Pennington v. Bear

488 S.E.2d 429, 200 W. Va. 154
CourtWest Virginia Supreme Court
DecidedJuly 15, 1997
Docket23869
StatusPublished
Cited by7 cases

This text of 488 S.E.2d 429 (Pennington v. Bear) 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
Pennington v. Bear, 488 S.E.2d 429, 200 W. Va. 154 (W. Va. 1997).

Opinions

MAYNARD, Justice:

The appellant, Brenda Pennington, appeals the November 17, 1995, Order of the Circuit Court of Mercer County, West Virginia, granting the motion for summary judgment of appellee, Professional Imaging, Inc., on the ground that her claim for the wrongful death of her husband was time-barred.

On January 4, 1993, William Pennington, the husband of appellant, Brenda Pennington, was accepted as a patient at Bluefield Regional Medical Center (BRMC) and was treated by Robert S. Bear, D.O., for various symptoms of illness. Certain radiographic, imaging, and other diagnostic studies were [156]*156performed on Mr. Pennington. On January 14, 1993, while still a patient at BRMC, Mr. Pennington died. An autopsy performed on January 15, 1993, attributed the cause of death to a pulmonary embolus.

On January 13, 1995, the appellant filed a wrongful death action against BRMC, Blue-field Health Systems (BHS),1 and Robert S. Bear, D.O. arising from the death of her husband. In her complaint, the appellant alleged that BRMC, BHS, and Dr. Bear caused the death of her husband by failing to properly diagnose the symptoms of acute massive pulmonary embolism, failing to perform a CT scan of the chest due to mechanical failure of radiologic equipment owned and operated by BRMC, and failing to promptly refer Mr. Pennington to nearby radiologic facilities capable of performing and interpreting CT scans.

On March 20, 1995, the appellant amended her complaint to include Professional Imaging, Inc. as a defendant. At the time of the events at issue, Professional Imaging had a contract with BRMC wherein Professional Imaging was solely responsible for providing all radiology services available at BRMC. In her amended complaint, the appellant alleged that Edward Ayeoth, M.D., an employee of Professional Imaging, performed and interpreted medical imaging studies on Mr. Pennington, “including but not limited to CT scans and lung scans,” for the purpose of clarifying the existence of a pulmonary em-bolus. The appellant stated that Dr. Ayeoth interpreted a lung scan as showing a low probability of pulmonary embolus when, if properly read, it should have shown a high degree of probability of a pulmonary embo-lus.

On May 31, 1995, Professional Imaging filed a motion for summary judgment contending that the appellant was barred from adding it as a defendant more than two years after Mr. Pennington’s death. The appellant responded that either the discovery rule applied to the wrongful death statute, thus extending the two-year limitations period, or there was evidence of fraud, misrepresentation or concealment of facts that were material to the appellant’s discovery of the injury to her husband.

A hearing was held in the Circuit Court of Mercer County on July 14, 1995, after which the court found that an evidentiary hearing was necessary in order to determine the facts as submitted. At the October 6,1995 eviden-tiary hearing, the appellant offered evidence showing her inability to obtain possession of the lung scan performed on her husband by Professional Imaging. The evidence was undisputed that the appellant’s lawyer attempted to obtain the lung scan from BRMC from October, 1994 until March 17, 1995, when BRMC ultimately produced the lung scan. There was much disputed evidence, however, concerning the reason for this delay. The appellant contends, and BRMC denies, that BRMC fraudulently concealed the film of the lung scan. The appellant produced no evidence that Professional Imaging was involved in any attempt to conceal the film of the lung scan.

The circuit court found that even if it assumed the allegations of fraud against BRMC to be true, these allegations could not be imputed to Professional Imaging. The circuit court concluded that the appellant’s complaint against Professional Imaging was filed outside the two-year period for filing such actions and that there was no issue of material fact to justify the tolling of the limitations period. The court, therefore, granted Professional Imaging’s motion for summary judgment and dismissed it from the action with prejudice. It is from this ruling that the appellant appeals to this Court.

First, we note 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). Furthermore, “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty And Surety Company v. Federal Insurance Company Of [157]*157New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Accordingly, “[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus Point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). With this in mind, we will now examine the case before us.

The applicable period of limitations for bringing a wrongful death claim is found in W.Va.Code § 55-7-6(d) (1992) which states that “[ejvery such action shall be commenced within two years after the death of such deceased person[.]” In Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991) this Court discussed at great length the limitations period in a wrongful death action. There we were faced with the following certified question:

In a medical malpractice case, is the wrongful death statute of limitations tolled by the allegation of fraudulent concealment on the part of the defendant and/or failure on the part of the plaintiff to discover the cause of the decedent’s death?

Miller, 186 W.Va. at 524, 413 S.E.2d at 179. W.Va.Code § 55-7B-1, et seq. (1986), known as the Medical Professional Liability Act, addresses both malpractice actions and actions involving death. Miller, 186 W.Va. at 527, 413 S.E.2d at 182.

W.Va.Code § 55-7B-4(a) (1986) provides, in relevant part, that a cause of action pursuant to the Act “must be commenced within two years of the date of such injury, or 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[.]” In addition, W.Va.Code § 55-7B-4(c) (1986) states that this period of limitation “shall be tolled for any period during which the health care provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.” In Miller we concluded that “the omission of the word ‘death’ from W.Va.Code § 55-7B-4 must mean that the section applies only to injury cases and the legislature intended W.Va.Code § 55-7-6 to remain the applicable provision for limitations of actions involving wrongful death.” Miller, 186 W.Va. at 527, 413 S.E.2d at 182.

Our discussion did not end there, however. We added that,

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Pennington v. Bear
488 S.E.2d 429 (West Virginia Supreme Court, 1997)

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488 S.E.2d 429, 200 W. Va. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennington-v-bear-wva-1997.