In its opinion filed on May 19, 2016, the Supreme Court of Appeals for West Virginia (“West Virginia Supreme Court”) held that the tolling provisions of the general disability savings statute apply to a medical malpractice cause of action brought by a personal representative.
In the case it was deciding, the decedent resided in the defendant nursing home and was mentally incompetent due to Alzheimer’s disease. The personal representative of the decedent’s estate brought claims against the defendant nursing home for alleged abuse and neglect that the decedent suffered while a resident at the nursing home, seeking to recover for injuries suffered during the two-year period immediately prior to the resident’s death.
The trial court limited the plaintiff’s claims to the two-year period (plus sixty days) prior to the date that the complaint was filed in court (the trial court added sixty days to the two-year statute of limitations in medical malpractice cases in West Virginia to account for the sixty days allotted for filing a notice of claim and responding to the notice of claim), citing the rule of statutory construction that a specific statute controls in comparison to a general statute: the medical malpractice statute’s “more specific two-year statute of limitations” should apply in lieu of the generalized provisions of the savings statute (the savings statute, W.Va. Code § 55-2-15, provides that the applicable statute of limitations is tolled until the injured individual either gains the age of majority or regains his/her mental competency, but in no event can such an action be brought more than twenty years after the accrual of the right to sue).
The trial court thereby limited the petitioner to introducing evidence of injuries that occurred during a two-and-a-half-month period. The West Virginia Supreme Court stated that the trial court had effectively shortened the legislative grant of a two-year period in which to seek recovery for injuries that were sustained; because no personal injuries were sustainable beyond the point of death, the trial court erred in limiting the petitioner to introducing evidence for the two-year-period directly preceding the filing of her lawsuit.
The West Virginia Supreme Court held that until the petitioner was appointed as the decedent’s legal representative following his death, the petitioner had no power to stand in the decedent’s legal shoes, and because a medical power of attorney is not the equivalent of a general power of attorney, the petitioner cannot be charged with knowledge of the decedent’s injuries for purposes of the statute of limitations.
The West Virginia Supreme Court stated that logic impels the conclusion that an incompetent individual’s death is a natural moratorium for the tolling of the statute of limitations that was invoked due to a disability, and that the statutory authority for a personal representative to bring an action following the death of an individual is examined with specific reference to the tolling provisions provided under the savings statute: to suggest that the tolling provisions are not applicable to a West Virginia medical malpractice claim under the Medical Professional Liability Act (MPLA) brought by a personal representative following death is simply not tenable.
Specifically, the West Virginia Supreme Court held, “The authority of a personal representative to bring a personal injury action on behalf of a deceased individual pursuant to West Virginia Code § 55-7-8a(c) includes the authority to bring a medical malpractice action under the MPLA for injuries sustained prior to death that did not result in death. Because West Virginia Code § 55-7-8a(c) incorporates the general disability savings statute, the tolling provisions of the general disability savings statute apply to a medical malpractice cause of action brought by a personal representative under authority of West Virginia Code § 55-7-8a. Given that the applicable tolling provisions terminate upon the death of an incompetent individual, the two-year statute of limitations begins to run on the date of the injured person’s death.”
Source Williams v. CMO Management, LLC, No. 15-0553.
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in West Virginia or in another U.S. state due to nursing home neglect, nursing home negligence, or nursing home abuse, you should promptly find a local nursing home claim lawyer in your U.S. state who may investigate your possible nursing home claim for you and file a nursing home claim on your behalf, if appropriate.
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