Virginia medical certification not required in federal court

Although a Virginia statute requires a plaintiff asserting a medical malpractice claim to obtain an expert certification before serving defendants, this requirement is inapplicable in federal court because it conflicts with the Federal Rules of Civil Procedure.

Background

Andrew E. Zupko appealed the district court’s order denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971), and the Federal Tort Claims Act, or FTCA. This court previously affirmed the district court’s order on all claims. Zupko has now filed a petition for rehearing arguing that the district court erred in dismissing four of his FTCA claims, in which Zupko alleged negligent medical treatment.

Analysis

The district court found that those four claims were subject to dismissal because Zupko failed to obtain an expert certification before serving defendants, as required by Virginia law. In light of this court’s recent decision in Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021), finding that West Virginia law requiring plaintiffs bringing medical malpractice or negligence claims under FTCA to provide a certificate of merit conflicted with Federal Rules of Civil Procedure, panel rehearing is granted.

The district court’s order as to the dismissal of Zupko’s four FTCA claims for failure to obtain expert certification is vacated and remanded for further proceedings as to those claims. The court affirms as to all other claims.

Affirmed in part, vacated in part and remanded.

Zupko v. United States of America, Case No. 20-2157, Jan. 26, 2022. 4th Cir. (per curiam), from EDVA at Richmond (Lauck). Andrew E. Zupko for Appellant. Elizabeth Wu for Appellees. VLW 022-2-025. 3 pp.