Hill v. Clarke

• Decision Date: 28 February 1978
• Docket Number: No. 13796,13796
• Citation: 241 S.E.2d 572,161 W.Va. 258
• Parties: Lillian HILL v. George R. CLARKE et al.
• Court: West Virginia Supreme Court

Page 572

241 S.E.2d 572

161 W.Va. 258

Lillian HILL v. George R. CLARKE et al.

No. 13796.

Supreme Court of Appeals of West Virginia.

Feb. 28, 1978.

Syllabus by the Court

1. Where a foreign object is negligently left in a patient's body by a surgeon and the patient is ignorant of it and consequently of his right of action for malpractice, the cause of action does not accrue until the patient knows, or in the exercise of reasonable diligence has reason to know, of the presence of such foreign object in his body.

2. The statute of limitations for malpractice begins to run when plaintiff knows or has reason to know of the alleged malpractice.

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

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

Phillips, Holden, Marshall & Gardill, George S. Hazlett, Wheeling, for appellant.

O'Brien & Cassidy, Frank A. O'Brien, Jr., Wheeling, for appellees.

HARSHBARGER, Justice:

Defendant Griffith performed a bunionectomy on Lillian Hill, a dishwasher in a Wheeling restaurant, on April 3, 1968. More than a year later she experienced sharp pains in the foot, which continued, prompting her to seek medical help at Wheeling Hospital emergency room in April, 1970. According to her testimony she was there given a few pills.

She continued working in spite of the painful foot; and in January, 1972 she had it examined by one Dr. Maury. He x-rayed it and discovered a foreign object imbedded near her heel, and unsuccessfully tried to remove it.

In March, 1972 she was examined by a Dr. Buffington, who advised her the foreign object was not causing her pain but who could not attribute the distress to anything else; and a Dr. Barrett, who gave her the same advice.

Finally, she found a physician in New Philadelphia, Ohio, who removed the object, described to be a "needle" or "probe".

She brought her malpractice suit July 9, 1973, and the trial court dismissed the complaint, finding that because plaintiff was in pain she should have known, by the exercise of due diligence, more than two years before the suit was brought of defendant's negligence; and therefore her action was barred by the statute of limitations, W.Va.Code, 55-2-12.

The facts in this case are rather analogous to those in Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965), where our rule was established that the statute begins to run upon discovery of the negligence or at the time it should have been discovered with reasonable diligence.

Mrs. Morgan "suffered severe pain" from the sponge in her abdomen for ten years, yet this Court properly did not find that the statute of limitations was triggered because of any failure by her to exercise due diligence to find what caused the pain.

In this case, Mrs. Hill endured the pain only about two and one half years before discovering the foreign body in her foot. In Morgan we emphasized the subsequent diagnostic discovery of the foreign object rather than the length of the duration of the pain suffered. We said in Morgan :

It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had "accrued" to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the...