Forshey v. Jackson

Citations: 671 S.E.2d 748; 222 W. Va. 743Docket: 33834

Court: West Virginia Supreme Court; January 9, 2009; West Virginia; State Supreme Court

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Paul E. Forshey and Melissa L. Forshey appeal a Circuit Court order dismissing their malpractice claim against Dr. Theodore A. Jackson as untimely. The Forsheys argue for the adoption of the continuous medical treatment doctrine and a continuing tort theory to support the timeliness of their claim. The Supreme Court of Appeals of West Virginia agrees to adopt the continuous medical treatment doctrine but determines it does not apply to the Forsheys' case. Additionally, the Court finds that the Forsheys' complaint does not establish a continuing tort. Consequently, the Court affirms the lower court's dismissal.

The factual background reveals that Mr. Forshey initially sought treatment from Dr. Jackson for carpal tunnel syndrome in November 1994, undergoing surgery in July 1995. Post-surgery, Mr. Forshey reported ongoing issues but no further diagnostic imaging was conducted. After multiple visits, he was scheduled for additional surgery in February 1997, which he subsequently canceled and did not reschedule. He continued to experience pain until an unrelated injury in 2005 led to the discovery of a metallic foreign body in his hand, linked to the earlier surgery. The Forsheys filed their malpractice complaint in August 2006, which Dr. Jackson moved to dismiss as untimely. The Circuit Court granted this motion, leading to the appeal.

The case is under appeal regarding the circuit court's order that granted Dr. Jackson's motion to dismiss based on Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, citing the statute of limitations and statute of repose in W. Va. Code § 55-7B-4. The circuit court's decision relied on external matters, specifically an opinion from Dr. Edward W. Eskew included in a certificate of merit attached to the complaint. It is established that only materials within the pleadings are considered for a motion to dismiss under Rule 12(b)(6); if extrinsic material is presented and not excluded, the motion should be treated as one for summary judgment under Rule 56. Exceptions exist where documents attached to the complaint or incorporated by reference may be considered, provided the plaintiff relied on these documents when drafting the complaint. Mere possession or notice of the documents is insufficient—actual reliance on their terms and effects is required. The standards for reviewing such motions emphasize the importance of the materials directly associated with the complaint.

In evaluating a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, courts may consider documents attached to the complaint, items incorporated by reference, judicially noticeable matters, public records, and case records without converting the motion to one for summary judgment. The circuit court correctly considered the screening certificate of merit attached to the Forsheys' complaint when ruling on Dr. Jackson's motion to dismiss. The appellate review of such orders is conducted de novo, applying the same standards as the circuit court, where dismissal is warranted only if no set of facts could allow for relief. The standard discourages granting motions to dismiss, requiring courts to view facts in favor of the nonmoving party and to liberally interpret complaints under the notice pleading theory.

In this case, the circuit court based its decision on the ten-year statute of repose for medical professional liability claims, as codified in W. Va. Code § 55-7B-4(a). The allegations involve Dr. Jackson's carpal tunnel surgery on Mr. Forshey on July 6, 1995, with the last professional contact occurring on January 31, 1997. The Forsheys filed their action on August 3, 2006, which was nearly eleven years post-surgery and approximately nine and a half years after the last contact. They argue that their claim is timely based on two theories: the continuous medical treatment doctrine and that each post-operative visit, during which Dr. Jackson allegedly failed to order a necessary diagnostic x-ray, constituted a separate breach of care. Each argument will be addressed in the subsequent discussion.

The Forsheys advocate for the adoption of the continuous medical treatment doctrine to apply to their legal action, asserting that their claim should be considered as having accrued on January 31, 1997, the date Dr. Jackson rescheduled surgery for Mr. Forshey's hand. Under W. Va. Code § 55-7B-4, plaintiffs must file malpractice claims within two years of discovering the injury, but there is a ten-year statute of repose, which can only be extended in cases of fraud or concealment by the health care provider. The continuous medical treatment doctrine allows the statute of limitations to be tolled when treatment involving wrongful acts continues and is directly related to the original medical issue. If the treatment is ongoing, the statute begins to run only after the treatment relationship ends. In contrast, if treatment is intermittent, the limitations period starts from the date of the specific incident of malpractice. This doctrine assists plaintiffs who cannot determine the exact date of their injury due to the ongoing nature of their medical care, allowing for the last date of treatment or hospitalization to serve as the starting point for the limitations period. Courts defend this approach on grounds of fairness, as it would be unjust to penalize a plaintiff unable to pinpoint the precise moment of injury during a continuous treatment process. The limitations period for medical negligence claims can be measured from three key dates: the date of the breach, the last date of treatment, or the last date of hospitalization.

