*1 subject accident.3 The suffered permanent injuries physical
serious and be giving of the accident. When her
cause
statement, Foutty had an interest van from
shifting blame the overturned
herself to someone else.4 phantom support involving
To a claim
vehicle, the corroborative offered evidence independent and taint or
must be free from van,
suspicion. As the driver of the wrecked Foutty independent an nor neither gave
disinterested witness when she regarding phantom
statement vehicle. alone, Ms.
Standing Foutty’s does statement qualify as sufficient corroborative evi- worthy to establish that another vehi-
dence proximate
cle was a accident. correctly court
The circuit that Ms. found
Foutty’s statement was corrobo- insufficient
rative evidence allow claim go forward.
McGraw, J., dissenting opinion. filed III.
Therefore, affirm we circuit court’s granting summary judgment
order favor
of the
Affirmed.
Joann Clarence C. Below, Appellants,
Plaintiffs ABURAHMA, M.D.,
Ali Mark A. Chouer M.D.,
iri, Charleston Area
Center, Below, Appellees. Defendants
No. 31553. Appeals Virginia.
Supreme Court of of West Feb.
Submitted:
Filed: June Foutty veracity investigating with no reason officer cited Ms. This Court has to doubt driving control her without failure to vehicle and Foutty’s of Ms. version of events. operator’s license. *2 Hunter, As- Esq., Steve Hunter
J. Steven sociates, Lewisburg, Appellants. for Mohler, Kay, Esq., Casto & Cha- Dina M. Charleston, Appellee for Charleston ney, Area Medical Center. Kirk- Flanagan, Esq., Theresa Victor
J. Pullin, Flanagan, Craig, Esq., Fowler & Aburahma, Charleston, Appellee Ali M.D. for PER CURIAM. and hus- appellants Joann Jones,1
band, circuit appeal the C. Clarence summary judgment in granting court’s order Aburahma and appellees, Dr. Ali favor of the ap- Area Medical Center.2 Charleston circuit court erred pellants that the finding appellants had filed their of limita- statute causes of action outside the tions. circuit court’s order. affirm the
We I. appellant or about
On coronary angio- a Jones underwent Joann eatherization, and stent plasty, a heart Cen- placement at Charleston Area Medical (“CAMC”). At of the catheriza- the site ter tion, developed pseudoaneu- August rysm.3 early and had a vascular was admitted to CAMC appellee Dr. Ali Aburahma. consultation with Dr. Aburahma advised August On with her normal activ- Ms. Jones to “continue fifty percent ities” there pseudoaneurysm would im- chance “spontaneously.” prove artery pseudoaneurysm in the A is a leak a derivative loss of consor- Mr. Jones also filed pool under the skin causes blood to collect tium claim. pseudoaneurysm A often forms area. a localized at the site of a eatherization. court, voluntarily appellants dis- tire In circuit this action. Mark A. Choueriri from spontane- missed Dr. experts opined pseudoaneurysm occurs ous resolution of counsel, 10,1998, September September On Jones contact- lants’ received Dr. and was 2000.6 Aburahma’s informed office surgery that she been scheduled On November filed appears that 1998. It later complaint against their *3 pseudoaneu- evening, same Ms. the Jones’ Arguing that statute of limitations the ruptured began visibly pool- rysm and blood malpractice Ms. barred Jones’ medical action ing skin.5 Ms. underneath Ms. Jones’ Jones her loss of and husband’s derivative consor- hospital to in was rushed a local Greenbrier claim, appellees tium filed motions for the County, transported and to in then CAMC summary judgment. appellees The contend County. Kanawha began that the statute of limitations to run CAMC, repaired At Dr. Aburahma Ms. on, latest, 1, 1998, at the October the date ruptured pseudoaneurysm. Ms. Jones Jones’ Jones was to CAMC for Ms. admitted treat- in hospital the and received follow- remained ment of an at the of infection site her catheri- up hospitalized, care. While under the care zation. Aburahma, of CAMC and Dr. appellants argue The the statute of accident,” suffered which “cerebrovascular begin limitations run on to November commonly as a is more known “stroke.” 23, 1998, appellees the date that the last receiving provided After to Ms. rehabilitative treatment for medical care Jones. The stroke, discharged appellants “discovery Ms. also her Jones was from the 28, on 1998. On rule” should toll of limitations CAMC October the statute 1998, 1, appellees’ delay providing Ms. on Jones was readmitted for treat- based the rup- ment of an infection at the site the Ms. Jones’ medical records. pseudoaneurysm. tured Ms. Jones was and, hearing, The circuit court held 22, again discharged from on CAMC October 2002, granted appellees’ December of the sought 1998. Ms. last treatment from judgment. summary granting motions for 23, appellees
