Gaither v. City Hosp., Inc., 23401

• Citation: 199 W.Va. 706,487 S.E.2d 901
• Decision Date: 24 February 1997
• Docket Number: No. 23401,23401
• Court: Supreme Court of West Virginia
• Parties: Timothy GAITHER, Plaintiff Below, Appellant, v. CITY HOSPITAL, INC., Defendant Below, Appellee.

Page 901

487 S.E.2d 901

199 W.Va. 706

Timothy GAITHER, Plaintiff Below, Appellant, v. CITY HOSPITAL, INC., Defendant Below, Appellee.

No. 23401.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1997.

Decided Feb. 24, 1997.

Syllabus by the Court

1. The Medical Professional Liability Act, W.Va.Code, 55-7B-4 [1986], requires an injured plaintiff to file a malpractice claim against a health care provider within two years of the date of the 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[.]" However, the Act also places an outside limit of 10 years on the filing of medical malpractice claims, regardless of the date of discovery, unless there is evidence of fraud, concealment or misrepresentation of material facts by the health care provider.

2. "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 v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).

3. "The 'discovery rule' is generally applicable to all torts, unless there is a clear statutory prohibition of its application." Syllabus Point 2, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).

4. 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.

5. "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 v. Clarke, 161 W.Va. 258, 241 S.E.2d 572 (1978).

Laura R. Rose, Rose & Associates, Martinsburg, for Appellant.

Curtis G. Power, III, William E. Galeota, Steptoe & Johnson, Martinsburg, for Appellee.

STARCHER, Justice:

This is an appeal by plaintiff-appellant Timothy Gaither from an October 17, 1995 order of the Circuit Court of Berkeley County that granted summary judgment for the defendant-appellee, City Hospital, Inc. The appellant contends that the circuit court failed to correctly apply the "discovery rule" to his claim, and improperly dismissed his medical malpractice action as barred by the statute of limitation. We agree and reverse the order of the circuit court.

I. Facts and Background

On October 17, 1989, around four o'clock in the morning the then 23-year-old appellant was involved in a single-vehicle motorcycle accident, apparently losing control of his motorcycle on a rain-slick road. He sustained head injuries and a severe fracture to his right leg. Paramedics arrived at the scene several minutes after the accident and transported the appellant to the City Hospital emergency room in Martinsburg, West Virginia. He arrived at the hospital at 4:30 a.m.

City Hospital records reflect that at 9:55 a.m. hospital personnel transferred the appellant to the Maryland Institute for Emergency Medical Services Systems ("Shock Trauma") in Baltimore, Maryland, approximately 90 miles away. Because of bad weather the appellant was transported by ambulance rather than helicopter. Upon arrival at Shock Trauma, doctors noted that the appellant had no pulse in the lower part of his right leg. The doctors performed vascular surgery to reestablish blood flow to the leg, but by evening the graft of the new artery had failed. Doctors then amputated the appellant's right leg above the knee.

According to deposition testimony by the appellant's parents, Shock Trauma physicians told them that the delay by City Hospital in transporting the appellant to the trauma center might have caused the loss of the appellant's leg. The parents testified they were told by the appellant's doctors that if the appellant had been transported to Shock Trauma sooner, the blood flow to the leg might have been restored. Hospital records from Shock Trauma confirm that the doctors ascribed some of the appellant's adverse result to the time delay in bringing the appellant to Shock Trauma. ¹

The appellant and his parents testified in their depositions that the doctors at Shock Trauma discussed their suspicions about the cause of the loss of the appellant's leg only with the parents, and never with the appellant. The appellant's parents say they never told the appellant about their discussions with his doctors. Furthermore, the appellant's parents testified they always avoided discussing the leg injury with the appellant because such discussions would trigger pain in the remainder of the appellant's leg. ² The appellant testified he was satisfied with the treatment he received at City Hospital; therefore, after returning home from Shock Trauma, he telephoned City Hospital personnel to thank them for their help. Apparently the appellant perceived no need for his medical records and did not request copies of these records from either medical facility.

The appellant further testified that from the date of his accident until early 1993 he believed that the loss of his leg was caused solely by the motorcycle accident. On January 6, 1993, the appellant visited prosthetic specialist Michael J. Hogan. Mr. Hogan's affidavit reflects that, pursuant to his routine business practice, he asked the appellant "whether he lost his right leg due to trauma or loss of circulation." After this inquiry by Mr. Hogan, the appellant testified he discussed the reason for the loss of his leg with his parents. The appellant contends it was in this discussion that his parents told him for the first time of their conversation with Shock Trauma physicians. Thereafter, he contacted an attorney who requested copies of the appellant's medical records. The appellant testified he read his medical records in late 1993 ³ and learned that the doctors at Shock Trauma believed the delay in his transfer by City Hospital contributed to the loss of circulation in his leg. The appellant filed this malpractice action against City Hospital on January 7, 1994.

City Hospital filed for summary judgment under Rule 56 of the West Virginia Rules of Civil Procedure. The hospital cited W.Va.Code, 55-7B-4 [1986] and Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992), for the proposition that a malpractice action must be filed within two years of the date a plaintiff discovers an injury. Because this action was filed more than four years after the accident, the hospital argued that the appellant's claims should be dismissed.

The hospital maintained that because the appellant knew of his injury (that is, knew that his leg had been amputated) ⁴ in October 1989, he had a duty to exercise reasonable diligence in determining the cause of his injury, and that the appellant failed to perform any investigation into the cause of his injury. The hospital contended that the appellant failed to request his medical records from the hospital; failed to consult with personnel at City Hospital or Shock Trauma about the causes of his amputation; and failed to ask his parents about their discussions with the doctors. Further, City Hospital took the position there was no proof that hospital personnel had obstructed the appellant's ability to discover this information. City Hospital argued that the appellant failed in his duty to diligently investigate the reason for the loss of his leg, and that he therefore was not entitled to the benefit of the discovery rule.

The circuit court accepted City Hospital's arguments and found the appellant "had available to him all information necessary in order to discover the alleged act of malpractice by City Hospital, within two years from the date of the alleged occurrence, and he was not prevented from obtaining such information by City Hospital or any other party or entity." The circuit court also stated the appellant had full opportunity to speak with his physicians, but "failed to undertake such investigation with[in] two years from the date of his treatment at City Hospital." Therefore, the court found the appellant's claim did not fall within the discovery rule as set forth in Cart v. Marcum. The circuit court concluded that all of the appellant's claims were barred by the statute of limitations, and granted summary judgment to City Hospital on October 17, 1995. Mr. Gaither now appeals this ruling by the circuit court.

II. Standard of Review

The controlling question in this appeal is whether summary judgment was appropriate. As we stated in Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we review a circuit court's entry of summary judgment de novo. In Painter v. Peavy, we again stated the basic rule that:

Under Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment is proper only where the moving party shows that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.

192 W.Va. at 192, 451 S.E.2d at 758. "The circuit court's function at the summary judgment stage is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.' " Id., citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986). "Summary judgment should be denied 'even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom.' " Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995), quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert....