Ricottilli v. Summersville Memorial Hosp.

• Decision Date: 18 December 1992
• Docket Number: No. 20903,20903
• Citation: 425 S.E.2d 629,188 W.Va. 674
• Court: West Virginia Supreme Court
• Parties: Caroline RICOTTILLI, Individually and as the Personal Representative of Tara Ricottilli, Plaintiff Below, Appellant, v. SUMMERSVILLE MEMORIAL HOSPITAL, a Corporation; Dr. Mark Tomsho, Individually; Carla Dorsey, Individually; Marshall Wickline, Individually; Unknown John Doe Defendants; and Charleston Area Medical Center, a Corporation, Defendants Below, and Charleston Area Medical Center, a Corporation, Defendant Below, Appellee.

Page 629

425 S.E.2d 629

188 W.Va. 674

Caroline RICOTTILLI, Individually and as the Personal Representative of Tara Ricottilli, Plaintiff Below, Appellant, v. SUMMERSVILLE MEMORIAL HOSPITAL, a Corporation; Dr. Mark

Tomsho, Individually; Carla Dorsey, Individually; Marshall

Wickline, Individually; Unknown John Doe Defendants; and

Charleston Area Medical Center, a Corporation, Defendants Below,

and

Charleston Area Medical Center, a Corporation, Defendant

Below, Appellee.

No. 20903.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 22, 1992.

Decided Dec. 18, 1992.

Syllabus by the Court

1. By definition, a deceased individual does not qualify as a "patient" under the Medical Professional Liability Act ("Act"), West Virginia Code §§ 55-7B-1 to -11 (Supp.1992), and therefore cannot be the basis for a cause of action alleging medical professional liability pursuant to the Act.

2. An individual may recover for the negligent infliction of emotional distress absent accompanying physical injury upon a showing of facts sufficient to guarantee that the emotional damages claim is not spurious.

Michael Tomasky, Gary Wigal, Morgantown, for appellant.

Karen Speidel Rodgers, Kay, Casto, Chaney, Love & Wise, Charleston, for appellee.

WORKMAN, Justice:

Caroline Ricottilli appeals from an order of the Circuit Court of Kanawha County entered on June 18, 1991, dismissing her complaint against Appellee Charleston Area Medical Center ("CAMC"). Having determined that Appellant's cause of action was improperly dismissed below, we reverse the decision of the circuit court.

On March 14, 1989, the six-year-old daughter of Appellant, Tara Ricottilli, was admitted to CAMC as a patient after being transported by helicopter from the Summersville Memorial Hospital in Summersville, West Virginia. Tara died within a matter of hours after her admission to CAMC. Following Tara's death on March 15, 1989, Appellant's husband signed a consent form authorizing a post-mortem examination to be performed on Tara's body. The autopsy was performed by CAMC on March 15, 1989, and liver tissue samples were taken at that time to aid in the determination of the cause of Tara's death.

The results of the autopsy report were not provided to Appellant and her husband until early January 1990, almost ten months after Tara's death. The autopsy report, which is dated January 9, 1990, states that: "The clinical course and morphologic findings of the liver suggest the possibility of an inborn error of metabolism, although the clinical workup of this patient by her local physician did not provide any diagnostic clues." The report further states that "[a]n attempt will be made to perform biochemical studies on frozen liver tissue...." Appellant alleges in her complaint that CAMC has still not reported the results of the tissue sample analysis to her notwithstanding numerous requests. Through the filing of CAMC's brief in this case, it was revealed, apparently for the first time, that no testing of the liver tissue samples was possible because the tissue had been removed post rather than pre-embalming.

On March 12, 1991, Appellant filed a complaint against Summersville Memorial Hospital ("SMH"), Dr. Mark Tomsho, Carla Dorsey, Paula Dorsey, Marshall Wickline, and unknown healthcare providers at SMH and CAMC in the Circuit Court of Kanawha County. Appellant's cause of action against CAMC was predicated on the tort of outrageous conduct or negligent infliction of emotional distress and medical professional negligence. CAMC filed a Motion to Dismiss and supporting memorandum alleging that the outrageous conduct claim was barred by the applicable one-year statute of limitations and that the medical professional negligence claim failed to state a claim due to Appellant's sole reliance on emotional damages to support this cause of action. Without stating any reasons for its decision, the circuit court granted CAMC's Motion to Dismiss with prejudice by order entered June 18, 1991. It is from that order that Appellant now appeals.

