*1
decision,
mindful
we are
of the criteria listed
volved. HOSPITAL, INC., CITY Defendant Below, Appellee. accordance with our to day, necessary slightly we find it modify No. 23401. syllabus point above, quoted two of Carr. As Supreme Appeals Court of syllabus point currently states: “[t]he Virginia. West position prosecuting attorney of assistant is' appointed public pursuant office and to W. Submitted Jan. 1997. Va.Code, [1967], 18-5-la person holding ineligible such office is to serve as a member Decided Feb. any county board of education.” We be language lieve the appeared better at the ease,
conclusion of that where this Court position
said: prosecuting “[T]he assistant
attorney ‘public is a officer’ within the con Va.Code,
templation [1967], of W. 18-5-la
thereby rendering ... occupy [an individual
ing position] ineligible to serve as a any county
member of
board of education.”
fore, modify syllabus point we two of Carr to
this extent.
III.
CONCLUSION reasons, foregoing
For the we find the role
played by prosecuting an assistant attorney
is insufficient public to confer officer status purposes citizenship requirement IV,
contained Article Section of the West
Virginia Consequently, Constitution. there impediment
was no in this case to the assis- prosecuting
tant attorney appearing before grand jury, and the indictments should Therefore,
not have been dismissed. we
grant prohibition a writ of as moulded. granted
Writ as moulded. RECHT, Justice, sitting by temporary
(cid:127) assignment. *3 Rose, Associates,
Laura R. Rose & Mar- tinsburg, Appellant. for Power, Galeota, III, E. Curtis G. William Johnson, Steptoe Martinsburg, Appel- for & lee.
STARCHER, Justice: appeal by plaintiff-appellant This Timothy Gaither from an October Berkeley order the Circuit Court of Coun- ty granted summary judgment for the defendant-appellee, City Hospital, Inc. The appellant contends that the circuit court correctly apply “discovery failed rule” claim, improperly to his dismissed his action as barred agree statute of limitation. reverse the order of the circuit court.
I.
Background
Facts and
17,1989,
On
October
around four o’clock
morning
23-year-old appellant
the then
single-vehicle motorcycle
was involved in a
accident, apparently losing control of his mo-
torcycle on a rain-slick road. He sustained
injuries
head
and a severe fracture to his
right leg. Paramedics arrived at the scene
several minutes after the accident and trans-
ported
appellant
to the
emergency
Martinsburg,
Virgi-
room in
West
nia. He arrived at the
at 4:30 a.m.
City Hospital records reflect that at 9:55
hospital personnel
ap-
a.m.
transferred the
pellant
Maryland
to the
Institute for Emer-
(“Shock
gency
Systems
Medical Services
Trauma”)
Baltimore, Maryland, approxi-
mately
away.
90 miles
Because of bad
transported by
weather the
helicopter. Upon
discussing
leg injury
ambulance rather than
ar-
with the
Trauma,
rival at Shock
doctors noted that
trigger
because such discussions
pain
would
pulse in
part
had no
the lower
appellant’s
leg.2
remainder
right leg.
performed
of his
The doctors
vas-
appellant testified he was satisfied with the
surgery
cular
to reestablish blood flow to the
City
treatment
Hospital;
he received at
leg,
by evening
graft
but
therefore,
the new
returning
after
home from Shock
artery had
amputated
failed. Doctors then
Trauma,
telephoned City
Hospital person-
appellant’s right leg
above the knee.
nel to thank
help. Apparently
them their
appellant perceived
no need for his medi-
According
deposition testimony by
request
cal records
did
copies
appellant’s parents,
physi-
Shock Trauma
*4
facility.
these records from either medical
delay by City Hospi-
cians told them that the
transporting
tal in
appellant
the
trau-
the
appellant
The
further testified that from
might
ma center
have caused the loss of the
the
early
date of his accident until
1993 he
appellant’s leg.
parents
they
The
testified
believed that
leg
the loss of his
was caused
appellant’s
were told
if
doctors that
solely by
motorcycle
accident. On Janu-
appellant
transported
had been
to Shock
ary
appellant
prosthetic
visited
sooner,
leg
Trauma
the blood flow to the
specialist
Hogan.
