Nancy C. Hill
Larry A. Winter
Winter, Johnson & Hill, PLLC
Charleston, West Virginia
Attorneys for the Appellee,
Jay Requarth, M.D.
The Opinion of the Court was delivered PER CURIAM.
1. 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. Syl. Pt. 1, Cart v.
Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).
2. In tort actions, unless there is a clear statutory prohibition to its
application, under the discovery rule the statute of limitations begins to run when the
plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff
has been injured, (2) 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, and (3) that the conduct
of that entity has a causal relation to the injury. Syl. Pt. 4, Gaither v. City Hosp., Inc., 199
W.Va. 706, 487 S.E.2d 901 (1997).
William and Beverly McCoy appeal from two orders entered by the Circuit Court of Kanawha County on June 25, 2001, dismissing a second medical malpractice action they filed against Appellee Doctors Jay Requarth and John Chapman (See footnote 1) on grounds of both res judicata and statute of limitations and against Dr. Scott Miller solely on statute of limitations grounds. The McCoys also appeal from a January 30, 2002, order refusing to reinstate their legal malpractice action against Steven Miller. (See footnote 2) In McCoy v. CAMC, Inc., (McCoy I), 210 W.Va. 324, 557 S.E.2d 378 (2001), this Court affirmed both the lower court's dismissal of the McCoys' first medical malpractice cause of action on grounds of failure to prosecute (See footnote 3) and the trial court's decision not to reinstate the action. Upon our full review of the orders at issue against the record in this case, we find no error and accordingly, affirm.
The first civil action filed by the McCoys was dismissed by order of Judge
Irene Berger on December 20, 2000, for failure to prosecute. In McCoy I, this Court upheld
both the dismissal order and the subsequent order of Judge Berger denying the McCoys'
motion to reinstate their cause of action and to amend their complaint. See 210 W.Va. at
331, 557 S.E.2d at 385.
On February 27, 2001, the McCoys filed a second medical
malpractice cause of action
(See footnote 4) based on the 1995 heart surgery. In addition
to Doctors Requarth and Chapman, the McCoys named Dr. Miller as a defendant, based on his referral of Mr.
McCoy for the bypass surgery. While the underlying allegations of malpractice
stemming from the separated sternum incident are the same as those asserted
in the first action, the McCoys included an additional allegation in the second
malpractice action by averring that the bypass surgery was medically unnecessary.
The McCoys contend that they first learned that the bypass surgery was unnecessary
following an examination of Mr. McCoy by Dr. Joseph A. Chiota, Jr., on August
(See footnote 5)
By order entered on June 25, 2001, Judge Stucky dismissed Dr. Miller, who had not been named in the original medical malpractice cause of action filed by the McCoys, on statute of limitation grounds. By separate order on that same date, Judge Stucky dismissed Doctors Requarth and Chapman on grounds of statute of limitations and res judicata. Through an order entered on January 30, 2002, Judge Stucky refused to reinstate the McCoys' legal malpractice cause of action filed against Mr. Miller. (See footnote 6)
In syllabus point one of Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992), this Court held that [g]enerally, 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. With regard to when the discovery rule could be utilized, we stated in Cart that the 'discovery rule' applie[d] only when there [wa]s a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury. Id. at 242, 423 S.E.2d at 645, syl. pt. 3, in part.
In Gaither, this Court modified its former position that application of the discovery rule was triggered by the acts of a defendant to conceal the discovery of a medical wrong. Rejecting that narrow application of the discovery rule, we held that
In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) 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, and (3) that the conduct of that entity has a causal relation to the injury.
Syl. Pt. 4, 199 W.Va. at 708, 487 S.E.2d at 903. Recently, in Bradshaw, we overruled a prior ruling which held that the discovery rule was inapplicable in wrongful death actions, and adopted the same requirements we announced in Gaither for applying the rule, with certain additional factors relevant to wrongful death actions. See Syl. Pts. 7, 8, 210 W.Va. at 684, 558 S.E.2d at 683. (See footnote 7)
Based on the holdings in Gaither and Bradshaw, Appellants contend that the discovery rule is triggered by a prospective plaintiff's recognition that the treatment received by the patient caused his injury. They suggest that because Mr. McCoy had no way of knowing until it was told to him that his bypass surgery was unnecessary, the two- year statute of limitations (See footnote 8) did not start running until Dr. Chiota informed him in August 2001 that the cardiac surgery was not medically necessary.
