Nancy C. Hill
Larry A. Winter
Winter, Johnson & Hill, PLLC
Charleston, West Virginia
Attorneys for the Appellee,
Jay Requarth, M.D.

The Opinion of the Court was delivered PER CURIAM.

    1. “Generally, a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs; under the 'discovery rule,' the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim.” Syl. Pt. 1, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).                  

    2. “In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.” Syl. Pt. 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

    
Per Curiam:

    William and Beverly McCoy appeal from two orders entered by the Circuit Court of Kanawha County on June 25, 2001, dismissing a second medical malpractice action they filed against Appellee Doctors Jay Requarth and John Chapman   (See footnote 1)  on grounds of both res judicata and statute of limitations and against Dr. Scott Miller solely on statute of limitations grounds. The McCoys also appeal from a January 30, 2002, order refusing to reinstate their legal malpractice action against Steven Miller.   (See footnote 2)  In McCoy v. CAMC, Inc., (McCoy I), 210 W.Va. 324, 557 S.E.2d 378 (2001), this Court affirmed both the lower court's dismissal of the McCoys' first medical malpractice cause of action on grounds of failure to prosecute   (See footnote 3)  and the trial court's decision not to reinstate the action. Upon our full review of the orders at issue against the record in this case, we find no error and accordingly, affirm.

    The first civil action filed by the McCoys was dismissed by order of Judge Irene Berger on December 20, 2000, for failure to prosecute. In McCoy I, this Court upheld both the dismissal order and the subsequent order of Judge Berger denying the McCoys' motion to reinstate their cause of action and to amend their complaint. See 210 W.Va. at 331, 557 S.E.2d at 385.

    On February 27, 2001, the McCoys filed a second medical malpractice cause of action   (See footnote 4)  based on the 1995 heart surgery. In addition to Doctors Requarth and Chapman, the McCoys named Dr. Miller as a defendant, based on his referral of Mr. McCoy for the bypass surgery. While the underlying allegations of malpractice stemming from the separated sternum incident are the same as those asserted in the first action, the McCoys included an additional allegation in the second malpractice action by averring that the bypass surgery was medically unnecessary. The McCoys contend that they first learned that the bypass surgery was unnecessary following an examination of Mr. McCoy by Dr. Joseph A. Chiota, Jr., on August 22, 2000.   (See footnote 5) 

    By order entered on June 25, 2001, Judge Stucky dismissed Dr. Miller, who had not been named in the original medical malpractice cause of action filed by the McCoys, on statute of limitation grounds. By separate order on that same date, Judge Stucky dismissed Doctors Requarth and Chapman on grounds of statute of limitations and res judicata. Through an order entered on January 30, 2002, Judge Stucky refused to reinstate the McCoys' legal malpractice cause of action filed against Mr. Miller.   (See footnote 6) 

    In syllabus point one of Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992), this Court held that “[g]enerally, a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs; under the 'discovery rule,' the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim.” With regard to when the “discovery rule” could be utilized, we stated in Cart that “the 'discovery rule' applie[d] only when there [wa]s a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury.” Id. at 242, 423 S.E.2d at 645, syl. pt. 3, in part.

    In Gaither, this Court modified its former position that application of the “discovery rule” was triggered by the acts of a defendant to conceal the discovery of a medical wrong. Rejecting that narrow application of the “discovery rule,” we held that

        In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.

Syl. Pt. 4, 199 W.Va. at 708, 487 S.E.2d at 903. Recently, in Bradshaw, we overruled a prior ruling which held that the “discovery rule” was inapplicable in wrongful death actions, and adopted the same requirements we announced in Gaither for applying the rule, with certain additional factors relevant to wrongful death actions. See Syl. Pts. 7, 8, 210 W.Va. at 684, 558 S.E.2d at 683.   (See footnote 7) 

    Based on the holdings in Gaither and Bradshaw, Appellants contend that the “discovery rule” is triggered by a prospective plaintiff's “recognition that the treatment received by the patient caused his injury.” They suggest that because Mr. McCoy had no way of knowing “until it was told to him” that his bypass surgery was unnecessary, the two- year statute of limitations   (See footnote 8)  did not start running until Dr. Chiota informed him in August 2001 that the cardiac surgery was not medically necessary.

