Paul E. FORSHEY and Melissa L. Forshey, Plaintiffs Below, Appellants, v. Theodore A. JACKSON, MD, Defendant Below, Appellee.
No. 33834.
Supreme Court of Appeals of West Virginia.
Decided Nov. 19, 2008.
671 S.E.2d 748
Submitted Oct. 28, 2008. Dissenting Opinion of Justice Starcher Dec. 30, 2008. Concurring Opinion of Justice Benjamin Jan. 9, 2009.
Reversed and Remanded.
Mark F. Underwood, Underwood & Proctor Law Offices, Huntington, for the Appellants.
Robert J. D‘Anniballe, Jr., Pietragallo Gordon Afano Bosick & Raspanti, LLP, Weirton, for the Appellee.
DAVIS, Justice:1
Paul E. Forshey and his wife Melissa, appellants herein and plaintiffs below (hereinafter collectively referred to as “the Forsheys“), appeal an order of the Circuit Court of Kanawha County that dismissed their malpractice action against Dr. Theodore A. Jackson, M.D., appellee herein and defendant below (hereinafter referred to as “Dr. Jackson“), as having been untimely filed. The Forsheys urge this Court to adopt the continuous medical treatment doctrine and to apply that doctrine to find their action was timely. Alternatively, the Forsheys argue that their claim was timely under a continuing tort theory. After thorough consideration of the continuous medical treatment
I.
FACTUAL AND PROCEDURAL HISTORY
This case is presently before this Court for review of the lower court‘s order granting the defendant‘s motion to dismiss. Accordingly, the facts set out below are gleaned from the pleadings.
In November 1994, Paul E. Forshey (hereinafter individually referred to as “Mr. Forshey“) presented to Dr. Jackson complaining of carpel tunnel syndrome in both wrists. It is undisputed that Dr. Jackson performed surgery on Mr. Forshey on July 6, 1995.
Mr. Forshey contends that, during post operative office visits with Dr. Jackson, he (Mr. Forshey) complained of pain and a knot over the palmar aspect of his left thumb, along with tenderness, swelling, and trouble using tools;2 nevertheless, no x-rays of Mr. Forshey‘s hand were ordered by Dr. Jackson. Mr. Forshey alleges that, following the surgery, he continued to receive medical care from Dr. Jackson until January 31, 1997. During one of Mr. Forshey‘s visits with Dr. Jackson, Dr. Jackson recommended exploratory surgery, which was initially set for February 3, 1997; however, on January 31, 1997, Dr. Jackson requested that the date of surgery be changed due to a scheduling conflict. The surgery was then set for February 17, 1997. On February 13, 1997, Mr. Forshey cancelled the surgery. Though Mr.
Mr. Forshey avers that he continued to suffer in pain over the next eight years until the summer of 2005, when he suffered an unrelated injury to his left index finger and, as a result, received an x-ray of his left hand. The x-ray revealed a 3.4 cm x 5 mm metallic foreign body in the palmar aspect of the hand.3 According to the certificate of merit accompanying the Forsheys’ complaint, the foreign body was described in his medical records as “a piece of knife blade.” The certificate of merit further concluded that “according to [Mr. Forshey‘s] medical records, . . . the only explanation for this foreign body is the Carpal Tunnel surgery which he had July 1995. This was performed by Dr. Ted Jackson. . . .”
In April, 2006, Dr. Jackson was presented with a notice of claim4 and certificate of merit.5 Mr. Forshey filed his complaint al-
leging medical malpractice and including a loss of consortium claim on behalf of his wife, Melissa Forshey, on August 3, 2006. Thereafter, on September 26, 2006, Dr. Jackson filed a motion to dismiss claiming that this suit was untimely filed pursuant to
II.
STANDARD OF REVIEW
This case is before this Court on appeal from the circuit court‘s order granting Dr. Jackson‘s motion to dismiss made pursuant to
[o]nly matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if matters outside the pleading are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment and disposed of under Rule 56 R.C.P. if there is no genuine issue as to any material fact in connection therewith. . . .
