S. Ct. Civ. No. 2010-0014

In considering a complaint presenting claims against a physician and his unlicensed medical assistant under the Medical Malpractice Act, 27 V.I.C. § 166 et seq., and claims for deceptive trade practices under 12A V.I.C. § 101, the plaintiff's failure to comply with the jurisdictional pre-filing requirements of the Medical Malpractice Act prior to the expiration of the two year statute of limitations imposed by 27 V.I.C. § 166d(a) created more than merely a technical deficiency in her complaint that could be cured through a supplemental pleading. Additionally, a deceptive trade practices action is a tort, here involving no entrepreneurial or commercial aspects of the medical practice, but averring a medical malpractice claim which falls under the provisions of the Medical Malpractice Act. The Superior Court thus properly dismissed plaintiff's claims against the physician. While the Superior Court erred in holding that the physician's unlicensed medical assistant, who was working within the scope of her employment at the time of plaintiff's injury, is covered by the Act, plaintiff's complaint nevertheless fails to state a claim against the assistant upon which relief can be granted, for lack of plausible allegations that the assistant's actions were a proximate cause of plaintiff's injuries. Therefore, the order of the Superior Court granting the motions to dismiss by the physician and the medical assistant is affirmed.