Morgantown, West Virginia
Counsel for Appellant
Karen Speidel Rodgers
Kay, Casto, Chaney, Love & Wise
Charleston, West Virginia
Counsel for Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
1. By definition, a deceased individual does not qualify as
a "patient" under the Medical Professional Liability Act ("Act"),
West Virginia Code §§ 55-7B-1 to -11 (Supp. 1992), and therefore
cannot be the basis for a cause of action alleging medical
professional liability pursuant to the Act.
2. An individual may recover for the negligent infliction of
emotional distress absent accompanying physical injury upon a
showing of facts sufficient to guarantee that the emotional damages
claim is not spurious.
Caroline Ricottilli appeals from an order of the Circuit Court
of Kanawha County entered on June 18, 1991, dismissing her
complaint against Appellee Charleston Area Medical Center ("CAMC").
Having determined that Appellant's cause of action was improperly
dismissed below, we reverse the decision of the circuit court.
On March 14, 1989, the six-year-old daughter of Appellant,
Tara Ricottilli, was admitted to CAMC as a patient after being
transported by helicopter from the Summersville Memorial Hospital
in Summersville, West Virginia. Tara died within a matter of hours
after her admission to CAMC. Following Tara's death on March 15,
1989, Appellant's husband signed a consent form authorizing a post-mortem examination to be performed on Tara's body. The autopsy was
performed by CAMC on March 15, 1989, and liver tissue samples were
taken at that time to aid in the determination of the cause of
The results of the autopsy report were not provided to
Appellant and her husband until early January 1990, almost ten
months after Tara's death. The autopsy report, which is dated
January 9, 1990, states that: "The clinical course and morphologic
findings of the liver suggest the possibility of an inborn error of
metabolism, although the clinical workup of this patient by her
local physician did not provide any diagnostic clues." The report
further states that "[a]n attempt will be made to perform
biochemical studies on frozen liver tissue. . . ." Appellant
alleges in her complaint that CAMC has still not reported the
results of the tissue sample analysis to her notwithstanding
numerous requests. Through the filing of CAMC's brief in this
case, it was revealed, apparently for the first time, that no
testing of the liver tissue samples was possible because the tissue
had been removed post rather than pre-embalming.
On March 12, 1991, Appellant filed a complaint against
Summersville Memorial Hospital ("SMH"), Dr. Mark Tomsho, Carla
Dorsey, Paula Dorsey, Marshall Wickline, and unknown healthcare
providers at SMH and CAMC in the Circuit Court of Kanawha County.
Appellant's cause of action against CAMC was predicated on the tort
of outrageous conduct or negligent infliction of emotional distress
and medical professional negligence. CAMC filed a Motion to
Dismiss and supporting memorandum alleging that the outrageous
conduct claim was barred by the applicable one-year statute of
limitations and that the medical professional negligence claim
failed to state a claim due to Appellant's sole reliance on
emotional damages to support this cause of action. Without stating
any reasons for its decision, the circuit court granted CAMC's
Motion to Dismiss with prejudice by order entered June 18, 1991.
It is from that order that Appellant now appeals.
Because the trial court did not permit oral argument on
CAMC's Motion to Dismiss, this Court has no record from which to
identify the grounds upon which the court relied in granting the
dismissal. Accordingly, we address both of the arguments cited by
CAMC in its Motion to Dismiss to determine whether the circuit
court could have properly relied on either of those positions as
the basis for its decision. CAMC's Motion to Dismiss states
essentially two arguments. First, that the outrageous conduct
claim is barred by a one-year statute of limitations and second,
that the medical professional negligence claim fails to state a
claim based on the lack of any alleged physical damages. Proper
analysis of these arguments requires a partial recitation of the
averments made by appellant against CAMC in the complaint.
