CHARLESTON – Justice Margaret Workman believes her colleagues should have let Fayette County jurors determine the statute of limitations in a wrongful death suit.

On Oct. 7, she dissented from the majority's rejection of a suit blaming Plateau Medical Center for the death of Mamie Mack.

The majority held that when Mack died, daughter Annie Mack-Evans knew or should have known that the hospital's alleged malpractice caused the death.

Workman thinks jurors might have decided Mack-Evans didn't know until later.

Workman found facts showing that when Mack died, seven months after surgery at the hospital, Mack-Evans reasonably believed that intervening events were to blame.

She wrote that before Mack-Evans sued the hospital, she filed a wrongful death suit alleging negligence at Hilltop Nursing Home.

"This is just one of the facts on which a jury could have relied to find that, at the time of her mother's death, Ms. Mack-Evans reasonably believed that Hilltop, not the hospital, was at fault for the death," Workman wrote.

The hospital admitted Mack for hip replacement in January 2004. A day after surgery, Mack tried to pull out intravenous tubes. Staff sedated her, and she never fully woke up.

She spent months at Hilltop, returned to the hospital, and died there on Aug. 9, 2004.

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

She received the records and sued, claiming the hospital proceeded with surgery in spite of high blood pressure.

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

Mack-Evans argued it wouldn't have run out at least until Aug. 20, 2006, two years after her appointment as representative of the estate. She argued it might not have run out until two years after she received the records.

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

Circuit Judge Paul Blake relied on that statement when he granted summary judgment to the hospital, and so did four Justices.

Chief Justice Robin Davis wrote that at the time of Mack's death, Mack-Evans had reasonable cause to believe the hospital's conduct may have caused her death.

Davis agreed with the hospital that Mack-Evans did not rely on medical records in order to commence a wrongful death action against the hospital.

Davis found nothing in statute that would toll a two year limit pending appointment of an administrator.

Justices Brent Benjamin, Menis Ketchum and Thomas McHugh concurred.

Workman disagreed, writing that Mack-Evans believed at the time of her mother's death that substandard care at Hilltop was the proximate cause of her death.

"Ms. Mack-Evans had no knowledge of the hospital's alleged failure to track Ms. Mack's blood pressure prior to surgery, nor did she know that a drop in blood pressure following surgery likely caused Ms. Mack to suffer from a stroke or other brain damage," she wrote.

Suspicion that something was wrong after surgery didn't meet the criteria for accrual of a wrongful death claim, she wrote.

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