Michael Tomasky
Gary Wigal
Morgantown, West Virginia
Counsel for Appellant

Herbert G. Underwood
Karen Kahle
Steptoe & Johnson
Clarksburg, West Virginia
Counsel for Appellee

This Opinion was delivered Per Curiam.

"'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syl. pt. 3, Harrison v. Seltzer, [165] W. Va. [366], 268 S.E.2d 312 (1980), quoting, Syl. pt. 3, Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syl. Pt. 2, Renner v. Asli, 167 W. Va. 532, 280 S.E.2d 240 (1981).

Per Curiam:

    This is an appeal by Josephine Findo from a January 8, 1992, order of the Circuit Court of Marion County which granted summary judgment in favor of the Appellee, Robert B. Hamilton, M.D. The Appellant contends that summary judgment was inappropriately ordered and seeks reversal of the order of the circuit court. We find no reversible error and affirm.

    A complaint was filed on January 8, 1991, against Dr. Hamilton alleging medical malpractice. During a November 1, 1991, deposition of the Appellant, she testified that Dr. Lorraine Tyre had informed her in October 1987 that Dr. Hamilton did not provide her with the proper medical treatment. Based upon this testimony, the Appellant's complaint was dismissed on January 8, 1992, on the grounds that she had discovered the Appellee's alleged malpractice in October 1987 and had not filed her complaint within the two-year statute of limitations. The Appellant now appeals that determination and contends that a question of fact still exists as to the date on which the statute of limitations should have begun. The Appellant now contends that she did not have sufficient awareness of the Appellee's malpractice until August 1989 when a medical expert first informed her that the treatment rendered by Dr. Hamilton was negligent.

    Pursuant to the Medical Professional Liability Act, specifically West Virginia Code § 55-7B-4(a) (Supp. 1992), an injured plaintiff's cause of action "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. . . ." The Appellant urges us to recognize the distinction between discovery of a physical manifestation of damage resulting from malpractice and the malpractice itself, i.e., it is possible to discover an injury without recognizing that malpractice was committed. The Appellant further asserts that the statute of limitations should not begin to run until the Plaintiff becomes aware that the action in question constituted malpractice. The Appellant cites Renner v. Asli, 167 W. Va. 532, 280 S.E.2d 240 (1981), in support of this position. In Renner, the lower court had granted the defendant's motion for summary judgment on the basis of the plaintiff's deposition statement regarding her first awareness that her physician had "'messed up'" her arm. Id. at 535, 280 S.E.2d at 242. We reversed, explaining the following:

        We do not believe that plaintiff's knowledge of her condition from her own observation, and that acquired from her physicians, was sufficient to justify a determination, as a matter of law, that she knew of the defendant's negligence in his treatment of her more than two years before she instituted the action.

Id. at 534, 280 S.E.2d at 242. We further determined that the "injury" was discovered on the date the plaintiff realized that she was a victim of medical malpractice.

        The central malpractice question was whether an earlier operation on the ulnar nerve would have prevented the plaintiff's subsequent claw-like hand and loss of her fifth finger. Until plaintiff was informed that a prompt operation on the unlar nerve would have prevented her claw-like hand and subsequent amputation of her fifth finger, she had not 'discovered' the malpractice. There is no conclusive information on this fact in discovery material and consequently summary judgment was inappropriate.
Id. at 535-36, 280 S.E.2d at 242.

    We agree, in theory, with the Appellant's interpretation of the knowledge necessary to prompt the running of the statute of limitations. In her case, the statute did not begin to run when she merely discovered that additional treatment could possibly have been provided or that Dr. Hamilton could have treated her more aggressively. Rather, as in Renner, the statute began to run when the Appellant affirmatively recognized that malpractice had been committed. An exhaustive analysis of the record, however, must be conducted in order to discover the moment at which the Appellant gained such knowledge. By her own testimony, the Appellant acknowledged that she discovered Dr. Hamilton's alleged negligence in October 1987. With regard to an appointment with Dr. Tyre in October 1987, the record reveals the following exchange:

        Q.    "Did Dr. Tyre tell you that what Dr. Hamilton did was malpractice and not proper treatment?"

        A.    "Um-Hmn, that's what she told me."
Elsewhere in her testimony, however, the Appellant contends that she could not recall exactly what Dr. Tyre told her. The Appellant asserts that this uncertainty raises an issue of material facts precluding summary judgment and requiring the taking of additional evidence. A review of pertinent portions of the deposition testimony is therefore warranted.See footnote 2

    A review of the Appellant's testimony leads to the inescapable conclusion that she was informed by Dr. Tyre in October 1987 that Dr. Hamilton's actions constituted malpractice. While some excerpts from the transcript do indicate the Appellant's confusion about particular aspects of her discussions regarding Dr. Hamilton's treatment, she repeatedly answers in the affirmative when questioned as to whether she was told in October 1987 that Dr. Hamilton's actions constituted malpractice. In addressing a similar evidentiary issue in Renner, we explained that there was "no conclusive information" in the discovery regarding exactly when the plaintiff was informed that a previous operation could have prevented certain injuries. 167 W. Va. at 536, 280 S.E.2d at 242. In syllabus point 1 of Renner, we explained the following: "'[t]he question of when plaintiff knows or in the exercise of reasonable diligence has reason to know of medical malpractice is for the jury.' Syl. pt. 1, Harrison v. Seltzer, [165] W. Va. [366], 268 S.E.2d 312 (1980), quoting, Syl. pt. 4, Hill v. Clarke, [161] W. Va. [258], 241 S.E.2d 572 (1978)." That statement, however, necessarily assumes that a legitimate question is raised during the proceedings as to the time knowledge was acquired. The principles requiring presentation to the jury need not be stretched to absurdity. Certainly, as we acknowledged in Renner, "[w]e do not mean to suggest . . . that summary judgment is never proper in a medical malpractice case. We merely hold that summary judgment was not proper in this case in view of the evidence." 167 W. Va. at 536, 280 S.E.2d at 243.

    Similarly, in Harrison, we found summary judgment inappropriate because a factual issue existed as to whether the physician who had been sued for malpractice had informed the plaintiff of essential medical information. 165 W. Va. at 373, 268 S.E.2d at 315. In the present case, however, we have the Appellant's own testimony regarding the moment at which she learned of Dr. Hamilton's malpractice. Indeed, we are confronted with that direct testimony indicating knowledge in October 1987 of Dr. Tyre's opinion regarding Dr. Hamilton's malpractice. In light of such specific testimony by the Appellant, we are unable to find reversible error by the lower court. The lower court correctly recognized the dilemma here and determined that the Appellant's own testimony rendered it impossible to conclude that the Appellant had filed her claim within the statute of limitations. The Appellant contends that the confusion or uncertainty evidenced during her deposition creates a genuine issue of material fact to be resolved by a jury. In syllabus point 2 of Renner, we recognized the following:

         'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syl. pt. 3, Harrison v. Seltzer, [165] W. Va. [366], 268 S.E.2d 312 (1980), quoting, Syl. pt. 3, Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

    After thorough review of the record, we cannot conclude that the lower court committed reversible error in determining that no genuine issue of material fact existed and that summary judgment was appropriate. Thorough inquiry into the facts was made during the Appellant's deposition. That inquiry revealed that the statute of limitations had expired prior to the filing of the Appellant's claim. Consequently, we cannot conclude that the lower court erred in so ruling.

        A.     That's true.