                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Michelle Martin and William Martin,                                               FILED
Plaintiffs Below, Petitioners                                                     May 17, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0710 (Kanawha County 12-C-268)                                      OF WEST VIRGINIA



Charleston Area Medical Center, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioners Michelle Martin and William Martin, by counsel Stephen P. New, appeal the
order entered by the Circuit Court of Kanawha County on May 17, 2012, dismissing with
prejudice petitioners’ complaint as untimely filed. Respondent, by counsel Dina M. Mohler and
Lisa J. Bray, filed a response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Martin suffered extensive injuries as a result of a work-related accident in May of
2007. He was hospitalized at Charleston Area Medical Center, Inc. (CAMC) from May 24, 2007,
until June 27, 2007, during which time he was placed in restraints for medical purposes. CAMC
staff was ordered to reposition Mr. Martin every two hours. While hospitalized, he developed
numerous ulcers (bed sores), including a Stage III decubitus ulcer.

      As a result of the 2007 injury, Mr. Martin was left legally and mentally incapacitated.
Mrs. Martin was appointed to be his guardian and conservator on February 26, 2008.

         Petitioners filed suit against CAMC on February 16, 2012, alleging medical professional
liability relating to the ulcers sustained during Mr. Martin’s 2007 hospital stay. The cause of
action was brought under West Virginia’s Medical Professional Liability Act (MPLA), West
Virginia Code § 55-7B-1 et seq.

        In February of 2012, CAMC filed a motion to dismiss the complaint on the ground that
the claims were barred by the statute of limitations. Petitioners filed a response in opposition to
the motion to dismiss. After hearing oral arguments, the court entered its order dismissing with
prejudice petitioners’ complaint as untimely. The court found the applicable statute of limitations
is the two-year provision of the MPLA.

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       This case is before this Court on appeal from the circuit court’s order granting CAMC’s
motion to dismiss made pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.
The motion was based upon the statute of limitations found in the MPLA, West Virginia Code §
55-7B-4.1

       Petitioners argue that the circuit court erroneously dismissed the complaint and should
have tolled the statute of limitations pursuant to West Virginia Code § 55-2-15,2 considering the
fact Mr. Martin remains mentally incapacitated. Petitioners also assert the circuit court failed to
apply the basic legal standards for analyzing a Rule 12(b)(6) motion to dismiss and should have
considered the allegations in the complaint.

        In response, CAMC argues that the plain language of the MPLA provides for a two-year
statute of limitations period. Furthermore, when enacting the MPLA, the Legislature chose to toll
or extend the two-year statute of limitations only for one particular group -- children under age
ten. Finally, CAMC asserts the merit, or lack thereof, of the underlying allegations is irrelevant
as the claim is clearly time-barred.

        We begin our analysis with the standard of appellate review. This Court reviews a circuit
court’s order granting a motion to dismiss a complaint under a de novo standard. Syl. Pt. 2, State
ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).



       1
           West Virginia Code § 55-7B-4, states in relevant part:

                 (a) A cause of action for injury to a person alleging medical professional
                     liability against a health care provider arises as of the date of injury,
                     except as provided in subsection (b) of this section, and must be
                     commenced within two years of the date of such injury, or within two
                     years of the date when such person discovers, or with the exercise of
                     reasonable diligence, should have discovered such injury, whichever
                     last occurs: Provided, That in no event shall any such action be
                     commenced more than ten years after the date of injury.
       2
         West Virginia Code § 55-2-15 is entitled “General saving as to persons under disability”
and states:

                 If any person to whom the right accrues to bring any such personal action,
                 suit or scire facias, or any such bill to repeal a grant, shall be, at the time
                 the same accrues, an infant or insane, the same may be brought within the
                 like number of years after his becoming of full age or sane that is allowed
                 to a person having no such impediment to bring the same after the right
                 accrues, or after such acknowledgement as is mentioned in section eight of
                 this article, except that it shall in no case be brought after twenty years
                 from the time when the right accrues.


                                                   2

       To resolve the question of whether the circuit court correctly determined that petitioners’
claims were barred by the statute of limitations, we look to the language of the MPLA. This
Court has held that,

       “The Medical Professional Liability Act, W.Va. Code, 55–7B–4 [1986], requires
       an injured plaintiff to file a malpractice claim against a health care provider
       within two years of the date of the injury, or ‘within two years of the date when
       such person discovers, or with the exercise of reasonable diligence, should have
       discovered such injury, whichever last occurs [.]’ However, the Act also places an
       outside limit of 10 years on the filing of medical malpractice claims, regardless of
       the date of discovery, unless there is evidence of fraud, concealment or
       misrepresentation of material facts by the health care provider.” Syllabus point 1,
       Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

Syl. Pt. 3, Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748 (2008). Accordingly, we agree
that the petitioners were required to file their claim under the MPLA within two years of the date
of the injury.3

         Petitioners’ argument that the general disability savings statute in West Virginia Code §
55-2-15 should toll their claim under the MPLA is unpersuasive. For most general causes of
action, those under a disability have up to twenty years to file suit pursuant to West Virginia
Code § 55-2-15. However, adults alleging a medical professional liability action under MPLA
have a two-year statute of limitations, except in cases where discovery is an issue. To the extent
the statutes cannot be construed consistently with one another, the more specific of the two
prevails. Zimmer v. Romano, 223 W.Va. 769, 784, 679 S.E.2d 601, 616 (2009)(“The general rule
of statutory construction requires that a specific statute be given precedence over a general
statute relating to the same subject matter where the two cannot be reconciled.”).

        In this case, the cause of action accrued in 2007, when Mr. Martin was hospitalized and
developed the ulcers. Petitioners filed suit under the MPLA in 2012. Accordingly, we find the
circuit court properly applied the statute of limitations in dismissing the complaint. See Franklin
D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules
of Civil Procedure § 12(b)(6)[2], at 388 (4th ed. 2012) (“A statute of limitations may support
dismissal under Rule 12(b)(6), where it is evident from the plaintiff’s pleading that the action is
barred, and the pleading fails to raise some basis for tolling or the like.”).

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.




       3
        The discovery rule is inapplicable to this case because petitioners do not contest that
Mrs. Martin, as her husband’s legal representative, was aware of the ulcers Mr. Martin obtained
during his hospital stay.


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ISSUED: May 17, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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