the 1998. Ms. appellees’ summary judg- the motions for pain physical Jones continues to and suffer ment, alleged the circuit court found the limitations. negligence acts of all on or occurred before 1, 1998, and that the October 12, 1999, January On Ms. and her not toll did the statute of limitations. There- engaged attorney. husband of an the services fore, appel- the circuit court found request- appellants, behalf of the counsel On by lants’ actions were barred the statute of Ms. Jones’ medical from CAMC. records limitations. Despite requests, subsequent several CAMC provide did Ms. Jones’ medical records to appeal now the circuit 30, appellants’ ap- counsel appellees’ granting motions 1999— court’s order proximately six months after summary judgment. request initial for the counsel’s medical rec- ords. II. consistently
Appellants’ then Ms. This has held that counsel forwarded Court entry summary judg two circuit medical to medical ex- court’s “[a] Jones’ records 1, experts’ Syllabus perts for medical ment is de novo." Point evaluation. reviewed reports, May Peavy, and 451 dated June Painter 192 W.Va. S.E.2d (1994). not, respectively, according appel- 755 were by percent explained appellants' than As counsel at oral ar- less six of all cases. guments, working with the counsel had been two According experts, appellants' to the the stan- experts through a medical "middle man.” Ac- pseudoaneurysm dard of care for Ms. urgent operative Jones’ counsel, cording appellants' this middle man "to avoid the treatment risk of timely experts’ reports, but received the two embolization,” rupture appel- and and that the promptly reports appel- failed to forward delay treating pseudoaneu- Jones' lees' lants’ counsel. rysm "placed life the claimant’s and limb at risk." January know 1993 that is reason to before
At issue whether Jones filed City may its Hospital duty malpractice action within two- have breached medical care, proper or that failed exercise year statute of “The limitations. City Act, Code, Hospital’s may conduct have Liability contributed W.Va. 55- Professional 7B-4(a) leg.” his loss of 199 W.Va. requires ... [1986]7 S.E.2d malpractice plaintiff to claim [medical] file provider two against health care within may situation occur when an The second injury, years of dr two the date of the ‘within reasonably “does or should know individual person years of the such discov- date when of an and its the existence cause.” ers, with dili- exercise of reasonable Gaither, at at 199 W.Va. 487 S.E.2d injury, discovered such gence, should have added). Gaither, *4 (emphasis In 6 of footnote ” 1, Syllabus Point occurs[.]’ whichever last this lists “causal rela- Court instances where Inc., City Hospital, 199 part, in Gaither v. tionships [between so are well-established (1997). 706, 901, 711, 487 S.E.2d 906 W.Va. injury the and its that we cannot cause] plaintiff pleads ignorance.” excuse a who Ordinarily, applicable of the statute who, patient include a These instances after begins limitation to run when actionable the operation, sight in his having a sinus lost left occurs, injury first or when an is conduct who, eye, patient undergoing and a after a discovered, diligence, or with reasonable simple cyst, surgery for the of a was removal W.Va.Code, have should been discovered. Gaither, legs. paralyzed in both 199 W.Va. discovery recog 55-7B-4 The [1986].8 rule (internal 712, at at 487 S.E.2d 907 citations barring “the unfairness of a nizes inherent omitted). of party’s claim when cause action could recognized instances, been ordi not have after the In such an individual when narily applicable period inju Har reasonably of limitation.” knows or should know of the Jones, cause, ry v. 209 550 party ris W.Va. S.E.2d the and its must (2001). rule,’ 93, ‘discovery strong showing “[U]nder 98 the of con “make fraudulent cealment, inability comprehend injury, is the statute of limitations tolled until the by diligence hardship” discovery or for claimant knows or reasonable other extreme the 713, 2, Syllabus apply. 199 487 claim.” Point rule to W.Va. at S.E.2d should know of his Marcum, Inc., Hospital, (quoting at Cart v. 188 part, City in v. 199 908 W.Va. Gaither 241, (1992)). (1997). 