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.
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
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.
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.
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.
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
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.
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 ...