In Forshey v. Jackson, No. 33834 (November 19, 2008), the Supreme Court of Appeals of West Virginia adopted the continuous medical treatment doctrine. However, when it applied the doctrine, along with the continuing tort doctrine, it found the plaintiff’s complaint failed to state facts supporting either, and therefore held the complaint was barred under the ten year statute of repose for medical negligence claims. The court issued two new syllabus points setting forth the binding precedent of the case:  4. 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; and 5. 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 a continuation of the ill effects of an original wrongful act will not suffice.

Forshey arose from carpal tunnel surgery on July 6, 1995, performed by Dr. Jackson, the defendant. After the surgery, the plaintiff had a bump on his wrist and continued to have problems with pain and swelling. He continued to treat with Dr. Jackson, who recommended a second surgery. After a cancellation, the plaintiff never had the surgery performed. Three years later, in the summer of 2005, the plaintiff suffered an unrelated hand injury and an x-ray revealed a foreign body in his palm, which turned out to be part of a scalpel blade. According to the Complaint, “the only explanation for this foreign body is the carpal tunnel surgery which he had July 1995.”

In April 2006, the plaintiff served Dr. Jackson with presuit Notice of Claim and Certificate of Merit as required by West Virginia Code Section 55-7B-6., and then filed suit on August 3, 2006. Dr. Jackson moved to dismiss based on the expiration of the two-year statute of limitations and the ten year statute of repose set forth in West Virginia Code Section 55-7b-4.

The circuit court granted the motion to dismiss, and relied on the opinion of plaintiff’s certificate of merit expert, whose certificate was attached, along with the notice of claim, as an exhibit to the Complaint.

In a lengthy opinion, Justice Robin Davis first addressed the propriety of the circuit court’s reliance upon the certificate of merit in dismissing the case. Citing the general rule that materials extrinsic to the complaint cannot be relied upon by a court ruling on a motion to dismiss, the court recognized an exception for documents attached as exhibits to a Complaint, stating “we now hold that a circuit court ruling on a motion to dismiss under Rule 12(b)(6) 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.”

Addressing the motion to dismiss, the court focused on the July 6, 1995 date of surgery, and the plaintiff’s subsequent course of treatment with Dr. Jackson, whose last professional contact was on January 31, 1997. The filing of the action on August 3, 2006, was “nearly 11 years after the carpal tunnel surgery, and approximately 9½ years after Mr. Forshey’s last professional contact with Dr. Jackson.”

Examining the continuous medical treatment doctrine, the court found it is intended “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.” The court concluded: "We are persuaded that the continuous medical treatment doctrine should be adopted for determining the date of injury where such date is not identifiable due to the nature of the medical treatment received. Therefore, based upon the foregoing, we now hold that, 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."
 
However, the court found the doctrine did not apply to plaintiff’s claims because the plaintiff had an identifiable injury after surgery. Thus, the plaintiff’s complaint 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 . . . occurred on a date certain, the date that Dr. Jackson performed surgery . . .”

The court then examined the “continuing tort” doctrine and held it was inapplicable to save plaintiff’s late filing. “[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 tortuous overt acts or omissions cease.” A continuing tort requires a showing of repetitious wrongful conduct.

Applying the doctrine, the court affirmed the Circuit Court. “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 is set out in the Complaint.”

While
Forshey is disappointing to West Virginia defense counsel because of its adoption of the continuous medical treatment doctrine, the court applied the doctrine and the continuing tort doctrine very strictly and required the plaintiff to plead facts supporting the application of both doctrines. The court also enforced without much comment the ten year statute of repose for the filing of medical negligence claims, although the opinion implies the limitation could be extended under either doctrine. Finally, the court’s discussion of when exhibits can be relied upon by trial courts is instructive. Forshey, therefore, is worth a read by defense lawyers handling medical negligence and other tort claims.

The opinion in
Forshey is available online at the website of the Supreme Court of Appeals of West Virgina.
http://www.state.wv.us/wvsca/


Thomas J. Hurney, Jr.
Jackson Kelly PLLC
Charleston, West Virginia
thurney@jacksonkelly.com
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