No. 35338 - Annie Mack-Evans v. Oak Hill Hospital Corporation, d/b/a Plateau Medical
Workman, Justice, concurring, in part, and dissenting, in part:
'The question of when plaintiff knows or in the exercise of reasonable
diligence has reason to know of medical malpractice is for the jury.' Syllabus Point 4, Hill
, 161 W. Va. 258, 241 S.E.2d 572 (1978). Syl. Pt. 5, Gaither v. City Hosp., Inc.
199 W. Va. 706, 487 S.E.2d 901 (1997). Despite this well-settled axiom, the circuit court
in this case removed this question from the province of the jury by deciding it on summary
judgment. Because the plaintiff, Annie Mack-Evans (Ms. Mack-Evans), was entitled to
have a jury - not the circuit court - determine when she knew, or through the exercise of
reasonable diligence had reason to know, of the alleged medical malpractice which led to her
mother's death, I respectfully dissent from the majority's decision on this ground. (See footnote 1)
Importantly, for purposes of the running of a statute of limitations, a wrongful
death cause of action does not accrue until a plaintiff knows, or has reason to know through
the exercise of reasonable diligence, that a particular entity engaged in conduct that is causally related
to the death. Syl. Pt. 8, Bradshaw v. Soulsby
, 210 W. Va. 682, 558 S.E.2d
681 (2001). The majority finds that Ms. Mack-Evans knew, or should have known, as of the
date of her mother's death
that Oak Hill Hospital Corporation (the Hospital) was
responsible for that death. In so holding, the majority conveniently ignores facts showing
that when her mother died more than seven months after the Hospital's alleged wrongful acts,
Ms. Mack-Evans reasonably believed that intervening events were to blame and, thus, had
no reason to suspect the death was causally related
to the Hospital's actions seven months
A motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law. Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of
, 148 W. Va. 160, 133 S.E.2d 770 (1963). In considering a motion for summary
judgment, courts must draw any permissible inference from the underlying facts in the light
most favorable to the party opposing the motion. Painter v. Peavy
, 192 W. Va. 189, 192,
451 S.E.2d 755, 758 (1994).
In this case, when the complete factual record is reviewed and inferences are
drawn in the light most favorable to Ms. Mack-Evans (as must be done on a motion for
summary judgment), there can be no doubt that a genuine issue of material fact exists as to
when the wrongful death claim accrued for purposes of the running of the statute of
limitations. To understand the basis for my dissent, a full recitation of the facts as well as
the law on what constitutes the accrual of a claim is necessary.
On January 28, 2004, eighty-six-year-old Mamie Mack (Ms. Mack) was
admitted to the Hospital to undergo elective hip replacement surgery. Upon her admission,
a physician discovered that Ms. Mack's blood pressure was extremely elevated and ordered
that her blood pressure be monitored every four hours. Ms. Mack's medical records,
however, indicate that such readings were not recorded on her chart and that the Hospital
failed to check her blood pressure as part of her pre-operative anesthesia evaluation. Ms.
Mack's doctors, therefore, were unaware of her high blood pressure at the time of surgery.
An expert hired by Ms. Mack-Evans to review these records opined that Ms. Mack's blood
pressure was so high at the time of her surgery that the procedure should have been
postponed. Neither Ms. Mack nor her family was informed of her elevated blood pressure,
however, and the surgery proceeded as scheduled on January 29, 2004.
Immediately following surgery, Ms. Mack-Evans visited Ms. Mack and found
her semi-conscious and groggy. Unknown to Ms. Mack-Evans, Ms. Mack's blood pressure
was beginning to drop. Although a physician attempted to increase her blood pressure with
an intravenous push around 5:25 p.m. that day, Ms. Mack's blood pressure continued to drop
and remained dangerously low for approximately twelve hours. According to Ms.
Mack-Evans' expert, this low blood pressure caused a lack of oxygen to the brain which
resulted in a stroke or other brain damage.
The day after surgery, January 30, 2004, the Hospital contacted Ms.
Mack-Evans and informed her that they had been unable to awaken Ms. Mack. The nurse
who contacted Ms. Mack-Evans admitted that, because Ms. Mack had been pulling at her IVs
as she regained consciousness following surgery, the Hospital had re-sedated her and she
had not regained consciousness. This conversation led Ms. Mack-Evans to believe that
something was wrong; specifically, that someone at the hospital had done something
wrong by re-sedating her mother.
