered by the Third Circuit while serving as the (IL faeto court of last resort in the Virgin Islands are binding upon the Superior Court of the Virgin Islands even if they would only represent persuasive authority when [the Supreme Court] considers an issue Najawic v People of the Vzrgm Islands, 58 V I 315 327 28 (V I 2013) (internal citation omitted) see also In re People oftlie Virgm Islands 51 V [ 374 n 9 (V I 2009) Thus the Third Circuits holding in Richardson remains binding on this Court The Court notes that while the case in Richardson originated in the District Court 01 the Virgin Islands in 1980, the District Court was acting as a territorial court when it adjudicated Richardson 5 claim for wrongful death See Callwood v Enos 230 F 3d 627 43 VI 293 297 98 (3d Cir 2000) (The District Court of the Virgin Islands used to have general original jurisdiction over all civil actions arising under territorial law in whieh the amount in controversy was more than $500) see also Cam v Beech Aitcraft Com 679 F 2d 1051 1057 19 V 1 641 (3d Cir 1982) (characterizingjurisdiction 01 the District Court of the Virgin Islands under the Revised Organic Act prior to the 1984 amendments as “more like a state court of general jurisdiction than a United States district court ) For a detailed description 01 the deVelopment ot the judiciary 01 the Virgin Islands see James St Jules 1 Thompson 2015 V I LEXIS 74 at *16 20 67VI 482 485 n2 (V1 Super Ct July 24 2017) Furthermore the Court notes that in this instance the Court need not undertake a Banks analysis concerning the VITCA because it is an issue 0t statutory interpretation rather than a determination 01 common law See In re L 0 F , 62 V 1 655 661 n 6 (V I 2015) (The Supreme Court of the Virgin Islands has established that a Banks analysis is not required for statutory interpretation ) see also Smith I Henlet 67 V I 965, 970 n 2 (V I 2017) ( A Banks analysis was unnecessary however because the issue here is purely a matter of statutory interpretation, not common law )‘ Banksv InIIRental & Leasmg Corp 55 VI 967 (VI 2011) Additionally the Court also notes that in Wallace v People of the V I the Virgin Islands Supreme Court reaffirmed that [ilt is true that prior decisions 01 the Appellate Division remain binding upon the Superior Court unless overturned by this Court 71 V I 703, 738 n 5 (VI 2019)(citing Defoet Phillip 56Vl 109 119(VI 2012)( This Court is not required to follow decisions 01 the District Court or the Third Circuit interpreting local Virgin Islands law In addition to previously holding that decisions of our predecessor court the Appellate Division of the District Court of the Virgin Islands are not binding on us we have also recently held that this Court unlike the Superior Court is not compelled to treat the Third Circuit 5 interpretation 0t Virgin Islands law as binding precedent Although the establishment of this Court has changed the relationship between the local Virgin Islands judiciary and the Third Circuit this Court s creation did not erase pre existing case law and thus precedent that was extant when the Court became operational continues unless and until this Court address the issues discussed there Accordingly decisions rendered by the Third Circuit and the Appellate Division 01 the District Court are binding upon the Superior Court even if they would only represent persuasive authority when this court considers an issue (quoting Jud: s of S! Croat Car Rental v Weston 49 V I 396 403 n 7 (VI 2008) In re People offhe VI 51 VI 374 389 n 9 (VI 2009))» The Court is nevertheless Lewis v VIGHHFC e! a! SX 2021 CV 89? Memorandum Opinion and Order 2022 VI SUPER 33 Page 9 01 l l

(V I Super Ct Oct 12 2016) ( despite any contrary intimations from the Supreme Court this

Court is bound by the Third Circuit 5 precedent in Richardson and must consider challenges to

the VITCA s prefiling requirements as challenges to subject matter jurisdiction unless and until

the Supreme Court of the Virgin Islands conclusively determines otherwise ); Hansen v Gov

Juan F LUIS Hosp & Med Ctr 2018 VI LEXIS 87 *9 (VI Super Ct June 22 2018)

1[ 11 Here, there is no indication from the complaint that Plaintiff has complied with the pre

filing requirements of the VITCA Thus it is unclear whether the Court has subject matter

jurisdiction over this matter As noted above the Court may raise the issue of its own jurisdiction

sua sponte See Clarke v Lopez 73 V I 512 ‘l[ 9 (V I 2020) (internal quotation marks and citations

omitted) see also V I R CIV P 12(h)(3) As such the Court will grant Plaintiff leave to amend

her complaint to include allegations regarding the pre filing requirements of the VITCA Given

that the pre filing requirements of the VITCA concerns the Court 5 subject matterjurisdiction over

this matter the Court will require Plaintiff to plead facts demonstrating his compliance with the

pre filing jurisdictional requirements of the VITCA such as the date a notice of intention was