Hogan’s
Michael J.
Mr.
might have
Hospital
been restored.
records
that, pursuant
affidavit reflects
to his routine
from Shock Trauma confirm that the doctors
practice,
business
he asked
appellant
appellant’s
ascribed some of the
adverse re-
right leg
“whether he lost his
due to trauma
sult
delay
bringing
to the time
appel-
inquiry by
or loss
circulation.” After this
lant to Shock Trauma.1
Hogan,
appellant
Mr.
testified he dis-
appellant
parents
The
leg
and his
testified in
cussed the reason for the loss of his
with
depositions
their
parents.
appellant
that the doctors
his
at Shock
The
contends it was
suspicions
Trauma discussed
parents
their
about the
this discussion that his
him
told
appellant’s leg only
cause of the loss of the
for the first time of their conversation with
parents,
with the
appel-
Thereafter,
and never
physicians.
with the
Shock Trauma
appellant’s parents say they
lant. The
attorney
never
requested copies
contacted an
who
appellant
told the
appellant’s
about
their discussions
ap-
medical records. The
Furthermore,
with his doctors.
appel-
pellant
testified he read his medical records
parents
they always
lant’s
testified
avoided in late 19933 and learned that the doctors at
discharge summary
operating
1.The November
appellant,
on the
the real
(with
from the Shock Trauma Center states
em-
appellant's “misplaced
issue in this case is the
added):
phasis
City Hospital
malpractice.
belief” that
committed
matters;
operating
The
was taken to
they
room We do not address these
are suited
immediately after stabilization and CT scan of
juiy
resolution.
the head which was felt to be consistent with
hemorrhage,
requiring
intracranial
cranio-
Gaither,
example,
Faye
appel-
2. For
Alice
tomy
operating
... He went to the
room for
mother,
deposition
lant's
testified at her
that she
attempted
right
revascularization of the
lower
comments,
never told her son about the doctors'
extremity
initially
using
[which] was
successful
"[bjecause
something
it was
we didn't talk about.
greater saphanous
graft,
vein
[sic]
reverse
it,
every
We still don't talk about
because
time
evening
graft
but later on that
thrombosed.
say something,
say,
we would start to
Tim would
intraoperatively
It was
that the
had
felt
'Mom,
thump.'
go
don't.
It makes me
It would
leg
irretrievable clots in the arteries
be-
thump, thump, thump.
pain
He's in so much
delay
presenta-
cause
time
[t]he time
from
and we didn’t talk about it then and we don't talk
tion ...
about it now.”
appellant alleges
nearly
six-hour
delay by City Hospital
transporting
him to
appellant
3. Counsel for the
stated in her briefs
leg.
Shock Trauma contributed to the loss of his
argument
and at oral
before this Court that it
City Hospital
any way
denies that its conduct in
nearly
year
appellant's
took
one
to obtain the
appellant's injuries.
caused or contributed to the
Further,
hospital
represented
records.
counsel
argument,
At oral
counsel for
ar-
nearly
purchase copies
$500
that it cost
gued any
delay
transporting
nothing
emergency
these records. We note that we can find
personnel
because
lizing
room
were stabi-
appellant’s
injuiy.
in the record to indicate if these facts were
head
Counsel also
injuries
presented
appellant’s
indicated that
for the
can be
circuit court’s consideration.
However,
delays by
upon
existing
blamed on
Shock Trauma Center in
record these
based
occurrence,
delay
alleged
Shock Trauma believed the
the date of the
and he
by City Hospital
prevented
obtaining
transfer
contributed to the was not
such infor-
leg.
in his
by City
loss
circulation
Hospital
mation
other
against City
malpractice
filed this
action
entity.”