On February 19, 2004, Ms. Mack was discharged from the Hospital and
transferred to the Hilltop Health Care Center nursing home facility (Hilltop). While at
Hilltop, Ms. Mack suffered from additional illnesses, including a life-threatening urinary
tract infection, infected bed sores, malnutrition, severe dehydration and a pus-filled abscess
at the site of her feeding tube. On July 23, 2004, Ms. Mack was transferred to another
nursing home. On August 5, 2004, she returned to the Hospital, where she died on August
9, 2004. The death certificate listed her primary cause of death as cardiopulmonary arrest,
with overwhelming sepsis and bilateral pneumonia as underlying conditions. Eleven days
later, on August 20, 2004, Ms. Mack-Evans was appointed the personal representative of Ms.
'Generally, a cause of action accrues (i.e., the statute of limitations begins to
run) when a tort occurs; under the 'discovery rule,' the statute of limitations is tolled until a
claimant knows or by reasonable diligence should know of his claim.' Syllabus Point 1, Cart
188 W. Va. 241, 423 S.E.2d 644 (1992). Gaither
, 199 W. Va. 706, 487 S.E.2d
901, Syl. Pt. 2. In the instant case, the majority has concluded that the wrongful death claim
accrued on the date of Ms. Mack's death, August 9, 2004. Ms. Mack-Evans, however,
contends that the discovery rule prevented the claim from accruing until, at minimum, she
was appointed as the personal representative of her mother's estate. She points out that, until
her appointment, she was not able to obtain her mother's medical records and, thus, could
not have learned through the exercise of reasonable diligence of the causal connection
between her mother's death and the hospital's wrongful acts.
, a seminal case expanding West Virginia jurisprudence on the nature
and scope of the discovery rule, this Court held that a tort claim does not accrue
of the running of the statute of limitations until the plaintiff knows, or should know through
the exercise of reasonable diligence, at least three things. 199 W. Va. 706, 487 S.E.2d 901,
Syl. Pt. 4. First, the plaintiff must know that he or she has been injured. Id.
plaintiff must know the identity of the entity who owed the plaintiff a duty to act with due
care, and who may have engaged in conduct that breached that duty. Id.
Third, the plaintiff
must know that the entity's conduct had a causal relation to the plaintiff's injury. Id.
the statute of limitations does not begin to run until a plaintiff knows, or by the exercise of
reasonable diligence should know, all
of this information.
In 2001, the Court clarified that the discovery rule applies not only to personal
injury claims, but also to wrongful death claims. Bradshaw
, 210 W. Va. 682, 558 S.E.2d
681. In Bradshaw
, the Court established a new syllabus point for determining when a
wrongful death claim accrues, enunciating the Gaither
concepts as four
[i]n a wrongful death action, under the discovery rule, the statute
of limitation contained in [the wrongful death statute] begins to
run when the decedent's representative knows or by the exercise
of reasonable diligence should know (1) that the decedent has
died; (2) that the death was the result of a wrongful act, neglect,
or default; (3) the identity of the person or entity who owed the
decedent a duty to act with due care and who may have engaged
in conduct that breached that duty; and (4) that the wrongful act,
neglect or default of that person or entity has a causal relation to
the decedent's death.
Id. at Syl. Pt. 8. Thus, in a wrongful death case, the claim does not accrue, for the purposes
of the running of the statute of limitations, until the plaintiff knows, or through the exercise
of reasonable diligence should know, (1) of the death, (2) that it was the result of another's
act, (3) the identity of the entity who owed a duty of care to the decedent and who may have
engaged in conduct breaching that duty, and (4) that a causal connection exists between that
entity's conduct and the death. Id.
Most recently, this Court reaffirmed these discovery rule concepts in Dunn v.
Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009). In syllabus point four of that opinion, the
Court explained that
[u]nder the discovery rule set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901
(1997), whether a plaintiff knows of or discovered a cause
of action is an objective test. The plaintiff is charged with
knowledge of the factual, rather than the legal, basis for the
action. This objective test focuses upon whether a reasonable
prudent person would have known, or by the exercise of
reasonable diligence should have known, of the elements of a
possible cause of action.