‘filed in the Office of the Governor and the date a copy was served upon the Attorney General 5

cognizant that. in Hunted l Hunted, the Virgin Islands Supreme Court held that decisions of the Appellate Division and the Third Circuit addressing issues 01 Virgin Islands common law are no longer binding on the Superior Court 63 VI 529 535 (VI 2015) (citing Govtoft/Ie V! t Connor 60V[ 597 605 n 1 (VI 2014)) and that decisions issued by the Appellate Division after 2007 like decusions ot the District Court or Third Circuit heard through diversity or supplemental jurisdiction are not binding on the Superior Court 63 V I at 535 (citing Better Bldg Mam! ofthe VI Inc 1 Lee 60V[ 740 755 56 (VI 2014) Walter.“ Walters 60VI 768 777 n 10(Vl 2014) People t Simmonds 56VI 84 90 (VI Super Ct 2012) Ednardsv HOVENSA LLC 497F 3d 355 359 61 (3d Cir 2007)) However, Richardson did not concern common law and it was issued prior to 2007 As such until the Virgin Islands Supreme Court explicitly declares that all decisions of the Appellate Division and the Third Circuit are no longer binding on the Virgin Islands Superior Court or definitely proclaims that the pre filing requirements of the VITCA are not jurisdictional the Court continues to find Richardson binding 5 [n Santiago v V] Hons .4th the Virgin Islands Supreme Court explained that “[elssentially the discovery rule operates to delay the time when the statute of limitations on a plaintitf‘s claim begins to accrue and [ulnder the rule the statute of limitations will start to run at the time that two conditions are satisfied (I) when the plaintiff knew or should have known that he suffered harm and (2) when the plaintift knew or should have known the cause 01 his Letws v VIGHHFC e! a! SX 202l CV 89% Memorandum Opinion and Order 2022 VI SUPER 33 Page 10 of II

so that the Court can examine whether it has subject matterjurisdiction over the dispute ’ Clarke

73 V I 512 (ll 9, a single conclusory allegation that Plaintiff has complied with all the pre filing

jurisdictional requirements of the VITCA will not suffice

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 and

the VITCA in accordance with this Memorandum Opinion and Order 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 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

proposed first amended complaint in compliant with Rule 15 l of Virgin Islands Rules of Civil

Procedure which requires ‘ [a] party moving to amend a pleading [to] attach a complete and

injury 57 V I 256 298 99 (V I 20l2) (inner quotations marks and citations omitted) The Court sees no reason to depart irom the discovery rule when determining the accrual date of Piaintitf 5 claim under the VITCA In his complaint Plaintiff alleged that Plaintiff continued treatment due to Defendants medical malpractice until January 2020 (Compl 1 l8 )Thus as pled the injury and its cause became evident to Plaintiff in January 2020 at the latest and thus Plaintiff 5 claim under the VITCA accrued in January 2020 at the latest Here Plaintifl did not commence this lawsuit and file his claim until December 28 2022 well past the ninety day period mandated in the VITCA See Title 13 V I C § 3409(c) (“[A] claim to retover damages for injuries to property or for personal injury caused by the tort of an officer or employee oi the Government of the United States Virgin Islands while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the accrual of such claim )(emphasis added) Lentsv VIGHHFC er a1 SX 202l CV 893 Memorandum Opinion and Order 2022 VI SUPER 33 Page ll 0f 11

properly signed—copy of the proposed 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 And it is further

ORDERED that the CAPTION IS AMENDED to reflect Defendant Virgin Islands

Government Hospitals and Health Facilities in place of Defendant Virgin Islands Hospitals and

Health Facilities and all future filings shall sigma

DONE and s0 ORDERED this £29 day of March 2022

ATTEST MM Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

Byw ourt Cl rk Dated gig} IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

Kemit A Lewis, Case Number: SX-2021-CV-00893 Plaintiff Action: Malpractice v.

Virgin Islands Hospital and Health Facilities Corporation et al, Defendant.

NOTICE of ENTRY of Memorandum Opinion and Order To: Lee J. Rohn, ESQ.

Please take notice that on March 23, 2022 a(n) Memorandum Opinion and Order dated March 22, 2022 was/were entered by the Clerk in the above-titled matter.

Dated: March 23, 2022 Tamara Charles Clerk of the Court By:

Janeen Maranda Court Clerk II