671 S.E.2d 748
4. Under the continuous medical treatment doctrine, when a patient is
injured due to negligence that occurred during a continuous course of medical treatment, and
due to the continuous nature of the treatment is unable to ascertain the precise date of the
injury, the statute of limitations will begin to run on the last date of treatment.
5. In the context of a medical malpractice action, in order to establish a
continuing tort theory a plaintiff must show repetitious wrongful conduct. Merely
establishing the continuation of the ill effects of an original wrongful act will not suffice.
Davis, Justice: (See footnote
1)
Paul E. Forshey and his wife Melissa, appellants herein and plaintiffs below
(hereinafter collectively referred to as “the Forsheys”), appeal an order of the Circuit Court
of Kanawha County that dismissed their malpractice action against Dr. Theodore A. Jackson,
M.D., appellee herein and defendant below (hereinafter referred to as “Dr. Jackson”), as
having been untimely filed. The Forsheys urge this Court to adopt the continuous medical
treatment doctrine and to apply that doctrine to find their action was timely. Alternatively,
the Forsheys argue that their claim was timely under a continuing tort theory. After thorough
consideration of the continuous medical treatment doctrine, we agree that it should be
adopted and do so herein. However, we conclude that the doctrine does not apply to the
Forsheys' action. We further find that the Forsheys' complaint failed to set out a claim for
a continuing tort. Therefore, we affirm the circuit court.
[o]nly matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if matters outside the pleading are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment and disposed of under Rule 56 R.C.P. if there is no genuine issue as to any material fact in connection therewith. . . .
Syl. pt. 4, United States Fid. & Guar. Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 703 (1965), overruled on other grounds by Sprouse v. Clay Communication, Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975). Accord Syl. pt. 1, Poling v. Belington Bank, Inc., 207 W. Va. 145, 529 S.E.2d 856 (1999). See also Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[3], at 354 (3d ed. 2008) (“Only matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b)(6). However, if matters outside the pleading are presented to the court and are not excluded by it, the motion must be treated as one for summary judgment and disposed of under Rule 56.”). Notwithstanding this general rule, it has been recognized that, in ruling upon a motion to dismiss under Rule 12(b)(6),
a court may consider, in addition to the pleadings, documents annexed to it, and other materials fairly incorporated within it. This sometimes includes documents referred to in the complaint but not annexed to it. Further, Rule 12(b)(6) permits courts to consider matters that are susceptible to judicial notice.
Id. § 12(b)(6)[2], at 348 (footnote omitted). The United States District Court for the Western
District of Virginia has explained this principle thusly:
In general, material extrinsic to the complaint may not be
considered on a Rule 12(b)(6) motion to dismiss without
converting it to a Rule 56 motion for summary judgment, but
there are certain exceptions this rule. As the Second Circuit has
explained:
The complaint is deemed to include any written
instrument attached to it as an exhibit or any
statements or documents incorporated in it by
reference. Even where a document is not
incorporated by reference, the court may
nevertheless consider it where the complaint
relies heavily upon its terms and effect, which
renders the document integral to the complaint.
. . . [G]enerally, the harm to the plaintiff when a court considers material extraneous to a complaint is the lack of notice that the material may be considered. Accordingly, where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated. . . . [O]n a motion to dismiss, a court may consider documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit. Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations, alterations in original, and internal quotation marks omitted); see also New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 18 F.3d 1161, 1164 (4th Cir.1994) (citing Cortec Indus. v. Sum Holding, L.P., 949 F.2d 42, 47-48 (2d Cir.1991)); Miller v. Pac. Shore Funding, 224 F. Supp.2d 977, 984 n. 1 (D. Md. 2002); 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure: Civil § 1327 & n. 7 (3d ed.2004) (citing cases).
Bryant v. Washington Mut. Bank, 524 F. Supp. 2d 753, 757 n.4 (W.D. Va. 2007) (emphasis
added). See also Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.
2008) (“Under Rule 12(b)(6), the district court may properly consider only facts and
documents that are part of or incorporated into the complaint; if matters outside the pleadings
are considered, the motion must be decided under the more stringent standards applicable to
a Rule 56 motion for summary judgment. . . . Exhibits attached to the complaint are
properly considered part of the pleading 'for all purposes,' including Rule 12(b)(6).
Fed. R. Civ. P. 10(c) . . . . Additionally, we have noted that '[w]hen . . . a complaint's factual
allegations are expressly linked to-and admittedly dependent upon-a document (the
authenticity of which is not challenged), that document effectively merges into the pleadings
and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).'”
