Too late to sue over blade in wrist, Justices rule

By Steve Korris | Dec 4, 2008


CHARLESTON – Surgeon Ted Jackson left a knife blade in Paul Forshey's wrist, but Forshey can't sue Jackson because more than 10 years passed before he found the blade.

On Nov. 25, the West Virginia Supreme Court of Appeals enforced a 10-year deadline in medical malpractice law to a suit Forshey filed in 2006 over an operation in 1995.

Four of five Justices affirmed Kanawha Circuit Judge Jennifer Bailey Walker, who ruled in Jackson's favor last year.

Malpractice law sets a two-year limit on lawsuits, but plaintiffs can stretch the limit by starting the calendar on the date of discovery rather than the date of injury.

The law won't let them stretch it beyond 10 years, however, regardless of discovery.

Mark Underwood of Huntington argued for Forshey that the calendar started in 1997, when Jackson failed to detect the blade, but the Justices disagreed.

Justice Robin Davis wrote that "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," she wrote.

Forshey, a left-handed locksmith, developed carpal tunnel syndrome in his left wrist. Repetitive hand motions cause the syndrome by tightening tissue that blocks nerves.

Jackson performed surgery on July 6, 1995, but Forshey's pain continued and a knot developed below his thumb.

Forshey told Jackson that tenderness and swelling gave him trouble when using tools.

Jackson prescribed exploratory surgery. He set it for Feb. 3, 1997, but on Jan. 31 he canceled it due to a schedule conflict.

Jackson set surgery for Feb. 17, but on Feb. 13 Forshey cancelled it.

"Though Mr. Forshey indicated that he would reschedule the surgery at a later time, he never did so," Davis wrote.

In 2005, Forshey injured his left index finger. An X-ray revealed a metallic body more than an inch long.

In April 2006, Forshey served a notice of claim on Jackson with a certificate of merit identifying the object as "a piece of knife blade."

Forshey sued Jackson in August 2006. Jackson moved to dismiss, and Walker granted the motion.

She wrote that "the absolute latest that this action could have been filed would have been on July 6, 2005, which is ten years after the date of the original surgery."

Underwood appealed for Forshey, arguing that the calendar should have started the day Jackson cancelled the exploratory surgery.

Underwood asked the Justices to adopt a continuous medical treatment doctrine. To his chagrin, they adopted his doctrine but rejected his case anyway.

As Davis expressed the 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 date of treatment."

She wrote that the doctrine wouldn't apply to Forshey because the alleged negligence occurred on a date certain.

Chief Justice Spike Maynard agreed with Davis. So did Judge Paul Blake, substituting for senior status Justice Thomas McHugh.

Justice Brent Benjamin concurred and reserved the right to file an opinion. Justice Larry Starcher dissented and reserved the right to file an opinion.

Robert D'Anniballe Jr. of Weirton represented Jackson.

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