Morgantown, West Virginia
Counsel for Appellant
Herbert G. Underwood
Steptoe & Johnson
Clarksburg, West Virginia
Counsel for Appellee
This Opinion was delivered Per Curiam.
"'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, Harrison v. Seltzer,  W.
Va. , 268 S.E.2d 312 (1980), quoting, Syl. pt. 3, Aetna
Casualty and Surety Co. v. Federal Insurance Co. of New York, 148
W. Va. 160, 133 S.E.2d 770 (1963)." Syl. Pt. 2, Renner v. Asli,
167 W. Va. 532, 280 S.E.2d 240 (1981).
This is an appeal by Josephine Findo from a January 8, 1992,
order of the Circuit Court of Marion County which granted summary
judgment in favor of the Appellee, Robert B. Hamilton, M.D. The
Appellant contends that summary judgment was inappropriately
ordered and seeks reversal of the order of the circuit court. We
find no reversible error and affirm.
On September 9, 1986, Appellant Josephine Findo was admitted to Fairmont General Hospital with a fever and stomach cramps. Her physician of 28 years, Dr. Robert B. Hamilton, treated her for acute diverticulitis and perforation of the colon and discharged her on September 23, 1986. In October 1987, the Appellant was admitted to Monongalia General Hospital in Morgantown. She was hospitalized on several occasions from October 1987 through January 1992 for surgical procedures necessary to correct damage allegedly caused by Dr. Hamilton's failure to appropriately treat the Appellant's condition in 1986.See footnote 1
A complaint was filed on January 8, 1991, against Dr. Hamilton
alleging medical malpractice. During a November 1, 1991,
deposition of the Appellant, she testified that Dr. Lorraine Tyre
had informed her in October 1987 that Dr. Hamilton did not provide
her with the proper medical treatment. Based upon this testimony,
the Appellant's complaint was dismissed on January 8, 1992, on the
grounds that she had discovered the Appellee's alleged malpractice
in October 1987 and had not filed her complaint within the two-year
statute of limitations. The Appellant now appeals that
determination and contends that a question of fact still exists as
to the date on which the statute of limitations should have begun.
The Appellant now contends that she did not have sufficient
awareness of the Appellee's malpractice until August 1989 when a
medical expert first informed her that the treatment rendered by
Dr. Hamilton was negligent.
Pursuant to the Medical Professional Liability Act,
specifically West Virginia Code § 55-7B-4(a) (Supp. 1992), an
injured plaintiff's cause of action "must be commenced within two
years of the date of such injury, or within two years of the date
when such person discovers, or with the exercise of reasonable
diligence, should have discovered such injury, whichever last
occurs. . . ." The Appellant urges us to recognize the distinction
between discovery of a physical manifestation of damage resulting
from malpractice and the malpractice itself, i.e., it is possible
to discover an injury without recognizing that malpractice was
committed. The Appellant further asserts that the statute of
limitations should not begin to run until the Plaintiff becomes
aware that the action in question constituted malpractice. The
Appellant cites Renner v. Asli, 167 W. Va. 532, 280 S.E.2d 240
(1981), in support of this position. In Renner, the lower court
had granted the defendant's motion for summary judgment on the
basis of the plaintiff's deposition statement regarding her first
awareness that her physician had "'messed up'" her arm. Id. at
535, 280 S.E.2d at 242. We reversed, explaining the following:
We do not believe that plaintiff's knowledge
of her condition from her own observation, and
that acquired from her physicians, was
sufficient to justify a determination, as a
matter of law, that she knew of the
defendant's negligence in his treatment of her
more than two years before she instituted the
Id. at 534, 280 S.E.2d at 242. We further determined that the "injury" was discovered on the date the plaintiff realized that she was a victim of medical malpractice.
The central malpractice question was whether
an earlier operation on the ulnar nerve would
have prevented the plaintiff's subsequent
claw-like hand and loss of her fifth finger.
Until plaintiff was informed that a prompt
operation on the unlar nerve would have
prevented her claw-like hand and subsequent
amputation of her fifth finger, she had not
'discovered' the malpractice. There is no
conclusive information on this fact in
discovery material and consequently summary
judgment was inappropriate.
Id. at 535-36, 280 S.E.2d at 242.
