Cases

Jill Willey and Mike Willey v. Samuel J. Bracken, Jr., M.D.

Case Number:
35519
Case Date:
14-10-2010
Case Issue:

The circuit court entered a "Certification Order" certifying the following questions of law in this medical malpractice action:

"1. Does a cause of action for medical negligence "accrue", for the purposes of the West Virginia borrowing statute, W.Va. Code § 55-2A-2, in the State of West Virginia or the State of Ohio where the Defendant doctor is a West Virginia doctor, where the plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the state of West Virginia, where the Defendant-doctor performs a tubal ligation in the state of Ohio, with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between plaintiff and defendant, and where the plaintiff-patient suffers a sigmoid colon rupture in the State of West Virginia in the week following the tubal ligation procedure?

2. Does the West Virginia Borrowing statute, W.Va. Code § 55-2A-2[,] apply to a medical negligence claim where the Defendant, a West Virginia physician, admits that both the substantive and procedural law of the state of West Virginia applies to the plaintiff’s claim?

3. As a matter of public policy, should the West Virginia borrowing statute be construed so as not to bar a claim for medical negligence by a West Virginia resident patient, where the defendant doctor is a West Virginia doctor, where the Plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the State of West Virginia, where the defendant-doctor performs a tubal ligation in the State of Ohio with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between Plaintiff and Defendant, and where the Plaintiff-patient suffers a sigmoid colon rupture in the state of West Virginia in the week following the tubal ligation procedure?"

 The circuit court states in its Certification Order that "the West Virginia Borrowing Statute, W.Va. Code § 55-2A-2, does not bar the Plaintiff’s clams for medical negligence pursuant to the Ohio one-year statute of limitations as ‘the Plaintiff’s cause of action did not accrue per the statute in the State of Ohio.’ Rather, this Court found that the Plaintiff’s cause of action for medical negligence accrued in the state of West Virginia, ‘where the injury occurred.’ "