Syl. pt. 4, United States Fid. & Guar. Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 703 (1965), overruled on other grounds by Sprouse v. Clay Communication, Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975). Accord Syl. pt. 1, Poling v. Belington Bank, Inc., 207 W. Va. 145, 529 S.E.2d 856 (1999). See also Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[3], at 354 (3d ed. 2008) (“Only matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b)(6). However, if matters outside the pleading are presented to the court and are not excluded by it, the motion must be treated as one for summary judgment and disposed of under Rule 56.“). Notwithstanding this general rule, it has been recognized that, in ruling upon a motion to dismiss under
a court may consider, in addition to the pleadings, documents annexed to it, and other materials fairly incorporated within it. This sometimes includes documents referred to in the complaint but not annexed to it. Further, Rule 12(b)(6) permits courts to consider matters that are susceptible to judicial notice.
Id. § 12(b)(6)[2], at 348 (footnote omitted). The United States District Court for the Western District of Virginia has explained this principle thusly:
The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.
. . . [G]enerally, the harm to the plaintiff when a court considers material extraneous to a complaint is the lack of notice that the material may be considered. Accordingly, where plaintiff has actual notice of all the information in the movant‘s papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated. . . . [O]n a motion to dismiss, a court may consider documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit. Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff‘s reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court‘s consideration of the document on a dismissal motion; mere notice or possession is not enough.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations, alterations in original, and internal quotation marks omitted); see also New Beckley Mining Corp. v. Int‘l Union, United Mine Workers of Am., 18 F.3d 1161, 1164 (4th Cir. 1994) (citing Cortec Indus. v. Sum Holding, L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)); Miller v. Pac. Shore Funding, 224 F. Supp. 2d 977, 984 n. 1 (D. Md. 2002); 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure: Civil § 1327 & n. 7 (3d ed. 2004) (citing cases). Bryant v. Washington Mut. Bank, 524 F. Supp. 2d 753, 757 n. 4 (W.D. Va. 2007) (emphasis added). See also Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (“Under
Based upon the foregoing, we now hold that a circuit court ruling on a motion to dismiss under
Applying this holding to the facts of the instant case, we conclude that the circuit court properly considered the screening certificate of merit that was attached as an exhibit to the Forsheys’ complaint when ruling on Dr. Jackson‘s
Generally, a motion to dismiss should be granted only where “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Murphy v. Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984)) (additional citation omitted). For this reason, motions to dismiss are viewed with disfavor, and we counsel lower courts to rarely grant such motions. John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605-06, 245 S.E.2d 157, 159 (1978).
Ewing v. Board of Educ. of County of Summers, 202 W. Va. 228, 235, 503 S.E.2d 541, 548 (1998). Furthermore, “[f]or purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true.” Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978).
The circuit court, viewing all the facts in a light most favorable to the nonmoving party, may grant the motion only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his[, her, or its] claim which would entitle him[, her, or it] to relief.” Syl. pt. 3, in part, Chap-man v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).
III.
DISCUSSION
Pursuant to
[a] cause of action for injury to a person alleging medical professional liability against a health care provider arises as of the date of injury, except as provided in subsection (b) of this section, and must be commenced within two years of the date of such injury, or within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any such action be commenced more than ten years after the date of injury.
The instant action was resolved by the circuit court based upon the ten-year statute of repose.12 The allegations made in this case are that Dr. Jackson performed carpel tunnel surgery on Mr. Forshey on July 6, 1995, and that Dr. Jackson‘s last professional contact with Mr. Forshey occurred on January 31, 1997. The Forsheys filed the instant action on August 3, 2006, nearly eleven years after the carpel tunnel surgery, and approximately
nine and a half years after Mr. Forshey‘s last professional contact with Dr. Jackson.
The Forsheys assert two theories under which they contend that their action was timely filed. First, they urge this Court to adopt the continuous medical treatment doctrine and to apply the same to their cause of action. They next argue that, because Mr. Forshey had post-operative follow-up visits with Dr. Jackson, and Dr. Jackson failed to order a diagnostic x-ray of Mr. Forshey‘s left hand during any of those visits, each visit amounted to an additional separate breach of the standard of care. We will address each of these assignments of error in turn.
A. Continuous Medical Treatment Doctrine
The Forsheys urge this Court to adopt the continuous medical treatment doctrine and to apply the same to their cause of action in order to conclude that it accrued on January 31, 1997, the day Dr. Jackson rescheduled the exploratory surgery on Mr. Forshey‘s hand.13
With respect to the statute of repose contained in
[t]he Medical Professional Liability Act, W. Va. Code, 55-7B-4 [1986], requires an injured plaintiff to file a malpractice claim against a health care provider within two years of the date of the injury, or “within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs[.]” However, the Act also places an outside limit of 10 years on the filing of medical malpractice claims, regardless of the date of discovery, unless there is evidence of fraud, concealment or misrepresentation of material facts by the health care provider.
