Justices won't budge on statute of limitations

By Steve Korris | Sep 29, 2010



CHARLESTON –- Statutes of limitations sometimes stretch, but the West Virginia Supreme Court of Appeals didn't yield a day in a wrongful death suit from Fayette County.

Four Justices strictly enforced a two-year limit against Annie Mack-Evans, personal representative of the estate of her mother, Mamie Mack.

They affirmed Circuit Judge Paul Blake, who granted summary judgment in favor of Plateau Medical Center.

They rejected Mack-Evans's argument that the statute of limitations didn't start running on the date of the death because she didn't know what caused it.

Mack-Evans claimed she didn't know the cause until she obtained records from the hospital, but that didn't fit the facts as the Justices saw them.

"Under this set of facts, we agree with the hospital that Ms. Evans did not rely upon the medical records in order to commence the wrongful death action against the hospital," Chief Justice Robin Davis wrote. "At the time of Ms. Mack's death, Ms. Evans had reasonable cause to believe that conduct by the hospital may have caused Ms. Mack's death."

Justices Brent Benjamin, Menis Ketchum and Thomas McHugh agreed. Justice Margaret Workman dissented and reserved the right to file an opinion.

In January 2004, Plateau Medical Center admitted Mack for hip replacement.

After surgery, Mack-Evans visited Mack and found her tired and semi-conscious. Mack tried the next day to pull out intravenous tubes, and staff sedated her.

She never fully woke up. She spent months at Hilltop Center nursing home, and she died on Aug. 9, 2004.

On Aug. 20, 2004, Mack-Evans was appointed to administer the estate.

Almost two years later, in July 2006, she asked the hospital for her mother's records. On Aug. 16, 2006, she filed claim notices with the hospital and the nursing home.

Two days later, she received records from the hospital.

She sued the hospital, claiming it severely injured her mother by proceeding with surgery in spite of high blood pressure.

She sued the nursing home and settled that claim.

The hospital moved for summary judgment, arguing the statute of limitations ran out on Aug. 9, 2006.

Mack-Evans argued it shouldn't have run out until Aug. 20, 2006, two years after her appointment as representative of the estate.

In a deposition, she said she knew something was wrong after the surgery.

"I did contact a lawyer to find out about them over sedating my mom," she said. "That was the only thing that we could think of as to why she wasn't waking up, that everything else was fine."

Blake relied on that statement when he granted summary judgment to the hospital.

On appeal, Andrew Paternostro of The Bell Law Firm in Charleston argued that as of Aug. 9, 2004, Mack-Evans did not believe the hospital's negligence in January caused her mother's death.

He wrote that "a jury could reasonably conclude that, as of Aug. 9, 2004, plaintiff believed her mother's death was caused by the lack of care she received at Hilltop."

He wrote that Mack was legally incompetent and her claim was tolled until her daughter was appointed administrator, but Davis knocked that down.

"The statute allows a personal representative to initiate an action only if the statute of limitations has not run," she wrote.

"Nowhere in this statute does it indicate that the statute of limitations is tolled pending appointment of an administrator," she wrote.

"In fact, the statute of limitations could actually run on a claim before an injured person dies," she wrote.

Amy Rothman, Sam Fox and Briana Marino represented Plateau Medical Center.

Along with Bell, Andrew Paternostro and Robert Absten of the Bell Law Firm represented Mack-Evans.

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