Because the trial court did not permit oral argument on CAMC's Motion to Dismiss, this Court has no record from which to identify the grounds upon which the court relied in granting the dismissal. Accordingly, we address both of the arguments cited by CAMC in its Motion to Dismiss to determine whether the circuit court could have properly relied on either of those positions as the basis for its decision. CAMC's Motion to Dismiss states essentially two arguments. First, that the outrageous conduct claim is barred by a one-year statute of limitations and second, that the medical professional negligence claim fails to state a claim based on the lack of any alleged physical damages. Proper analysis of these arguments requires a partial recitation of the averments made by appellant against CAMC in the complaint.

Count eight, which is entitled "Medical Professional Liability Action and the Tort of Outrageous Conduct Against the Charleston Area Medical Center," is the only count of the complaint which contains allegations pertaining to CAMC. The pertinent paragraphs of count eight aver as follows:

51. In providing medical services to Tara Ricottilli and to the plaintiff, CAMC negligently, intentionally and recklessly violated its duty to exercise that degree of care, skill and learning required or expected of a hospital acting as a reasonable or prudent health care provider in performing an autopsy and diagnostic testing in the same or similar circumstances. CAMC failed to provide timely information concerning the cause of Tara Ricottilli's death, failed to provide any information concerning diagnostic tissue samples sent to other medical facilities for analysis, and failed to provide a timely autopsy report.

52. CAMC knew, or should have known, that its failure to provide the medical services were likely to be the cause of emotional distress, thus, its intentional and reckless conduct was outrageous, intolerable and offensive to generally accepted standards of decency in light of the plaintiff's grief and legitimate, deep concern for the well-being of her surviving children because of the possible genetic cause of Tara Ricottilli's death.

53. As a direct and proximate result of CAMC's negligent, intentional and reckless breach of its duty to provide medical services in the form of autopsy and diagnostic testing results, as well as timely autopsy reports, the plaintiff has suffered severe mental and emotional anguish because her surviving children may be at risk from the same genetic illness that caused Tara Ricottilli's death and the plaintiff does not have the information necessary to seek the appropriate medical care for her surviving children.

I.

We first examine whether this case was properly dismissed under a one-year statute of limitations. CAMC cites this Court's decision in Rodgers v. Corporation of Harper's Ferry, 179 W.Va. 637, 371 S.E.2d 358 (1988), in support of its position that Appellant's claim against CAMC for outrageous conduct or intentional infliction of emotional distress is time-barred. In Rodgers, we ruled that "personal tort actions such as libel, defamation, intentional infliction of emotional distress, false arrest, false imprisonment, and malicious prosecution take the one-year statute of limitations [set forth in W.Va.Code § 55-2-12(c) (1981) ] because they are excluded from statutory survivability under W.Va.Code § 55-7-8a(a) (1981)...." 179 W.Va. at 640, 371 S.E.2d at 361. Accordingly, Appellant's first cause of action which is predicated on the tort of outrageous conduct or negligent infliction of emotional distress is governed by a one-year statute of limitations.

Given that the one-year limitations period controls the intentional tort of outrageous conduct, the next question becomes on what date did the one-year statute begin to run. CAMC argues that January 9, 1990, the date of the autopsy results, is the only possible date from which to calculate the limitations period. Accordingly, CAMC concludes that because the underlying civil action was not filed until March 12, 1991, the one-year limitations period had elapsed prior to the filing. Appellant contends that CAMC's actions or lack thereof constitute a continuing tort which in turn prevents the statute from running. Conversely, Appellant argued in response to CAMC's Motion to Dismiss that the one-year period does not begin to run until she receives the test results pertaining to the liver tissue samples taken in conjunction with the autopsy performed on Tara. ¹

We reject Appellant's continuing tort theory essentially because the concept of a continuing tort requires a showing of repetitious, wrongful conduct. See Handley v. Town of Shinnston, 169 W.Va. 617, 289 S.E.2d 201 (1982) (finding continuing tort based on permitting water to regularly flood another's property). Moreover, as this Court explained in Spahr v. Preston County Board of Education, 182 W.Va. 726, 391 S.E.2d 739 (1990), a wrongful act with consequential continuing damages is not a continuing tort. Id. at 729, 391 S.E.2d at 742. The alleged continuing wrong in this case is the untimely and incomplete autopsy report as well as the failure of CAMC to date to report the results of the tissue sample analysis. ²

With regard to the dilatoriness of the autopsy report, upon its tender to Appellant on January 9, 1990, or thereabouts, the act of delay was fixed and the only aspect of the claim that could be said to continue is damages, but not the wrongful act itself. See id. Similarly, the incompleteness of the autopsy report, insofar as Appellant contends the absence of a specific cause of death renders the report incomplete, as a wrongful act was fixed as of January 9, 1990. With regard to the tissue report, Appellant contends and CAMC does not dispute that she first learned through CAMC's appellate brief, which was filed with this Court on August 26, 1992, that "[b]ecause the...