45 V.I. 278 | Supreme Court of The Virgin Islands | 2003
MEMORANDUM OPINION
(August 5, 2003)
THIS MATTER is before the Court on Defendant’s motion for judgment on the pleadings or in the alternative for summary judgment. For the following reason, the Court will grant Defendant’s motion.
On April 28, 1995, Plaintiff presented herself to the Juan F. Luis Hospital (“hospital”) complaining of body aches and pain and was treated in the emergency room by Defendant. Defendant determined that Plaintiff was suffering from a vaginal infection and prescribed medication. Plaintiff asserts that while Defendant was instructing her on how to apply the medication, he touched her in a sexually inappropriate manner. Moreover, Plaintiff alleges that the Defendant failed to properly diagnose her condition, failed to properly treat her condition, and failed to use proper procedures in the treatment of her condition, and as a result Defendant’s actions were below the recognized standard of care.
Plaintiff contends that her claim accrued on October 15, 1997 when she received the medical expert report stating that her injury was caused by medical malpractice. To that end, Plaintiff gave notice to the Medical Malpractice Action Review Committee (“Committee”) on November 1, 1997, and filed her action with the Court on July 12, 1998.
It is undisputed that Defendant is a health care provider protected under the Malpractice Act. Therefore, to maintain a claim against Defendant, Plaintiff must comply with the jurisdictional prefiling procedures of the Malpractice Act, and these procedures must be strictly adhered to before an action for medical malpractice may commence. See Saludes; See also Walters v. Government of the Virgin Islands, 30 V.I. 36 (Terr. Ct. 1994); Quinones v. Charles Harwood Memorial Hospital, 573 F. Supp. 1101, 20 V.I. 356 (D.C.V.I. 1983); VI Telephone Corp. v. Government of the Virgin Islands, 13 V.I. 405 (D.V.I. 1977). Compliance with the jurisdictional pre-filing procedures of the Malpractice Act, like VITCA, requires the determination of an accrual date for Plaintiffs claim because to be in compliance, Plaintiff must first file a verified proposed complaint with the Committee and second, wait 90 days before filing the action in court. However, the 90-day notice period does not toll the statute of limitations period. See Larrabee v. Government of the Virgin Islands, 40 V.I. 46 (Terr. Ct. 1997). Moreover, the statute of limitations period found in 27 V.I.C. § 166d explicitly states that no claim, whether in contract or tort, may be brought against a health care provider based on professional services or health care rendered unless filed within two years from the date of the alleged act, omission, or neglect. Section 166d further codifies two exceptions to that general rule: (1) when the injury results in a foreign object being left in the patient’s body or (2) when the health care provider acts in bad faith. See Phillips v. Taylor, 18 V.I. 437 (Terr. Ct. 1981); see also Daniel v. Government of the Virgin Islands, 30 V.I. 134 (Terr. Ct. 1994).
Defendant asserts that there is no need to go through another analysis to determine an accrual date for Plaintiffs claim because the Court has already done so and is barred by the collateral estoppel doctrine. Plaintiff
For the collateral estoppel doctrine to apply four factors must be satisfied:
(1) the prior determination was necessary to the decision;
(2) the identical issue was previously litigated;
(3) the issue was actually decided in a decision that was, on the merits, final and valid; and
(4) the party prevented from relitigating the issue was adequately represented in the prior action.
A review of the record indicate that the prior decision was indeed necessary to the decision to grant the Government’s motion to dismiss
The applicable law in the Virgin Islands regarding the accrual of an individual’s cause of action for medical malpractice is the determination made by the U.S. Supreme Court in U.S. v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979) and cited in Samuel supra. Plaintiff contends that prior to this Court’s opinion in Samuel the law .in the Virgin Islands was that as expressed in Larrabee and Phillips supra. In Larrabee the Court held that the cause of action in a medical malpractice claim accrues and the statute of limitations begins to run when the patient knows the existence and cause of his injury and that the acts causing the injury constitute medical malpractice. In Samuel the Court held that “a Plaintiffs claim does not accrue until he or she knows or reasonably should have known of the injury and its cause.” Samuel, 2002 V.I. LEXIS 21 at *11, slip op. at 8. Plaintiff contends that this Court’s holding in Samuel represents a change in Virgin Islands law or a conflict between the Courts. This Court hereby elucidates that the holding in Samuel is in line with the holding of the U.S. Supreme Court in Kubrick, which held that a claim accrues when the, plaintiff knows both the existence and cause of his injury and not at a later time when he also knows that the injury may constitute medical malpractice. Accordingly, the Larrabee holding is contrary to the holding of the U.S. Supreme Court, and this Court is not bound by the holding of a lateral court decision. To that end, the Court must follow the holding as stated in Kubrick.
