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

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 )

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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)

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‘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

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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

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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)

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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

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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

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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

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(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

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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)

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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