We agree, in theory, with the Appellant's interpretation of
the knowledge necessary to prompt the running of the statute of
limitations. In her case, the statute did not begin to run when
she merely discovered that additional treatment could possibly have
been provided or that Dr. Hamilton could have treated her more
aggressively. Rather, as in Renner, the statute began to run when
the Appellant affirmatively recognized that malpractice had been
committed. An exhaustive analysis of the record, however, must be
conducted in order to discover the moment at which the Appellant
gained such knowledge. By her own testimony, the Appellant
acknowledged that she discovered Dr. Hamilton's alleged negligence
in October 1987. With regard to an appointment with Dr. Tyre in
October 1987, the record reveals the following exchange:
Q. "Did Dr. Tyre tell you that what Dr.
Hamilton did was malpractice and not
A. "Um-Hmn, that's what she told me."
Elsewhere in her testimony, however, the Appellant contends that she could not recall exactly what Dr. Tyre told her. The Appellant asserts that this uncertainty raises an issue of material facts precluding summary judgment and requiring the taking of additional evidence. A review of pertinent portions of the deposition testimony is therefore warranted.See footnote 2
A review of the Appellant's testimony leads to the inescapable conclusion that she was informed by Dr. Tyre in October 1987 that Dr. Hamilton's actions constituted malpractice. While some excerpts from the transcript do indicate the Appellant's confusion about particular aspects of her discussions regarding Dr. Hamilton's treatment, she repeatedly answers in the affirmative when questioned as to whether she was told in October 1987 that Dr. Hamilton's actions constituted malpractice. In addressing a similar evidentiary issue in Renner, we explained that there was "no conclusive information" in the discovery regarding exactly when the plaintiff was informed that a previous operation could have prevented certain injuries. 167 W. Va. at 536, 280 S.E.2d at 242. In syllabus point 1 of Renner, we explained the following: "'[t]he question of when plaintiff knows or in the exercise of reasonable diligence has reason to know of medical malpractice is for the jury.' Syl. pt. 1, Harrison v. Seltzer,  W. Va. , 268 S.E.2d 312 (1980), quoting, Syl. pt. 4, Hill v. Clarke,  W. Va. , 241 S.E.2d 572 (1978)." That statement, however, necessarily assumes that a legitimate question is raised during the proceedings as to the time knowledge was acquired. The principles requiring presentation to the jury need not be stretched to absurdity. Certainly, as we acknowledged in Renner, "[w]e do not mean to suggest . . . that summary judgment is never proper in a medical malpractice case. We merely hold that summary judgment was not proper in this case in view of the evidence." 167 W. Va. at 536, 280 S.E.2d at 243.
Similarly, in Harrison, we found summary judgment
inappropriate because a factual issue existed as to whether the
physician who had been sued for malpractice had informed the
plaintiff of essential medical information. 165 W. Va. at 373, 268
S.E.2d at 315. In the present case, however, we have the
Appellant's own testimony regarding the moment at which she learned
of Dr. Hamilton's malpractice. Indeed, we are confronted with that
direct testimony indicating knowledge in October 1987 of Dr. Tyre's
opinion regarding Dr. Hamilton's malpractice. In light of such
specific testimony by the Appellant, we are unable to find
reversible error by the lower court. The lower court correctly
recognized the dilemma here and determined that the Appellant's own
testimony rendered it impossible to conclude that the Appellant had
filed her claim within the statute of limitations. The Appellant
contends that the confusion or uncertainty evidenced during her
deposition creates a genuine issue of material fact to be resolved
by a jury. In syllabus point 2 of Renner, we recognized the
'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, Harrison v. Seltzer,  W. Va. ,
268 S.E.2d 312 (1980), quoting, Syl. pt. 3,
Aetna Casualty and Surety Co. v. Federal
Insurance Co. of New York, 148 W. Va. 160, 133
S.E.2d 770 (1963).
After thorough review of the record, we cannot conclude that
the lower court committed reversible error in determining that no
genuine issue of material fact existed and that summary judgment
was appropriate. Thorough inquiry into the facts was made during
the Appellant's deposition. That inquiry revealed that the statute
of limitations had expired prior to the filing of the Appellant's
claim. Consequently, we cannot conclude that the lower court erred
in so ruling.
Footnote: 1The Appellant was hospitalized on October 2, 1987; October 6 through October 7, 1987; October 7 through October 25, 1987; November 29 through December 3, 1987; April 11 through April 20, 1988; July 27 through August 3, 1988; January 26 through February 2, 1989; and January 1992. Due to persistent infections resulting from the perforated colon, the Appellant's internal organs are currently held in place by a surgically implanted mesh material.
Footnote: 2 Q. Has any physician, any nurse, or any health care person that you've gone to be treated by, have they ever advised you or criticized the care that Dr. Hamilton provided to you in any way?
A. Well, I don't remember that.
Q. Did any physician ever tell you
that Dr. Hamilton did anything wrong
when he treated you in 1986?
A. I don't remember that. I just
know that he did -- I was just in
the hospital, but he didn't --
that's when I was sick, and he
didn't do no surgery then and he
didn't have me on no diet, and I
kept vomiting all the time in '86.
He claims I had diverticulitis in
. . . .
Q. Did Dr. Tyre ever criticize or
tell you that Dr. Hamilton did
A. Um-hmn. She said he should
have did my surgery in '86; I think
that's what she told me.