(emphasis added) (internal citations omitted)); Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007) (“In determining whether a complaint states a claim, the court may
consider the facts alleged in the complaint, documents attached thereto or incorporated
therein, and matters of which it may take judicial notice.” (emphasis added) (citation
omitted)); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (“In
general, our review [of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state
a claim upon which relief can be granted] is limited to the facts as asserted within the four
corners of the complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” (emphasis added)); Buck v. Hampton
Tp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may
consider documents that are attached to or submitted with the complaint . . . and any 'matters
incorporated by reference or integral to the claim, items subject to judicial notice, matters of
public record, orders, [and] items appearing in the record of the case.' 5B Charles A. Wright
& Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed.2004).” (emphasis added)
(internal citation omitted)); U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336
F.3d 375, 379 (5th Cir. 2003) (“In deciding a motion to dismiss the court may consider
documents attached to or incorporated in the complaint and matters of which judicial notice
may be taken.” (emphasis added)); Technology Patents, LLC v. Deutsche Telekom AG, 573
F. Supp. 2d 903, 920 (D. Md. 2008) (“Consideration of extrinsic evidence is inappropriate
in a 12(b)(6) ruling, as the inquiry is limited to the complaint and the documents attached
thereto or incorporated by reference.” (emphasis added)).
Based upon the foregoing, we now hold that a circuit court ruling on a motion
to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure may properly
consider exhibits attached to the complaint without converting the motion to a Rule 56
motion for summary judgment. (See footnote 10)
Applying this holding to the facts of the instant case, we conclude that the
circuit court properly considered the screening certificate of merit that was attached as an
exhibit to the Forsheys' complaint when ruling on Dr. Jackson's Rule 12(b)(6) motion to
dismiss. (See footnote 11) Accordingly, in reviewing the circuit court's order in this regard, we apply the de
novo standard of review for a motion to dismiss. “'Appellate review of a circuit court's
order granting a motion to dismiss a complaint is de novo.' Syllabus point 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).” Syl.
pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998). In conducting a de novo
review, we apply the same standard applied in the circuit court.
Generally, a motion to dismiss should be granted only where “'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'” Murphy v. Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59, 65 (1984)) (additional citation omitted). For this reason, motions to dismiss are viewed with disfavor, and we counsel lower courts to rarely grant such motions. John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605-06, 245 S.E.2d 157, 159 (1978).
Ewing v. Board of Educ. of County of Summers, 202 W. Va. 228, 235, 503 S.E.2d 541, 548 (1998). Furthermore, “[f]or purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true.” Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978).
The circuit court, viewing all the facts in a light most favorable
to the nonmoving party, may grant the motion only if “it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his[, her, or its] claim which would entitle him[, her,
or it] to relief.” Syl. pt. 3, in part, Chapman v. Kane Transfer
Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977), citing Conley [v. Gibson], 355 U.S. [41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d
80, 84 (1957)].
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d
516, 522 (1995) (footnote omitted). Finally, we note that “'[c]omplaints are to be read
liberally as required by the notice pleading theory underlying the West Virginia Rules of
Civil Procedure.'” State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200
W. Va. 221, 488 S.E.2d 901 (1997) (quoting State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. at 776, 461 S.E.2d at 522). Having surveyed the appropriate
standards for our consideration of the instant appeal, we proceed to consider its merits.
[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.
The instant action was resolved by the circuit court based upon the ten-year statute of
repose. (See footnote 12) The allegations made in this case are that Dr. Jackson performed carpel tunnel
surgery on Mr. Forshey on July 6, 1995, and that Dr. Jackson's last professional contact with
Mr. Forshey occurred on January 31, 1997. The Forsheys filed the instant action on August
3, 2006, nearly eleven years after the carpel tunnel surgery, and approximately nine and a half
years after Mr. Forshey's last professional contact with Dr. Jackson.
The Forsheys assert two theories under which they contend that their action
was timely filed. First, they urge this Court to adopt the continuous medical treatment
doctrine and to apply the same to their cause of action. They next argue that, because Mr.
Forshey had post-operative follow-up visits with Dr. Jackson, and Dr. Jackson failed to order
a diagnostic x-ray of Mr. Forshey's left hand during any of those visits, each visit amounted
to an additional separate breach of the standard of care. We will address each of these
assignments of error in turn.
[t]he 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.
