West Virginia high court rules certain malpractice cases will not require precise date of injury

This material originally appeared in the December 5, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).

The continuous treatment doctrine should be adopted in certain medical malpractice cases where the date of injury is not identifiable due to the nature of the medical treatment received, the West Virginia Supreme Court of Appeals ruled November 19. 

Under the doctrine, as articulated by the high court, when a patient is injured due to negligence that occurred during a continuous course of medical treatment, and due to the continuous nature of the treatment is unable to ascertain the precise date of injury, the statute of limitation for purposes of medical malpractice statutes will begin to run on the last date of treatment.

The underlying facts in the case involve malpractice claims brought against Theodore Jackson, MD, a hand surgeon who performed carpal tunnel surgery on plaintiff Paul Forshey’s left hand in July 1995. 

After the surgery, Forshey complained during post-operative visits that he was experiencing continuing pain in his left hand. However, during each of multiple office visits that occurred until January 1997, Jackson did not order any x-rays to further explore the cause of the continuing pain. 

At the end of January, Jackson recommended exploratory surgery, but the planned surgery was subsequently cancelled at Forshey’s request. Forshey then discontinued his office visits with Jackson. 

It was not until eight years later, in the summer of 2005, that Forshey suffered an unrelated injury to a finger on his left hand and, as a result, received an x-ray that revealed a piece of a knife blade at the site of the carpel tunnel surgery. Forshey indicated that, over this eight-year period, he continued to endure severe pain in his left hand. 

In April 2006, nearly 11 years after the carpal tunnel surgery, Forshey and his wife (plaintiffs) sued Jackson for medical malpractice.  

Jackson moved to dismiss based on the statute of limitations requiring lawsuits asserting medical malpractice to be commenced within two years of the date of injury, or within two years of the date when the injury was or should have been discovered, and in no event more than 10 years after the date of the injury. 

After a state trial court granted Jackson’s motion and dismissed the case, plaintiffs appealed. Among other arguments, plaintiffs urged the high court to adopt the continuous medical treatment doctrine and to apply that doctrine to find their cause of action accrued on January 31, 1997 (the day Forshey terminated his treatment under Jackson), and therefore was timely filed in August 2006. 

The high court concluded the continuous treatment doctrine should be applied to extend, under West Virginia law, the time allowed for filing a malpractice action when the date of injury was not clearly identifiable due to the continuous nature of the treatment involved.  

The high court explained that, under the continuous treatment doctrine, the statute of limitations “does not commence running until treatment by the physician or surgeon has terminated, where the treatment is continuing and of such nature as to charge the physician or surgeon with the duty of continuing care and treatment which is essential to recovery until the relationship ceases,” i.e., the last date of treatment. 

The high court also found, however, that the doctrine was not applicable to plaintiffs’ action.  

“Mr. Forshey’s injury did not result from a continuing course of treatment that rendered him unable to identify the precise date of his injury,” the high court said. “Rather, the alleged negligence in the instant case occurred on a date certain, the date that Dr. Jackson performed surgery on Mr. Forshey’s hand and allegedly left a scalpel blade in his hand.” 

The high court therefore affirmed the lower court’s decision granting Jackson’s motion to dismiss the case as untimely.  

“Because Mr. Forshey’s claim arose on July 6, 1995, the date on which Dr. Jackson performed the carpal tunnel surgery, the circuit court was correct in concluding that, pursuant to . . . W. Va. Code § 55-7B-4, ‘the absolute latest date that this action could have been filed would have been on July 6, 2005, which is [10] years after the date of the . . . alleged injury,” the high court said.  

The high court also rejected the plaintiffs’ claim that their action was timely because the additional visits Forshey had with Jackson in 1996 and 1997, wherein Jackson failed to order an x-ray of Forshey’s hand, amounted to a continuing tort.  

Plaintiffs’ complaint did not set out a cause of action for continuing tort, therefore, the circuit court did not err in failing to consider this theory prior to dismissing the case, the appeals court said.   

Forshey v. Jackson, No. 33834 (W. Va. Nov. 19, 2008).