Syl. pt. 1, Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997) (second emphasis added).14 The Forsheys contend
The continuous medical treatment doctrine has been described in this way:
Under the “continuous treatment” doctrine, the running of the statute of limitations is tolled when a course of treatment that includes wrongful acts or omissions has run continuously and is related to the original condition or complaint. Stated another way, the statute does not commence running until treatment by the physician or surgeon has terminated, where the treatment is continuing and of such nature as to charge the physician or surgeon with the duty of continuing care and treatment which is essential to recovery until the relationship ceases. However, where the medical services rendered are intermittent, rather than continuous, the statute of limitations under a medical malpractice statute will begin to run from the date of the alleged individual incident of malpractice and not from the date of the last services rendered.
61 Am.Jur.2d Physicians, Surgeons, Etc. § 299, at p. 400 (2002) (footnotes omitted). The rationale for the rule has been explained thusly:
The purpose of statutory provisions for measuring a medical malpractice limitations period from the last date of treatment or hospitalization is to aid a plaintiff who was injured during a period of hospitalization or course of medical treatment, but who has difficulty ascertaining the precise date of the injury; in such situations, doubts about the time the cause of action accrued are resolved in the plaintiff‘s favor by using the last date of treatment or hospitalization as a proxy for the actual date of the tort.
61 Am.Jur.2d Physicians, Surgeons, Etc. § 299, at p. 401 (emphasis added) (footnotes omitted). Thus, the continuous medical treatment doctrine is intended to aid victims of medical malpractice who are unable to pinpoint the exact date of their injury due to the continuing nature of their medical treatment. See Gilbert v. Bartel, 144 S.W.3d 136, 140-41 (Tex.Ct.App.2004) (“The limitations period for medical negligence claims is measured from one of three dates: (1) the occurrence of the breach or tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant hospitalization. The Texas Supreme Court has repeatedly held that a plaintiff may not choose the most favorable date that falls within [Tex.Rev.Civ. Stat. art. 4590i, § 10.01‘s] three categories. Rather, if the date the alleged tort occurred is ascertainable, limitations must begin on that date. Thus, if the date is ascertainable, further inquiry into the second and third categories is unnecessary.” (emphasis added) (footnotes omitted)). As one court explained,
[t]he so-called “continuous treatment” rule has been defended on the grounds of fairness as well as on the basis of logic. Certainly it would not be equitable to bar a plaintiff, who for example, has been subjected to a series of radiation treatments in which the radiologist negligently and repeatedly administered an overdosage, simply because the plaintiff is unable to identify the one treatment that produced his injury. Indeed, in such a situation no single treatment did cause the harm; rather it was the result of several treatments, a cumulative effect. From the point of view of the physician, it would seem reasonable that if he had made a mistake, a misdiagnosis for example, he is entitled to the opportunity to correct the error before harm ensues. And, as one court has put it, “It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician.”
Lane v. Lane, 295 Ark. 671, 675, 752 S.W.2d 25, 27 (1988) (quoting 1 D. Louisell & H. Williams Wachsman, Medical Malpractice
We are persuaded that the continuous medical treatment doctrine should be adopted for determining the date of injury where such date is not identifiable due to the nature of the medical treatment received. Therefore, based upon the foregoing, we now hold that, under the continuous medical treatment doctrine, when a patient is injured due to negligence that occurred during a continuous course of medical treatment, and due to the continuous nature of the treatment is unable to ascertain the precise date of the injury, the statute of limitations will begin to run on the last date of treatment.
