Samuel Ferdinand v. Abd Hammoudeh, MD

Superior Court of The Virgin Islands

Samuel Ferdinand v. Abd Hammoudeh, MD

Superior Court of The Virgin Islands·Decided March 18, 2022·No. SX-22-CV-25·Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

SAMUEL FERDINAND, Civil No SX 2022 CV 025 PLAINTIFF ACTION FOR DAMAGES

V % JURY TRIAL DEMANDED ABD HAMMOUDEH MD DEFENDANT CITE AS 2022 VI SUPER 0.3 S

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

Jennifer P Brooks, Esq HAMILTON MILLER & BIRTHISEL LLP Miami, Florida For Defendant

MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge 1] 1 THIS MATTER is before the Court for review sua sponte BACKGROUND

1| 2 On January 28, 2022, Plaintiff Samuel Ferdinand (hereinafter “Plaintiff”) ﬁled a veriﬁed complaint against Defendant Abd Hammoudeh, M D (hereinafter “Defendant ’) In his complaint, Plaintiff alleged, inter alia, that “Defendant [] is upon information, a licensed Dentist, who is employed at the Frederiksted Health Clinic ” that ‘[o]n March 24 2021, Plaintiffappeared to have his tooth extracted by [Defendant] ’ that ‘ Defendant [] negligently and below the standard of care failed to designate and extract the correct tooth,’ and that “[a]s a result, the wrong tooth of the Plaintiff was extracted ” (Compl 11$ 3 6 8 ) The Complaint did not specify the name(s) of the cause of action(s) Plaintiff is pursuing against Defendant to wit, Plaintiff did not set forth any

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counts in separate numbered paragraphs with separate designation of the speciﬁc names of each count' but based on the allegations, the Court deduced that Plaintiff alleged a cause of action for negligence 1] 3 On February 20 2022 Plaintiff ﬁled a notice whereby Plaintiff advised the Court that Defendant was served on February 15, 2022, Governor of the Virgin Islands Albert Bryan Jr was sewed on February 15, 2022, and Attorney General of the Virgin Islands Denise George was served on February 18, 2022 1] 4 On March 9, 2022, Defendant ﬁled an answer and afﬁrmative defenses 15 On March 10, 2022, Plaintiff and Defendant ﬁled a stipulated conﬁdentiality agreement and agreed protective order DISCUSSION

1] 6 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 pre ﬁling requirements contained therein

1 Whether this is a Medical Malpractice Action for the Purposes of the Medical Malpractice Act

1] 7 As an initial matter, the Court must determine whether Plaintiff’s claim constitutes medical malpractice for purposes of the VIMMA l nder 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

' Rule 8 of the Virgin Islands Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief because this is a notice pleading jurisdiction and the pleading shall be set forth in separate numbered paragraphs as provided in Rule |0(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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“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's 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, paramedical personnel, emergency medical technician, pharmacist and laboratory technician,” Title 27 V I C § 166(c) Here, Plaintiff’s claim is a tort based on health care or professional services rendered by Defendant as his dentist to him as a patient Thus, Plaintiff’s claim constitutes medical malpractice as deﬁned by the VIMMA and is subject to the requirements of the VIMMA 2 Jurisdictional Prerequisites of the VIMMA 1| 8 The VIMMA establishes a pre ﬁlingjurisdictional requirement before a plaintiff may commence a medical malpractice action under the jurisdiction of the Superior Court Daley Jeffers v Graham 69 V I 93] 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 ( ourt's ability to hear medical malpractice claims» More speciﬁcally, the VIMMA provides that ‘[n]0 action against a health care provider may be commenced in court before the claimant's proposed complaint has been ﬁled with the [Medical Malpractice Action Review] Committee and the [Medical Malpractice Action Review] Committee has received the expert 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

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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 § 166i(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 § 166i(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 for expert review of all malpractice claims before actions based upon such claims are commenced in court ’) 1| 9 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, 1] 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’s subject matter jurisdiction over this matter, the Court will require Plaintiff to plead facts demonstrating his compliance with the pre ﬁling jurisdictional requirements of the VIMMA, such as the date he ﬁled

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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

SAMUEL FERDINAND, Civil No SX 2022 CV 025 PLAINTIFF ACTION FOR DAMAGES

V % JURY TRIAL DEMANDED ABD HAMMOUDEH MD DEFENDANT CITE AS 2022 VI SUPER 0.3 S

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

Jennifer P Brooks, Esq HAMILTON MILLER & BIRTHISEL LLP Miami, Florida For Defendant

MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge 1] 1 THIS MATTER is before the Court for review sua sponte BACKGROUND

