West Virginia recently joined the majority of jurisdictions by adopting the continuous medical treatment doctrine. "Under the continuous medical treatment doctrine, when a plaintiff 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 the injury, the statute of limitations will begin to run on the last date of treatment." Forshey v. Jackson, M.D., No. 33834, at. Syl. pt. 4. (W. Va. filed Nov. 19, 2008).
Forshey v. Jackson, M.D. involved a medical malpractice claim and related loss of consortium claim brought by Paul E. Forshey and his wife Melissa against Theodore A. Jackson, M.D., alleging that Dr. Jackson had left a piece of knife blade in Mr. Forshey's hand during carpal tunnel surgery on July 6, 1995, and later failed to order x-rays of the hand during subsequent visits where Mr. Forshey had complained of pain and a knot over the palmar aspect of his left thumb. The piece of knife blade was discovered in the summer of 1995, and the Forsheys' claim was filed nearly eleven years after the carpal tunnel surgery, and approximately nine and a half years after Mr. Forshey's last professional contact with Dr. Jackson. The circuit court below dismissed the Forsheys' claim based on the ten-year statute of repose found in West Virginia Code §55-7B-4(a). On appeal, the Forsheys urged the West Virginia Supreme Court of Appeals to adopt the continuous medical treatment doctrine and apply it to their cause of action in order to conclude that it accrued on the date of Mr. Forshey's last contact with Dr. Jackson.
The Court chose to adopt the continuous medical treatment doctrine. However, the doctrine was found to be inapplicable to Mr. Forshey's claim, as his injury did not result from a continuing course of treatment that rendered him unable to identify the precise date of his injury. The Court noted that the continuous medical treatment doctrine is intended to aid victims of medical malpractice who are unable to pinpoint the exact date of injury due to the continuing nature of their medical treatment, and as the alleged negligence in Forshey occurred on a date certain (the date that Dr. Jackson performed surgery on Mr. Forshey's hand), the doctrine would not apply.
The Forsheys alternatively argued that, even in the absence of the continuous medical treatment doctrine, their cause of action was timely filed because Mr. Forshey's additional visits to Dr. Jackson after the carpal tunnel surgery amounted to continuing torts. The Court disagreed, holding that "[i]n the context of a medical malpractice action, in order to establish a continuing tort theory a plaintiff must show repetitious wrongful conduct. Merely establishing the continuation of the ill effects of an original wrongful act will not suffice." Forshey v. Jackson, M.D., No. 33834, at. Syl. pt. 5. (W. Va. filed Nov. 19, 2008). Accordingly, the West Virginia Supreme Court of appeals voted four to one to uphold the circuit court's ruling that the claim was not timely filed, and that the absolute last date this action could have been filed would have been on July 6, 2005, ten years after the date of the carpal tunnel surgery and alleged injury.
The text of the Forshey decision may be found online here.