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Parsons v. Thomas

Supreme Court of West Virginia

November 17, 2017

Donna Parsons and Gary Parsons, Plaintiffs Below, Petitioners
v.
Herbert J. Thomas Memorial Hospital Association and Betty A. Goad, M.D., Defendants Below, Respondents

         Kanawha County 15-C-2094

          MEMORANDUM DECISION

         Petitioners Donna Parsons and Gary Parsons, by counsel Robert P. Welch, appeal the Circuit Court of Kanawha County's May 12, 2016, order granting respondents' "Motion to Dismiss/Motion for Summary Judgment" in petitioner's medical malpractice lawsuit. Petitioners also appeal the November 15, 2016, order denying their Rule 59(e) motion to alter or amend the May 12, 2016, order. Respondent Herbert J. Thomas Memorial Hospital Association (the "Hospital") filed a response in support of the circuit court's order by counsel Robby J. Aliff and Candice M. Harlow. Respondent Dr. Betty A. Goad ("Dr. Goad") also filed a response in support of the circuit court's order by counsel Don R. Sensabaugh, Jr. and J. Dustin Dillard.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On June 26, 2013, Dr. Goad performed a hysterectomy on Petitioner Donna Parsons ("Mrs. Parsons") at the Hospital. During a July 2, 2013, follow-up visit with Dr. Goad, Mrs. Parsons reported drainage from the incision site. Dr. Goad diagnosed a periumbilical infection and prescribed antibiotics. Thereafter, Mrs. Parsons presented to Dr. Bernard Luby for evaluation of abdominal pain and drainage; Dr. Luby referred Mrs. Parsons to Dr. Matthew Hofeldt.

         On July 9, 2013, Dr. Hofeldt diagnosed Mrs. Parsons with a postoperative wound. Following a July 11, 2013, CT scan, Dr. Hofeldt diagnosed Mrs. Parsons with a postoperative wound infection and an enterocutaneous fistula. That same day, Dr. Hofeldt performed an exploratory laparoscopy on Mrs. Parsons, which Dr. Hofeldt converted intraoperatively into a laparotomy during which he identified and repaired damage to Mrs. Parsons's small bowel and colon (together "bowel"). Specifically, Dr. Hofeldt removed infected permanent mesh implants that a different surgeon had surgically placed several years before during a hernia repair surgery. Dr. Hofeldt's operative report provided that, "[i]t appeared that the mesh had eroded into the bowel in at least one or two areas and this was probably the cause of the patient's problems. However, I could not be for sure." Dr. Hofeldt also identified a "hole" during the operation but could not determine whether it was an enterotomy (a surgical cutting open of the intestine), or the fistula itself.

         On July 25, 2013, Dr. Goad saw Mrs. Parsons in her office. Petitioners assert that Dr. Goad told Mrs. Parsons that Dr. Hofeldt had to do a partial resection of the bowel for a fistula/abscess because of mesh problems. Petitioners state that, at the time, product liability litigation was ongoing on a national scale against various mesh manufacturers, as illustrated by the number of television advertisements being aired by lawyers in the mesh litigation. Late in July of 2013, petitioners sought legal counsel to determine whether Mrs. Parsons should become involved in the mesh litigation. Petitioners were referred to a law firm on November 27, 2013, where they claim they first discovered that Dr. Goad might have caused the injury to Mrs. Parsons's bowel. That same day, petitioners entered into a contract with the law firm so that Mrs. Parsons's medical records could be obtained and evaluated. In 2015, Dr. Christopher Awtrey evaluated those records and determined that the injury to Mrs. Parsons's bowel was the result of Dr. Goad's medical negligence, and not a result of the mesh implants. Petitioners aver that it was at this point that they became aware that Dr. Goad caused Mrs. Parsons's injuries.

         Pursuant to the West Virginia Medical Professional Liability Act ("MPLA"), West Virginia Code § 55-7B-6(b), petitioners served notices of claim on the Hospital upon July 6, 2015, and on Dr. Goad upon July 7, 2015; and timely sent each respondent a screening certificate of merit. The Hospital received petitioners' screening certificate of merit on September 1, 2015; Dr. Goad received petitioners' screening certificate of merit on September 2, 2015.

         Petitioners filed the instant medical malpractice action against respondents on November 24, 2015. The Hospital and Dr. Goad each responded by filing a "Motion To Dismiss/Motion For Summary Judgment." Those motions asserted that petitioners' complaint was barred by the MPLA's two-year statute of limitations set forth in West Virginia Code § 55-7B-4.

         Following an April 15, 2016, hearing, the circuit court granted respondents' motions by order entered May 12, 2016. In that order, the circuit court made the following findings:

Since it is undisputed that the post-operative infection and fistula [the injuries alleged in petitioners' complaint] had been diagnosed by July 11, 2013 (between two and three weeks after the surgery at issue), the [c]ourt finds that July 11, 2013, is the latest date the Statute of Limitations would have begun to run.
Utilizing July 11, 2013 as the start of the Statute of Limitations, the court finds [petitioners] timely mailed a Notice of Claim to each defendant.
By mailing those notices of claim, the Statute of Limitations was tolled pursuant to [West Virginia] Code §55-7B-6(h).
[West Virginia] Code §55-7B-6(h) states that the Statute of Limitations "shall be tolled from the date of mail of a notice of claim to thirty days following receipt of a response to the notice of claim [or] thirty days from the date a response to the notice of claim would be due . . . whichever last occurs."
On September 1, 2015, [Respondent] Hospital received a Screening Certificate of Merit . . . . Therefore, the tolling period ended as it relates to ...

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