Plaintiff contends that the statute of limitations period must be statutorily tolled because Defendant “admitted that he acted affirmatively to conceal his malpractice.” See Plaintiffs Opposition to Defendant’s Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment, p.7. The query in fraudulent concealment cases is whether there is evidence that the defendant took affirmative steps to conceal the
(1) On one occasion he cleared the room of her family and friends and on another removed all hospital personnel;
(2) Throughout plaintiffs stay at the hospital Defendant only examined Plaintiff in the presence of a nurse once; and
(3) On two specific occasions Defendant examined Plaintiff when no nurse was there to witness his actions.
See Plaintiffs Opposition, p.7. It is on this basis that Plaintiff contends that Defendant knew his actions fell below the standard of care and that he acted affirmatively to hide his behavior. See id. The Court does not agree. Plaintiffs allegations are based on bare assertions she states constitutes concealment. There is no evidence in the record that Defendant took affirmative steps to prevent Plaintiff from recognizing that she had suffered an injury and that Defendant was the cause. In fact Plaintiff states that she immediately filed a complaint with the hospital. See id. at 8. Moreover, there is no showing that after Plaintiff filed her complaint that Defendant took affirmative steps to conceal his alleged misconduct. On this basis a statutory tolling of the limitations period is unwarranted.
Plaintiff posits another argument: the statute of limitations period should be equitably tolled because Plaintiff filed timely claims in the wrong forum. To support this assertion Plaintiff cites to Inland Steel Systems, Inc. v. Waters, 296 F.3d 200, 217, 219 (3d Cir. 2002) (citing Hosogai v. Kadota, 145 Ariz. 227, 700 P.2d 1327 (1985)).
(1) Timely notice to the defendant in filing the first claim;
*286 (2) Lack of prejudice to the defendant in gathering evidence to defend against the second claim; and
(3) Reasonable and good faith conduct by the Plaintiff in prosecuting the first action and diligence in filing the second action.
Plaintiff asserts that her first action was done when she immediately filed a complaint with the hospital. However, the complaint that Plaintiff made to the hospital, which she deems to be the first claim, under the holding in Hosogai, did not even comport with the notice provision required by statute in any event. A review of the record indicates that Plaintiff was treated on April 28, 1995, and she did not give notice to the Committee until November 1, 1997. Moreover, Plaintiff did not file her action with the Court until July 12, 1998, more than three years after the claim accrued. To that end, Plaintiff has not shown reasonable conduct in prosecuting the first action she said was initiated in the wrong forum days after the incident and diligence in filing the second action as it was not filed until more than three years after the accrual of her claim.
Regarding Plaintiffs assertion that it was necessary to obtain an expert report before she could file her action in court or else her counsel would be subject to Rule 11 sanctions, this Court has previously ruled on that issue: it is not a requirement that a plaintiff receive a medical expert opinion stating that his or her injury was a result of medical malpractice before the statute of limitations begin to run. See Samuel {citing, inter alia, Roe v. Jefferson, 875 S.W.2d 653 (Tenn. 1994)). To that end, equitably tolling the statute of limitations herein is not appropriate.
Accordingly, because Plaintiffs claim accrued on April 28, 1995, and she did not file a verified proposed complaint with the Committee until November 1, 1997, substantially after the statute of limitations period had run, and because no circumstances exist to statutorily or equitably toll the limitations period, this Court must grant Defendant’s motion.
The premises considered, and the Court otherwise being fully advised, it is hereby ORDERED that Defendant’s motion is GRANTED, and this action is DISMISSED WITH PREJUDICE.
The Government of the Virgin Islands was a Co-Defendant in the instant matter, but was dismissed by this Court’s March 11, 2002 Order for Plaintiff’s failure to comply with the jurisdictional pre-filing procedures of the Virgin Islands Tort Claims Act. 33 V.I.C. § 3408 et seq., thereby denying the Court subject matter jurisdiction.
The Third Circuit Court of Appeals in Inland Steel adopted the Hosogai Rule regarding equitable tolling of the statute of limitations period when a party timely files in the is determined to be the improper forum.