Paul E. Forshey v. Theodore A. Jackson, M.D., (Justice Benjamin concurring.), 33834

The case involves a medical malpractice claim brought by Paul E. Forshey and Melissa L. Forshey against Dr. Theodore A. Jackson.
The Forsheys filed their lawsuit more than ten years after the alleged date of injury.
The West Virginia statute of repose (W. Va. Code § 55-7B-4) provides that no medical malpractice action may be commenced more than ten years after the date of injury.
The plaintiffs argued for application of the continuous medical treatment doctrine to toll the period based on ongoing treatment.
The precise date of injury in this case was ascertainable, unlike in cases involving ongoing or unclear harm.
The court addressed whether the continuing treatment doctrine or any other exception could apply to avoid the clear statutory bar.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under statute of repose	Suit timely due to continuous treatment	Suit is barred; injury date clear	Statute of repose bars suit; treatment doctrine inapplicable
Application of continuous treatment doctrine	Doctrine should toll repose period	Doctrine applies only to unclear injuries	Doctrine only applies to unclear injury dates
Consistency with Rashid v. Tarakji	Majority's application inconsistent	Rashid factually and legally distinct	No inconsistency; different facts and law
Judicial policy on statute exceptions	Court should recognize exception	Strictly enforce statutes of limitations	Exceptions to repose statutes are strictly construed

Cart v. Marcum, 188 W. Va. 241 (W. Va. 1992) (predictability and strict application of statutes of repose)
Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578 (W. Va. 1969) (statute of limitations strictly construed; exceptions narrowly applied)
Perdue v. Hess, 199 W. Va. 299 (W. Va. 1997) (purpose of statutes of limitations is to require filing within a reasonable time)
Johnson v. Nedeff, 192 W. Va. 260 (W. Va. 1994) (statutes of limitations do not distinguish between just and unjust claims)