In making these arguments, Appellants seek to further extend the discovery rule beyond the parameters of the previously broadened reach of that rule. In Gaither, we expanded the discovery rule by linking the running of the limitations period with the prospective plaintiff's knowledge, or duty to gain such knowledge, of the identity of the entity who owed the plaintiff a duty to act with due care and the fact that such entity may have breached that duty of care, which in turn caused the plaintiff's injury. 199 W.Va. at 708, 487 S.E.2d at 903, syl. pt. 4, in part. Critically, however, we did not eliminate the affirmative duty the law imposes on a plaintiff to discover or make inquiry to discern additional facts about his injury when placed on notice of the possibility of wrongdoing. The crux of the discovery rule has always been to benefit those individuals who were either unaware of their injuries or prevented from discovering them. See Cart, 188 W.Va. at 244-45, 423 S.E.2d at 647-48; Gaither, 199 W.Va. at 713, 487 S.E.2d at 908 (recognizing that discovery rule has its origins in the fact that many times an injured party is unable to know of the existence of any injury or its cause). When this Court augmented the application of the discovery rule to cases beyond those where the defendant actively sought to prevent the discovery of the malfeasance, we did not eradicate the rule's additional objective of benefitting those individuals who were unaware of their injuries due to no fault of their own.
The countervailing consideration of whether the prospective
plaintiff knew or should have known through the exercise of reasonable
diligence of his injury has always been closely intertwined with the discovery
rule. See Harrison v. Seltzer, 165 W.Va. 366, 371, 268 S.E.2d 312,
314 (1980) (stating that inquiry is whether the injured plaintiff was
aware of the malpractice or, by the exercise of reasonable care, should have
discovered it); Syl. Pt. 2, Hill v. Clarke, 161 W.Va. 258, 241
S.E.2d 572 (1978) (holding that statute of limitations for malpractice
begins to run when plaintiff knows or has reason to know of the alleged malpractice).
This critical element of the discovery rule has not been vitiated
with the Court's modification of the rule's application. Where a plaintiff knows
of his injury, and the facts surrounding that injury place him on notice of
the possible breach of a duty of care, that plaintiff has an affirmative duty
to further and fully investigate the facts surrounding that potential breach.
See Harrison v. Davis, 197 W.Va. 651, 478 S.E.2d 104 (1996) (holding
that plaintiff mother's failure to exercise reasonable diligence in discovering
injuries associated with the birth and wrongful death of her daughter precluded
tolling of statute of limitations by discovery rule).
In this case, had the most basic and routine of inquiries been made during the
discovery phase of the first action, it is likely that Dr. Chiota's eleventh hour opinion of
unnecessary surgery could have surfaced at a much earlier point in the litigation's protracted history.
(See footnote 9) Because Appellants timely retained counsel
and timely brought suit in connection with the sternum separation incident,
this Court cannot turn a blind eye to the fact that additional inquiry on
the part of their trial counsel
(See footnote 10) could have easily uncovered the unnecessary
surgery allegation at an earlier date, thereby allowing Appellants the
opportunity to seek amendment of their complaint to add such an allegation
in a timely fashion.
The facts underlying the malpractice at the center of this case were straightforward. There were no concealed or hidden injuries. As Judge Stucky opined in his order of June 25, 2001, [t]here is no allegation in this case of fraudulent concealment or any action by Dr. Miller to prevent plaintiff from knowing the cause of his injury or bringing this action. Similarly, in a second order of that same date, Judge Stucky found that [t]here is no act on the part of either Dr. Chapman or Dr. Requarth which concealed any of their actions relative to plaintiffs nor is there any act by either Dr. Chapman or Dr. Requarth which prevented plaintiffs from knowing of their injuries and damages[.]
This case falls into that category of cases we discussed in Gaither where an injury or wrong occurs of such a character that a plaintiff cannot reasonably claim ignorance of the existence of a cause of action. 199 W.Va. at 712, 487 S.E.2d at 907. In such cases, as we explained in Gaither, the burden shifts to the plaintiff to prove entitlement to the benefit of the discovery rule. Id. at 712, 487 S.E.2d at 907. The McCoys knew as soon as they were informed following bypass surgery of the need to reattach the sternum that Mr. McCoy had suffered injury from certain acts of improper handling. They promptly sought counsel and brought suit within the two-year filing period. See supra note 8. Appellants have failed to provide this Court with any explanation as to why they could not have discovered at an earlier point in time the facts underlying their allegation that the bypass surgery was medically unnecessary.
