Paul E. Forshey v. Theodore A. Jackson, M.D., (Justice Benjamin concurring.)

• Court: West Virginia Supreme Court
• Decided: March 22, 2024
• Docket: 33834
• Status: Separate

Opinion

No. 33834 - Paul E. Forshey and Melissa L. Forshey v. Theodore A. Jackson, MD.

FILED January 9, 2009 released at 3:00 p.m. Benjamin, J., Concurring: RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

I agree fully with the majority’s decision in this case. I choose to write

separately to respond to allegations in the dissenting opinion that this Court has, in this case,

rendered an inconsistent and result driven opinion. The dissent contends that the majority

opinion is inconsistent with an earlier opinion handed down this term in the case of Rashid

v. Tarakji, No. 33596, ___ W. Va.___, ___ S.E.2d ___ (November 5, 2008). I disagree.

First, the facts and law upon which our decision in Rashid v. Tarakji was based

are distinctly different from those involved in the instant case. Notably, the lawsuit in Rashid

had been timely filed, but the circuit court attempted to dismiss the case under Rule 41(b) of

the West Virginia Rules of Civil Procedure after a long period of inaction and the plaintiff’s

failure to pay a twenty dollar court fee. Thus, the case involved an application of Rule 41(b).

Because the lower court had failed to follow the established notice requirements of Rule

41(b), this Court, applying clearly established law, properly concluded that because of the

lower court’s failure to provide proper notice and an opportunity for the plaintiff to be heard

before the dismissal of the case, the circuit court’s “dismissal order was void ab initio, and

1 thus, had no legal effect.” Rashid, slip. op at 13.1

To the contrary, the case sub judice does not involve Rule 41(b) or the

dismissal of a properly filed case. Rather, the instant case involves a cause of action that was

not filed until more than ten years had passed from the date of injury. In this regard, the

West Virginia Legislature has established a statute of repose, found at W. Va. Code § 55-7B-

4 (1986) (Repl. Vol. 2008), under which the Legislature has declared that “in no event shall

any such action be commenced more than ten years after the date of injury.” While the

majority opinion recognized that justice requires an exception to this rule, and therefore

adopted the continuous medical treatment doctrine, the majority opinion correctly concluded

that the rule simply does not apply in cases such as this where there is a definitely

ascertainable date of injury. As the majority opinion explained “the continuous medical

treatment doctrine is intended to aid victims of medical malpractice who are unable to

pinpoint the exact date of their injury due to the continuing nature of their medical

treatment.” Maj. slip op. at 16. In this instance, “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.” Maj. slip op. at 20. Therefore, the majority correctly applied the appropriate law

in concluding that the continuing treatment doctrine did not apply to Mr. Forshey’s cause of

1 It should be noted that, deeming myself disqualified, I did not participate in the decision of Rashid v. Tarakji, No. 33596, ___ W. Va.___, ___ S.E.2d ___ (November 5, 2008).

2 action.

Furthermore, the Majority’s resolution of this case follows this Court’s history

of strictly adhering to statutes of limitation and repose. Indeed, it has been recognized that

No rule of law could be more widely accepted and easily understood than that a statute of limitations imposes a bright line test as to when a cause of action has been timely filed. See, e.g., Cart v. Marcum, 188 W. Va. 241, 245, 423 S.E.2d 644, 648 (1992) (recognizing “predictability that bright line rules like a strict statute of repose create”). Correspondingly, this Court traditionally has been reluctant to find exceptions to the filing requirements imposed by a statute of limitations and has enforced such temporal limits as they are written. See, e.g., Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578, 583, 165 S.E.2d 379, 383 (1969) (declaring that statutes of limitation “are entitled to the same respect as other statutes, and ought not to be explained away” (internal quotations and citations omitted)).

Wright v. Myers, 215 W. Va. 162, 166, 597 S.E.2d 295, 299 (2004) (Davis, J., dissenting).

See also Syl. pt. 2, Perdue v. Hess, 199 W. Va. 299, 484 S.E.2d 182 (1997) (“The ultimate

purpose of statutes of limitations is to require the institution of a cause of action within a

reasonable time.”) ; Johnson v. Nedeff, 192 W. Va. 260, 266, 452 S.E.2d 63, 69 (1994)

(“[T]he statute of limitations does not distinguish between a just and unjust claim. . . . [T]he

object of statutes of limitations is to compel the bringing of an action within a reasonable

time.”); Humble Oil & Ref. Co. v. Lane, 152 W. Va. 578, 583, 165 S.E.2d 379, 383 (1969)

(“[S]tatutes of limitations are favored in the law and cannot be avoided unless the party

seeking to do so brings himself strictly within some exception. It has been widely held that

such exceptions ‘are strictly construed and are not enlarged by the courts upon considerations

3 of apparent hardship.’” (quoting Woodruff v. Shores, 354 Mo. 742, 746, 190 S.W.2d 994,

996, 166 A.L.R. 957, 960 (1945)).

Finally, though I disagree with the dissent’s contention that the instant opinion

is in any way inconsistent with the opinion in Rashid, I wish to point out that, due to illness

and disqualifications, the jurists who decided the two cases differed significantly. Rashid

was decided by a four-member Court made up of Chief Justice Maynard and Justice Starcher,

along with Judge Walker and Senior Status Judge Egnor sitting by temporary assignment.2

However, the instant case was decided by a five-member Court made up of Chief Justice

Maynard, Justice Starcher, Justice Davis, myself, and Judge Blake sitting by temporary

assignment. Thus, in the absence of continuity in the Court with respect to these two

opinions, the dissent’s assertion that this Court, as an institution, “will do whatever it takes

to protect doctors and lawyers from malpractice claims” is a disingenuous claim.

Accordingly, for the reasons herein stated, I concur in the majority opinion.

2 Judge Walker dissented from the Court’s decision in Rashid.