Syl. pt. 1, Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997) (second emphasis added). (See footnote 14) The Forsheys contend that this Court should adopt the continuous medical treatment doctrine, and argue that, if the doctrine was applied to their case, their action would be timely. (See footnote 15)
The continuous medical treatment doctrine has been described in this way:
Under the “continuous treatment” doctrine, the running of the statute of limitations is tolled when a course of treatment that includes wrongful acts or omissions has run continuously and is related to the original condition or complaint. Stated another way, the statute does not commence running until treatment by the physician or surgeon has terminated, where the treatment is continuing and of such nature as to charge the physician or surgeon with the duty of continuing care and treatment which is essential to recovery until the relationship ceases. However, where the medical services rendered are intermittent, rather than continuous, the statute of limitations under a medical malpractice statute will begin to run from the date of the alleged individual incident of malpractice and not from the date of the last services rendered.
61 Am. Jur. 2d Physicians, Surgeons, Etc. § 299, at p. 400 (2002) (footnotes omitted). The rationale for the rule has been explained thusly:
The purpose of statutory provisions for measuring a medical
malpractice limitations period from the last date of treatment or
hospitalization is to aid a plaintiff who was injured during a
period of hospitalization or course of medical treatment, but who
has difficulty ascertaining the precise date of the injury; in such
situations, doubts about the time the cause of action accrued are
resolved in the plaintiff's favor by using the last date of
treatment or hospitalization as a proxy for the actual date of the
tort.
61 Am. Jur. 2d Physicians, Surgeons, Etc. § 299, at p. 401 (emphasis added) (footnotes
omitted). Thus, the continuous medical treatment doctrine is intended to aid victims of
medical malpractice who are unable to pinpoint the exact date of their injury due to the
continuing nature of their medical treatment. See Gilbert v. Bartel, 144 S.W.3d 136, 140 -41
(Tex. Ct. App. 2004) (“The limitations period for medical negligence claims is measured
from one of three dates: (1) the occurrence of the breach or tort; (2) the last date of the
relevant course of treatment; or (3) the last date of the relevant hospitalization. The Texas
Supreme Court has repeatedly held that a plaintiff may not choose the most favorable date
that falls within [Tex. Rev. Civ. Stat. art. 4590i, § 10.01's] three categories. Rather, if the
date the alleged tort occurred is ascertainable, limitations must begin on that date. Thus,
if the date is ascertainable, further inquiry into the second and third categories is
unnecessary.” (emphasis added) (footnotes omitted)). As one court explained,
[t]he so-called “continuous treatment” rule has been defended on the grounds of fairness as well as on the basis of logic. Certainly it would not be equitable to bar a plaintiff, who for example, has been subjected to a series of radiation treatments in which the radiologist negligently and repeatedly administered an overdosage, simply because the plaintiff is unable to identify the one treatment that produced his injury. Indeed, in such a situation no single treatment did cause the harm; rather it was the result of several treatments, a cumulative effect. From the point of view of the physician, it would seem reasonable that if he had made a mistake, a misdiagnosis for example, he is entitled to the opportunity to correct the error before harm ensues. And, as one court has put it, “It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician.”
Lane v. Lane, 295 Ark. 671, 675, 752 S.W.2d 25, 27 (1988) (quoting 1 D. Louisell & H.
Williams Wachsman, Medical Malpractice § 13.08 (1982)). (See footnote 16) In the Lane case, the plaintiff
received “regular injections of narcotics” beginning in 1966 and continuing until 1984. 295
Ark. at 673, 752 S.W.2d at 26. The plaintiff sued in 1985 alleging the treatment had caused
various injuries, including injuries to her shoulder, arm, and back, as well as a drug addiction.
Under the relevant Arkansas statute, she was required to commence her action within two
years after the date of the wrongful act. 295 Ark. at 673, 752 S.W.2d at 26 (citing Ark. Code
Ann. § 16-114-203(a) (1987)). In deciding to adopt the continuing treatment doctrine, the Lane court observed that, “since 1940, there has been a steady trend toward judicial
acceptance of the continuing treatment approach;” the court went on to conclude that
“[g]iven the rationale behind the rule, and its growing acceptance, we believe its application
in appropriate circumstances is proper.” 295 Ark. at 675-76, 752 S.W.2d at 27-28.
We are persuaded that the continuous medical treatment doctrine should be
adopted for determining the date of injury where such date is not identifiable due to the
nature of the medical treatment received. Therefore, based upon the foregoing, we now hold
that, under the continuous medical treatment doctrine, when a patient is injured due to
negligence that occurred during a continuous course of medical treatment, and due to the
continuous nature of the treatment is unable to ascertain the precise date of the injury, the
statute of limitations will begin to run on the last date of treatment.
