Morrison v. Bestler

387 S.E.2d 753, 239 Va. 166, 6 Va. Law Rep. 1125, 1990 Va. LEXIS 12

• Court: Supreme Court of Virginia
• Decided: January 12, 1990
• Docket: Record 880177
• Status: Published

Opinions

JUSTICE LACY

delivered the opinion of the Court.

In this medical malpractice case, we determine whether failure to comply with the provisions of Code § 8.01-581.2, which state that no action “shall be brought within ninety days” after notice of malpractice claim, deprives the trial court of jurisdiction over the instant claim.

On March 10, 1982, James Michael Bestler, M.D., performed cosmetic surgery on Dorothy T. Morrison. On March 9, 1984, Morrison filed a motion for judgment against Dr. Bestler and James Michael Bestler, M.D., Inc. (Bestler), seeking damages for medical malpractice which allegedly occurred during the surgery. The following day, March 10, 1984, Morrison served Bestler with the notice of malpractice claim required by Code § 8.01-581.2. Bestler filed a demurrer and motion to dismiss claiming that Morrison’s suit was prohibited because she had “violated Va. Code § 8.01-581.2 by filing a motion for judgment within the ninety day period following a notice of malpractice claim.”

Prior to any ruling on Bestler’s demurrer and motion, Morrison requested a voluntary nonsuit. On November 16, 1984, the trial court entered an order of nonsuit pursuant to Code § 8.01-380. On the same day, Morrison filed her second motion for judgment against Bestler based on the same malpractice claim.

In response to the second suit, Bestler filed a plea of the statute of limitations arguing that the 120-day extension of the statute of limitations afforded by Code § 8.01-581.9 expired on July 8, 1984, and therefore, Morrison’s second suit was untimely. Furthermore, Bestler maintained that Morrison’s failure to comply with the filing provisions of Code § 8.01-581.2 deprived the trial court of subject matter jurisdiction in the first suit, thereby making the order of nonsuit entered in that suit null and void. A void order, Bestler argued, cannot be utilized to invoke application of the filing extensions authorized by Code § 8.01-229(E)(3).

The trial court held that, because the filing of the first motion for judgment was prohibited until 90 days after the notice of claim, it did not have “actual active jurisdiction over the first case, and the plaintiffs filing of that suit was null and void.” Reasoning that an order of nonsuit entered in a suit “prohibited in the first instance” should not operate to extend the statute of limitations under the nonsuit statute, the court granted Bestler’s plea and entered an order dismissing Morrison’s motion for judgment. We granted Morrison an appeal on February 8, 1989.

Morrison contends that, although the 90-day waiting period is a mandatory procedural requirement, it is not jurisdictional. She relies on the rationale we adopted in considering the notice requirement in negligence suits filed against municipalities, City of South Norfolk v. Dail, 187 Va. 495, 47 S.E.2d 405 (1948), as well as cases in other jurisdictions interpreting similar notice provisions for the filing of medical malpractice suits. Schepps v. Presbyterian Hospital of Dallas, 652 S.W.2d 934 (Tex. 1983); Givertz v. Maine Medical Center, 459 A.2d 548 (Me. 1983); Dougherty v. Oliviero, 427 A.2d 487 (Me. 1981); Foil v. Ballinger, 601 P.2d 144 (Utah 1979).

Bestler, on the other hand, maintains that we have previously addressed this question and held that a court has no jurisdiction over a motion for judgment filed before the expiration of 90 days after giving notice of the malpractice claim. Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989); Horn v. Abernathy, 231 Va. 228, 343 S.E.2d 318 (1986); Baker v. Zirkle, 226 Va. 7, 307 S.E.2d 234 (1983).

Before reviewing the cases relied on by Bestler, we must clarify the manner in which the term “jurisdiction” is used. A court may lack the requisite “jurisdiction” to proceed to an adjudication on the merits for a variety of reasons.

The term jurisdiction embraces several concepts including subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and “the other conditions of fact must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.” Farant Investment Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144 (1924).