Applying this holding to the facts of the case at bar, we find the continuing treatment doctrine is not applicable to Mr. Forshey‘s claim. Mr. Forshey‘s injury did not result from a continuing course of treatment that rendered him unable to identify the precise date of his injury. Rather, the alleged negligence in the instant case occurred on a date certain, the date that Dr. Jackson performed surgery on Mr. Forshey‘s hand and allegedly left a scalpel blade in his hand. In this regard, it has been observed that “[w]here the patient suffers an identifiable injury through some affirmative act of negligence on the part of the practitioner, the fact
completely abrogated by adoption of the discovery rule in Tennessee.“).
that thereafter the practitioner continues to care for and treat the patient does not postpone the commencement of the limitation period.” 61 Am.Jur.2d Physicians, Surgeons, Etc. § 299, at p. 401 (footnotes omitted). Because Mr. Forshey‘s claim arose on July 6, 1995, the date on which Dr. Jackson performed the carpel tunnel surgery, the circuit court was correct in concluding that, pursuant to the statute of repose contained in
B. Continuing Tort
The Forsheys next argue that, even in the absence of the continuing medical treatment doctrine, they have timely filed their cause of action because additional visits Mr. Forshey had with Dr. Jackson in 1996 and 1997, wherein Dr. Jackson failed to order an x-ray of Mr. Forshey‘s hand, amounted to continuing torts. We disagree.
In Graham v. Beverage, 211 W. Va. 466, 566 S.E.2d 603 (2002), this Court formally adopted the continuing tort theory in a nonmedical malpractice setting by holding that “[w]here a tort involves a continuing or repeated injury, the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious overt acts or omissions cease.” However, in the earlier case of Ricottilli v. Summersville Memorial Hospital, 188 W. Va. 674, 677, 425 S.E.2d 629, 632 (1992), this Court recognized the continuing tort doctrine in a context similar to medical malpractice and ultimately found that it did not apply under the facts presented due to the absence of repetitious wrongful conduct.17 Ricottilli
[w]e reject Appellant‘s continuing tort theory essentially because the concept of a continuing tort requires a showing of repetitious, wrongful conduct. See Handley v. Town of Shinnston, 169 W. Va. 617, 289 S.E.2d 201 (1982) (finding continuing tort based on permitting water to regularly flood another‘s property). Moreover, as this Court explained in Spahr v. Preston County Board of Education, 182 W. Va. 726, 729, 391 S.E.2d 739, 742 (1990), a wrongful act with consequential continuing damages is not a continuing tort. Id. at 729, 391 S.E.2d at 742. The alleged continuing wrong in this case is the untimely and incomplete autopsy report as well as the failure of CAMC to date to report the results of the tissue sample analysis.
With regard to the dilatoriness of the autopsy report, upon its tender to Appellant on January 9, 1990, or thereabouts, the act of delay was fixed and the only aspect of the claim that could be said to continue is damages, but not the wrongful act itself. See id. Similarly, the incompleteness of the autopsy report, insofar as Appellant contends the absence of a specific cause of death renders the report incomplete, as a wrongful act was fixed as of January 9, 1990. . . . Because Appellant‘s claims pertaining to the autopsy and tissue reports are fixed acts and do not involve continuing wrongful conduct, the continuing tort theory is inapposite.
188 W. Va. at 677-78, 425 S.E.2d at 632-33.
Our application of the continuing tort theory in Ricottilli is in accord with other jurisdictions that have examined the doctrine in the context of medical malpractice actions. For example, in Frankel v. Clark, 213 Ga. App. 222, 223, 444 S.E.2d 147, 149 (1994), the plaintiff sued for dental malpractice claiming
deceased individual does not qualify as a ‘patient’ under the Medical Professional Liability Act (‘Act‘),
injury resulting from the failure to discover a cyst in her lower right jaw. The Frankel court summarized the plaintiff‘s claims thusly:
Specifically, [plaintiff‘s expert] avowed that [defendants] were negligent in failing to take adequate diagnostic x-ray films of [plaintiff] Clark prior to the placement of a bridge on the right side of her mouth; in failing to take adequate diagnostic x-ray films of her subsequent to the placement of the bridge on the right side of her mouth when she continued to experience pain; by rendering improper and inadequate dental treatment to her by placing a bridge in an area where a cyst was present; and in failing to diagnose the cyst in the area where the right bridge was placed.