Applying this holding to the facts of the case at bar, we find the continuing
treatment doctrine is not applicable to Mr. Forshey's claim. Mr. Forshey's injury did not
result from a continuing course of treatment that rendered him unable to identify the precise
date of his injury. Rather, the alleged negligence in the instant case occurred on a date
certain, the date that Dr. Jackson performed surgery on Mr. Forshey's hand and allegedly left
a scalpel blade in his hand. In this regard, it has been observed that “[w]here the patient
suffers an identifiable injury through some affirmative act of negligence on the part of the
practitioner, the fact that thereafter the practitioner continues to care for and treat the patient
does not postpone the commencement of the limitation period.” 61 Am. Jur. 2d Physicians,
Surgeons, Etc. § 299, at p. 401 (footnotes omitted). Because Mr. Forshey's claim arose on
July 6, 1995, the date on which Dr. Jackson performed the carpel tunnel surgery, the circuit
court was correct in concluding that, pursuant to the statute of repose contained in W. Va.
Code § 55-7B-4, “the absolute latest that this action could have been filed would have been
on July 6, 2005, which is ten years after the date of the original surgery and alleged injury.”
The Forsheys' action was filed on August 3, 2006, nearly eleven years after the date upon
which Dr. Jackson performed surgery on Mr. Forshey's hand. Therefore, the action was not
timely filed, and the circuit court correctly granted the motion to dismiss.
[w]e reject Appellant's continuing tort theory essentially
because the concept of a continuing tort requires a showing of
repetitious, wrongful conduct. See Handley v. Town of
Shinnston, 169 W. Va. 617, 289 S.E.2d 201 (1982) (finding
continuing tort based on permitting water to regularly flood
another's property). Moreover, as this Court explained in Spahr
v. Preston County Board of Education, 182 W. Va. 726, 391
S.E.2d 739 (1990), a wrongful act with consequential continuing
damages is not a continuing tort. Id. at 729, 391 S.E.2d at 742.
The alleged continuing wrong in this case is the untimely and incomplete autopsy report as well as the failure of CAMC to
date to report the results of the tissue sample analysis.
With regard to the dilatoriness of the autopsy report, upon
its tender to Appellant on January 9, 1990, or thereabouts, the
act of delay was fixed and the only aspect of the claim that could
be said to continue is damages, but not the wrongful act itself. See id. Similarly, the incompleteness of the autopsy report,
insofar as Appellant contends the absence of a specific cause of
death renders the report incomplete, as a wrongful act was fixed
as of January 9, 1990. . . . Because Appellant's claims
pertaining to the autopsy and tissue reports are fixed acts and do
not involve continuing wrongful conduct, the continuing tort
theory is inapposite.
188 W. Va. at 677-78, 425 S.E.2d at 632-33.
Our application of the continuing tort theory in Ricottilli is in accord with other
jurisdictions that have examined the doctrine in the context of medical malpractice actions.
For example, in Frankel v. Clark, 213 Ga. App. 222, 223, 444 S.E.2d 147, 149 (1994), the
plaintiff sued for dental malpractice claiming injury resulting from the failure to discover a
cyst in her lower right jaw. The Frankel court summarized the plaintiff's claims thusly:
Specifically, [plaintiff's expert] avowed that [defendants] were negligent in failing to take adequate diagnostic x-ray films of [plaintiff] Clark prior to the placement of a bridge on the right side of her mouth; in failing to take adequate diagnostic x-ray films of her subsequent to the placement of the bridge on the right side of her mouth when she continued to experience pain; by rendering improper and inadequate dental treatment to her by placing a bridge in an area where a cyst was present; and in failing to diagnose the cyst in the area where the right bridge was placed.213 Ga. App. at 222, 444 S.E.2d at 148. In rejecting the plaintiff's argument that the treatment she received amounted to a continuing tort, the court explained:
Clark argues that four separate acts of negligence are involved here and that the statute had not expired on all of them. She contends that in addition to the misdiagnosis, her expert identified that two acts of negligence occurred subsequent to the placement of the bridge-between March 29, 1990 and August 30, 1990. She contends that [defendant] Frankel's failure to take adequate diagnostic x-ray films subsequent to the placement of the bridge on the right side of her mouth and his failure to diagnose the presence of a cyst in the area where the right bridge was placed continued until August 30, 1990. We do not accept Clark's argument. Unlike situations in which separate acts of negligence may occur, . . ., in this case the allegedly negligent act-the failure to diagnose the cyst and the subsequent placement of the bridge-was complete by March 29. Frankel's alleged failure to correct his previous negligence does not constitute additional acts of negligence[,] and we do not accept Clark's argument that his continued failure to recognize the problem constituted a continuing tort.
Id. at 223, 444 S.E.2d at 149 (emphasis added).
