Miller v. Romero

• Decision Date: 19 December 1991
• Docket Number: No. 20196,20196
• Citation: 186 W.Va. 523,413 S.E.2d 178
• Court: West Virginia Supreme Court
• Parties: Ruth Jane MILLER, Administratrix of the Estate of Misty M. Miller, Plaintiff Below, Appellant, v. E.S. ROMERO, M.D., Defendant Below, Appellee.

Page 178

413 S.E.2d 178

186 W.Va. 523

Ruth Jane MILLER, Administratrix of the Estate of Misty M Miller, Plaintiff Below, Appellant, v. E.S. ROMERO, M.D., Defendant Below, Appellee.

No. 20196.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1991.

Decided Dec. 19, 1991.

Syllabus by the Court

1. "Where, in a civil action for damages against a private hospital and an individual, the plaintiff alleges that, in connection with a surgical operation performed upon her, a surgeon and other persons employed by the defendants negligently failed to remove from the plaintiff's abdomen a sponge placed therein in connection with the surgical operation, the period of the applicable statute of limitations does not commence to run against the plaintiff's cause of action until she learns of, or by exercise of reasonable diligence should have learned of, the presence of the sponge in her abdomen." Syllabus point 1, Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965).

2. The two-year period which limits the time in which a decedent's representative can file suit is extended only when evidence of fraud, misrepresentation, or concealment of material facts surrounding the death is presented.

Guy R. Bucci, V. Denise Manning, Harry M. Hatfield, Charleston, for appellant.

Richard W. Stuhr, Dino S. Colombo, Jacobson, Maynard, Tuschman & Kalur, Charleston, for appellee.

BROTHERTON, Justice:

The following question has been certified to this Court from the Circuit Court of Boone County for our analysis:

In a medical malpractice case, is the wrongful death statute of limitations tolled by the allegation of fraudulent concealment on the part of the defendant and/or failure on the part of the plaintiff to discover the cause of the decedent's death?

On April 22, 1986, the decedent, Misty Miller, died at age nineteen. An autopsy was refused and a final diagnosis was not given as to the cause of death. However, Misty had suffered from primary hypothyroidism, with associated growth retardation, and from infant onset diabetes, which had required insulin injections from the age of two years.

For approximately six months prior to her death, Misty's treating physician was the defendant, E.S. Romero, M.D., who practiced in Danville, West Virginia. On Friday, April 18, 1986, Dr. Romero changed her medication from injected insulin to an oral insulin agent, Diabeta. On April 19, 1986, Misty apparently became ill, and returned to Dr. Romero's office on Monday, April 21, 1986. The evidence shows that he did not change her medication back to injected insulin, and Misty died on Tuesday, April 22, 1986. The family refused an autopsy.

On October 17, 1989, the plaintiff, Ruth Miller, Administratrix of the Estate of Misty Miller, filed a wrongful death suit against Dr. Romero. On January 19, 1990, Dr. Romero filed a motion for summary judgment in the Circuit Court of Boone County, stating that the wrongful death action was filed three and one-half years after the death of the decedent and thus was barred by the two-year wrongful death statute of limitations imposed by W.Va.Code § 55-7-6. On January 26, 1990, the plaintiff filed a motion to amend her complaint, adding an allegation that she had not discovered the alleged malpractice until after the two-year statute of limitations had expired because the defendant had fraudulently concealed the alleged negligence. As evidence of fraud, the plaintiff contends that Dr. Romero told her that it was God's will that Misty die, did not explain the problems with the diabetic medication, and paid part of the funeral bills in an attempt to ingratiate himself with her family.

The judge denied the defendant's motion for summary judgment on January 22, 1991, stating that fraudulent concealment and/or failure to discover the cause of the decedent's death should toll the wrongful death two-year filing period. The defendant objected to this ruling and requested that the Boone County Circuit Court certify the issue to the West Virginia Supreme Court.

Our wrongful death statute is found in W.Va.Code § 55-7-6(d) (1981), which states, in part, that "[e]very such (wrongful death) action shall be commenced within two years after the death of such deceased person." The statute does not allow any extension of the time to file for any reason. However, the plaintiff argues that since this Court has already approved the discovery rule in certain circumstances involving medical malpractice actions, the discovery theory should be extended to wrongful death actions.

