Willey v. Bracken

• Decision Date: 14 October 2010
• Docket Number: No. 35519.,35519.
• Citation: 228 W.Va. 244,719 S.E.2d 714
• Court: West Virginia Supreme Court
• Parties: Jill WILLEY, Individually, and Mike Willey, Plaintiffs, v. Samuel J. BRACKEN, Jr., M.D., Defendant.

228 W.Va. 244

719 S.E.2d 714

Jill WILLEY, Individually, and Mike Willey, Plaintiffs,

v.Samuel J. BRACKEN, Jr., M.D., Defendant.

No. 35519.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 2010.Decided Oct. 14, 2010.

Syllabus by the Court

1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syllabus point 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

2. “A determination of the existence of public policy in West Virginia is a question of law, rather than a question of fact for a jury.” Syllabus point 1, Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984).

3. When a cause of action is filed in a West Virginia court seeking damages for a surgical procedure that was negligently performed in a foreign jurisdiction, along with damages for a subsequent surgical procedure performed in West Virginia as a direct result of the negligence in the foreign jurisdiction, public policy demands that the applicable West Virginia statute of limitations applies to the negligence committed in the foreign jurisdiction. Under these unique circumstances, the West Virginia borrowing statute, W. Va.Code § 55–2A–2 (1959) (Repl.Vol.2008), has no application.

David S. Givens, Phillip T. Glyptis, Flaherty Sensabaugh Bonasso, PLLC, Wheeling, WV, for Defendant.

David A. Jividen, Chad C. Groome, Jividen Law Offices, PLLC, Wheeling, WV, for Plaintiffs.

DAVIS, Chief Justice:

In this certified question action, this Court is asked to determine the application of the West Virginia borrowing statute, i.e., W. Va.Code § 55–2A–2 (1959) (Repl.Vol.2008),¹ to a medical malpractice action where the initial act of negligence occurred in a foreign jurisdiction, but further injuries related to that negligence occurred in West Virginia. We find that the borrowing statute has no application to the unique facts presented in this action.

I.FACTUAL AND PROCEDURAL HISTORY

In the action underlying this certified question, it has been alleged that Jill Willey (hereinafter referred to as “Mrs. Willey”), a resident of Wheeling, Ohio County, West Virginia, sought medical treatment from Dr. Samuel J. Bracken, Jr., a gynecologist who was engaged in the practice of medicine in the states of West Virginia and Ohio. On December 15, 2004, Dr. Bracken performed a laparoscopic tubal ligation on Mrs. Willey, on an outpatient basis, at East Ohio Regional Hospital in Martins Ferry, Ohio. Mrs. Willey returned to West Virginia, and, on December 19, 2004, as a result of severe abdominal pain, she sought treatment in the emergency room at Ohio Valley Medical Center, a facility that is located in West Virginia. She was originally thought to have a bowel obstruction and was sent home. However, her pain continued, and she returned to the Ohio Valley Medical Center Emergency Room in the early morning hours of December 20, 2004, when she received emergency surgery for a perforation of the sigmoid colon in the area in which the tubal ligation had been performed. According to the Willeys' complaint, the emergency surgery included a colostomy. She was later subjected to additional surgery to reverse the colostomy.

An expert witness retained by Mrs. Willey in connection with the instant litigation, Dr. Melvyn J. Ravitz, has indicated that certain methods used by Dr. Bracken in performing Mrs. Willey's laparoscopic tubal ligation resulted in some sort of insult that led to a delayed perforation. Likewise, Dr. Howard Shackelford, Jr., who performed the emergency surgery to repair the perforation of the sigmoid colon, testified by deposition to the possibility that, during the laparoscopic tubal ligation performed by Dr. Bracken, Mrs. Willey sustained a partial injury or cautery burn to her sigmoid colon that later perforated.

