The chambers of the West Virginia Supreme Court of Appeals
CHARLESTON – The West Virginia Supreme Court of Appeals has upheld the dismissal of a self-represented patient’s $1 billion lawsuit against Marshall Health Network, University Physicians & Surgeons and two physicians.
In a unanimous memorandum decision issues September 22, the justices say Donta Wade’s claims arose from medical care and were subject to the state’s pre-suit requirements for medical liability cases.
The ruling affirmed lower-court rulings dismissing Wade’s amended complaint without prejudice because he did not serve a notice of claim and a screening certificate of merit – or a timely statement explaining why one was unnecessary – at least 30 days before filing suit.
In 2024, Wade sued Marshall Health Network, University Physicians & Surgeons, Dr. Holly Nauert and Dr. Lee Van Horn in Cabell Circuit Court. He said after he changed primary care providers, he was assigned to Nauert, a resident physician, and Wade believed she was his primary doctor.
Wade claimed Nauert assured him at the beginning of appointments that information he shared would be confidential and accessible only to his physician. After requesting 10 years of medical records, Wade said he learned Nauert was a resident who routinely discussed his treatment with Van Horn, the attending physician.
His amended complaint alleged negligent infliction of emotional distress, invasion of privacy, breach of contract, negligent oversight, unfair and deceptive business practices, reckless endangerment and other claims. It sought $1 billion in damages.
The Supreme Court said the labels Wade used for his claims did not determine whether the Medical Professional Liability Act applied. Rather, the court said, the deciding issue was whether the alleged conduct occurred in the course of providing health care.
“Although he framed his allegations under various common law and statutory theories, the lower courts determined that the claims fell within the scope of the MPLA,” the court wrote. “We agree that under the circumstances of this matter, the conduct about which he complains was committed within the context of rendering ‘health care’ services by healthcare providers to Mr. Wade.”
Under West Virginia law, a person bringing a medical professional liability action must provide each prospective defendant with a notice of claim and a screening certificate of merit at least 30 days before filing suit. A plaintiff who believes expert testimony is unnecessary may instead file a statement in lieu of a certificate of merit, but that statement also must be served before the statutory deadline.
Wade filed such a statement July 3, 2024, after filing his initial complaint May 17 and his amended complaint May 20, 2024. He maintained a certificate was unnecessary because his claims rested on established legal theories that did not require expert testimony.
Cabell Circuit Judge Gregory Howard dismissed the lawsuit after an August 5, 2024, hearing, finding Wade’s allegations were governed by the medical liability law and that his post-suit filing could not satisfy the pre-suit notice requirement. Howard also found Wade’s statement itself alleged the defendants had breached the applicable standard of care between a patient and health care providers.
The Intermediate Court of Appeals affirmed Howard’s decision in April 2025, concluding the allegations involved complex medical issues requiring a certificate of merit. It also held that even if a certificate were unnecessary, Wade had not provided his statement in lieu of a certificate 30 days before filing the lawsuit.
The Supreme Court agreed, rejecting Wade’s argument the defendants’ failure to respond to his “Notice of Impending Legal Action” waived their ability to challenge compliance with the statute.
The justices said Wade’s claims concerned his treatment as a patient, his understanding of who was providing that treatment and concerns about communications between the resident physician and attending doctor. Those claims were either direct health-care claims or related claims occurring in the context of health-care services, the court ruled.
The court also noted that the Intermediate Court of Appeals had found Wade’s complaint failed to state legally sufficient claims because its 10 counts did not contain substantive factual allegations establishing the elements of each claim. Wade did not challenge that separate ruling in his Supreme Court appeal.
Wade was a Huntington High basketball star, and he played one season at Providence College. He was expelled from the school after the 1999-2000 season because of his involvement in an off-campus assault. He averaged 8.2 points per game for the Friars that junior season, including 38 against Notre Dame when he hit 10 3-pointers.
Before Providence, he played junior college basketball at Southeastern Illinois Community College. And he finished his college playing career in 2001-2002 at private Campbellsville University in Kentucky, where he earned first-team NAIA Division I All-American honors.