Unlike Gaither where the plaintiff reasonably believed his leg amputation
resulted from his own negligent acts in riding a motorcycle, Appellants knew immediately
that the sternum separation Mr. McCoy sustained was caused by actions of parties other than
Mr. McCoy. Gaither does not go so far as to suggest that until a prospective plaintiff is
informed of every possible act of malpractice and the identity of every potential wrongdoer,
the statute of limitations is tolled. To the contrary, Gaither only tolls the limitations period
until the plaintiff in factually specific situations, such as where the plaintiff has no reason
to know or learn of an act of malpractice, is placed on notice of a possible wrongdoing. This
Court has always been clear, as we restated in Gaither, that [m]ere ignorance of the
existence of a cause of action or of the identity of the wrongdoer does not prevent the
running of the statute of limitations[.] 199 W.Va. at 712, 487 S.E.2d at 907 (quoting Syl.
Pt. 3, in part, Cart, 188 W.Va. at 242, 423 S.E.2d at 645). As we explained in Gaither,
[t]his rule was crafted because in some circumstances causal relationships are so well
established that we cannot excuse a plaintiff who pleads ignorance. 199 W.Va. at 712, 487
S.E.2d at 907.
In those instances where the 'patient is immediately aware that something
went wrong,' the statute of limitations begins to run upon the plaintiff's awareness of
'adverse results of medical treatment.' Gaither, 199 W.Va. at 712, 487 S.E.2d at 907
(quoting Seltzer, 165 W.Va. at 371, 268 S.E.2d at 315). In such cases, as we observed in
Gaither, the statute of limitations starts running with the plaintiff's knowledge of the fact
that something went wrong and not his awareness of 'the precise act of malpractice.' 199
W.Va. at 712, 487 S.E.2d at 907 (quoting Seltzer, 165 W.Va. at 371, 268 S.E.2d at 315).
The facts of the instant case paradigmatically fall into the category of cases discussed in
Seltzer where the plaintiff knows instantly that something went wrong. See 165 W.Va. at
371-72, 268 S.E.2d at 315.
Armed with information about the wrongdoing stemming
from Mr. McCoy's bypass surgery, Appellants were then required to make reasonable
and diligent inquiry into all relevant issues related to the malpractice.
(See footnote 11)
Whether or not the original bypass surgery should have been performed was clearly
an issue related to the resulting malpractice claim.
(See footnote 12)
Any physician with training in cardiology could have reviewed Mr. McCoy's records
to ascertain whether the bypass surgery was required. In failing to make such
inquiries within a reasonable period of time sufficient to have permitted a
timely amendment of Appellants' complaint, we are forced to conclude that the
McCoys did not meet their burden of proving entitlement to the discovery
rule. See Gaither, 199 W.Va. at 712 , 487 S.E.2d at 907. The facts
of this case simply do not permit this Court to rule otherwise.
In Gaither, this Court noted that [i]n the great majority of cases, the issue of
whether a claim is barred by the statute of limitations is a question of fact for the jury. 199
W.Va. at 714-15, 487 S.E.2d at 909-10. While many cases will require a jury to resolve the
issue of when a plaintiff discovered his or her injury, including the related issue of whether
the plaintiff was reasonably diligent in discovery his or her injury, the issue can also be
resolved by the court where the relevant facts are undisputed and only one conclusion may
be drawn from those facts. See Harrison, 197 W.Va. at 660, 478 S.E.2d at 113 (upholding
trial court's decision that plaintiff failed to exercise reasonable diligence in discovering
injuries); Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 719 (7th
Cir. 1994); Witherell v. Weimer, 421 N.E.2d 869, 874 (Ill. 1981). Because Mr. McCoy was
immediately aware of his sternum injury and resulting infection, the question of whether
Appellants acted with reasonable diligence to discover the related allegation that the bypass
surgery was unnecessary, under the facts of this case, was properly a legal question for the
trial court to resolve.
was amended on April 4, 2001, to remove the allegation of destroyed records and also to remove CAMC as a defendant. For ease of discussion, we refer to the amended complaint filed on April 4, 2001, as the second complaint in the action; it is the pleading to which the orders at issue on appeal relate.
to reinstate their legal malpractice cause of action against Mr. Miller, it appears, both from the brief filed with this Court and from counsel's oral argument to this Court, that they have abandoned this particular assignment. Appellants indicated in their brief that, following the lodging of their appeal with this Court, they filed a legal malpractice case in the United States District Court against Steven C. Miller and dismissed same because he has no malpractice insurance and is bankrupt with tax liens and no assets. Accordingly, we do not address the trial court's denial of the reinstatement motion.
In a wrongful death action, under the discovery rule, the
statute of limitation contained in W.Va.Code, 55-7-6(d) 
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.
Bradshaw, 210 W.Va. at 684, 558 S.E.2d at 683.