A Louisiana court reached a similar conclusion in Collum v. E.A. Conway
Medical Center, 763 So. 2d 808 (La. Ct. App. 2000). The plaintiff in Cullum was injured
when, during surgery, a stitch was negligently left in her bladder. In an effort to establish
that her action had been timely filed, she relied, in part, on a continuing tort theory based
upon her physicians' failure to subsequently “look for, detect, or remove the suture during
subsequent treatments.” Collum, 763 So. 2d at 811. In rejecting application of the
continuing tort theory in the manner proposed by the plaintiff, the court observed that “'[a]
continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an
original, wrongful act.' Crump v. Sabine River Authority, 98-2326 (La.6/29/99), 737 So. 2d
720, 728.” Collum, 763 So. 2d at 811. Accordingly, the court concluded that,
[i]n the present case, Mrs. Collum's treating physicians had not seen her for several years after the alleged malpractice; as such, there has been no continued chain of malpractice which would warrant the application of the continuing tort doctrine to this case. Her suffering, although lamentable, is simply “the continuation of the ill effects of an original, wrongful act,” and a claim for such suffering is statutorily prescribed.
Id. (emphasis added). See also Stanford v. Administrators of Tulane Educ. Fund, 975 So. 2d
104, 109-10 La. Ct. App. 2008) (“In order to allege a continuing tort, a plaintiff must allege
both continuous action and continuous damage. . . . Thus, in the case sub judice, for
[plaintiff] Stanford's argument to prevail, we must find on the record before us that
[defendant] Dr. Whitecloud's prescribing of narcotic pain relievers over an 11-year period
[following an allegedly negligent surgical procedure performed by Dr. Whitecloud] rises to
the level of a continuing tort resulting in continuous damage. We find that it does not.”).
Based upon the foregoing, we now hold that in the context of a medical
malpractice action, in order to establish a continuing tort theory a plaintiff must show
repetitious wrongful conduct. Merely establishing the continuation of the ill effects of an
original wrongful act will not suffice.
Applying the forgoing standard to the instant case, we will assume, for the sake of argument, that Mr. Forshey's post-operative visits with Dr. Jackson produced repetitious wrongful conduct. Nevertheless, the circuit court was correct in dismissing the case. We observe that the Forsheys' complaint fails to set out a cause of action for a continuing tort. There are simply no allegations of repetitious wrongful conduct anywhere in the complaint. Although the certificate of merit that was attached as an exhibit to the complaint indicates that Dr. Jackson breached the standard of care during each of his examinations of Mr. Forshey following surgery, i.e. by failing to diagnose the cause of Mr. Forshey's pain, a certificate of merit cannot be used to create a cause of action that is not set out in the complaint. In other words, the purpose of a certificate of merit is to support a cause of action that has been set out in a complaint, not to create a cause of action independent of that which is set out in a complaint. Indeed,
it has been held that essential material facts must appear on the face of the complaint. See Greschler v. Greschler, 71 A.D.2d 322, 325, 422 N.Y.S.2d 718, 720 (1979).
The complaint must set forth enough information to outline the elements of a claim or permit inferences to be drawn that these elements exist. German v. Killeen, 495 F. Supp. 822, 827 (E.D. Mich. 1980); see also Jenkins v. McKeithen, 395 U.S. 411, 423-24, 89 S. Ct. 1843, 1849-50, 23 L. Ed. 2d 404, 417-18 (1969). See W. Va. R. Civ. P. 8(a).
The federal courts have held that in order to withstand a
12(b)(6) motion, more detail is required than the bald statement
that the plaintiff has a valid claim of some type against the
defendant. 5 C. Wright and A. Miller, Federal Practice and
Procedure: Civil 596 (1969); see also Jackson v. Nelson, 405
F.2d 872, 873 (9th Cir.1968); Stewart v. Hevelone, 283 F. Supp.
842, 844 (D. Neb. 1968). Thus, rules of civil procedure clearly
contemplate some factual statement in support of the claim. Huey v. Barloga, 277 F. Supp. 864, 871 (N.D. Ill. 1967).
Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52, 350 S.E.2d 562, 564 (1986) (per curiam)
(footnote omitted). See also Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[2], at 347 (“[A]
trial court is free to ignore legal conclusions, unsupported conclusions, unwarranted
inferences and sweeping legal conclusions cast in the form of factual allegations.” (footnote
omitted)). Thus, “[a]lthough a plaintiff's burden in resisting a motion to dismiss is a
relatively light one, the plaintiff is still required at a minimum to set forth sufficient
information to outline the elements of his/her claim. If plaintiff fails to do so, dismissal is
proper.” Id. at 348 (footnotes omitted).
Because the Forsheys failed to set out a cause of action for a continuing tort
in their complaint, the circuit court did not err in dismissing the same.