Lead Opinion
Paul E. Forshey and his wife Melissa, appellants herein and plaintiffs below (hereinafter collectively referred to as “the For-sheys”), 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 doctrine, we agree that it should be adopted and do so herein. However, we conclude that the doctrine does not apply to the For-sheys’ action. We further find that the For-sheys’ complaint failed to set out a claim for a continuing tort. Therefore, we affirm the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
This ease 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. For-shey”) 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;
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.
In April, 2006, Dr. Jackson was presented with a notice of claim
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 Rule 12(b)(6) of the West Virginia Rules of Civil Procedure,
[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,
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:
*748 In general, material extrinsic to the complaint may not be considered on a Rule 12(b)(6) motion to dismiss -without converting it to a Rule 56 motion for summary judgment, but there are certain exceptions this rule. As the Second Circuit has explained:
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.
... [Generally, 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.... [0]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 plaintiffs reliance on the terms and effect of a document in drafting the complaint is a necessaiy 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 Carp. 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,
Based upon the foregoing, we now hold that a circuit court ruling on a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure may properly consider exhibits attached to the complaint without converting the motion to a Rule 56 motion for summary judgment.
Applying this holding to the facts of the instant ease, 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 Rule 12(b)(6) motion to dismiss.
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,
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, Chapman v. Kane Transfer Co., Inc., 160 W.Va.*750 530,236 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) ].
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc.,
III.
DISCUSSION
Pursuant to W. Va.Code § 55-7B — 1(a) (1986) (Repl. Vol. 2008),
[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.
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.
With respect to the statute of repose contained in W. Va.Code § 55-7B-4, this Court has observed that
[tjhe 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 oecurs[.j” However, the Act also places an outside limit of 10 years on the filing of medical malpractice claims, regardless of the date of discovery, tmless there is evidence of fraud, concealment or misrepresentation of material facts by the health care provider.
Syl. pt. 1, Gaither v. City Hosp., Inc.,
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, Sturgeons, 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,
[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, .
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
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,
[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 ,391 S.E.2d 739 (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.
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,
Specifically, [plaintiffs 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.
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 tart.
A Louisiana court reached a similar conclusion in Collum v. E.A. Conway Medical Center,
[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,
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 postoperative visits with Dr. Jackson produced repetitious wrongful conduct. Nevertheless, the circuit court was correct in dismissing the ease. 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 W. Va. R. Civ. P. 8(a).
The federal courts have held that in order to withstand a 12(b)(6) motion, more detail is required than the bald statement that the plaintiff has a valid claim of some type against the defendant. 5 C. Wright and A. Miller, Federal Practice and Procedure: Civil 596 (1969); see also Jackson v. Nelson,405 F.2d 872 , 873 (9th Cir.1968); Stewart v. Hevelone,283 F.Supp. 842 , 844 (D.Neb.1968). Thus, rules of civil procedure clearly contemplate some factual*756 statement in support of the claim. Huey v. Barloga,277 F.Supp. 864 , 871 (N.D.Ill.1967).
Fass v. Nowsco Well Serv., Ltd.,
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.
Notes
. Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Al-bright. Because Senior Status Justice McHugh is disqualified from participating in the instant case, the Honorable J.D. Beane, Judge, was designated to sit by temporary assignment. However, after Judge Beane determined that he also was disqualified from participating in the instant case, the Honorable Paul M. Blake, Jr., Judge, was designated to sit by temporary assignment.
. Mr. Forshey, who is left-handed, was a locksmith and worked with his hands.
. This x-ray was performed at Arrowhead Regional Medical Center in Colton, California.
. See W. Va.Code § 55-7B-6(b) (2003) (Repl. Vol. 2008).
. See id.
. The text of W. Va.Code § 55-7B-4 (1986) (Repl. Vol. 2008), states in relevant part:
(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.
. Dr. Jackson's motion to dismiss merely stated that it was made pursuant to Rule 12(b) of the West Virginia Rules of Civil Procedure, and did not specifically identify the particular subsection of the rule being applied. Insofar as the basis for the motion was that the claim was not timely filed pursuant to W. Va.Code § 55-7B-4, we note that the motion properly falls under Rule 12(b)(6) as failing to assert a claim upon which relief can be granted. See Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[2], at 349 (3d ed. 2008) ("A statute of limitations may support dismissal under Rule 12(b)(6), where it is evident from tire plaintiff's pleading that the action is barred, and the pleading fails to raise some basis for tolling or the like.” (footnote omitted)).
