Bradshaw v. Soulsby

Decision Date10 December 2001
Docket NumberNo. 29004.,29004.
Citation558 S.E.2d 681,210 W.Va. 682
PartiesPatricia Lou BRADSHAW, Administratrix of the Estate of James J. Bradshaw and Patricia Lou Bradshaw, individually, Plaintiff Below, Appellant, v. David L. SOULSBY, M.D., A.C. Velasquez, M.D., Alberto C. Lee, M.D., and Kenneth McNeil, M.D., Defendants Below, Appellees.
CourtWest Virginia Supreme Court
Dissenting Opinion of Justice Maynard December 12, 2001.

Sean P. McGinley, Esq., L. Dante DiTrapano, Esq., Mary Sadd Blaydes, Esq., DiTrapano, Barrett & DiPiero, PLLC, Charleston, for the Appellant.

Jeffrey M. Wakefield, Esq., Elizabeth S. Cimino, Esq., Flaherty, Sensabaugh & Bonasso, PLLC, Charleston, for Appellee David L. Soulsby, M.D.

Sprague W. Hazard, Esq., Charleston, for Appellee A.C. Velasquez, M.D.

Thomas J. Hurney, Esq., Rob J. Aliff, Esq., Jackson & Kelly, PLLC, Charleston, for Appellee Alberto C. Lee, M.D.

D.C. Offutt, Jr., Esq., Offutt, Fisher & Nord, Huntington, for Appellee Kenneth McNeil, M.D. STARCHER, Justice.

In this appeal from the Circuit Court of Kanawha County, the appellant challenges the circuit court's dismissal of her wrongful death action. The circuit court ruled that the discovery rule does not apply to toll the 2-year statute of limitation in wrongful death actions, and concluded that the appellant's lawsuit—which was filed 2 years and 3 days after the decedent's death—was untimely. As set forth below, we reverse the circuit court's dismissal order, and hold that the discovery rule may be applied to toll the statute of limitation in wrongful death actions.

I. Facts & Background

The appellant, Patricia Lou Bradshaw, filed a wrongful death complaint in the instant action individually and as the administratrix of the estate of her husband, James J. Bradshaw. On October 17, 1997, Mr. Bradshaw died due to an overdose of the prescription drug propoxyphene, also known as Darvocet.

The appellant's complaint alleged that Mr. Bradshaw had a longstanding history of abusing controlled prescription drugs. The appellant's complaint further alleged that Mr. Bradshaw's treating physicians—appellees David L. Soulsby, A.C. Velasquez, Alberto C. Lee, and Kenneth McNeil—knew about Mr. Bradshaw's history of drug abuse. The appellant contended that because of the foreseeability that Mr. Bradshaw might take a lethal overdose of drugs, the appellees breached their duty of care to Mr. Bradshaw by prescribing for him narcotics and other controlled substances, including propoxyphene.

The appellant states that on October 17, 1997, she was unaware of the cause of Mr. Bradshaw's death. An autopsy was performed, and on October 20, 1997, the appellant contends that she first learned that her husband had died as the result of an overdose of a drug that was prescribed by the appellees.

The appellant filed the instant wrongful death action on October 20, 1999, 2 years and 3 days after Mr. Bradshaw's death. The appellees filed motions to dismiss the action, contending it was barred by the 2-year statute of limitation contained in the wrongful death act, W.Va.Code, 55-7-6(d) [1992]. The appellant countered that she did not discover the existence of a wrongful death cause of action until she learned of the autopsy results on October 20, 1997, and therefore took the position that the 2-year period was not triggered until that date under the "discovery rule."

In an order dated February 14, 2000, the circuit court concluded that the discovery rule does not apply to wrongful death actions. The circuit court relied upon our holding in Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991), where we stated at Syllabus Point 2 that the statute of limitation in wrongful death actions "is extended only when evidence of fraud, misrepresentation, or concealment of material facts surrounding the death is presented." The circuit court therefore dismissed the appellant's action against the appellees as barred by the statute of limitation.

The appellant now appeals the circuit court's February 14, 2000 order.