In the Lane case, the plaintiff underwent continuous narcotic treatment from 1966 to 1984 and sued in 1985, claiming injuries and drug addiction stemming from that treatment. Under Arkansas law, the plaintiff had a two-year window to file her action post-wrongful act. The Lane court adopted the continuing treatment doctrine, allowing the statute of limitations to start on the last date of treatment when the exact date of injury is unclear due to ongoing medical care. However, in the case of Mr. Forshey, this doctrine did not apply because his injury was linked to a specific act of negligence—surgery performed on July 6, 1995, where a scalpel blade was allegedly left in his hand. The court ruled that Mr. Forshey's claim, arising from this identifiable injury, was governed by the ten-year statute of repose, meaning his case needed to be filed by July 6, 2005. Since the action was filed on August 3, 2006, it was deemed untimely, leading to the dismissal of the case. The Forsheys also contended that visits in 1996 and 1997 constituted continuing torts due to Dr. Jackson's failure to order an x-ray. However, the court rejected this argument, referencing prior rulings that established the continuing tort doctrine requires ongoing wrongful conduct, which was absent in Forshey's situation.

A mother filed a lawsuit against Charleston Area Medical Center (CAMC) for outrageous conduct related to the autopsy of her deceased daughter. The court rejected the mother's argument for a continuing tort, emphasizing that such a claim requires evidence of repetitive wrongful conduct, which was absent in this case. The court clarified that while damages from the wrongful act may continue, the wrongful act itself—specifically the untimely and incomplete autopsy report—was fixed when the report was provided to the mother on January 9, 1990. The incompleteness of the report was also considered a final wrongful act at that time. Citing precedent from other jurisdictions, the court compared this case to similar decisions in medical malpractice, where claims were rejected based on the idea that the original negligent act had already occurred and did not constitute a continuing tort. Examples included dental malpractice where a misdiagnosis was fixed at the time of treatment and a case involving a surgical error where the plaintiff's argument for ongoing negligence was similarly dismissed. The overarching principle established is that continuing effects of an initial wrongful act do not create grounds for a continuing tort claim, aligning with statutory limitations on such claims.

To establish a continuing tort, a plaintiff must demonstrate both continuous action and continuous damage. In this case, the court determined that Dr. Whitecloud's prescribing of narcotic pain relievers over 11 years did not constitute a continuing tort resulting in ongoing damage. For a continuing tort in medical malpractice, repetitious wrongful conduct must be shown, rather than merely the persistence of harm from an initial wrongful act. The Forsheys' complaint did not adequately allege repetitious wrongful conduct, nor could the attached certificate of merit create a cause of action that was not explicitly stated in the complaint. The complaint must clearly present the essential material facts to outline the elements of a claim. As a result, the circuit court's dismissal of the case was upheld. The majority opinion faced dissent, with Justice Starcher arguing that the case was a clear instance of malpractice, as evidenced by the presence of a scalpel blade left in the plaintiff's hand during surgery, and criticized the majority for misapplying the relevant legal doctrines.

The defendant doctor allegedly committed malpractice by failing to diagnose an error over two years. The dissent argues that the majority opinion wrongly deemed the suit time-barred, preventing the plaintiff from pursuing a potentially viable claim. The dissent references the case of Rashid v. Tarakji, where the court allowed a doctor’s claim to proceed despite significant delays, suggesting a bias that favors medical professionals over ordinary citizens. The dissent criticizes the court for protecting doctors and lawyers from malpractice claims while denying similar protections to injured plaintiffs. In contrast, the concurring opinion contends that the cases are fundamentally different; Rashid involved a timely filed lawsuit dismissed due to procedural issues, while the current case was not filed until over ten years post-injury, violating the statute of repose established by West Virginia law, which mandates that actions must commence within ten years of the injury.

The majority opinion acknowledged the necessity of an exception to the general rule by adopting the continuous medical treatment doctrine but determined that this doctrine is not applicable when a precise date of injury is established. The majority clarified that the doctrine is designed to assist medical malpractice victims who cannot identify their injury date due to ongoing treatment. In Mr. Forshey's case, his injury was not linked to continuous treatment, allowing for a definite date of injury. The majority's ruling aligns with the Court's historical adherence to statutes of limitation and repose, which impose clear deadlines for filing actions. Statutes of limitations serve to ensure timely filing of claims, and the law does not differentiate between just and unjust claims. Exceptions to these statutes are narrowly construed and cannot be expanded based on perceived hardship. Additionally, the majority noted differences in the composition of the Court between this case and the Rashid decision, countering dissenting claims of inconsistency and asserting that the Court's decisions are not influenced by a protective stance toward medical professionals.

Concurrence is expressed in the majority opinion regarding the case at hand. Senior Status Justice Thomas E. McHugh was assigned to the Supreme Court of Appeals of West Virginia due to Justice Joseph P. Albright's illness, effective September 12, 2008. However, Justice McHugh was disqualified from this case, leading to the temporary assignment of Judge J.D. Beane, who also disqualified himself, resulting in Judge Paul M. Blake, Jr.’s appointment. 

Mr. Forshey, a left-handed locksmith, is involved in the case, which includes an x-ray taken at Arrowhead Regional Medical Center in California. West Virginia Code § 55-7B-4 outlines the statute of limitations for medical professional liability claims, mandating that such actions must be initiated within two years of the injury or its discovery, with a maximum limit of ten years post-injury. The limitations can be tolled if there's evidence of fraud or misrepresentation by the healthcare provider.

Dr. Jackson's motion to dismiss, citing noncompliance with the statute of limitations under W. Va. Code § 55-7B-4, aligns with Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, which addresses failures to state a claim upon which relief can be granted. Statutes of limitation and repose are identified as affirmative defenses that must be raised under Rule 8(c). Such defenses may be adjudicated in a motion to dismiss if the relevant facts are clear from the complaint and other judicially acknowledged documents.

A medical malpractice claim in West Virginia requires compliance with specific pre-suit procedures as outlined in W. Va. Code § 55-7B-6(b) (2003, Repl. Vol. 2008). Claimants must serve prospective defendants with a notice of claim and a screening certificate of merit at least 30 days before filing the lawsuit. The notice must detail the liability theories and list all involved health care providers and facilities. The screening certificate, executed under oath by a qualified health care provider, must outline the expert's familiarity with the standard of care, qualifications, breach of care opinion, and the connection between the breach and resultant injury or death. Each provider requires a separate certificate, and the signatory cannot have a financial interest in the claim, although they may serve as an expert witness. 

Dismissals for non-compliance with these requirements are deemed without prejudice unless specified otherwise. The intent of these pre-suit provisions is to deter frivolous claims and encourage resolution of legitimate ones, without restricting access to the courts. Additionally, circuit courts are advised to include sufficient factual findings in dismissal orders to facilitate meaningful appellate review.

The decision in P.T.P., IV modifies West Virginia Rule of Civil Procedure 52(a), indicating that findings of fact and conclusions of law are not required for Rule 12(b) motions. The Forsheys' brief mentions additional exhibits related to Dr. Jackson's motion to dismiss, but these were not included in the record submitted for review. The responsibility for designating the record lies with the parties, limiting appellate review to the issues in that record. The circuit court dismissed the case based on Dr. Jackson's Rule 12(b) motion, making further discussion of the discovery rule unnecessary. The court agreed with the circuit court that the Forsheys' complaint failed to allege concealment, misrepresentation, or fraud by Dr. Jackson. The continuous representation doctrine, recognized in legal malpractice actions, tolls the statute of limitations until the professional relationship concludes. The Forsheys noted that many jurisdictions have adopted some form of the continuous medical treatment doctrine, which dictates that ongoing negligent treatment could toll limitations. To succeed under this doctrine, a plaintiff must show a continuous and unbroken course of negligent treatment that constitutes a single continuing wrong. Various jurisdictions, including Washington D.C., Delaware, Illinois, Kentucky, and Louisiana, have recognized this doctrine, affirming its application in relevant cases.

A malpractice suit is barred if filed more than two years after the last treatment or six months after discovering the malpractice. The cause of action typically accrues when a physician's treatment for a specific condition ends. The "termination of treatment" rule applies, although some jurisdictions recognize a "continuing treatment doctrine," which may toll the statute of limitations if treatment related to the same condition continues without interruption. Different courts have established that the limitations period for medical negligence claims begins on the last date of treatment, and the continuous negligent treatment rule allows claimants to address the entire course of continuous negligent treatment as a single claim. However, some jurisdictions, such as Georgia, have rejected this doctrine, stating the statute of limitations starts at the time of misdiagnosis. Other states, including Massachusetts and Pennsylvania, have not formally adopted the continuous treatment doctrine. The prevailing view is that the statute of limitations begins with the termination of treatment for related conditions.

Tolling the statute of limitations in medical malpractice cases is not applied until the end of treatment; instead, courts utilize the discovery rule to ascertain when a patient should reasonably know of their injury. The continuous treatment rule has been rejected in favor of the discovery rule in Tennessee, indicating that ongoing medical treatment does not extend the statute of limitations. In the case of Ricottilli, the court determined that a deceased individual cannot be classified as a 'patient' under the Medical Professional Liability Act, thus precluding a medical malpractice claim based on their status. Additionally, one judge disqualified himself from the Rashid v. Tarakji case, while another judge dissented from the court's decision.