245, 644, 706, 901, 711, 423 S.E.2d 648 906 W.Va. 487 S.E.2d First, argues Ms. Jones that the cir There are two common situations finding cuit in statute court erred of may apply. first when the 1, began 1998, limitations to run on October knows plaintiff occurs when “the of the exis 23,1998. appel of on November instead injury, of an but does not know the tence 1998, 23, lants should November injury any party’s is the of conduct result controlling be the date because Gaither, than own.” other his 199 W.Va. appellees sought last treatment from on the 901, (1997) (modify 487 908 S.E.2d 23, However, November neither the Grover, ing Hickman 358 W.Va. appellants’ complaint appellants’ ex nor the (1987)). Gaither, this S.E.2d Court perts alleged any acts of medical mal question that a of fact as to held exists when 1,1998. practice after occurred October the Mr. Gaither first “became aware” knew, hospital’s negligence, opposed as his own reveals that Ms. The record known, in negligence, may amputa reasonably of have resulted the or should have the leg. nothing appellees’ alleged negligence of his find in the or “[W]e tion on before any appellant make record indicate that the October no nent sional case. The 2003 W.Va.Code,55-7B-4(a) A ing part, medical Liability that: of amendments action for Act do not professional injury to the [1986] apply liability against to a states, in the instant person alleg- Profes- perti- this two health care ers, or with the injury, except as two gence, years years section, and of the date when such of provider the date have provided must be exercise discovered such of such arises in subsection commenced within of reasonable dili- as of the date injury, person injuryf.] discov- within (b) of of MCGRAW, allegation, Justice, and we see no dissenting. evidence the any malpractice of record compelled I am majori- dissent the 1998. The treatments that Ms. Jones re- ty opinion because, once, in this case at it appellees ceived from the after October hospital rewards the dilatory for its conduct malpractice, were additional acts of forcing Appellant while the to suffer ulti- alleged but treatment medical mal- penalty. Appellant repeatedly mate request- practice already that had occurred. In the copies of her ease, medical records for the instant begins of limitations statute purpose forwarding objective of them to to run at of the date from the —not experts medical so that it fairly last date of could treatment. The circuit court be correctly found that the determined whether hospital, statute limitations the defendant triggered others, among for Ms. negligently Jones’ medical mal- treating acted 1,1998. practice action on October her. It took hospi- some six months for the tal finally comply Appellant’s with the Second, argues result, request. initial hospital As a sub- “discovery rule” should extend the statute (but tly effectively) appropriated quarter one limitations appellees because the did not fur applicable period, limitations leaving nish Ms. Jones’ medical records for six *5 Appellant with that acquire much less time months. expert and, opinion ultimately, to file her In eases where a claimant knows of her complaint. I disapprove Because of the hos- injuries injuries, and the pital’s careless conduct and inattentiveness claimant must strong showing “make a regard this effect of which foreclosed —the concealment, inability fraudulent compre- Appellant seeking remedy for her hend the hardship” other extreme injuries respectfully dissent. —I discovery apply. for the rule to In some circumstances, timely provide failure
medical records could rise the level of
fraudulent concealment. case,
In the instant Ms. Jones knew that
she had suspected been and she appellees may duty have breached the Although
care owed to appears her. it appellees did provide not Ms. Jones’
medical records until
appel-
lants’
counsel
sufficient time
file the
tion did not appellants’ he file the com- S.W. JACK DRILLING COMPANY plaint until appel- Morgan, and Steve Defendants lants prove have failed to Below, Appellees. apply to extend the statute of No. 31407. limitations for the claims. Supreme Appeals Court of Virginia. of West
III. Therefore, we affirm the circuit court’s Submitted: Jan. granting summary judgment order in favor of the Filed: Feb.
Affirmed.
Justice McGRAW dissents reserves right dissenting opinion. to file a