HARVEY BARTLE, Judge.
Plaintiff Sara Lynn Doolin alleges that defendant physicians James V. Kasin and Gregory Moorman committed medical malpractice when they misdiagnosed her as having cancer while she was a patient at the Governor Juan F. Luis Hospital and Medical Center ("JFL Hospital") in St. Croix. She initiated this lawsuit on June 28, 2007. Following the filing by defendants of a motion for summary judgment, we dismissed the action on August 19, 2009 on the ground that the court lacked subject-matter jurisdiction. We held that plaintiff filed her action outside the time permitted by V.I. Code Ann. tit. 27, §§ 166d and 166i, and that the failure was jurisdictional. The Court of Appeals remanded for a determination whether the parties were of diverse citizenship and for reconsideration of our ruling under the Virgin Islands statute.
The court has before it three pending motions. The first is the defendants' original motion for summary judgment asserting that the court lacks subject-matter jurisdiction over the action.
According to the verified complaint, Doolin, a citizen of Florida, moved to St. Croix on a temporary basis in June 2005. While residing on St. Croix, she detected a small nodule on her right breast.
On September 9, 2005, Doolin traveled to Kentucky to consult with a surgeon about her diagnosis. Based on Kasin's report, the surgeon scheduled Doolin for an immediate lumpectomy. The specimens removed during the lumpectomy and a post-surgery mammogram showed no evidence of cancer. Nevertheless, Doolin was referred to an oncologist who performed tests on the original pathology slides that Kasin had prepared and determined that Doolin had never had cancer and that Kasin had misdiagnosed her. It is undisputed that at the latest the statute of limitations began to run on September 9, 2005.
Nearly two years later, on June 15, 2007, Doolin mailed a notice of her intent to file claims for medical malpractice to the Medical Malpractice Action Review Committee ("MMARC") of the Virgin Islands pursuant to V.I. Code. Ann. tit. 27, § 166i. That statute, which established the MMARC, provides that certain procedures must be satisfied before filing a complaint for medical malpractice in court. V.I. Code. Ann. tit. 27, § 166i;
Claims for medical malpractice are subject to a two-year statute of limitations. V.I. Code. Ann. tit. 27, § 166d.
On June 28, 2007, thirteen days after filing her proposed complaint with the MMARC, plaintiff filed a verified complaint in this court against JFL Hospital and Drs. Kasin and Moorman. It is undisputed that the MMARC did not obtain an expert opinion between June 15 and June 28, 2007. Doolin, nonetheless, averred that this court has subject-matter jurisdiction over her claims under 28 U.S.C. § 1332.
Defendants asserted in their motion for summary judgment that plaintiff failed to comply with § 166i by initiating this lawsuit before waiting at least 90 days after filing her proposed complaint with the MMARC. Defendants argued that this premature filing here deprived the court of subject-matter jurisdiction. After reviewing the statutory text and cases interpreting § 166i, the court agreed with defendants that it lacked subject-matter jurisdiction over the action. It explained that the action was filed before the expiration of the 90 day period for the MMARC to obtain an expert opinion with respect to the alleged malpractice and that by the time the 90 day period had expired the two-year statute of limitations had run.
Plaintiff appealed the dismissal of her action to the Court of Appeals for the Third Circuit. As noted above, the Court vacated our order and remanded so that we could first consider whether we had diversity jurisdiction over this action.
We thereafter allowed the parties to take jurisdictional discovery to uncover the relationship between the Government of the Virgin Islands and JFL Hospital. While plaintiff is a citizen of Florida and Drs. Kasin and Moorman are citizens of the Virgin Islands, defendants asserted that the court nevertheless lacked subject-matter jurisdiction under § 1332 because defendant JFL Hospital was an alter ego of the Government of the Virgin Islands. It is settled that a state is not a "citizen" within the meaning of the diversity jurisdiction statute, and the U.S. Virgin Islands is deemed to be a "state" for the purposes of § 1332.
With the question of diversity jurisdiction resolved by the dismissal of JFL Hospital, we consider once again whether plaintiff's failure to file her proposed complaint with the MMARC in accordance with § 166i deprives this court of subject-matter jurisdiction. The Court of Appeals did not reach the question whether the 90-day filing requirement of § 166i is jurisdictional in nature.
Following remand of this action from the Court of Appeals, the Supreme Court of the Virgin Islands resolved this very question in a separate case. It confirmed our conclusion that the filing requirement of § 166i is a jurisdictional limitation.
After reviewing the history and structure of § 166i and related provisions and the interpretation given to a nearly identical statute under Indiana law, the Supreme Court of the Virgin Islands held that the 90-day filing requirement in § 166i is jurisdictional and affirmed the dismissal of the action.
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Because Doolin was foreclosed from bringing her claims for medical malpractice in the Superior Court of the Virgin Islands before 90 days had passed from the date she filed her proposed complaint with the MMARC, she also was foreclosed from bringing those claims in this court during that 90 day period.
As a result, defendants' motion to dismiss the complaint for plaintiff's alleged failure to comply with the terms of the Virgin Islands Tort Claims Act (Doc. 82) is now moot and will be denied as such. Plaintiff's motion to amend the verified complaint to add as defendants the business entities through which Drs. Kasin and Moorman provided medical services at JFL Hospital (Doc. 98) also must be denied. Plaintiff's failure to comply with the requirements of § 166i and the passage of time make any possible amendment against these entities futile.