213 Ga. App. at 222, 444 S.E.2d at 148. In rejecting the plaintiff‘s argument that the treatment she received amounted to a continuing tort, the court explained:
Clark argues that four separate acts of negligence are involved here and that the statute had not expired on all of them. She contends that in addition to the misdiagnosis, her expert identified that two acts of negligence occurred subsequent to the placement of the bridge-between March 29, 1990 and August 30, 1990. She contends that [defendant] Frankel‘s failure to take adequate diagnostic x-ray films subsequent to the placement of the bridge on the right side of her mouth and his failure to diagnose the presence of a cyst in the area where the right bridge was placed continued until August 30, 1990. We do not accept Clark‘s argument. Unlike situations in which separate acts of negligence may occur, . . . in this case the allegedly negligent act-the failure to diagnose the cyst and the subsequent placement of the bridge-was complete by March 29. Frankel‘s alleged failure to correct his previous negligence does not constitute additional acts of negligence [,] and we do not accept Clark‘s argument that his continued failure to recognize the problem constituted a continuing tort.
sis for a cause of action alleging medical professional liability pursuant to the Act.” Syl. pt. 1, Ricottilli v. Summersville Mem‘l Hosp., 188 W. Va. 674, 677, 425 S.E.2d 629, 632 (1992).
A Louisiana court reached a similar conclusion in Collum v. E.A. Conway Medical Center, 763 So. 2d 808 (La.Ct.App.2000). The plaintiff in Collum was injured when, during surgery, a stitch was negligently left in her bladder. In an effort to establish that her action had been timely filed, she relied, in part, on a continuing tort theory based upon her physicians’ failure to subsequently “look for, detect, or remove the suture during subsequent treatments.” Collum, 763 So. 2d at 811. In rejecting application of the continuing tort theory in the manner proposed by the plaintiff, the court observed that “‘[a] continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act.’ Crump v. Sabine River Authority, 98-C-2326 (La. 6/29/99), 737 So. 2d 720, 728.” Collum, 763 So. 2d at 811. Accordingly, the court concluded that,
[i]n the present case, Mrs. Collum‘s treating physicians had not seen her for several years after the alleged malpractice; as such, there has been no continued chain of malpractice which would warrant the application of the continuing tort doctrine to this case. Her suffering, although lamentable, is simply “the continuation of the ill effects of an original, wrongful act,” and a claim for such suffering is statutorily prescribed.
Id. (emphasis added). See also Stanford v. Administrators of Tulane Educ. Fund, 975 So. 2d 104, 109–10 (La. Ct.App.2008) (“In order to allege a continuing tort, a plaintiff must allege both continuous action and continuous damage. . . . Thus, in the case sub judice, for [plaintiff] Stanford‘s argument to prevail, we must find on the record before us that [defendant] Dr. Whitecloud‘s prescribing of narcotic pain relievers over an 11-year period [following an allegedly negligent surgical procedure performed by Dr. Whitecloud] rises to the level of a continuing tort resulting in continuous damage. We find that it does not.“).
Based upon the foregoing, we now hold that in the context of a medical malpractice action, in order to establish a continuing tort theory a plaintiff must show repetitious wrongful conduct. Merely establishing the continuation of the ill effects of an original wrongful act will not suffice.
Applying the forgoing standard to the instant case, we will assume, for the sake of argument, that Mr. Forshey‘s post-operative visits with Dr. Jackson produced repetitious wrongful conduct. Nevertheless, the circuit court was correct in dismissing the case. We observe that the Forsheys’ complaint fails to set out a cause of action for a continuing tort. There are simply no allegations of repetitious wrongful conduct anywhere in the complaint. Although the certificate of merit that was attached as an exhibit to the complaint indicates that Dr. Jackson breached the standard of care during each of his examinations of Mr. Forshey following surgery, i.e. by failing to diagnose the cause of Mr. Forshey‘s pain, a certificate of merit cannot be used to create a cause of action that is not set out in the complaint. In other words, the purpose of a certificate of merit is to support a cause of action that has been set out in a complaint, not to create a cause of action independent of that which is set out in a complaint. Indeed,
it has been held that essential material facts must appear on the face of the complaint. See Greschler v. Greschler, 71 A.D.2d 322, 325, 422 N.Y.S.2d 718, 720 (1979).
The complaint must set forth enough information to outline the elements of a claim or permit inferences to be drawn that these elements exist. German v. Killeen, 495 F. Supp. 822, 827 (E.D.Mich.1980); see also Jenkins v. McKeithen, 395 U.S. 411, 423-24, 89 S.Ct. 1843, 1849-50, 23 L.Ed.2d 404, 417-18 (1969). See
The federal courts have held that in order to withstand a
Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52, 350 S.E.2d 562, 564 (1986) (per curiam) (footnote omitted). See also Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[2], at 347 (“[A] trial court is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” (footnote omitted)). Thus, “[a]lthough a plaintiff‘s burden in resisting a motion to dismiss is a relatively light one, the plaintiff is still required at a minimum to set forth sufficient information to outline the elements of his/her claim. If plaintiff fails to do so, dismissal is proper.” Id. at 348 (footnotes omitted).