Q. When did Dr. Tyre advise you of
A. '87, when I come to my -- see,
I didn't know nothing for -- until
after the operation. That's when
she told me I should have had it
done -- Dr. Hamilton should have did
Q. I just need to be sure I am
clear on your testimony here today.
Q. Dr. Tyre advised you in 1987?
A. Yeah, that I should have had
that done in '86, I think she said,
I wouldn't have had all this
Q. That you should have had the surgery in '86?
A. Um-hmn, when I was in the hospital.
Q. And you are absolutely clear
about that, those dates?
A. I think it was '85 or '86. You
mean when I was in the General?
Q. What I want to know is what Dr.
Tyre told you or advised you
pertaining to Dr. Hamilton's care?
A. She said that I should have had
that done '86 or '85, my surgery.
But he didn't do -- do you want me
to tell what he did at the hospital
when I was there in '86?
. . . .
Q. You've testified that Dr. Tyre
advised you that Dr. Hamilton did
A. Yes. I think she said I was
supposed -- I'm not sure, my son
would know, I think she told me I
should have had this done in '85 or
'86 or I wouldn't have had -- I
wouldn't have got sick in '87.
Q. Dr. Tyre treated you in 1987
during your surgery at Mon General?
A. She did my surgery. They took
me down there in an ambulance, and I
don't remember going down there. My
son does; my two sons took me. And
she said I should have had this done
in '85 or '86, the surgery what I
had in '87.
Q. And she advised you of that in
1987 when you had your surgery?
A. I think she did. You mean -- yeah, when I had my surgery in '87.
Q. Dr. Tyre advised you at that
Q. -- that Dr. Hamilton --
A. Should have --.
Q. -- should have done something
A. Um-hmn. Should have did my
surgery in '86, yeah, '86 when I was
in or I wouldn't have had all this
trouble, you know.
Q. Do you recall when that
conversation with Dr. Tyre occurred
-- what date or where you were at
A. I was in the hospital when she
Q. In Mon General Hospital?
Q. In October of 1987?
. . . .
A. I was delirious about a week, I
think, or ten days. I didn't know
anything until after I come to mind,
Q. But you recall a conversation
with Dr. Tyre during that time --
Q. -- during that October of 1987 hospitalization?
A. Um-hmn, yes.
. . . .
Q. Do you recall the conversation
in detail; that is, exactly what Dr.
Tyre told you during your
hospitalization at Monongalia
General Hospital regarding Dr.
Q. What did she tell you?
A. I think she said I should have
had that surgery done in '87 -- or
'86 when I was in there, and he
didn't do it.
. . . .
Q. Now, you're certain that when
Dr. Tyre advised you that Dr.
Hamilton should have done the
surgery in '86, you're certain that
A. I think so, um-hmn.
Q. -- when you were in the
hospital? You need to say yes or
A. I don't remember, but I believe
so; I won't say for sure. I think
that's when she told me I should
have had that done in '87 or '86.
Q. Did Dr. Tyre tell you in 1987
that Dr. Hamilton committed
malpractice and what he did was
A. Let me see, I think she said
that I was supposed to have that
done in '87 or '86 when I was in
there, but he didn't do anything
when I was in the hospital.
. . . .
Q. And after Dr. Tyre then advised
you in 1987 while you were at
Monongalia General Hospital that Dr.
Hamilton didn't do --
A. What he was supposed to do.
Q. -- what he was supposed to do,
is that why you decided not to
return to him as your physician?
A. Because he never treated me
right. Well, when I had all these
pains, I had these pains for several
years, and he said it was only
arthritis and that was what I was
taking -- . It wasn't arthritis.
Q. Did Dr. Tyre tell you that what
Dr. Hamilton did was malpractice and
was not proper treatment?
A. Um-hmn, that's what she told
. . . .
Q. Is it your testimony here today
that Dr. Tyre told you --
Q. -- during that hospitalization
in October of 1987 that Dr. Hamilton
A. Should have did this in '87 or
'86, the surgery, what she did.
Q. -- should have performed the
surgery in 1986 or 1987?
A. Um-hmn, that's true.
Q. Is it because of those
statements by Dr. Tyre that you
decided not to return to Dr.
Hamilton as a treating physician?
A. Well, I don't think he was a
good doctor and he wasn't treating
Q. Was it also because of what Dr.
Tyre told you?
A. No, I just thought he wasn't a
good doctor and he didn't know what
he was doing when he was giving me
arthritis pills if I have this
diverticulitis -- when I had this
. . . .
Q. You are certain that you were
advised by Dr. Tyre during your
hospitalization at Monongalia
General Hospital in October of 1987
that Dr. Hamilton did something
wrong and didn't treat you as he
should have treated you.
A. That's true.