The circuit court also stated the
7,1994.
January
Hospital on
opportunity
speak
had full
filed more than four
filed within two
proposition
under Rule 56 of the West
claims should be dismissed.
discovers an
Code,
Civil Procedure. The
The
City
hospital argued
55-7B-4
hospital
Hospital filed for
that a
423 S.E.2d
maintained that because the
[1986]
years
Because this action was
and Cart v.
of the date a
summary judgment
after the
Virginia
action must be
cited W.Va.
appellant’s
Marcum,
accident,
Rules of
for the
Gaither now
*5
court.
tions,
City Hospital on October
investigation
set forth
court concluded that all of the
claims were barred
Therefore,
claim did not fall within the
date
physicians,
of his treatment
the court found the
granted summary judgment
appeals
Cart v. Marcum. The circuit
with[in] two
but “failed to undertake such
ruling by
years
City
1995. Mr.
appellant’s
appellant’s
the circuit
Hospital.”
from the
rule as
limita-
(that is,
injury
appellant knew of his
knew
II.
leg
amputated)4
that his
had
in
been
October
1989,
duty
he had a
to exercise reasonable
Standard
Review
diligence
determining
cause
controlling question
The
appeal
is
appellant
per-
and that the
failed to
summary judgment
whether
appropri-
was
any investigation
form
into the cause of his
Syllabus
ate. As we
stated
Point 1 of
hospital
ap-
The
contended that the
Peavy,
Painter v.
192 W.Va.
451 S.E.2d
pellant
request
failed to
his medical records
(1994),
755
entry
we review a circuit court’s
hospital;
from
per-
failed to consult with
summary judgment
de novo.
In Painter
sonnel at
or Shock Trauma
Peavy,
again
we
stated the basic rule that:
amputation;
about
the causes of his
56(c)
parents
failed to ask
Virginia
about their discus-
Under Rule
of the West
Further, City
Procedure,
sions
Hospi-
with the doctors.
Rules of
summary judg-
Civil
position
proof
only
tal took the
no
proper
there was
ment
moving
where the
hospital personnel
appel-
genuine
had obstructed the
shows that there is no
issue
ability
lant’s
to discover this information.
as to
material fact
and that
is enti-
City Hospital argued
appellant
judgment
that the
tled to
failed
as a matter of law.
duty
diligently investigate
in his
the rea-
451
S.E.2d at 758. “The
leg,
son for the loss of his
and that he
summary
circuit court’s
judg
function at the
therefore was not entitled to the benefit of
stage
weigh
ment
is not ‘to
the evidence and
rule.
determine the truth of the matter but to
accepted City
The circuit court
Hospital’s
genuine
determine whether there is a
issue
”
arguments
appellant
Id.,
and found
citing
“had
for trial.’
Liberty
Anderson v.
Inc.,
available to him
necessary
Lobby,
242, 249, 106
all information
477 U.S.
S.Ct.
alleged
(1986).
order to
malprac-
discover the
act of
“Summary
91 L.Ed.2d
by City
tice
Hospital,
within
judgment
should be denied ‘even where there
decision,
trauma,
impact
leg
facts would have no
on our
circulatory
lost his
rather than
appel-
since we find there was no reason for the
problems,
deposition testimony
until 1993. The
try
January
lant to
to obtain these records until
appellant
parents suggests
and his
that the
appellant
hospital’s delay
first learned the
con-
leg amputation
tributed to his
when he read his
Court,
argument
4. At oral
before this
counsel for
medical records sometime in late 1993. The
argument, taking
added to this
positions
conflict between these two
involves
position
knew in 1989 that
determinations,
credibility and other factual
is-
attempted
doctors had
a "revascularization."
province
jury.
sues within the
of a
light
knowledge,
argued
of this
counsel
it is un-
say
thought
believable for the
he
fraud,
evidentiary
misrepresentation
dispute as to the
facts
concealment
is no
only
provider.
to the conclusions to be material facts
health care
case but
statutory
Legislature
drawn therefrom.’” Williams v. Precision
The
enacted this
ex
Coil, Inc.,
52, 59,
“discovery
459 S.E.2d
pression
recogni
W.Va.
rule” in
Co.,
that,
quoting
actions,
Pierce v. Ford Motor
tion
in the area of
(4th
denied,
Cir.), cert.