Id. at ___, 689 S.E.2d at 265. The Court then set forth, in syllabus point five, a five-step
analysis for determining whether a particular cause of action is time barred. Id. The first
step is to determine the applicable statute of limitations, which the Court found to be a purely
legal question. Id. The second step is to identify when the requisite elements of the cause
of action occurred and the third step is to determine whether the discovery rule should be
applied. Id. The Court held that both of these steps will generally involve questions of
material fact that will need to be resolved by the trier of fact. Id. In fact, in most cases, the
question of when a claim has accrued, and thus when a statute of limitations should begin
to run, is a question for the jury. See, e.g., Gaither, 199 W. Va. at 714-15, 487 S.E.2d at
Turning to the instant case, Ms. Mack-Evans was clearly entitled to have a jury
determine when the applicable statute of limitations should have begun to run, because
genuine issues of material fact exist as to whether Ms. Mack-Evans knew or should have
known of the facts linking the Hospital to her mother's death as of the date her mother died.
Indeed, the record indicates that, until her mother's medical records were obtained, Ms.
Mack-Evans believed that the Hospital's only potential error was in re-sedating her mother
following surgery. Ms. Mack-Evans had no knowledge of the Hospital's alleged failure to
track Ms. Mack's blood pressure prior to surgery, nor did she know that a drop in blood
pressure following surgery likely caused Ms. Mack to suffer from a stroke or other brain
Moreover, several medical entities besides the Hospital treated Ms. Mack
between the date of the surgery and the date of her death. Indeed, by the time Ms. Mack died
on August 9, 2004, Ms. Mack-Evans believed that the substandard care her mother received
at Hilltop was the actual and proximate cause of her death. (See footnote 2) The death certificate gave no
indication that Ms. Mack's death was in any way related to her hip surgery or any other act
by the Hospital and, thus, could not have put Ms. Mack-Evans on notice of the wrongful
death claim against the Hospital. Thus, any conclusion at the time of Ms. Mack's death that
the Hospital's actions or inactions were causally related to that death would have been
completely speculative on Ms. Mack-Evan's part.
The majority, however, concludes that the discovery rule does not apply in this
case because Ms. Mack-Evans admitted that she knew something was wrong as of the day
after her mother's surgery. At most, that statement merely indicates that, as of January 30,
2004, Ms. Mack-Evans suspected that someone had done something wrong. (See footnote 3) Such suspicions
do not meet the criteria of Gaither and Bradshaw for the accrual of a wrongful death claim.
Indeed, the record indicates that the Hospital's alleged wrongful act that caused Ms. Mack-
Evans to suspect something was wrong, i.e. the alleged re-sedation of her mother following
surgery, was not, in fact, the wrongful conduct which ultimately led to her death.
Given these circumstances, a genuine issue of material fact clearly exists as to
when Ms. Mack-Evans knew, or by the exercise of reasonable diligence should have known,
that the Hospital's alleged wrongful acts were causally related to Ms. Mack's death. For
these reasons, this case should have been remanded for a jury determination of whether the
discovery rule tolled the statute of limitations on the wrongful death claim. (See footnote 4) I agree,
however, with the majority's analysis of the personal injury claim and, for the reasons stated
in the majority opinion, would find that the personal injury claim is barred by the statute of
limitations. I further join with the majority in the new syllabus point. Accordingly, I concur,
in part, and dissent, in part, from the majority's opinion.
I would further require the jury to determine the date by which Ms. Mack-Evans
knew, or should have known through the exercise of reasonable diligence, of the existence
of the wrongful death claim. Ms. Mack-Evans was appointed the personal representative of
her mother's estate approximately eleven days after her mother passed away. She asserts that
she did not know that a wrongful death claim existed against the Hospital until an expert
reviewed her mother's medical records. She admits, however, that she did not even request
those records until shortly before filing this suit. Because Ms. Mack-Evans had the ability
to request Ms. Mack's medical records as soon as she was appointed as the personal
representative of the estate, a jury could reasonably conclude that, under the discovery rule,
the statute of limitations would only toll until Ms. Mack-Evans had obtained the ability to
request the medical records. At that point, the exercise of reasonable diligence would have
revealed the existence of the claim and, pursuant to the discovery rule, the claim would have
accrued and the statute of limitations would have begun to run. See Bradshaw, 210 W. Va.
682, 558 S.E.2d 681, Syl. Pt. 8.