Paul E. Forshey v. Theodore A. Jackson, M.D., 33834

Paul E. Forshey underwent carpal tunnel surgery performed by Dr. Theodore Jackson in July 1995.
Post-surgery, Forshey continued to experience pain and other symptoms in his hand, but Dr. Jackson did not order an x-ray despite follow-up visits.
In 2005, an x-ray (prompted by an unrelated injury) revealed a piece of knife blade in Forshey’s hand, allegedly left during the 1995 surgery.
Forshey and his wife filed a medical malpractice suit in August 2006, over 11 years after the initial surgery.
The circuit court dismissed the action as untimely under West Virginia’s Medical Professional Liability Act’s statute of repose, which bars claims filed more than 10 years after the alleged injury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether continuous medical treatment doctrine applies	The continuous medical treatment doctrine should be adopted and applied, making the claim timely (accrual at last treatment date, Jan. 31, 1997)	The claim is based on a discrete act (surgery), so accrual should be surgery date; thus, the statute of repose has expired	Doctrine adopted but does not apply; injury date is surgery date; action untimely
Whether continuing tort theory saves the claim	Each postoperative visit without x-ray was a separate tort, making the last omission the accrual date	No repetitious wrongful acts alleged; only continuation of original harm	Continuing tort requires repeated wrongful acts, not just lasting harm; complaint insufficient
Standard for considering exhibits on motion to dismiss	Exhibits attached to the complaint can be considered without treating as summary judgment	Agreed; circuit court properly considered attached certificate of merit	Affirmed: attached exhibits may be considered under Rule 12(b)(6)
Sufficiency of pleadings for new theories	Certificate of merit can support continuing tort allegations	Complaint must allege all material facts to support a theory	Certificate of merit can't create new causes not pled in complaint

Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901 (W. Va. 1997) (interpreting Medical Professional Liability Act’s statute of repose and two-year discovery rule)
Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (W. Va. 1998) (de novo standard of review for motions to dismiss)
Ricottilli v. Summersville Mem’l Hosp., 188 W. Va. 674, 425 S.E.2d 629 (W. Va. 1992) (continuing tort doctrine requires repetitious wrongful conduct)
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (W. Va. 1995) (de novo standard for appellate review of dismissals)