190 F.2d
“often the
is not
of the fact
aware
(1951).
887, 72
S.Ct.
III. proper surgery when the is uncon scious so that he is not aware that there Discussion injury.” been an v. Trustees Betha Jones appellant argues that the circuit court ny College, 177 S.E.2d improperly dismissed his claim as barred (1986). 183, 184 limitations and that the time filing limit for his claim was tolled Generally, the statute of limitations Therefore, primary rule. issue occurs; however, begins to run when a tort raised our consideration is: when does a rule,” “discovery under the the statute of plaintiff receive sufficient information under until a claimant limitations is tolled knows or “discovery trigger rule” to the statute of by diligence should know of his limitations? also maintains Marcum, Syllabus claim. Point Cart v. summary judgment inappropriate 241, 423 S.E.2d may because different conclusions be drawn recognized Sylla rule in first *6 regarding from the evidence when he first Virginia- 4 v. bus Point of Petrelli West leg may of learned loss have been the Co., 607, Pittsburgh 104 Coal 86 W.Va. S.E. malpractice by appellee Hospi- result of (1920), involving the 103 a case unlawful re tal. of coal when the defendant extended moval underground plaintiffs an mine onto the parties agree
The property. In Petrelli we held the statute of statute of limitations is found in the Medical Act, W.Va.Code, “only Liability limitations would run from the time of Professional 55- 7B-4(a) injured discovery trespass, time requires The Act an actual of the or the [1986].5 reasonably plaintiff malpractice against discovery possible.” a claim was to file a when mining trespass provider years health care within two of the was limited to Our injury, years until we extended the dis date of the or “within two of the cases when discovers, covery malpractice person date when or with the rule to certain medical such Inc., diligence, Morgan Hospital, eases. In v. exercise should have Grace (1965) 783, 144 injury, held discovered such whichever last oc 149 W.Va. S.E.2d 156 we However, object places foreign negligently that if a left in the Act also curs!.]” doctor, years body by the statute of filing patient’s limit of 10 on the a a outside claims, malpractice action be malpractice regardless of the limitations for a would medical discovery, long igno- remained date of unless is evidence of tolled so as the there W.Va.Code, whichever health care two injury, except more than ten gence, ers, event shall alleging (a)A years years section, or with the exercise of reasonable should cause of action for of the date when such of the date of such 55-7B-4 last provider arises as of the date of and must be commenced within have discovered such occurs: professional liability against provided such action [1986] after the date Provided, in subsection states: injury injury, be person commenced to a That in no or within person discov- injury. (b) dili- brought by or on behalf of a minor who was which the health care the date of such injury, shall be commenced within two tative has committed fraud under the twelfth section shall be tolled for about the er concealing (b) (c) period. A cause of action for birthday, injury. periods of age of ten misrepresenting injury, whichever limitation years at the time of such provider or prior any period during injury provides or collusion set forth in this or material to the minor's its represen- a years minor, long- facts 712 torts, statutory object. all there is a clear foreign of the unless of the existence
rant
Martinez,
application.”
acknowledged Hundley
prohibition
v.
of its
977, 988,
158 S.E.2d
W.Va.
However,
recognized
we
(1967)
discovery
Morgan
restricted the
interpreting the
rule that
our cases
malpractice
“foreign
rule in medical
cases to
wrong occurs
often an
of such
object
body” eases.
in the
reasonably
plaintiff
cannot
character that
analyzed
Morgan
rulings
In
we
our
ignorance
claim
of the existence
a cause
Hundley,
and concluded
the discov
cases, the burden
action.
