SW Legal studies in Business

Statute of Limitations Applies to Ordinary Medical Procedures
Description

West Virginia high court held that a patient, who had a piece of a surgical knife left in his hand during surgery, and suffered pain the next ten years until the piece was discovered, was barred from suit by the statute of limitations. The continuous medical treatment doctrine did not apply because the patient did not continue under the care of the surgeon who left the knife blade in his hand.

Topic Torts
Key Words

Malpractice; Statute of Limitation; Continuous Medical Treatment Doctrine

C A S E   S U M M A R Y
Facts

Forshey had his wrists operated on by Dr. Jackson in 1995. After the surgery, he complained to Dr. Jackson about continuing pain in his left hand and an inability to grasp tools. Dr. Jackson never took x-rays, but, in 1997 recommended more surgery. Forshey cancelled the surgery but continued to have pain in the hand. In 2005, he suffered an injury to his left hand that required an x-ray. It showed a piece of metal in the hand. The radiologist stated that the metal was a piece of a knife blade that had to have been from the 1995 surgery. Forshey sued Jackson for malpractice. The district court dismissed the suit as untimely as there was a two year statute of limitations. Forshey appealed.

Decision

Affirmed. Forshey argues that the statute of limitations continued to run under the continuous medical treatment doctrine. Under that doctrine, when a patient 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 day of treatment. To show a continuing tort theory, a plaintiff must establish repetitious wrongful conduct. Merely showing the continuation of the ill effects of an original act will not suffice.

Citation

Forshey v. Jackson, ---S.E.2d--- (2008 WL 4967061, Sup. Ct., W.Va., 2008)

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