1| 2 On January 28, 2022, Plaintiff Samuel Ferdinand (hereinafter “Plaintiff”) ﬁled a veriﬁed complaint against Defendant Abd Hammoudeh, M D (hereinafter “Defendant ’) In his complaint, Plaintiff alleged, inter alia, that “Defendant [] is upon information, a licensed Dentist, who is employed at the Frederiksted Health Clinic ” that ‘[o]n March 24 2021, Plaintiffappeared to have his tooth extracted by [Defendant] ’ that ‘ Defendant [] negligently and below the standard of care failed to designate and extract the correct tooth,’ and that “[a]s a result, the wrong tooth of the Plaintiff was extracted ” (Compl 11$ 3 6 8 ) The Complaint did not specify the name(s) of the cause of action(s) Plaintiff is pursuing against Defendant to wit, Plaintiff did not set forth any

Ferdmand v Hammoudeh

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counts in separate numbered paragraphs with separate designation of the speciﬁc names of each count' but based on the allegations, the Court deduced that Plaintiff alleged a cause of action for negligence 1] 3 On February 20 2022 Plaintiff ﬁled a notice whereby Plaintiff advised the Court that Defendant was served on February 15, 2022, Governor of the Virgin Islands Albert Bryan Jr was sewed on February 15, 2022, and Attorney General of the Virgin Islands Denise George was served on February 18, 2022 1] 4 On March 9, 2022, Defendant ﬁled an answer and afﬁrmative defenses 15 On March 10, 2022, Plaintiff and Defendant ﬁled a stipulated conﬁdentiality agreement and agreed protective order DISCUSSION

1] 6 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 pre ﬁling requirements contained therein

1 Whether this is a Medical Malpractice Action for the Purposes of the Medical Malpractice Act

1] 7 As an initial matter, the Court must determine whether Plaintiff’s claim constitutes medical malpractice for purposes of the VIMMA l nder 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

' Rule 8 of the Virgin Islands Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief because this is a notice pleading jurisdiction and the pleading shall be set forth in separate numbered paragraphs as provided in Rule |0(b) with separate designation of counts and defenses for each claim identiﬁed in the pleading VI R Clv P 8(a)(2)

Ferdinand v Hammoua'eh

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“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's 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, paramedical personnel, emergency medical technician, pharmacist and laboratory technician,” Title 27 V I C § 166(c) Here, Plaintiff’s claim is a tort based on health care or professional services rendered by Defendant as his dentist to him as a patient Thus, Plaintiff’s claim constitutes medical malpractice as deﬁned by the VIMMA and is subject to the requirements of the VIMMA 2 Jurisdictional Prerequisites of the VIMMA 1| 8 The VIMMA establishes a pre ﬁlingjurisdictional requirement before a plaintiff may commence a medical malpractice action under the jurisdiction of the Superior Court Daley Jeffers v Graham 69 V I 93] 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 ( ourt's ability to hear medical malpractice claims» More speciﬁcally, the VIMMA provides that ‘[n]0 action against a health care provider may be commenced in court before the claimant's proposed complaint has been ﬁled with the [Medical Malpractice Action Review] Committee and the [Medical Malpractice Action Review] Committee has received the expert 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

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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 § 166i(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 § 166i(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 for expert review of all malpractice claims before actions based upon such claims are commenced in court ’) 1| 9 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, 1] 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’s subject matter jurisdiction over this matter, the Court will require Plaintiff to plead facts demonstrating his compliance with the pre ﬁling jurisdictional requirements of the VIMMA, such as the date he ﬁled

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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)2 so that the Court can “examine whether it has subject matter jurisdiction over the dispute, ’ Clarke, 73 V I 512, 1[ 9, a single conclusory allegation that Plaintiff has complied with all the pre ﬁling jurisdictional requirements of the VIMMA will not sufﬁce The Court will reserve ruling Plaintiff and Defendant’s March 10 2022 stipulated conﬁdentiality agreement and agreed protective order pending the Court’s determination that the Court has subject matter jurisdiction over this matter 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 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 And 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

2 The VIMMA provides that “[u]pon receipt by the [Medical Malpractice Action Review] Committee of an expert opinion, the Commissioner of Health shall immediately forward a copy of the opinion to the plaintiff and defendant Title 27 V l C § l66i(d)(4)

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proposed ﬁrst amended complaint, in compliant with Rule 15 1 of Virgin Islands Rules of Civil Procedure, which requires “[a] party moving to amend a pleading [to] attach a complete and properly signed—ncopy of the pr0posed 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 DONE and so ORDERED this \X- day of March 2022

ATTEST %aﬂ/d XM— Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

curt Clerk SapeFHsorI

Dated 3//é;/2Qé 9’

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

Samuel Ferdinand, Case Number: SX-2022-CV-00025 Plaintiff Action: Tort v.

Dr. ABD Hammoudeh, MD, Defendant.

NOTICE of ENTRY

of

Memorandum Opinion and Order To: Lee J. Rohn Jennifer Q. Miller Brooks

Please take notice that on March 19, 2022 a(n) Memorandum Opinion and OPrder dated March 18, 2022 was/were entered by the Clerk in the above-titled matter.

Dated: March 19, 2022 Tamara Charles Clerk of the Court

By:

Janeen Maranda

Court Clerk II

Samuel Ferdinand v. Abd Hammoudeh, MD, (visuper 2022).

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