In such
shifts
ery
extended
all medical
rule should be
plaintiff
prove
entitlement
the bene
Syllabus
malpractice actions. We stated
discovery rule.
fit of
these circum
Clarke,
Point 2 of Hill v.
that;
stances, we held
(1978) that
of limi
“[t]he
S.E.2d 572
ignorance
Mere
of the existence of a cause
malpractice begins
run
tations for
when
wrong-
of action or of the
plaintiff
has reason
of the
knows or
to know
running
prevent
doer does not
cases,
alleged malpractice.”
we
later
limitations;
“discovery
statute of
rule”
demonstrated
applies only
strong
there is a
when
show-
emphasized
subsequently
that the
rule. We
ing by
that some
action
mind,
plaintiffs
focus is on the
state of
“on
prevented
defendant
injured plaintiff
whether the
was aware
wrong at
knowing
the time of the
or, by
reason
exercise of
care, should have
it.” Harri
able
discovered
Seltzer,
son v.
268 S.E.2d
Syllabus
supra.
Point
This rule was
crafted
because
some circumstances causal
relationships are so well established that we
have also
Our cases
extended the dis
pleads
igno-
cannot
who
excuse
covery
areas of
rule to other
tort
law.
Seltzer,
example,
rance.
in Harrison
For
applied
legal
has been
mal
rule
268 S.E.2d at
W.Va. at
we listed
Loan,
practice, Family Savings &
Inc. v.
instances where we believed
“the ad-
Ciccarello,
207 S.E.2d
verse results of medical treatment are so
grounds,
overruled on other
Hall v.
extraordinary
immediately
Nichols, 184 W.Va.
should be barred under Cart because the
cases,
liability
products
statute of
the
plaintiff
show
did not
that
did
begins
plaintiff
limitations
to run when the
anything
prevent
to
the
knows,
know-
by
or
the exercise of reasonable
ing
wrong
(1)
injury.
know,
of the
at the time of the
diligence, should
that he has
(2)
argument
injured,
identity
that this
believe
misreads and
been
the
the maker
(3)
misapplies
holding
product,
product
and
our
Cart.
the
that
the
right
bring
7. The
limitation
tort
after
shall have
statute of
for most
actions is
the
to
the same
W.Va.Code,
[1959],
inju-
found
damages
personal
55-2-12
which
accrued if it
for
be
ries;
(c)
states:
year
after the
within one
next
right
bring
same
if it
to
shall have accrued
Every personal action for which no limita-
that,
be for
other matter of such nature
prescribed
brought:
tion
be
is otherwise
shall
die,
(a)
years
it
have
right
case a
could not
been
Within two
next after the
accrued,
by
bring
brought
against
per-
at
law or
the same shall have
if it be for
common
(b)
damage
representative.
property;
sonal
within
next
holding today,
In our
we find on
injury.
to his
This
a causal relation
had
knowledge
liability
one
that
sufficient to
allow the
hand
product
cases will
rule
sue,
period requires
up-
trigger
limitation
some
plaintiffs a fair chance
while
thing
apprehension
more than a mere
that
purposes
behind the statute
something
wrong.
may
See Hill v.
be
limitations.
Clarke,
at
S.E.2d at
creeping
or
or
progressive
In a
disease
(“[Plain, suffering and manifestation of the
injury, many plaintiffs will
not realize
often
malpractice
harmful effects of medical
do
See,
injured.
they
actually
e.g.,
that
were
not,
themselves,
by
running
commence
Trust Co.