While these elements are necessary to enable a court to proceed to a valid judgment, there is a significant difference between subject matter jurisdiction and the other “jurisdictional” elements. Subject matter jurisdiction alone cannot be waived or conferred on the court by agreement of the parties. Lucas v. Biller, 204 Va. 309, 313, 130 S.E.2d 582, 585 (1963). A defect in subject matter jurisdiction cannot be cured by reissuance of process, passage of time, or pleading amendment. While a court always has jurisdiction to determine whether it has subject matter jurisdiction, a judgment on the merits made without subject matter jurisdiction is null and void. Barnes v. American Fert. Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925). Likewise, any subsequent proceeding based on such a defective judgment is void or a nullity. Ferry Co. v. Commonwealth, 196 Va. 428, 432, 83 S.E.2d 782, 784 (1954).

Even more significant, the lack of subject matter jurisdiction can be raised at any time in the proceedings, even for the first time on appeal by the court sua sponte. Thacker v. Hubard, 122 Va. 379, 386, 94 S.E. 929, 930 (1918). In contrast, defects in the other jurisdictional elements generally will be considered waived unless raised in the pleadings filed with the trial court and properly preserved on appeal. Rule 5:25.

One consequence of the non-waivable nature of the requirement of subject matter jurisdiction is that attempts are sometimes made to mischaracterize other serious procedural errors as defects in subject matter jurisdiction to gain an opportunity for review of matters not otherwise preserved. See Restatement (Second) of Judgments, § 11 (1980).

In this case, if the 90-day waiting period for filing the motion for judgment goes to the issue of the court’s subject matter jurisdiction, as claimed by Bestler, the trial court did not have, and could never have, the ability to enter a valid judgment. If, as Morrison claims, the requirement is procedural in nature, the court could not have proceeded to final judgment on the merits at that time, but was not deprived of its fundamental jurisdiction. With this distinction in mind, we turn to an analysis of our prior statements on the jurisdictional nature of the filing requirements of Code § 8.01-581.2.

Bestler points to a single sentence in Baker v. Zirkle, in which we stated that under Code § 8.01-581.2, a plaintiff “is absolutely forbidden from filing an action until ninety days after notification to the health care provider. . . .” 226 Va. at 13, 307 S.E.2d at 236. But Baker did not involve the premature filing of a motion for judgment alleging medical malpractice. In fact, the motion for judgment in that case was filed almost 14 months after the notice of claim was given. Rather, the issue was whether (1) the tolling provisions of Code § 8.01-581.9 operated to interrupt the running of the limitations period, beginning with the filing of the notice of claim and resuming 60 days after the issuance of the review panel opinion, or whether (2) the tolling occurs only if the limitation period expired during the 60-day period following the panel decision. The jurisdictional nature of the Code § 8.01-581.2 filing requirements was not at issue, was not addressed by the court or the parties, and was not decided in Baker.

Similarly, Horn v. Abernathy did not involve the filing of a motion for judgment prior to expiration of the 90-day notice period. There, the issues were whether the hospital’s request for a medical malpractice review panel was timely filed with the Chief Justice of the Supreme Court, whether the Executive Secretary of the Court had the authority to deny the request, and other claims involving estoppel and due process. We began our discussion in that case by reviewing the requirements of the medical malpractice statutes. We stated that “a claimant has no right to bring such an action unless he gives the health care provider written notice of his claim.” 231 Va. at 231, 343 S.E.2d at 320. As it was in Baker, Bestler’s reliance on this single sentence in Horn is misplaced. Horn simply does not address or resolve the issue presented in the instant case.

Finally, Bestler relies on Edwards v. City of Portsmouth in support of his position. In that case, the notice of the malpractice claim was filed only three days prior to the filing of the motion for judgment. The trial court granted the city’s motion to dismiss on its plea of sovereign immunity and granted the hospital’s special plea of “lack of jurisdiction on the ground that the suit was filed in violation of the Medical Malpractice Act ... in that it was filed within ninety days of the filing of the notice of claim of malpractice.” 237 Va. at 170, 375 S.E.2d at 749.

The plaintiff argued that the Act did not apply to the hospital’s ambulance services and, therefore, the notice requirement was inapplicable. We held, however, that the Act focused on the health care provider. Thus, by definition the Act applied to a licensed hospital and “that by filing suit three days after filing the notice of claim, Edwards violated Code § 8.01-581.2. . . .” Edwards, 237 Va. at 172, 375 S.E.2d at 750. We then affirmed the judgment of the trial court dismissing the action without further comment. Again, we did not discuss the jurisdictional nature of the provision in issue or the appropriate or required remedies for violation of the provision.¹

None of these cases resolves the issue now before us. In deciding that issue here, we first note that Title 17 of the Code of Virginia gives circuit courts jurisdiction to resolve cases and controversies involving torts. This is unquestionably a statutory grant of subject matter jurisdiction. Medical malpractice claims are tort claims. The Virginia General Assembly has enacted certain procedures for the prosecution of claims of this type. These procedures include the notice of claim, a waiting period for filing suit, the right to a malpractice review panel prior to a court proceeding, use of the opinion of the panel, and extensions of statutory filing limitations under certain conditions. In our opinion, none of these procedural requirements involves subject matter jurisdiction.