Mrs. Willey and her husband (hereinafter referred to as “the Willeys”) initiated this action by serving on Dr. Bracken their “Notice of Claim” dated October 27, 2006, and a Screening Certificate of Merit authored by Dr. Ravitz and dated August 23, 2006. Thereafter, on December 14, 2006, the Willeys filed their complaint against Dr. Bracken alleging medical negligence. In their complaint, the Willeys aver that Dr. Bracken

was negligent toward [Mrs. Willey], in one or more of the following particulars:

a. failing to exercise a degree of care and skill ordinarily exercised by other physicians in like and similar conditions, thereby falling below the acceptable standard of care;

b. failing to possess the degree of knowledge ordinarily possessed by other physicians in like and similar circumstances, thereby falling below the acceptable standard of care;

c. perforating the sigmoid colon during the performance of a laparoscopic tubal ligation,

d. failing to recognize that he had perforated the colon....

On May 18, 2009, Dr. Bracken submitted a “Revised Motion for Summary Judgment” in which he asserted that, pursuant to W. Va.Code § 55–2A–2, West Virginia's borrowing statute, the court was required to apply the statute of limitations of the State of Ohio, because Mrs. Willey's tubal ligation was performed in Ohio.² Following a hearing on June 26, 2009, the circuit court denied Dr. Bracken's motion. The circuit court concluded that the Willeys' cause of action accrued in West Virginia, based upon its finding that her injury occurred in West Virginia. Nevertheless, the circuit court certified the following questions to this Court:

1. Does a cause of action for medical negligence “accrue”, for the purposes of the West Virginia borrowing statute, W. Va.Code § 55–2A–2, in the State of West Virginia or the State of Ohio where the Defendant doctor is a West Virginia doctor, where the plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the state of West Virginia, where the Defendant-doctor performs a tubal ligation in the state of Ohio, with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between plaintiff and defendant, and where the plaintiff-patient suffers a sigmoid colon rupture in the State of West Virginia in the week following the tubal ligation procedure?

2. Does the West Virginia Borrowing statute, W. Va.Code § 55–2A–2 [,] apply to a medical negligence claim where the Defendant, a West Virginia physician, admits that both the substantive and procedural law of the state of West Virginia applies [sic] to the plaintiff's claim?

3. As a matter of public policy, should the West Virginia borrowing statute be construed so as not to bar a claim for medical negligence by a West Virginia resident patient, where the defendant doctor is a West Virginia doctor, where the Plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the State of West Virginia, where the defendant-doctor performs a tubal ligation in the state of Ohio with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between Plaintiff and Defendant, and where the Plaintiff-patient suffers a sigmoid colon rupture in the state of West Virginia in the week following the tubal ligation procedure?

In its Certification Order, the circuit court expressly concluded that

the West Virginia Borrowing Statute, W. Va.Code § 55–2A–2, does not bar the Plaintiff's clams for medical negligence pursuant to the Ohio one-year statute of limitations as “the Plaintiff's cause of action did not accrue per the statute in the State of Ohio.” Rather, this Court found that the Plaintiff's cause of action for medical negligence accrued in the state of West Virginia, “where the injury occurred.”

By order entered March 30, 2010, this Court accepted the certified question for review.

II.STANDARD OF REVIEW

It is well established that “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Accord Syl. pt. 1, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009); Syl. pt. 1, Copier Word Processing Supply, Inc. v. WesBanco Bank, Inc., 220 W.Va. 39, 640 S.E.2d 102 (2006).

III.DISCUSSION

Prior to addressing the issues raised in connection with the questions certified to this Court by the Circuit Court of Ohio County, we choose to exercise our authority to reformulate the questions presented. See Syl. pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993) (“When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va.Code, 51–1A–1, et seq. and W. Va.Code, 58–5–2 [ (1998) (Repl.Vol.2005) ], the statute relating to certified questions from a circuit court of this State to this Court.”). Accord Potesta v. United States Fid. & Guar. Co., 202 W.Va. 308, 313 n. 9, 504 S.E.2d 135, 140 n. 9 (1998). Cf. W. Va.Code § 51–1A–4 (1996) (Repl.Vol.2008) (“The Supreme Court of Appeals of West Virginia may reformulate a question certified to it.”). In order to fully and clearly address the legal issues presented in this action, we find it necessary to answer only one question. Accordingly, we reformulate the questions herein certified as follows:

When a surgical procedure is negligently performed in a foreign jurisdiction, and as a direct result of that negligence the plaintiff/patient must undergo a subsequent surgical procedure in West...