Johns-Manville
Louisville
limitation”).
patient
Even if a
statute
is
(Ky.1979)
Corp.,
covers the essential elements a In the of action, is, duty, by that issue of a claim is barred cause of discovers whether breach, question of causation and statute of limitations is a fact for 10-year repose repose er the case, this statute of The statute found in W.Va. in this Code, 55-7B-4(a)[1986] appellant filed this would constitute such a because the action well statutory prohibition.” within "clear We do not consid- the time limit. did, plaintiff jury. question duty “The of when records earlier than he and no on part appellant’s parents knows or in the exercise of reasonable dili- to have gence to mal- has reason know medical informed their adult son of their discussions Syllabus treating physicians. practice jury.” is for the Point with his It is therefore Clarke, Hill v. 572 irrelevant whether the could have S.E.2d also, Syllabus requested spoken See Point Teter v. the records before or Co., parents Colony with his about the cause of Old S.E.2d the loss (1994) (“Where leg. Accordingly, say a cause of action of his we cannot as a fraud, plaintiff based on tort or on a claim of the matter of law that the failed to exer- begin diligence, summary does not run cise due and limitations we find that knows, injured person judgment by improper. until the or the circuit court know, diligence exercise of reasonable should today Our conclusion is based on reasons injury, determining nature judicial economy, as well as obvious con- point question that in time is a of fact to be siderations fairness. The law does not and jury.’ Syllabus answered Point require patient should not to assume that Dobson, Stemple v. provider malprac- his medical has committed (1990)”). S.E.2d 561 tice, worse, engaged conspiracy in a every
conceal some misconduct time medical IV. perfect treatment has less than results. “To require hold otherwise would that whenever Conclusion any promptly fails to treatment re- health, Applying ease, turn the full our to this necessarily attorneys experts would hire reasonably is clear that the could investigate injuries solely possibility malpractice, have believed that his were motorcycle the result of his lest the statute run. Such wasteful over- accident and his goal negligence. appellant certainly own abundance of caution is not the of our The Szpynda Pyles, in October 1989 statute of limitations.” knew of the existence of his Pa.Super. him 433 639 A.2d 1184-85 knew owed (1994).9 However, duty of due care. we find noth ing in the record appel to indicate that the acknowledge strong policy by any January lant had reason to know before Legislature peri- limiting in favor of the time City Hospital may 1993 that have breached may bring patients od in which actions for care, duty proper and failed to its exercise negligent intention medical treatment and its City Hospital’s may conduct have con providers being to assist medical free of leg. tributed to the loss of his period -claims after a of time in However, hospital any also has not shown cir- which no action is raised. we also given appel- recognize provide full cumstances should have that we must effect investigate Legislature, lant whether mal- the acts of the and mere discom- reason practice leg was a cause of the loss of his fort with the rule is not valid case, prior refusing peri- to toll limitation 1993. On the facts reason for duty part especially tolling there was no on the This is so when that affirmative od. clearly sought period applies. remarkably disability Szpynda physician plaintiff 9. The facts in are similar to er. This told the accident, hy There, was caused not the industrial but in this March facts case. on surgical procedure by improper defendant an Pyles. hand, plaintiff crushed his left wrist and against Pyles filed suit got 'caught splicing forearm when his arm in a April months later in marily 1991. The trial court sum- Pyles performed machine. Defendant recon- action, Superior and the dismissed surgery, surgery structive but the was unsuccess- reversed, holding Court was entitled ful, resulting in the loss of use of hand. The and that the to the benefit of plaintiff subsequently splicing sued the machine claim was filed within two of the first date During negotiations manufacturer. settlement knew of his and knew it was *10 manufacturer, with exam- defendant's medical treatment the result of the by physician employed by ined the manufactur- and not the industrial accident. 716 that such enactment will receive liberal discussed
Accordingly, for the reasons in furtherance of their mani- above, order construction the circuit court’s we reverse object, the same re- fest are entitled to summary judgment appellee, to the granting statutes, ought not to spect other and circuit court for as this case to the and remand explained away.” opin- be proceedings consistent with this further ion. [Sjtatutes limitations are favored ... avoided unless in the law and cannot be and Remanded.