Because the Forsheys failed to set out a cause of action for a continuing tort in their complaint, the circuit court did not err in dismissing the same.
IV.
CONCLUSION
Based upon the forgoing, we affirm the April 3, 2007, order of the Circuit Court of Kanawha County, which granted Dr. Jackson‘s motion to dismiss this action.
Affirmed.
Justice ALBRIGHT not participating.
Senior Status Justice McHUGH sitting by temporary assignment.
Senior Status Justice McHUGH disqualified.
Judge BEANE sitting by temporary assignment.
Judge BEANE disqualified.
Judge BLAKE sitting by temporary assignment.
Justice STARCHER dissents and reserves the right to file a dissenting opinion.
Justice BENJAMIN concurs and reserves the right to file a concurring opinion.
STARCHER, J., dissenting.
(Filed Dec. 30, 2008)
The majority opinion in this case is a magnificent injustice.
The facts in this case are clear: the defendant doctor, Theodore Jackson, left a scalpel blade in plaintiff Paul Forshey‘s hand during surgery in 1995. The huge x-ray exhibit presented to the Court during oral argument made it as plain and clear as the nose on one‘s face. Nobody questions whether malpractice occurred-not even Dr. Jackson.
Not surprisingly, as a result of the malpractice, the plaintiff experienced an adverse result. The plaintiff had pain, swelling, tenderness, and a knot in his hand. The defendant doctor poked and prodded the plaintiff for two years, but didn‘t do anything else-like an x-ray of the plaintiff‘s hand.
Then, in 2005, a different doctor working on a different injury took an x-ray of the plaintiff‘s hand and voilà, discovered the scalpel blade.
The majority opinion correctly decides to apply the continuing treatment doctrine and continuing tort doctrine to the plaintiff‘s case. The problem is that the majority opinion mangled the application of those doctrines. The injury in this case wasn‘t just the scalpel blade left in the plaintiff‘s hand. It wasn‘t, as the majority opinion says, “the continuation of the ill effects of an original wrongful act[.]” 222 W. Va. at 755, 671 S.E.2d at 760. It was that the defendant doctor screwed up and committed malpractice by failing to properly diagnose the error in two years of trying.
The majority opinion should have erred on the side of fairness, held that the suit was not time-barred and let the plaintiff pursue his action (which most likely would have resulted in a speedy settlement).
And there is a very recent precedent for finding such actions are not time barred.
On appeal, this Court allowed the plaintiff doctor to pursue his action against the other doctor. The Court decided Rashid on technical grounds, holding that because the 2001 dismissal order did not dot every i or cross every t, then the order was invalid. But to reach that decision, the Court had to overlook and excuse the fact that the plaintiff doctor‘s lawyers did nothing substantive on the doctor‘s case for over nine years. (But remember, in the instant case, the non-lawyer plaintiff is being punished for not doing anything “substantive” in 1997 to diagnose his pain-that is, he refused to submit to exploratory surgery.)
The take-away message, as I see it, is that this Court will do whatever it takes to protect doctors and lawyers from malpractice claims-no matter how meritorious those claims might be. But average citizens, obviously injured by a doctor‘s negligence, are not entitled to similar protection under our laws.
I therefore respectfully dissent.
BENJAMIN, J., Concurring.
(Filed Jan. 9, 2009)
I agree fully with the majority‘s decision in this case. I choose to write separately to respond to allegations in the dissenting opinion that this Court has, in this case, rendered an inconsistent and result driven opinion. The dissent contends that the majority opinion is inconsistent with an earlier opinion handed down this term in the case of Rashid v. Tarakji, ___ W.Va. ___, 674 S.E.2d 1 (2008). I disagree.