Count eight, which is entitled "Medical Professional Liability
Action and the Tort of Outrageous Conduct Against the Charleston
Area Medical Center," is the only count of the complaint which
contains allegations pertaining to CAMC. The pertinent paragraphs
of count eight aver as follows:
51. In providing medical services to
Tara Ricottilli and to the plaintiff, CAMC
negligently, intentionally and recklessly
violated its duty to exercise that degree of
care, skill and learning required or expected
of a hospital acting as a reasonable or
prudent health care provider in performing an
autopsy and diagnostic testing in the same or
similar circumstances. CAMC failed to provide
timely information concerning the cause of
Tara Ricottilli's death, failed to provide any
information concerning diagnostic tissue
samples sent to other medical facilities for
analysis, and failed to provide a timely
52. CAMC knew, or should have known, that its failure to provide the medical services were likely to be the cause of emotional distress, thus, its intentional and reckless conduct was outrageous, intolerable and offensive to generally accepted standards of decency in light of the plaintiff's grief and legitimate, deep concern for the well-being of her surviving children because of the possible genetic cause of Tara Ricottilli's death.
53. As a direct and proximate result of CAMC's negligent, intentional and reckless breach of its duty to provide medical services in the form of autopsy and diagnostic testing results, as well as timely autopsy reports, the plaintiff has suffered severe mental and emotional anguish because her surviving children may be at risk from the same genetic illness that caused Tara Ricottilli's death and the plaintiff does not have the information necessary to seek the appropriate medical care for her surviving children.
We first examine whether this case was properly dismissed
under a one-year statute of limitations. CAMC cites this Court's
decision in Rodgers v. Corporation of Harper's Ferry, 179 W. Va.
637, 371 S.E.2d 358 (1988), in support of its position that
Appellant's claim against CAMC for outrageous conduct or
intentional infliction of emotional distress is time-barred. In
Rogers, we ruled that "personal tort actions such as libel,
defamation, intentional infliction of emotional distress, false
arrest, false imprisonment, and malicious prosecution take the one-year statute of limitations [set forth in W. Va. Code § 55-2-12(c)
(1981)] because they are excluded from statutory survivability
under W. Va. Code § 55-7-8a(a) (1981). . . ." 179 W. Va. at 640,
371 S.E.2d at 361. Accordingly, Appellant's first cause of action
which is predicated on the tort of outrageous conduct or negligent
infliction of emotional distress is governed by a one-year statute
Given that the one-year limitations period controls the
intentional tort of outrageous conduct, the next question becomes
on what date the one-year statute began to run? CAMC argues that
January 9, 1990, the date of the autopsy results, is the only
possible date from which to calculate the limitations period.
Accordingly, CAMC concludes that because the underlying civil
action was not filed until March 12, 1991, the one-year limitations
period had elapsed prior to the filing. Appellant contends that
CAMC's actions or lack thereof constitute a continuing tort which
in turn prevents the statute from running. Conversely, Appellant
argued in response to CAMC's Motion to Dismiss that the one-year
period does not begin to run until she receives the test results
pertaining to the liver tissue samples taken in conjunction with
the autopsy performed on Tara.See footnote 1
We 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.See footnote 2
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. With regard to the tissue report, Appellant
contends and CAMC does not dispute that she first learned through
CAMC's appellate brief, which was filed with this Court on August
26, 1992, that "[b]ecause the liver tissue had been embalmed and no
tests could be performed, there are no liver tissue test results to
be reported." Given the facts currently before this Court, the
applicable statute of limitations with regard to any delay in the
issuance of the tissue report would start to run on August 26,
1992. Were this Court to discover or be apprised that the
Appellant did have knowledge at an earlier point in time regarding
the deficient tissue samples, we would accordingly adjust the onset
date for the applicable limitations period. 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.
Having not accepted the applicability of the continuing tort
theory, we must still resolve when the statutory period began to
run on the outrageous conduct claim. CAMC focuses almost entirely
on the untimely tender of the autopsy report results on January 10,
1990, as the date for analysis of the limitations issue. Because
we do not find Appellant's causes of action limited solely to an
untimely autopsy report, we cannot confine the limitations analysis
to the date on which the autopsy report was ultimately prepared or
reported to Appellant.See footnote 3 The allegations against CAMC are certainly
not limited to a claim for dilatoriness in the completion of the
autopsy report as demonstrated by the following excerpt from
paragraph 53 of the complaint: "[a]s a direct and proximate result
of CAMC's negligent, intentional and reckless breach of its duty to
provide medical services in the form of autopsy and diagnostic
testing results, as well as timely autopsy reports. . . ."