Reversed seeking brings so himself to do strictly exception. some It has within Justice, MAYNARD, dissenting: widely exceptions “are been held that such City Hospital, 199 I in v. dissent Gaither strictly enlarged by construed and are not (1997), 706, 487 and Chan W.Va. S.E.2d apparent upon the courts considerations of ,n - -, W.Va. cellor v. Shanno omitted). (Citations hardship.” (1997), that, in because I believe S.E.2d Chancellor, opinions, Unfortunately, this stretches the law in these Court Gaither applicable disregard in statutes has resorted to the use of smoke order Court “explained away” the of limitations. and mirrors and has of limitations. statutes both concern stat and Chancellor Gaither Although apparent limitations. not utes of Gaither, I radi In believe Court decisions, of this recent from some Court’s cally enlarges discovery rule which was of limitations continue to serve statutes Marcum, v. 188 W.Va. articulated Cart operation of the important function in order to avoid S.E.2d court has stated that basic “[t]he law. This An ex statute of limitations. is to purpose of statutes of limitations en planation of the evolution and construction of actions; courage promptness instituting rule as set forth Cart is claims; suppress stale demands or fraudulent aptly majority opinion in the discussed may and to avoid inconvenience which result note, however, here. I will not be reiterated delay asserting rights or claims when that, that in this Court stated practicable Morgan it is to assert them.” v. by declaring “discovery the existence of Inc., 791, 144 Hospital, Grace the statute of rule” we do eviscerate (1965) (citations omitted). 156, 161 S.E.2d limitations: of limitations will Lane, 578, 583, 165 Humble Oil apply handicaps unless the (1969) explained: this Court S.E.2d great of the are and are the time of limitations are statutes of Statutes largely product of the con- defendant’s object repose. compel Their is to the ex- concealing duct in either the tort or the right ercise of a of action within a reason- identity. wrongdoer’s able time. Marcum, Cart v. At one time the attitude of courts was 644, 648 The Court further S.E.2d hostile toward the enforcement of statutes stated: However, legislative policy of limitations. rule,” then, enacting “discovery recognized ap- such statutes is is to be now courts, controlling fully plied great circumspection on a case- acknowl- effect, by-case only strong edging upon their look with favor basis where there is a showing pre- as a that he was such statutes defense.... “Statutes knowing claim at the of limitations are now considered as wise vented from general rule is purpose and beneficent in their and ten- time of the dency; they ignorance of a upon are looked as statutes of that mere of the existence proper- of action or of the repose, and are held to be rules of cause * * * running ty society. wrongdoer prevent does not vital to the welfare to bene- the courts will not strain either the a statute of limitations. order While must make a or the law in aid of a statute of fit from the facts concealment, limitations, strong showing nevertheless it is established of fraudulent *11 Chancellor, inability comprehend injury, appellant to the or oth- In the was definitive- hardship: er extreme ly notified on October 1991 that a wire improperly body had been left in from her However, special .... apply rules in a previous surgery. appellant filed suit particular case involving hardship or other against doctor, hospital, the and then un- justifying circumstances different accrual known manufacturer of the wire on October rules. 1, 1993, twenty-two days year before the two (Footnotes omitted). Id. and citation statute of limitations would have run on a by I find majority the distinction made the products liability Only claim. then did the present between Cart and the ease to abe appellant began seriously to seek to deter- one, spurious simply I apply and would the identity mine the of the manufacturer. As a discovery statutorily recognized rule in result, appellant’s the complaint amended § W.Va.Code 55-7B-4 and set forth specifically naming the manufacturer of the Cart, in to the circumstances of this case. wire as a defendant filed was well outside the adopts The standard this Court here encour- year statute of limitations. The Court dilatory ages diligence than behavior rather managed grant summary reverse the of party sleep rights. and allows a his I on judgment on by behalf of the manufacturer agree appellant with the that the reasoning inquiry that steps further into the simply diligence failed to exercise reasonable by appellant’s attorney prior taken the discovering the reason for the loss of his October alluded to in an affidavit leg. In appellant October the was by appellant’s attorney, necessary filed the is leg that amputated, aware