Jones v. Aburahma

600 S.E.2d 233, 215 W. Va. 521, 2004 W. Va. LEXIS 53
CourtWest Virginia Supreme Court
DecidedJune 18, 2004
Docket31553
StatusPublished
Cited by7 cases

This text of 600 S.E.2d 233 (Jones v. Aburahma) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Aburahma, 600 S.E.2d 233, 215 W. Va. 521, 2004 W. Va. LEXIS 53 (W. Va. 2004).

Opinions

PER CURIAM.

The appellants Joann Jones and her husband, Clarence C. Jones,1 appeal the circuit court’s order granting summary judgment in favor of the appellees, Dr. Ali Aburahma and Charleston Area Medical Center.2 The appellants argue that the circuit court erred in finding that the appellants had filed their causes of action outside the statute of limitations.

We affirm the circuit court’s order.

I.

On or about July 24, 1998, the appellant Joann Jones underwent a coronary angioplasty, a heart eatherization, and a stent placement at Charleston Area Medical Center (“CAMC”). At the site of the catherization, Ms. Jones developed a pseudoaneu-rysm.3 In early August of 1998, Ms. Jones was admitted to CAMC and had a vascular consultation with appellee Dr. Ali Aburahma. On August 24, 1998, Dr. Aburahma advised Ms. Jones to “continue with her normal activities” and that there was a fifty percent chance that the pseudoaneurysm would improve “spontaneously.” 4

[523]*523On September 10,1998, Ms. Jones contacted Dr. Aburahma’s office and was informed that she had been scheduled for surgery on September 30, 1998. It appears that later the same evening, Ms. Jones’ pseudoaneu-rysm ruptured and blood began visibly pooling underneath Ms. Jones’ skin.5 Ms. Jones was rushed to a local hospital in Greenbrier County, and then transported to CAMC in Kanawha County.

At CAMC, Dr. Aburahma repaired Ms. Jones’ ruptured pseudoaneurysm. Ms. Jones remained in the hospital and received followup care. While hospitalized, under the care of CAMC and Dr. Aburahma, Ms. Jones suffered a “cerebrovascular accident,” which is more commonly known as a “stroke.”

After receiving rehabilitative treatment for her stroke, Ms. Jones was discharged from CAMC on September 28, 1998. On October 1, 1998, Ms. Jones was readmitted for treatment of an infection at the site of the ruptured pseudoaneurysm. Ms. Jones was again discharged from CAMC on October 22, 1998. Ms. Jones last sought treatment from the appellees on November 23, 1998. Ms. Jones continues to suffer pain and physical limitations.

On January 12, 1999, Ms. Jones and her husband engaged the services of an attorney. On behalf of the appellants, counsel requested Ms. Jones’ medical records from CAMC. Despite several subsequent requests, CAMC did not provide Ms. Jones’ medical records to appellants’ counsel until July 30, 1999 — approximately six months after appellants’ counsel’s initial request for the medical records.

Appellants’ counsel then forwarded Ms. Jones’ medical records to two medical experts for evaluation. The experts’ medical reports, dated May 5, 2000, and June 7, 2000, respectively, were not, according to appellants’ counsel, received until September 26, 2000.6

On November 17, 2000, the appellants filed their complaint against the appellees.

Arguing that the statute of limitations barred Ms. Jones’ medical malpractice action and her husband’s derivative loss of consortium claim, the appellees filed motions for summary judgment. The appellees contend that the statute of limitations began to run on, at the latest, October 1, 1998, the date Ms. Jones was admitted to CAMC for treatment of an infection at the site of her catheri-zation.

The appellants argue that the statute of limitations should begin to run on November 23, 1998, the date that the appellees last provided medical care to Ms. Jones. The appellants also argue that the “discovery rule” should toll the statute of limitations based on the appellees’ delay in providing Ms. Jones’ medical records.

The circuit court held a hearing, and, in December of 2002, granted the appellees’ motions for summary judgment. In granting the appellees’ motions for summary judgment, the circuit court found that the alleged acts of negligence all occurred on or before October 1, 1998, and that the discovery rule did not toll the statute of limitations. Therefore, the circuit court found that the appellants’ actions were barred by the statute of limitations.

The appellants now appeal from the circuit court’s order granting the appellees’ motions for summary judgment.

II.

This Court has consistently held that “[a] circuit court’s entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

[524]*524At issue is whether Ms. Jones filed her medical malpractice action within the two-year statute of limitations. “The Medical Professional Liability Act, W.Va. Code, 55-7B-4(a) [1986]7 ... requires an injured plaintiff to file a [medical] malpractice claim against a health care provider within two years of the date of the injury, dr ‘within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs[.]’ ” Syllabus Point 1, in part, Gaither v. City Hospital, Inc., 199 W.Va. 706, 711, 487 S.E.2d 901, 906 (1997).

Ordinarily, the applicable statute of limitation begins to run when the actionable conduct first occurs, or when an injury is discovered, or with reasonable diligence, should have been discovered. W.Va.Code, 55-7B-4 [1986].8 The discovery rule recognizes “the inherent unfairness of barring a claim when a party’s cause of action could not have been recognized until after the ordinarily applicable period of limitation.” Harris v. Jones, 209 W.Va. 557, 562, 550 S.E.2d 93, 98 (2001). “[U]nder the ‘discovery rule,’ the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim.” Syllabus Point 2, in part, Gaither v. City Hospital, Inc., 199 W.Va. 706, 711, 487 S.E.2d 901, 906 (1997).

There are two common situations when the discovery rule may apply. The first occurs when “the plaintiff knows of the existence of an injury, but does not know the injury is the result of any party’s conduct other than his own.” Gaither, 199 W.Va. 706, 713, 487 S.E.2d 901, 908 (1997) (modifying Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987)). In Gaither, this Court held that a question of fact exists as to when Mr. Gaither first “became aware” that the hospital’s negligence, as opposed to his own negligence, may have resulted in the amputation of his leg. “[W]e find nothing in the record to indicate that the appellant had any reason to know before January 1993 that City Hospital may have breached its duty and failed to exercise proper care, or that City Hospital’s conduct may have contributed to the loss of his leg.” 199 W.Va. 706, 715, 487 S.E.2d 901, 910.

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Bluebook (online)
600 S.E.2d 233, 215 W. Va. 521, 2004 W. Va. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-aburahma-wva-2004.