The State of West Virginia Supreme Court of Appeals (“West Virginia Supreme Court”) filed an opinion on November 17, 2017 in which it affirmed summary judgment in favor of the West Virginia medical malpractice defendants, finding that the West Virginia medical malpractice plaintiff had filed her medical malpractice lawsuit after the two-year statute of limitations had expired for medical malpractice claims arising in West Virginia.
The Underlying Facts
The West Virginia medical malpractice defendant had performed a hysterectomy on the plaintiff on June 26, 2013. During a July 2, 2013 follow-up visit with the defendant, the plaintiff advised the defendant that she had drainage coming from the surgical incision site. The defendant diagnosed a periumbilical infection and prescribed antibiotics.
The plaintiff was later evaluated by another physician for abdominal pain and drainage, who referred the plaintiff to a third physician. On July 9, 2013, the third physician (a surgeon) diagnosed the plaintiff with a postoperative wound. The plaintiff had a CT scan on July 11, 2013, after which the third physician diagnosed the plaintiff with a postoperative wound infection and an enterocutaneous fistula. That same day, the third physician performed an exploratory laparoscopy on the plaintiff, which he converted intraoperatively into a laparotomy during which he identified and repaired damage to the plaintiff’s small bowel and colon (the surgeon removed infected permanent mesh implants that a different surgeon had surgically placed several years before during a hernia repair surgery).
The third physician wrote in his operative report: “[i]t appeared that the mesh had eroded into the bowel in at least one or two areas and this was probably the cause of the patient’s problems. However, I could not be for sure.” The third physician also identified a “hole” during the surgery but could not determine whether it was an enterotomy (a surgical cutting open of the intestine) or the fistula itself.
On July 25, 2013, the defendant saw the plaintiff in her office during which the plaintiff alleges that the defendant told her that the third physician had to do a partial resection of the bowel for a fistula/abscess because of mesh problems.
Late in July 2013, the plaintiff sought an attorney to determine whether she should become involved in the ongoing national mesh litigation. The plaintiff alleged that she was advised for the first time during a meeting with an attorney on November 27, 2013 that the defendant may have caused the injury to the plaintiff’s bowel. That same day, the plaintiff retained the attorney so that the attorney could obtain the plaintiff’s medical records for review.
In 2015, a medical expert retained by the plaintiff’s attorney evaluated the plaintiff’s medical records and determined that the injury to the plaintiff’s bowel was the result of the defendant’s medical negligence, and not a result of the mesh implants. The plaintiff alleged that this was the first time she became aware that the defendant caused the plaintiff’s injuries.
The plaintiff served notices of her medical malpractice claims on the defendant physician (and the defendant hospital) in early July 2015 pursuant to the West Virginia Medical Professional Liability Act (“MPLA”), West Virginia Code § 55-7B-6(b). The plaintiff then filed her West Virginia medical malpractice lawsuit against the defendants on November 24, 2015, after which the defendant physician and the defendant hospital filed their Motion To Dismiss/Motion For Summary Judgment.
The trial court subsequently granted the defendants’ Motion, ruling that the plaintiff’s West Virginia medical malpractice lawsuit was time-barred upon undisputed facts including that: (1) the plaintiff did not have a fistula or infection prior to June 26, 2013; (2) the defendant surgeon performed the plaintiff’s hysterectomy at the defendant hospital on June 26, 2013; (3) the third physician diagnosed and treated the plaintiff for a fistula and infection on July 11, 2013; and (4) the plaintiff sought legal counsel for these injuries in late July 2013. Based on these facts, the trial court concluded that the statute of limitations began to run on July 11, 2013, when the plaintiff became aware of the plaintiff’s injuries, and the two-year statute of limitations expired prior to the time the plaintiff filed her West Virginia medical malpractice lawsuit against the defendants. The plaintiff appealed.
The West Virginia Supreme Court Opinion
The West Virginia Supreme Court held that the plaintiff discovered or, by the exercise of reasonable diligence, should have discovered that the plaintiff’s injuries may have been caused by the defendant physician when the third physician diagnosed the plaintiff with a postoperative infection and an enterocutaneous fistula on July 11, 2013. Thus, on July 11, 2013, the plaintiff learned something went wrong, as proved by the fact that she sought legal counsel later that same month to evaluate potential claims.
The West Virginia Supreme Court stated that the plaintiff was not required to know the exact nature of her claims at the time she sought counsel, and the plaintiff failed to file her West Virginia medical malpractice lawsuit until November 24, 2015, well outside the two-year statute of limitations set forth in West Virginia Code § 55-7B-4. Accordingly, the West Virginia Supreme Court found that the trial court did not err in the manner in which it applied the statute of limitations in this case, and therefore found that it did not err in granting summary judgment to the defendants.
Source Donna Parsons and Gary Parsons v. Herbert J. Thomas Memorial Hospital Association and Betty A. Goad, M.D., No. 16-1178.
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