.Statutes of limitation and repose are affirmative defenses. See Cleckley, Davis, & Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 8(c)[i], at 189 ("The statute of limitations is a defense which should be set forth affirmatively pursuant to Rule 8(c) ....” (footnote omitted)). However, it has been explained that,
[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.
Id. § 12(b)(6)[2], at 349 (footnotes omitted) (citing Pani v. Empire Blue Cross Blue Shield,
. W. Va.Code § 55-7B-6(b) (2003) (Repl. Vol. 2008) requires a claimant to serve each prospective defendant with a notice of claim and screening certificate of merit as a prerequisite for filing a medical professional liability action against a health care provider. See, e.g., Syl. pt. 3, Davis v. Mound View Health Care, Inc.,
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.
We have previously explained that,
[ujnder 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.
Syl. pt. 2, Hinchman v. Gillette,
. The Forsheys appear to have experienced some confusion based upon the circuit court's inclusion of findings of fact in its order granting the 12(b) motion to dismiss. Notably, however, this Court has held that "[a] circuit court's order granting dismissal should set out factual findings sufficient to permit meaningful appellate review. Findings of fact include facts which the circuit court finds relevant, determinative of the issues, and undisputed.” Syl. pt. 1, P.T.P., IV by P.T.P, III v. Board of Educ. of the County of Jefferson,
. We note that the Forsheys’ brief indicates that additional exhibits were attached to their memorandum in opposition to Dr. Jackson's motion to dismiss. However, the record submitted to this Court for review does not disclose that any such exhibits were attached. "The responsibility and burden of designating the record is on the parties, and appellate review must be limited to those issues which appear in the record presented to this Court." In re Michael Ray T.,
. Accordingly, we need not discuss the discovery rule provisions of W. Va.Code § 55-7B-4 (a) (1986) (Repl. Vol. 2008).
. As noted above, Mr. Forshey later cancelled the exploratory surgery.
.The circuit court concluded, and we agree, that the Forsheys’ complaint does not set out claims for concealment or misrepresentation of material facts by Dr. Jackson. Likewise, the complaint does not allege fraud.
. Moreover, the Forsheys observe that this Court has adopted the continuous representation doctrine in legal malpractice actions. See Syl. pt. 6, Smith v. Stacy,
. As the Forsheys note, it appears that some form of the continuous medical treatment doctrine has been adopted in a majority of jurisdictions. See Freer v. Mims,
. The plaintiff in Ricottilli attempted to bring her claim as a medical malpractice action; however, this Court held that, "[b]y definition, a
. It should be noted that, deeming myself disqualified, I did not participate in the decision of Rashid v. Tarakji, -W.Va. -,
Dissenting Opinion
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 voilá, discovered the scalpel blade.
The majority opinion correctly decides to apply the continuing treatment doctrine and continuing tort doctrine to the plaintiffs case. The problem is that the majority opinion mangled the application of those doctrines. The injury in this ease wasn’t just the scalpel blade left in the plaintiffs hand. It wasn’t, as the majority opinion says, “the continuation of the ill effects of an original wrongful act[.]”
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 ease for over nine years. (But remember, in the instant ease, 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.
Concurrence Opinion
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. -,
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 Rule 41(b) of the West Virginia Rules of Civil Procedure after a long period of inaction and the plaintiffs failure to pay a twenty dollar court fee. Thus, the case involved an application of Rule 41(b). Because the lower court had failed to follow the established notice requirements of Rule 41(b), this Court, applying clearly established law, properly concluded that because of the lower court’s failure to provide proper notice and an opportunity for the plaintiff to be heard before the dismissal of the case, the circuit court’s “dismissal order was void ab initio, and thus, had no legal effect.” Rashid, — W.Va. at -,
To the contrary, the case sub judiee does not involve Rule 41(b) or the dismissal of a properly filed case. Rather, the instant case involves a cause of action that was not filed until more than ten years had passed from the date of injury. In this regard, the West Virginia Legislature has established a statute of repose, found at W. Va.Code § 55-7B-4 (1986) (Repl. Vol. 2008), under which the Legislature has declared that “in no event shall any such action be commenced more than ten years after the date of injury.” While the majority opinion recognized that justice requires an exception to this rule, and therefore adopted the continuous medical treatment doctrine, the majority opinion correctly concluded that the rule simply does not apply in eases such as this where there is a definitely ascertainable date of injury. As the majority opinion explained “the continuous medical treatment doctrine is intended to
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,
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.
Accordingly, for the reasons herein stated, I concur in the majority opinion.
. Judge Walker dissented from the Court’s decision in Rashid.