
    FRANKLIN D. GREEN, Plaintiff v. DR. JOHN MOOREHEAD and JOHN DOE, Defendants
    Civil No. 83-221
    District Court of the Virgin Islands Div. of St. Thomas and St. John
    February 22, 1984
    John J. Mahon, Esq., St. Thomas, V.Ifor plaintiff
    
    Patricia D. Steele, Esq., Christiansted, St. Croix, V.I.,/or defendant Dr. John Moorehead
    
   CHRISTIAN, Chief Judge

MEMORANDUM AND ORDER

This medical malpractice action is before the Court on motion of defendant John Moorehead for dismissal on the ground that plaintiff failed to file his proposed complaint with the Medical Malpractice Action Review Committee prior to initiating this lawsuit. 27 V.I.C. § 166i(b) (Supp. 1982). In support of his motion, defendant presents the affidavit of Roy L. Schneider, Commissioner of Health. Dr. Schneider avers that he is “the keeper of the records” of the Medical Malpractice Action Review Committee and that “no Proposed Complaint was received by this Committee for the case of Green vs. Dr. Moorehead and John Doe, Civil No. 221-1983.”

Plaintiff counters with the affidavit of John J. Mahon, counsel for plaintiff. Attorney Mahon asserts that he prepared a medical malpractice complaint for plaintiff and mailed same to Dr. Schneider via certified mail on April 14, 1983. Appended to the affidavit as Exhibits A, B, and C, respectively, are copies of the Complaint, a Receipt for Certified Mail dated April 14, 1983, and, a Return Receipt addressed to Attorney Mahon indicating that article P340 559 461, addressed to Dr. Roy L. Schneider, St. Thomas Hospital, St. Thomas, Virgin Islands, was received by the addressee on April 15, 1983. (The signature on the receipt does not appear to be that of Dr. Schneider.)

Title 27, § 166i(c) of the Virgin Islands Code provides, in pertinent part, that “[t]he proposed complaint shall be deemed filed [with the Committee] when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the Commissioner of Health . . . .” 27 V.I.C. § 166i(c) (Supp. 1982). As the uncontested affidavit of Attorney Mahon establishes, for present purposes, that a copy of the complaint was sent to the Commissioner of Health via certified mail, the Commissioner’s failure to receive the complaint is immaterial. Under the statute, filing occurred when the complaint was posted even if the intended recipient never received the complaint.

ORDER

The premises considered and the Court being fully advised,

IT IS ORDERED that the motion of defendant John Moorehead for dismissal of this action be, and the same is, hereby DENIED.  