CHARLESTON — The West Virginia Supreme Court of Appeals ruled that a lawsuit filed under the state's Medical Professional Liability Act was not timely filed and dismissed with prejudice.
Justice Beth Walker authored the majority opinion. Justice Haley Bunn did not participate in the decision.
In March 2018, Helen Adkins had surgery performed by Dr. Carolyn Clark and alleged she was injured by the surgery. In 2020, Adkins sent a notice of claim and certificate of merit consistent with the pre-suit notice requirements of the West Virginia Medical Professional Liability Act to Clark, according to the June 14 West Virginia Supreme Court of Appeals opinion.
"Counsel for the parties corresponded by letter about the claim, but Dr. Clark neither requested pre-suit mediation nor declined it," Walker wrote in the opinion. "Ms. Adkins did not file her claim until months later when she received a response letter from Dr. Clark explicitly declining pre-suit mediation — long after the expiration of the statute of limitations and any statutory tolling periods."
The circuit court granted Clark’s motion to dismiss the claim on the grounds that the MPLA does not permit an indefinite tolling of the statute of limitations to facilitate pre-suit mediation and there was no evidence of any affirmative conduct by Clark that would have induced Adkins to delay filing her claim so as to equitably toll the statute of limitations.
On appeal, the Supreme Court affirmed the circuit court’s order concluding that Adkins’s claim was not timely filed and dismissing it with prejudice.
Clark performed a total abdominal hysterectomy on March 22, 2018, with bilateral salpingo-oophorectomy and lysis of adhesions. Adkins claims during the procedure, Clark caused a left ureteral injury that required her to undergo additional surgeries.
Adkins sent Clark a notice of claim on Feb. 27, 2020, but did not file the lawsuit until Nov. 23, 2020. Clark argued the statute of limitations had expired and the circuit court granted a motion to dismiss. Adkins then appealed to the Supreme Court.
Walker wrote that Clark did not admit liability, did not request pre-suit mediation, did not promise to pay an amount to settle the claim, did not promise to waive the statute of limitations defense and did not ask Adkins to refrain from filing suit.
"Given the communications between Dr. Clark and Ms. Adkins, we are unpersuaded that equity demands this Court conclude that Ms. Adkins’s complaint was filed within the statute of limitations and affirm the circuit court’s order," Walker wrote.
West Virginia Supreme Court of Appeals case number: 21-0300