Forshey v. Jackson

Decision Date19 November 2008
Docket NumberNo. 33834.,33834.
Citation671 S.E.2d 748
CourtWest Virginia Supreme Court
PartiesPaul E. FORSHEY and Melissa L. Forshey, Plaintiffs Below, Appellants, v. Theodore A. JACKSON, MD, Defendant Below, Appellee.
Concurring Opinion of Justice Benjamin January 9, 2009.
Syllabus by the Court

1. A circuit court ruling on a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure may properly consider exhibits attached to the complaint without converting the motion to a Rule 56 motion for summary judgment.

2. "`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, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995)." Syllabus point 1, Albright v. White, 202 W.Va. 292, 503 S.E.2d 860 (1998).

3. "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." Syllabus point 1, Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

4. Under the continuous medical treatment doctrine, when a patient is injured due to negligence that occurred during a continuous course of medical treatment, and due to the continuous nature of the treatment is unable to ascertain the precise date of the injury, the statute of limitations will begin to run on the last date of treatment.

5. In the context of a medical malpractice action, in order to establish a continuing tort theory a plaintiff must show repetitious wrongful conduct. Merely establishing the continuation of the ill effects of an original wrongful act will not suffice.

Mark F. Underwood, Underwood & Proctor Law Offices, Huntington, for the Appellants.

Robert J. D'Anniballe, Jr., Pietragallo Gordon Afano Bosick & Raspanti, LLP, Weirton, for the Appellee.

DAVIS, Justice.1

Paul E. Forshey and his wife Melissa, appellants herein and plaintiffs below (hereinafter collectively referred to as "the Forsheys"), appeal an order of the Circuit Court of Kanawha County that dismissed their malpractice action against Dr. Theodore A. Jackson, M.D., appellee herein and defendant below (hereinafter referred to as "Dr. Jackson"), as having been untimely filed. The Forsheys urge this Court to adopt the continuous medical treatment doctrine and to apply that doctrine to find their action was timely. Alternatively, the Forsheys argue that their claim was timely under a continuing tort theory. After thorough consideration of the continuous medical treatment doctrine, we agree that it should be adopted and do so herein. However, we conclude that the doctrine does not apply to the Forsheys' action. We further find that the Forsheys' complaint failed to set out a claim for a continuing tort. Therefore, we affirm the circuit court.


This case is presently before this Court for review of the lower court's order granting the defendant's motion to dismiss. Accordingly, the facts set out below are gleaned from the pleadings.

In November 1994, Paul E. Forshey (hereinafter individually referred to as "Mr. Forshey") presented to Dr. Jackson complaining of carpel tunnel syndrome in both wrists. It is undisputed that Dr. Jackson performed surgery on Mr. Forshey on July 6, 1995.

Mr. Forshey contends that, during post operative office visits with Dr. Jackson, he (Mr. Forshey) complained of pain and a knot over the palmar aspect of his left thumb, along with tenderness, swelling, and trouble using tools;2 nevertheless, no x-rays of Mr. Forshey's hand were ordered by Dr. Jackson. Mr. Forshey alleges that, following the surgery, he continued to receive medical care from Dr. Jackson until January 31, 1997. During one of Mr. Forshey's visits with Dr. Jackson, Dr. Jackson recommended exploratory surgery, which was initially set for February 3, 1997; however, on January 31, 1997, Dr. Jackson requested that the date of surgery be changed due to a scheduling conflict. The surgery was then set for February 17, 1997. On February 13, 1997, Mr. Forshey cancelled the surgery. Though Mr Forshey indicated that he would reschedule the surgery at a later time, he never did so.

Mr. Forshey avers that he continued to suffer in pain over the next eight years until the summer of 2005, when he suffered an unrelated injury to his left index finger and, as a result, received an x-ray of his left hand. The x-ray revealed a 3.4 cm x 5 mm metallic foreign body in the palmar aspect of the hand.3 According to the certificate of merit accompanying the Forsheys' complaint, the foreign body was described in his medical records as "a piece of knife blade." The certificate of merit further concluded that "according to [Mr. Forshey's] medical records, ... the only explanation for this foreign body is the Carpal Tunnel surgery which he had July 1995. This was performed by Dr. Ted Jackson. ..."

In April, 2006, Dr. Jackson was presented with a notice of claim4 and certificate of merit.5 Mr. Forshey filed his complaint alleging medical malpractice and including a loss of consortium claim on behalf of his wife, Melissa Forshey, on August 3, 2006. Thereafter, on September 26, 2006, Dr. Jackson filed a motion to dismiss claiming that this suit was untimely filed pursuant to W. Va. Code § 55-7B-4 (1986) (Repl. Vol. 2008).6 By order entered April 3, 2007, the Circuit Court of Kanawha County granted the motion. This appeal followed.


This case is before this Court on appeal from the circuit court's order granting Dr. Jackson's motion to dismiss made pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure,7 which motion was based upon the statute of limitations and statute of repose found in W. Va.Code § 55-7B-4.8 In granting the motion, however, the circuit court relied on matters outside the pleadings. In this regard, the order expressly refers to the opinion of Dr. Edward W. Eskew. Dr. Eskew's opinion was contained in the certificate of merit that was attached, along with the notice of claim, as an exhibit to the complaint.9 This Court has previously held that

[o]nly matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if matters outside the pleading are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment and disposed of under Rule 56 R.C.P. if there is no genuine issue as to any material fact in connection therewith. ...

Syl. pt. 4, United States Fid. & Guar. Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965), overruled on other grounds by Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 211 S.E.2d 674 (1975). Accord Syl. pt. 1, Poling v. Belington Bank, Inc., 207 W.Va. 145, 529 S.E.2d 856 (1999). See also Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[3], at 354 (3d ed. 2008) ("Only matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b)(6). However, if matters outside the pleading are presented to the court and are not excluded by it, the motion must be treated as one for summary judgment and disposed of under Rule 56."). Notwithstanding this general rule, it has been recognized that, in ruling upon a motion to dismiss under Rule 12(b)(6),

a court may consider, in addition to the pleadings, documents annexed to it, and other materials fairly incorporated within it. This sometimes includes documents referred to in the complaint but not annexed to it. Further, Rule 12(b)(6) permits courts to consider matters that are susceptible to judicial notice.

Id. § 12(b)(6)[2], at 348 (footnote omitted). The United States District Court for the Western District of Virginia has explained this principle thusly:

In general, material extrinsic to the complaint may not be considered on a Rule 12(b)(6) motion to dismiss without converting it to a Rule 56 motion for summary judgment, but there are certain exceptions this rule. As the Second Circuit has explained:

The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.

... [G]enerally, the harm to the plaintiff when a court considers material extraneous to a complaint is the lack of notice that the material may be considered. Accordingly, where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated. ... [O]n a motion to dismiss, a court may consider documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or ... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit. Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the...

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