his had been summary judgment appropriate. before parents by phy- were told Shock Trauma Again, struggled way the Court to find delay City Hospital sicians that the avoid the of the of limita- transporting appellant to the trauma cen- tions. might ter caused of appel- the loss above, according As noted order leg. Nevertheless, lant’s for next three appel- from benefit years, appellant investigate failed to strong showing lant must make a of fraudu- light In reason the fact concealment, inability comprehend lent appellant apparently that is an adult and hardship. or other extreme If the average at intelligence, least I find his appellant showing, is able to make such I parents’ explanation they were unable fail why to understand did not appellant’s amputation discuss the with him present prior such evidence to the circuit addition, preposterous. ruling appellee’s summary court’s on the request failed to his medical records from the judgment motion. In the absence such hospital, speak anyone and failed to with evidence, agree I the circuit that: with court concerning or Shock Trauma [Appellant] has not shown that she acted I amputation. agree the causes of his also diligence; [Appellant] reasonable court with the circuit “had handicaps shown that the to dis- not necessary to him all available information covery identity manufacturer [the alleged malprac- to discover the act of order completely great wire] were and has by City Hospital, tice within two from handicaps failed to show that the to discov- occurrence, alleged the date of the ery of [the manufacturer] prevented obtaining such infor- product [the manufacturer’s] were by City Hospital any mation other conduct; showing what- there has been no claim, entity,” appellant’s and that concealment soever fraudulent therefore, not fall did within the [the manufacturer] [.] rule as set I forth Cart. Because believe were, therefore, sum, appellant’s claims in both and Chancellor this Gaither completely ignores barred statute of rule’s limita- Court tions, and, I grant requirement diligence, would affirm the circuit court’s law, summary judgment City on clear our case rewards behalf Hos- contravention of pital. plaintiffs ignorance. who willful exercised *12 bar, are City Hospital in the case at including § and W.Va.Code 55-7B-4
In W.Va.Code hospitals. non-profit clearly expressed public, 55-2-12, Legislature § above, As noted limit lawsuits. its will that unfair- figures illustrate The above impor- serve several of limitations statutes in damage awards hospitals to ly exposing recognition which is the one of purposes, tant really expired, have claims which tort at some things should be over fact that threatening the health and Court could be actions, legal the world of Even in point. small, struggling hos- many very existence of percep- finality. public there should be of access to will be a loss pitals. The result long, take too cost legal actions tion is that Virginia’s count- care in West quality medical much, Decisions such and never end. too par- could be This less rural communities. only to encour- serve and Chancellor Gaither simply tially if the Court would prevented reasons, I believe For these age that belief. wisely en- of limitations uphold the statutes to so bla- this Court improper that Legislature. acted of stat- ignore legislative enactments tantly would “evis- denied Cart The Court limitations. utes of I think of limitations. the statute cerate” Also, help but think I cannot guts out the means to cut that word eagerness disregard the statute Court’s so, limitations If our statute of disembowel. at least in in stemmed limitations Gaither slaughterhouse, the inside of a now looks like the defendant was from the fact that part splat- guts of the statute blood and with the is to trans- The trend in this Court hospital. Court, deci- everywhere. This with its tered companies and into insurance hospitals form Chancellor, have in sions Gaither everyone on the make them the insurers our statute of an abattoir out of created this is that problem with premises. One ground up jurisprudence and have limitations Virginia longer no hospitals in most West judicial sausage. it into the statute and made According deep pockets. Center have today Development, there for Rural Health repre- thirty-one hospitals rural small
are hospitals all in West
senting about half of hospitals are charac-
Virginia. rural Small beds, than 100 those with fewer
terized as
5,000
annually, and
fewer than
admissions
profit been a bad connota- Further, many hospitals, of the state’s
tion. Hospitals concerning Development Rural titled hos- Health 1. Some of the above information (October report pitals Virginia Making in West is contained in a Virginia: the transition West Virginia Hospital compiled Associa- the West 1996). cooperation with the Center for Rural tion in