II. Standard of Review

In the instant case, the circuit court granted the appellees' motion to dismiss the appellant's complaint. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).

III. Discussion

We begin our discussion by noting that no discovery was conducted upon the appellant's complaint. On the limited record presented, we are therefore not called upon to address the merits of the appellant's claims. We are asked only to examine the propriety of the circuit court's dismissal of the appellant's wrongful death action under the 2-year statute of limitation in W.Va.Code, 55-7-6(d) [1992].

Whenever the death of a person is "caused by wrongful act, neglect, or default," West Virginia's wrongful death statutes allow certain individuals to bring actions to hold the party who caused the death liable. See W.Va.Code, 55-7-5 to -7. The statute of limitation, found in W.Va.Code, 55-7-6(d), requires that "[e]very such action shall be commenced within two years after the death of such deceased person[.]"1

In the instant action, the appellant contends that the running of the 2-year limitation period should be "tolled" through the operation of the "discovery rule." Under the discovery rule, a statute of limitation is tolled and does not begin to run 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). "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. We clarified the elements a person must show to benefit from the equitable provision of the discovery rule in Syllabus Point 4 of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997):

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.

The appellant argues that there is no clear statutory prohibition to the application of the discovery rule to tort actions filed under the wrongful death act. The appellant further argues that a plaintiff does not have the ability or an obligation to file an action for wrongful death until he or she knows, or by reasonable diligence should know, that the death was caused by a particular individual's wrongful act.

In support of her argument, the appellant directs our attention to cases from other jurisdictions where courts have ruled that the discovery rule applies to wrongful death actions. See Collins v. Sotka, 81 Ohio St.3d 506, 692 N.E.2d 581 (1998) (overruling 1991 case, court held discovery rule applied to wrongful death actions, and wrongful death claim did not accrue until court sentenced defendant for decedent's death); Hanebuth v. Bell Helicopter International, 694 P.2d 143 (Alaska 1984) (discovery rule tolled statute of limitation, and wrongful death claim did not accrue until helicopter wreckage and bodies of decedents were discovered 8 years after accident).

The appellees respond by arguing that this Court has previously rejected the application of the discovery rule to wrongful death actions, citing to Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991).

We must therefore revisit our decision in Miller v. Romero to determine whether the discovery rule can be used to toll the 2-year statute of limitation for a wrongful death claim contained in W.Va.Code, 55-7-6(d).

In Miller v. Romero, the Court addressed a situation where a doctor had allegedly committed malpractice in the treatment of a patient, but then concealed the reasons for the patient's death from her parents. The doctor had apparently gone so far as to attribute the patient's death to "God's will," and paid part of the family's funeral bills. The patient's parents did not learn that their daughter's death might have been the result of the doctor's error, and did not file a wrongful death action, until nearly 3½ years after their daughter died. 186 W.Va. at 524, 413 S.E.2d at 179.

In Miller v. Romero, the Court was asked, in a certified question from the circuit court, to determine if the 2-year limitation period could be tolled by the discovery rule. We stated that "a wrongful death action is not a right which was recognized at common law," but is instead "a legislatively created right." 186 W.Va. at 526,413 S.E.2d at 181. We concluded that the 2-year time limitation is a "condition precedent to the bringing of [a wrongful death] action," and therefore "[t]he statute cannot be interpreted under common law." 186 W.Va. at 526-27,413 S.E.2d at 181-82. We have interpreted this portion of Miller v. Romero as meaning that "the discovery rule does not operate to toll the two-year filing period for wrongful death claims." Harrison v. Davis, 197 W.Va. 651, 660, 478 S.E.2d 104, 113 (1996). See also, Pennington v. Bear, 200 W.Va. 154, 488 S.E.2d 429 (1997).

However, the Court went on to state that it was "troubled by the potential inequity in cases where a physician actively conceals malpractice from the decedent's representatives." 186 W.Va. at 527, 413 S.E.2d at 182. The Court believed that restricting the decedent's representatives from filing an action under such circumstances would be "contrary to both the remedial purpose of this statute and the public policy of this State to provide equity for those injured by the negligence of another." Id. On ...

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