(emphasis supplied). In addition to alleging damages in connection
with the autopsy, Appellant advises CAMC in paragraph 53 that she
incurred damages through the breach of its duty to supply
"diagnostic testing results." The referenced testing results must
refer to the liver tissue tests. Because Appellant did not find
out until an admission was made in CAMC's appellate brief that no
tissue sample report would be forthcoming due to the embalming
error, the one-year limitations period for the alleged outrageous
conduct associated with the tissue report did not begin to run
until August 26, 1992, well after the civil action had been
With regard to her second cause of action which is grounded
in negligence, Appellant relies on the two-year statute of
limitations found in the Medical Professional Liability Act
("Act"), West Virginia Code §§ 55-7B-1 to -11 (Supp. 1992), to
argue that her claim is not time-barred. By definition the Act
pertains to liability arising from the provision of "health care"
which is defined as "treatment performed or furnished, or which
should have been performed or furnished . . . on behalf of a
patient. . . ." W. Va. Code § 55-7B-2(a). Because the term
"patient" is further defined as a "natural person," a deceased
individual is necessarily precluded from qualifying as a patient
under the Act, and therefore cannot be the basis for a cause of
action alleging medical professional liability pursuant to the Act.
W. Va. Code § 55-7B-2(e). Accordingly, the two-year statute of
limitations pertaining to violations of the Act is inapplicable.
There is, however, another two-year statute of limitations
which does apply. The two-year limitations statute found in West
Virginia Code § 55-2-12 (1981), which applies to torts in general,
would govern as to the general averments of negligence pertaining
to CAMC's breach of its duties following the death of Appellant's
daughter. Although CAMC tends to ignore the fact that the
complaint includes averments centering on negligence other than the
dilatoriness of the autopsy report, a quick review of the
allegations contained in paragraphs fifty-one through fifty-three
demonstrates that additional averments of negligence are asserted
therein. For example, paragraph fifty-one avers that "CAMC
negligently . . .violated its duty . . . in performing an autopsy
and diagnostic testing. . . ." As mentioned above, the "diagnostic
testing" necessarily includes by reference the liver tissue tests.
Accordingly, Appellant has made averments of negligence which
center on the duty of care associated with the liver tissue report
and by extension, the extraction of the tissue samples necessary to
perform the testing on the samples. Because the date of the
autopsy performance, March 15, 1989, is the date on which any act
of negligence occurred with regard to the tissue sample removal,
Appellant was clearly within the two-year filing period applicable
to torts in general when she initiated her lawsuit on March 12,
1991, even absent any invocation of the discovery rule. We
conclude that the circuit court committed reversible error by
relying on CAMC's claim that Appellant's claims were time-barred.
CAMC's second basis for its Motion to Dismiss is Appellant's
failure to state a claim of medical professional negligence based
on her assertion of emotional damages to support this cause of
action. CAMC's argument that "[c]laims for the negligent
infliction of emotional distress have not been recognized by this
Court, as we have expressed a reluctance to permit recovery for
emotional distress in the absence of an intentional tort" was
correct at the time of its assertion.See footnote 4 Funeral Serv. By Gregory,
Inc. v. Bluefield Community Hosp., 186 W. Va. 424, 429, 413 S.E.2d
79, 84 (1991). CAMC further recognized, however, that there is an
exceptionSee footnote 5 to the rule that liability may not be predicated upon
negligence where the damage is limited to mental or emotional
disturbance without accompanying physical injury. This exception
which is often referred to as the "dead body exception" permits
recovery for emotional damages upon proof of the negligent
mishandling of a corpse. CAMC argues that because there is no
allegation in the complaint that Appellant was impeded in
connection with her daughter's burial, the "dead body exception"
does not apply.
This Court, while it has not yet formally recognized an
extension of the "dead body exception," did note in Whitehair v.
