Harrison v. Seltzer

• Decision Date: 15 July 1980
• Docket Number: No. 14708,14708
• Citation: 268 S.E.2d 312,165 W.Va. 366
• Court: West Virginia Supreme Court
• Parties: Naomi J. HARRISON, Administratrix of the Estate of Raymond S. Neal v. Dr. Joseph P. SELTZER.

Page 312

268 S.E.2d 312

165 W.Va. 366

Naomi J. HARRISON, Administratrix of the Estate of Raymond S. Neal v. Dr. Joseph P. SELTZER.

No. 14708.

Supreme Court of Appeals of West Virginia.

July 15, 1980.

Syllabus by the Court

1. "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, W.Va., 241 S.E.2d 572 (1978).

2. In malpractice, our discovery rule does not initially rest on a showing of fraudulent concealment, but rather on whether the injured plaintiff was aware of the malpractice or, by the exercise of reasonable care, should have discovered it.

3. "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." Syllabus Point 3, Aetna Casualty and Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Burgess & Sloan, Leland T. Sloan and Bennett R. Burgess, St. Albans, for appellant.

Steptoe & Johnson and Wilson Anderson, Charleston, for appellee.

MILLER, Justice:

This appeal from a summary judgment involves the question of whether the trial court correctly applied our "discovery rule," which permits a tolling of the usual statute of limitations period, in this medical malpractice case.

The appellant, Naomi J. Harrison, is the administratrix of the estate of Raymond S. Neal, the original plaintiff in this action, and she was substituted as party plaintiff when Mr. Neal died. On September 10, 1976, in the Circuit Court of Kanawha County, Mr. Neal had instituted a malpractice action against the defendant, Dr. Joseph P. Seltzer, claiming that the doctor had improperly diagnosed a circulatory condition in his right leg and that as a result, his leg had to be amputated on December 26, 1974.

A plea of our two-year statute of limitations ¹ was interposed by Dr. Seltzer on the basis that his last professional contact with the plaintiff had been September 3, 1974. Some discovery was undertaken by the parties prior to the summary judgment.

Dr. Seltzer's position, outlined in an affidavit, was that he had first seen the plaintiff on May 21, 1974, for treatment of an ulcer on his right foot. The doctor recommended that a skin graft be performed over the area of the ulcer, but advised the plaintiff that the operation might not be successful. Dr. Seltzer performed a skin graft operation on Mr. Neal in late June of 1974, and Mr. Neal was discharged from the hospital on July 9, 1974.

Dr. Seltzer's affidavit also relates that he saw Mr. Neal on several follow-up appointments and the skin graft appeared to be healing in a satisfactory manner; that Mr. Neal did not keep an appointment with him in August; and that when he again saw Mr. Neal in his office on September 3, 1974, the skin graft had failed. The doctor at that time informed Mr. Neal that the skin graft had failed because of a circulatory problem in his legs and advised him to see another physician in regard to this condition. It was Dr. Seltzer's basic position that he did not undertake to treat Mr. Neal's underlying circulatory problem, but only its surface manifestation the ulcer.

The plaintiff's position was that Dr. Seltzer had not diagnosed or advised Mr. Neal of the serious nature of his circulatory problem. To support this contention, the deposition of Dr. Robert L. Leadbetter, a vascular surgeon, who first treated Mr. Neal on October 10, 1974, was introduced. Dr. Leadbetter's diagnosis was that Mr. Neal suffered from a "far advanced occlusive disease" of the arteries in his leg in lay terms, a severe blockage of the arteries.

It was Dr. Leadbetter's opinion that Dr. Seltzer had erroneously treated Mr. Neal's skin ulcer as if it were simply a surface manifestation of an insufficiency of blood flow in the veins rather than in the profunda femoris, the deep thigh artery. He questioned the medical soundness of skin grafting in the presence of an underlying blockage of blood flow resulting from advanced arterial insufficiency. Dr. Leadbetter stated that he would not have recommended a skin graft in this particular case, but would have proceeded with reconstructive surgery to attempt to alleviate the blockage of blood flow. Dr. Leadbetter also testified that the hazards of skin grafting in the presence of aggravated arterial blockage were well known in the medical profession.

The deposition of Dr. Leadbetter revealed that in November and December of 1974, he performed surgery on Mr. Neal's leg in order to attempt to correct the arterial blockage, but that clotting and then gangrene occurred, and that on December 26, 1974, it was necessary that Mr. Neal's leg be amputated above the knee.

Based on these facts, the Circuit Court granted the motion for summary judgment on the statute of limitations.

In Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965), this Court first applied the discovery rule to a medical malpractice action. Morgan involved a patient who had a sponge left in her abdomen during an operation. In the ten-year interim she suffered pain and nervousness until another physician, through x-ray, discovered the presence of the sponge. In permitting her to maintain a suit, we adopted this statement:

" 'Where a foreign object or substance is negligently left in a patient's body by an operating physician and surgeon, and the patient is in ignorance of the fact, the limitation period does not begin to run against a malpractice action until the patient learns, or in the exercise of reasonable care and diligence, should have learned of the presence of such foreign substance in his body.' " (149 W.Va. at 793, 144 S.E.2d at 162).

In Hill v. Clarke, W.Va., 241 S.E.2d 572 (1978), we considered another foreign object case where the claim was made that because the patient suffered considerable pain following an operation on her foot, she should have been made aware, in the exercise of reasonable care, that there was something wrong with her foot and should have sought medical advice. The record indicated her first consultation with a doctor was some four years after the operation. We concluded, in Syllabus Points 3 and 4:

"Pain and the harmful effects of medical malpractice do not, by themselves, commence running of the statute of limitations."

"The question of when plaintiff knows or in the exercise of reasonable diligence has reason to know of medical malpractice is for the jury."

Hill's requirement of a jury resolution of the issue of when the plaintiff knows or in the exercise of reasonable care has reason to know of medical malpractice can be traced to our earlier case of Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967), where we stated in Syllabus Point 3:

"In a medical malpractice case it is for the jury to determine from the evidence whether or not the physician fraudulently concealed from the plaintiff patient the condition of which he complains and, if so, whether the plaintiff learned of the same or by the exercise of reasonable diligence should have learned of it more than two years prior to the institution of the action."

It is true that Hundley spoke of the issue of fraudulent concealment. However, as we stated in Hill, supra :

"The statute of limitations principle emphasized above applies to all factual questions under the 'discovery rule' and not solely to cases where fraudulent concealment is at issue. Plaintiff's cause of action accrues when plaintiff knows or in the exercise of reasonable diligence has reason to know of the alleged malpractice, the question being one of fact. See Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (1969); Christiansen v. Rees, 20 Utah 2d 199, 436 P.2d 435 (1968). . . ." (W.Va., 241 S.E.2d at 573-74).

It was not intended by Morgan or Hundley to limit our discovery rule to only those cases involving a fraudulent concealment of the alleged malpractice. This was made clear in Family Savings & Loan, Inc. v. Ciccarello, 157 W.Va. 983, 993-94, 207 S.E.2d 157, 163 (1974), where we applied the discovery rule to a legal malpractice case, stating:

"We adopt the 'discovery rule' in resolving the instant case, not on the theory of fraud but on the basis of the damages having occurred when the defect in title was discovered or by the exercise of reasonable diligence should have been discovered. This then constitutes the time when the right to bring the action shall have accrued and the time when the statute of limitations begins to run. . . ."

Thus, it cannot be...