    In making these arguments, Appellants seek to further extend the “discovery rule” beyond the parameters of the previously broadened reach of that rule. In Gaither, we expanded the “discovery rule” by linking the running of the limitations period with the prospective plaintiff's knowledge, or duty to gain such knowledge, of “the identity of the entity who owed the plaintiff a duty to act with due care” and the fact that such entity may have breached that duty of care, which in turn caused the plaintiff's injury. 199 W.Va. at 708, 487 S.E.2d at 903, syl. pt. 4, in part. Critically, however, we did not eliminate the affirmative duty the law imposes on a plaintiff to discover or make inquiry to discern additional facts about his injury when placed on notice of the possibility of wrongdoing. The crux of the “discovery rule” has always been to benefit those individuals who were either unaware of their injuries or prevented from discovering them. See Cart, 188 W.Va. at 244-45, 423 S.E.2d at 647-48; Gaither, 199 W.Va. at 713, 487 S.E.2d at 908 (recognizing that “discovery rule has its origins in the fact that many times an injured party is unable to know of the existence of any injury or its cause”). When this Court augmented the application of the “discovery rule” to cases beyond those where the defendant actively sought to prevent the discovery of the malfeasance, we did not eradicate the rule's additional objective of benefitting those individuals who were unaware of their injuries due to no fault of their own.

    The countervailing consideration of whether the prospective plaintiff “knew or should have known” through the exercise of reasonable diligence of his injury has always been closely intertwined with the “discovery rule.” See Harrison v. Seltzer, 165 W.Va. 366, 371, 268 S.E.2d 312, 314 (1980) (stating that inquiry is “whether the injured plaintiff was aware of the malpractice or, by the exercise of reasonable care, should have discovered it”); Syl. Pt. 2, Hill v. Clarke, 161 W.Va. 258, 241 S.E.2d 572 (1978) (holding that “statute of limitations for malpractice begins to run when plaintiff knows or has reason to know of the alleged malpractice”). This critical element of the “discovery rule” has not been vitiated with the Court's modification of the rule's application. Where a plaintiff knows of his injury, and the facts surrounding that injury place him on notice of the possible breach of a duty of care, that plaintiff has an affirmative duty to further and fully investigate the facts surrounding that potential breach. See Harrison v. Davis, 197 W.Va. 651, 478 S.E.2d 104 (1996) (holding that plaintiff mother's failure to exercise reasonable diligence in discovering injuries associated with the birth and wrongful death of her daughter precluded tolling of statute of limitations by “discovery rule”).

    In this case, had the most basic and routine of inquiries been made during the discovery phase of the first action, it is likely that Dr. Chiota's “eleventh hour” opinion of unnecessary surgery could have surfaced at a much earlier point in the litigation's protracted history.   (See footnote 9)  Because Appellants timely retained counsel and timely brought suit in connection with the sternum separation incident, this Court cannot turn a blind eye to the fact that additional inquiry on the part of their trial counsel   (See footnote 10)  could have easily uncovered the “unnecessary surgery” allegation at an earlier date, thereby allowing Appellants the opportunity to seek amendment of their complaint to add such an allegation in a timely fashion.

    The facts underlying the malpractice at the center of this case were straightforward. There were no concealed or hidden injuries. As Judge Stucky opined in his order of June 25, 2001, “[t]here is no allegation in this case of fraudulent concealment or any action by Dr. Miller to prevent plaintiff from knowing the cause of his injury or bringing this action.” Similarly, in a second order of that same date, Judge Stucky found that “[t]here is no act on the part of either Dr. Chapman or Dr. Requarth which concealed any of their actions relative to plaintiffs nor is there any act by either Dr. Chapman or Dr. Requarth which prevented plaintiffs from knowing of their injuries and damages[.]”

     This case falls into that category of cases we discussed in Gaither where “an injury or wrong occurs of such a character that a plaintiff cannot reasonably claim ignorance of the existence of a cause of action.” 199 W.Va. at 712, 487 S.E.2d at 907. In such cases, as we explained in Gaither, “the burden shifts to the plaintiff to prove entitlement to the benefit of the discovery rule.” Id. at 712, 487 S.E.2d at 907. The McCoys knew as soon as they were informed following bypass surgery of the need to reattach the sternum that Mr. McCoy had suffered injury from certain acts of improper handling. They promptly sought counsel and brought suit within the two-year filing period. See supra note 8. Appellants have failed to provide this Court with any explanation as to why they could not have discovered at an earlier point in time the facts underlying their allegation that the bypass surgery was medically unnecessary.