Highland Memory Gardens, Inc., 174 W. Va. 458, 327 S.E.2d 438
'In two special groups of cases, however,
there has been some movement to . . . allow
recovery for mental disturbance alone. . . .
The other [second] group of cases has involved
the negligent mishandling of corpses. Here
the traditional rule has denied recovery for
mere negligence without circumstances of
aggravation. There are by now, however, a
series of cases allowing recovery for
negligent embalming, negligent shipment,
running over the body, and the like, without
such circumstances of aggravation. What all
of these cases appear to have in common is an
especial likelihood of genuine and serious
mental distress, arising from the special
circumstances, which serves as a guarantee
that the claim is not spurious.'
Id. at 463, 327 S.E.2d at 443 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 362 (5th ed. 1984 & Supp. 1988) (footnotes omitted and emphasis supplied).
The emotional distress alleged to have been suffered by
Appellant arises from the fact that the cause of Tara's death may
be genetic in origin and that her two younger children may
therefore be predisposed to contract the same disease as they
approach the age at which Tara died. Appellant contends that the
younger Ricottilli children are unable to receive what is
potentially a lifesaving medical diagnosis and treatment because of
CAMC's failure to provide complete information regarding Tara's
cause of death. Appellant alleges that her independent attempts to
pursue genetic testing for her remaining children have not met with
success because without the tissue samples or report therefrom, the
doctors do not know where to begin to search for the disease.
As we referenced in Whitehair, the common basis for extending
the "dead body exception" has been facts which indicate "'an
especial likelihood of genuine and serious mental distress'"
"'which serve as a guarantee that the claim is not spurious.'" 174
W. Va. at 463, 327 S.E.2d at 443 (quoting Keeton et al.). Given
that this case is still in the early stages of litigation insofar
as no discovery appears to have been taken, we find ourselves in a
difficult situation. On the record before us, we cannot conclude
that the appropriate guarantees against spuriousness are present
sufficient to warrant an extension of the "dead body exception" to
this case. However, we do suggest that if the record below
ultimately demonstrates facts sufficient to guarantee that the
emotional damage claim is not spurious, Appellant may be able to
recover damages for her alleged emotional disturbance arising from
the alleged negligence surrounding the autopsy and extraction of
tissue samples. Accordingly, we hold that an individual may
recover for the negligent infliction of emotional distress upon a
showing of facts sufficient to guarantee that the emotional damage
claim is not spurious. As Prosser & Keeton note,
[w]here the guarantee can be found, and the
mental distress is undoubtedly real and
serious, there may be no good reason to deny
recovery. But cases will obviously be
infrequent in which 'mental disturbance,' not
so severe as to cause physical harm, will
clearly be a serious wrong worthy of redress
and sufficiently attested by the circumstances
of the case.
Keeton et al., supra, § 52, at 362.
Based on the foregoing opinion, the decision of the Circuit
Court of Kanawha County is hereby reversed.
Footnote: 1Appellant now knows that no report will be forthcoming based on CAMC's admission in its appellate brief filed on August 26, 1992, that the samples are useless because they were removed following the embalming.
Footnote: 2See n.1, supra.
Footnote: 3While the autopsy report is dated January 10, 1990, it appears that Appellant may not have learned of its completion until one day later.
Footnote: 4We note the recent holding of this Court, however, that
[a] defendant may be held liable for
negligently causing a plaintiff to experience
serious emotional distress, after the
plaintiff witnesses a person closely related
to the plaintiff suffer critical injury or
death as a result of the defendant's negligent
conduct, even though such distress did not
result in physical injury, if the serious
emotional distress was reasonably foreseeable.
To the extent that Monteleone v. Co-Operative
Transit Co., 128 W. Va. 340, 36 S.E.2d 475
(1945), is inconsistent with our holding in
cases of plaintiff recovery for negligent
infliction of emotional distress, it is
Syl. Pt. 1, Heldreth v. Heldreth, No. 21124 (W. Va. filed Dec. 14, 1992).
Footnote: 5There are actually two exceptions to the general rule, but only one of the two is applicable to this case. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 54, at 362 (5th ed. 1984) for discussion of other exception.