PAUL E. FORSHEY AND MELISSA L. FORSHEY, Plаintiffs Below, Appellants, V. THEODORE A. JACKSON, MD, Defendant Below, Appellee.
No. 33834
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
November 19, 2008
September 2008 Term
Honorable Jennifer Bailey Walker, Judge
Civil Action No. 06-C-1534
AFFIRMED
Submitted: October 28, 2008
Filed: November 19, 2008
Mark F. Underwood, Underwood & Proctor Law Offices, Huntington, West Virginia, Attorney for the Appellants
Robert J. D‘Anniballe, Jr., Pietragallo Gordon Afano Bosick & Raspanti, LLP, Weirton, West Virginia, Attorney for the Appellee
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.
- 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.
- “‘Appellate review of a circuit court‘s order granting a motion to dismiss a complaint is de novo.’ Syllabus point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).” Syllabus point 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998).
- “The 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 hаve 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.” Syllabus point 1, Gaither v. City Hospital, Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997). 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. - 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.
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 doctrine, we agree that it should be adopted and do so herein. However, we conclude that the doctrine does not apply to the Forsheys’ action. We further find that the Forsheys’ complaint failed to set out a claim for a continuing tort. Therefore, we affirm the circuit court.
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 rеceive 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.
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 оf 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 alleging 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
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,7 which motion was based upon the statute of limitations and statute of repose found in
[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 Rule 12(b)(6),
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.
. . . [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 Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings arе considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment. . . . Exhibits attached to the complaint are properly considered part of the pleading ‘for all purposes,’ including Rule 12(b)(6). Fed. R. Civ. P. 10(c) . . . . Additionally, we have noted that ‘[w]hen . . . a complaint‘s factual allegations are expressly linked to-and admittedly dependent upon-a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).’” (emphasis added) (internal citations omitted)); Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (“In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” (emphasis added) (citation omitted)); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (“In general, our review [of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted] is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” (emphasis added)); Buck v. Hampton Tp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents that are attached to or submitted with the complaint . . . and any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.’ 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed.2004).” (emphasis added) (internal citation omitted)); U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003) (“In deciding a motion to dismiss the court may consider documents attached to or incorporated in the complaint and matters of which judicial notice may be taken.” (emphasis added)); Technology Patents, LLC v. Deutsche Telekom AG, 573 F. Supp. 2d 903, 920 (D. Md. 2008) (“Consideration of extrinsic evidence is inappropriate in a 12(b)(6) ruling, as thе inquiry is limited to the complaint and the documents attached thereto or incorporated by reference.” (emphasis added)).
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 Rule 12(b)(6) motion to dismiss.11 Accordingly, in reviewing the circuit court‘s order in this regard, we apply the de novo standard of review for a motion to dismiss. “‘Appellate review of a circuit court‘s order
Generally, a motion to dismiss should be granted only where “‘it is clear that no relief could be granted under аny 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, Chapman 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)].
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d 516, 522 (1995) (footnote omitted). Finally, we note that “‘[c]omplaints are to be read liberally as required by the notice pleading theory underlying the West Virginia Rules of
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 cоntact 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.
A. Continuous Medical Treatment Doctrine
The Forsheys urge this Court to adopt the continuous medical treatment dоctrine 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 Hospital, Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997) (second emphasis added).14 The Forsheys contend that this Court should adopt the continuous medical treatment doctrine, and argue that, if the doctrine was applied to their case, their action would be timely.15
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 intendеd 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,
Lane v. Lane, 295 Ark. 671, 675, 752 S.W.2d 25, 27 (1988) (quoting 1 D. Louisell & H. Williams Wachsman, Medical Malpractice § 13.08 (1982)).16 In the Lane case, the plaintiff
received “regular injections of narcotics” beginning in 1966 and continuing until 1984. 295 Ark. at 673, 752 S.W.2d at 26. The plaintiff sued in 1985 alleging the treatment had caused various injuries, including injuries to her shoulder, arm, and back, as well as a drug addiction. Under the relevant Arkansas statute, she was required to commence her action within two years after the date of the wrongful act. 295 Ark. at 673, 752 S.W.2d at 26 (citing
We are persuaded that the continuous medical treatment doctrine should be
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 аllegedly 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 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 non-medical 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 сontext 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 involved a suit filed by a mother asserting, in
relevant part, a claim for outrageous conduct against Charleston Area Medical Center (hereinafter “CAMC“) arising from CAMC‘s autopsy of her deceased daughter. The Ricottilli Court explained that
[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.
188 W. Va. at 677-78, 425 S.E.2d at 632-33.
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.
Id. at 223, 444 S.E.2d at 149 (emphasis added).
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 Cullum 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, 98-2326 (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
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 cоnduct. 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
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 statement in support of the claim. Huey v. Barloga, 277 F. Supp. 864, 871 (N.D. Ill. 1967).
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).
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
(a) A cause of action for injury to a person alleging medical professional liability against a health care provider arises as of the dаte 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 fоr 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, [u]nderAt 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 undеr 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 thе rules of civil procedure.