In 1976, Virginia, like other states, was faced with a significant increase in the number of medical malpractice suits. As a result, medical malpractice insurance for health care providers was difficult to obtain, very costly, and sometimes even unavailable. Acts ch. 611 (1976). Commissions which studied the problem throughout the country recommended the use of medical malpractice review panels to “weed out unmeritorious claims, encourage settlements and provide a speedier and less costly alternative to trial” in medical malpractice cases. Senate Document No. 20, at 8-9 (1976); see also Schepps, 652 S.W.2d at 937; Givertz, 459 A.2d at 550; and Dougherty, 427 A.2d at 489. There is no indication that the General Assembly, by enacting these procedural requirements, intended to endow the trial courts with jurisdiction over a new cause of action comprised of a medical malpractice tort claim and its attendant procedures.

All these procedural requirements, including the 90-day waiting period, were formulated to provide the defendant with adequate notice of the nature of the claim, to assist the parties in case preparation, and to encourage settlement prior to trial. Hudson v. Surgical Specialists, 239 Va. 101, 387 S.E.2d 750 (this day decided); Cowan v. Psychiatric Associates, 239 Va. 59, 387 S.E.2d 747 (this day decided). As such they are analogous to the notice requirements for a damage suit against a municipality based on negligence. As we stated in City of South Norfolk:

[T]he failure to give the notice constitutes a trap for the unwary. . . . While the provisions of the statute and the charters in this regard are mandatory and compliance with them is necessary, they should not be regarded as jurisdictional.

187 Va. at 503, 47 S.E.2d at 408-09.

We hold then, that the prohibition contained in Code § 8.01-581.2 against filing suit prior to 90 days after giving notice of a medical malpractice claim is a mandatory procedural requirement. Failure to comply with this provision does not divest the court of subject matter jurisdiction.² The proper sanction for noncompliance will depend on the circumstances of each case. Other courts which have considered the issue have seen fit to dismiss the suit without prejudice, stay the proceedings, or abate the proceedings. See, e.g., Schepps, 652 S.W.2d at 938 (cause should be abated for 60 days); Dougherty, 427 A.2d at 490 (stay, rather than dismissal, appropriate); and Foil, 601 P.2d at 149 (dismissal without prejudice).

Because we have determined that the trial court had subject matter jurisdiction over the first motion for judgment filed by Morrison, the order granting Morrison a voluntary nonsuit was a valid order. Morrison was entitled to the six month extension of time granted by Code § 8.01-229(E)(3), and, therefore, her second motion for judgment, filed on November 16, 1984, was timely.

For the reasons set out above, the judgment of the trial court will be reversed and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

1 Although not cited by Bestler, Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68 (1988), also involved the application of Code § 8.01-581.2. There, the trial court dismissed the case for lack of “subject matter jurisdiction” because the plaintiff had not given any notice of a malpractice claim. The plaintiff argued that her suit was one for breach of contract and battery and, therefore, the notice requirement did not apply. We agreed with the plaintiff regarding her first count — holding that it was a contract action and as such was not subject to the malpractice review system. We did find, however, that a battery is a tort, and, as it arises from health care, it is malpractice “and the required notice should have been given.” 235 Va. at 69, 366 S.E.2d at 72. We affirmed the trial court’s dismissal of the battery count. Regardless of the use of the phrase “subject matter jurisdiction” in framing the issue, we did not discuss the nature of the jurisdictional defect. Under the circumstances of that case, like Edwards, dismissal for violation of the notice provision was appropriate. See discussion, infra. But also like Edwards, Baker, and Horn, Glisson does not determine the issue now before us.

2 In its quest for “stability and predictability in the law,” the dissent would fashion a rule making a final judgment entered in a medical malpractice suit void and subject to attack at any time if the motion for judgment in the case was filed within the 90-day waiting period, even though this fact was never raised or was waived by the parties.