First, the facts and law upon which our decision in Rashid v. Tarakji was based are distinctly different from those involved in the instant case. Notably, the lawsuit in Rashid had been timely filed, but the circuit court attempted to dismiss the case under
To the contrary, the case sub judice does not involve
Furthermore, the Majority‘s resolution of this case follows this Court‘s history of strictly adhering to statutes of limitation and repose. Indeed, it has been recognized that
No rule of law could be more widely accepted and easily understood than that a statute of limitations imposes a bright line test as to when a cause of action has been timely filed. See, e.g., Cart v. Marcum, 188 W. Va. 241, 245, 423 S.E.2d 644, 648 (1992) (recognizing “predictability that bright line rules like a strict statute of repose create“). Correspondingly, this Court traditionally has been reluctant to find exceptions to the filing requirements imposed by a statute of limitations and has enforced such temporal limits as they are written. See, e.g., Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578, 583, 165 S.E.2d 379, 383 (1969) (declaring that statutes of limitation “are entitled to the same respect as other statutes, and ought not to be explained away” (internal quotations and citations omitted)).
Wright v. Myers, 215 W. Va. 162, 166, 597 S.E.2d 295, 299 (2004) (Davis, J., dissenting). See also Syl. pt. 2, Perdue v. Hess, 199 W. Va. 299, 484 S.E.2d 182 (1997) (“The ultimate purpose of statutes of limitations is to require the institution of a cause of action within a reasonable time.“); Johnson v. Nedeff, 192 W. Va. 260, 266, 452 S.E.2d 63, 69 (1994) (“[T]he statute of limitations does not distinguish between a just and unjust claim. . . . [T]he object of statutes of limitations is to compel the bringing of an action within a reasonable time.“); Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578, 583, 165 S.E.2d 379, 383 (1969) (“[S]tatutes of limita-
tions are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. It has been widely held that such exceptions ‘are strictly construed and are not enlarged by the courts upon considerations of apparent hardship.‘“) (quoting Woodruff v. Shores, 354 Mo. 742, 746, 190 S.W.2d 994, 996, 166 A.L.R. 957, 960 (1945)).
Finally, though I disagree with the dissent‘s contention that the instant opinion is in any way inconsistent with the opinion in Rashid, I wish to point out that, due to illness and disqualifications, the jurists who decided the two cases differed significantly. Rashid was decided by a four-member Court made up of Chief Justice Maynard and Justice Starcher, along with Judge Walker and Senior Status Judge Egnor sitting by temporary assignment.2 However, the instant case was decided by a five-member Court made up of Chief Justice Maynard, Justice Starcher, Justice Davis, myself, and Judge Blake sitting by temporary assignment. Thus, in the absence of continuity in the Court with respect to these two opinions, the dissent‘s assertion that this Court, as an institution, “will do whatever it takes to protect doctors and lawyers from malpractice claims” is a disingenuous claim.
Accordingly, for the reasons herein stated, I concur in the majority opinion.
Notes
(a) A cause of action for injury to a person alleging medical professional liability against a health care provider arises as of the date of injury, except as provided in subsection (b) of this section, and must be commenced within two years of the date of such injury, or within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any such action be commenced more than ten years after the date of injury.
. . . .
(c) The periods of limitation set forth in this section shall be tolled for any period during which the health care provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.
Id. § 12(b)(6)[2], at 349 (footnotes omitted) (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67 (2d Cir. 1998); In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 289 F. Supp. 2d 429 (S.D.N.Y. 2003); Ingram v. Rencor Controls, Inc., 217 F. Supp. 2d 141 (D. Me. 2002)). These conditions have been met in the instant case.[i]n an appropriate case, an affirmative defense may be adjudicated on a motion to dismiss for failure to state a claim. Two conditions must be met for such a dismissal. First, the facts that establish the defense must be definitively ascertainable from the allegations of the complaint, the documents (if any) incorporated therein, matters of public record, and other matters of which the court may take judicial notice. Second, the facts so gleaned must conclusively establish the affirmative defense.
We have previously explained that,At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert‘s familiarity with the applicable standard of care in issue; (2) the expert‘s qualifications; (3) the expert‘s opinion as to how the applicable standard of care was breached; and (4) the expert‘s opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of rule 15 of the rules of civil procedure.
Syl. pt. 2, Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005).[u]nder W. Va. Code, 55-7B-6 [2003] the purposes of requiring a pre-suit notice of claim and screening certificate of merit are (1) to prevent the making and filing of frivolous medical malpractice claims and lawsuits; and (2) to promote the pre-suit resolution of non-frivolous medical malpractice claims. The requirement of a pre-suit notice of claim and screening certificate of merit is not intended to restrict or deny citizens’ access to the courts.