The discovery rule in extending the statute of limitations in malpractice claims was formally adopted in Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965). In syllabus point 1, this Court stated that:

Where, in a civil action for damages against a private hospital and an individual, the plaintiff alleges that, in connection with a surgical operation performed upon her, a surgeon and other persons employed by the defendants negligently failed to remove from the plaintiff's abdomen a sponge placed therein in connection with the surgical operation, the period of the applicable statute of limitations does not commence to run against the plaintiff's cause of action until she learns of, or by exercise of reasonable diligence should have learned of, the presence of the sponge in her abdomen.

Fraudulent concealment on the part of the physician in a malpractice case will also extend the two-year statute of limitations. In Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967), the defendant physician tore part of the plaintiff's iris during a cataract operation, but repeatedly told the plaintiff his vision would return when the patient complained. The plaintiff did not learn until almost three years later that his vision had been permanently damaged. In syllabus point 2 of Hundley, this Court stated:

In a medical malpractice case the statute of limitations begins to run at the time the injury is inflicted, or, in the event the physician fraudulently conceals from the plaintiff the facts showing negligence, when the fraud is penetrated and the injury is discovered or when by the exercise of reasonable diligence it should have been discovered.

Id. 151 W.Va. at 977, 158 S.E.2d at 160. Thus, the court stated that if the jury should decide that the doctor had fraudulently concealed his negligence, the two-year statute of limitations did not apply. ¹ Id. 151 W.Va. at 985, 158 S.E.2d at165-66.

The plaintiff argues that since West Virginia has applied the discovery rule, or its principle, in other contexts, including products liability, attorney malpractice, and fraud, ² it should apply in this case. The plaintiff also points to several other jurisdictions in which a version of the discovery rule had been applied. ³ However, the defendant counters with cases which refuse to extend the time limitation and explains that most of the jurisdictions to which the plaintiff points involve an interpretation of their wrongful death statute, which is different from the West Virginia statute. ⁴

The plaintiff's argument for extending the time limitations for wrongful death cases ignores a crucial line of West Virginia case law interpreting our wrongful death act. This Court has held that, unlike a malpractice or negligence action, a wrongful death action is not a right which was recognized at common law. In Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971), we held that no right of action for wrongful death existed separate and apart from the wrongful death statute. Id. 155 W.Va. at 437, 184 S.E.2d at 431. The wrongful death action is not a revival of a deceased cause of action for personal injury, but is an entirely new cause of action that does not accrue until the death of the person injured. See also Crab Orchard Improvement Co. v. C & O Railway Co., 33 F.Supp. 580 (S.D.W.Va.1940), aff'd 115 F.2d 277 (4th Cir.1940), cert. denied 312 U.S. 702, 61 S.Ct. 807, 85 L.Ed. 1135 (1941). The wrongful death statute is remedial and not intended to be punitive. Baldwin v. Butcher, 155 W.Va. at 437 184 S.E.2d at 431.

Without an underlying common-law basis, wrongful death is a legislatively created right. In Huggins v. Hospital Board of Monongalia County, 165 W.Va. 557, 270 S.E.2d 160 (1980), this Court held that:

This Court has reasoned that the two-year limitation upon the bringing of an action for wrongful death is an integral part of the statute itself and creates a condition precedent to the bringing of an action. The condition is made absolute and, strictly speaking, is not a statute of limitations. The time fixed by the statute creating the right is one of the components entering into the plaintiff's right of recovery.... Once the statutory period expires, there remains no foundation for judicial action. In a proceeding which is barred by the statute of limitations, however, the basis for relief continues, but the use of the means of enforcing it may be barred if the lapse of time is affirmatively asserted for that purpose.... The issue here is whether the action was properly commenced within two years after the death of the appellant's decedent.

Id. 165 W.Va. at 560, 270 S.E.2d at 162-63 (emphasis added).

The issue of limitations on an action to file a wrongful death case was initially addressed in Lambert v. Ensign Manufacturing Co., 42 W.Va. 813, 26 S.E. 431 (1896), where this Court held that the bringing of a suit within two years from the death of the person "is made an essential element of the right to sue.... And it is made absolute without saving or qualification of any kind whatever. There is no opening for explanation or excuse. Therefore, strictly speaking, it is not a statute of limitations." Id. 42 W.Va. at 817, 26 S.E. at 432. In the syllabus of Smith v. Eureka Pipe Line Co., 122 W.Va. 277, 8 S.E.2d 890 (1940), this Court held that:

The provisions of Code, 55-2-18, covering the right to institute a new action...