    Unlike Gaither where the plaintiff reasonably believed his leg amputation resulted from his own negligent acts in riding a motorcycle, Appellants knew immediately that the sternum separation Mr. McCoy sustained was caused by actions of parties other than Mr. McCoy. Gaither does not go so far as to suggest that until a prospective plaintiff is informed of every possible act of malpractice and the identity of every potential wrongdoer, the statute of limitations is tolled. To the contrary, Gaither only tolls the limitations period until the plaintiff in factually specific situations, such as where the plaintiff has no reason to know or learn of an act of malpractice, is placed on notice of a possible wrongdoing. This Court has always been clear, as we restated in Gaither, that “[m]ere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations[.]” 199 W.Va. at 712, 487 S.E.2d at 907 (quoting Syl. Pt. 3, in part, Cart, 188 W.Va. at 242, 423 S.E.2d at 645). As we explained in Gaither, “[t]his rule was crafted because in some circumstances causal relationships are so well established that we cannot excuse a plaintiff who pleads ignorance.” 199 W.Va. at 712, 487 S.E.2d at 907.

    In those instances where the “'patient is immediately aware that something went wrong,'” the statute of limitations begins to run upon the plaintiff's awareness of “'adverse results of medical treatment.'” Gaither, 199 W.Va. at 712, 487 S.E.2d at 907 (quoting Seltzer, 165 W.Va. at 371, 268 S.E.2d at 315). In such cases, as we observed in Gaither, the statute of limitations starts running with the plaintiff's knowledge of the fact that something went wrong and not his awareness of “'the precise act of malpractice.'” 199 W.Va. at 712, 487 S.E.2d at 907 (quoting Seltzer, 165 W.Va. at 371, 268 S.E.2d at 315). The facts of the instant case paradigmatically fall into the category of cases discussed in Seltzer where the plaintiff knows instantly that something went wrong. See 165 W.Va. at 371-72, 268 S.E.2d at 315.

    Armed with information about the wrongdoing stemming from Mr. McCoy's bypass surgery, Appellants were then required to make reasonable and diligent inquiry into all relevant issues related to the malpractice.   (See footnote 11)  Whether or not the original bypass surgery should have been performed was clearly an issue related to the resulting malpractice claim.   (See footnote 12)  Any physician with training in cardiology could have reviewed Mr. McCoy's records to ascertain whether the bypass surgery was required. In failing to make such inquiries within a reasonable period of time sufficient to have permitted a timely amendment of Appellants' complaint, we are forced to conclude that the McCoys did not meet their burden of proving entitlement to the “discovery rule.” See Gaither, 199 W.Va. at 712 , 487 S.E.2d at 907. The facts of this case simply do not permit this Court to rule otherwise.

    In Gaither, this Court noted that “[i]n the great majority of cases, the issue of whether a claim is barred by the statute of limitations is a question of fact for the jury.” 199 W.Va. at 714-15, 487 S.E.2d at 909-10. While many cases will require a jury to resolve the issue of when a plaintiff discovered his or her injury, including the related issue of whether the plaintiff was reasonably diligent in discovery his or her injury, the issue can also be resolved by the court where the relevant facts are undisputed and only one conclusion may be drawn from those facts. See Harrison, 197 W.Va. at 660, 478 S.E.2d at 113 (upholding trial court's decision that plaintiff failed to exercise reasonable diligence in discovering injuries); Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 719 (7^th Cir. 1994); Witherell v. Weimer, 421 N.E.2d 869, 874 (Ill. 1981). Because Mr. McCoy was immediately aware of his sternum injury and resulting infection, the question of whether Appellants acted with reasonable diligence to discover the related allegation that the bypass surgery was unnecessary, under the facts of this case, was properly a legal question for the trial court to resolve.

         In a wrongful death action, under the discovery rule, the statute of limitation contained in W.Va.Code, 55-7-6(d) [1992] begins to run when the decedent's representative knows or by the exercise of reasonable diligence should know (1) that the decedent has died; (2) that the death was the result of a wrongful act, neglect, or default; (3) the identity of the person or entity who owed the decedent a duty to act with due care and who may have engaged in conduct that breached that duty; and (4) that the wrongful act, neglect or default of that person or entity has a causal relation to the decedent's death.

Bradshaw, 210 W.Va. at 684, 558 S.E.2d at 683.