Paul E. Forshey v. Theodore A. Jackson, M.D.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2008 Term
FILED
November 19,
2008
No. 33834 released at 10:00 a.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

PAUL E. FORSHEY AND MELISSA L. FORSHEY,
Plaintiffs Below, Appellants,

V.

THEODORE A. JACKSON, MD,
Defendant Below, Appellee.

Appeal from the Circuit Court of Kanawha County
Honorable Jennifer Bailey Walker, Judge
Civil Action No. 06-C-1534
AFFIRMED

Submitted: October 28, 2008
Filed: November 19, 2008

Mark F. Underwood Robert J. D’Anniballe, Jr.
Underwood & Proctor Law Offices Pietragallo Gordon Afano Bosick
Huntington, West Virginia & Raspanti, LLP
Attorney for the Appellants Weirton, West Virginia
Attorney for the Appellee
JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE ALBRIGHT not participating.

SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.

SENIOR STATUS JUSTICE McHUGH disqualified.

JUDGE BEANE sitting by temporary assignment.

JUDGE BEANE disqualified.

JUDGE BLAKE sitting by temporary assignment.

JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
 SYLLABUS BY THE COURT

1. 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.

2. “‘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).” Syllabus point 1, Albright v.

White, 202 W. Va. 292, 503 S.E.2d 860 (1998).

3. “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).

i
 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.

ii
Davis, Justice: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.

1
Pursuant to an administrative order entered on September 11, 2008, the
Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the
Supreme Court of Appeals of West Virginia commencing September 12, 2008 and
continuing until the Chief Justice determines that assistance is no longer necessary, in light
of the illness of Justice Joseph P. Albright. Because Senior Status Justice McHugh is
disqualified from participating in the instant case, the Honorable J. D. Beane, Judge, was
designated to sit by temporary assignment. However, after Judge Beane determined that he
also was disqualified from participating in the instant case, the Honorable Paul M. Blake, Jr.,
Judge, was designated to sit by temporary assignment.

1
 I.

FACTUAL AND PROCEDURAL HISTORY

This case is presently before this Court for review of the lower court’s order

granting the defendant’s motion to dismiss. Accordingly, the facts set out below are gleaned

from the pleadings.

In November 1994, Paul E. Forshey (hereinafter individually referred to as

“Mr. Forshey”) presented to Dr. Jackson complaining of carpel tunnel syndrome in both

wrists. It is undisputed that Dr. Jackson performed surgery on Mr. Forshey on July 6, 1995.

Mr. Forshey contends that, during post operative office visits with Dr. Jackson,

he (Mr. Forshey) complained of pain and a knot over the palmar aspect of his left thumb,

along with tenderness, swelling, and trouble using tools;2 nevertheless, no x-rays of Mr.

Forshey’s hand were ordered by Dr. Jackson. Mr. Forshey alleges that, following the

surgery, he continued to receive medical care from Dr. Jackson until January 31, 1997.

During one of Mr. Forshey’s visits with Dr. Jackson, Dr. Jackson recommended exploratory

surgery, which was initially set for February 3, 1997; however, on January 31, 1997, Dr.

Jackson requested that the date of surgery be changed due to a scheduling conflict. The

surgery was then set for February 17, 1997. On February 13, 1997, Mr. Forshey cancelled

2
Mr. Forshey, who is left-handed, was a locksmith and worked with his hands.

2
the surgery. Though Mr. Forshey indicated that he would reschedule the surgery at a later

time, he never did so.

Mr. Forshey avers that he continued to suffer in pain over the next eight years

until the summer of 2005, when he suffered an unrelated injury to his left index finger and,

as a result, received an x-ray of his left hand. The x-ray revealed a 3.4 cm x 5 mm metallic

foreign body in the palmar aspect of the hand.3 According to the certificate of merit

accompanying the Forsheys’ complaint, the foreign body was described in his medical

records as “a piece of knife blade.” The certificate of merit further concluded that “according

to [Mr. Forshey’s] medical records, . . . the only explanation for this foreign body is the

Carpal Tunnel surgery which he had July 1995. This was performed by Dr. Ted

Jackson . . . .”

In April, 2006, Dr. Jackson was presented with a notice of claim4 and

certificate of merit.5 Mr. Forshey filed his complaint alleging medical malpractice and

including a loss of consortium claim on behalf of his wife, Melissa Forshey, on August 3,

2006. Thereafter, on September 26, 2006, Dr. Jackson filed a motion to dismiss claiming that

3
This x-ray was performed at Arrowhead Regional Medical Center in Colton,
California.
4
See W. Va. Code § 55-7B-6(b) (2003) (Repl. Vol. 2008).
5
See id.

3
this suit was untimely filed pursuant to W. Va. Code § 55-7B-4 (1986) (Repl. Vol. 2008).6

By order entered April 3, 2007, the Circuit Court of Kanawha County granted the motion.

This appeal followed.

II.

STANDARD OF REVIEW

This case is before this Court on appeal from the circuit court’s order granting

Dr. Jackson’s motion to dismiss made pursuant to Rule 12(b)(6) of the West Virginia Rules

of Civil Procedure,7 which motion was based upon the statute of limitations and statute of

6
The text of W. Va. Code § 55-7B-4 (1986) (Repl. Vol. 2008), 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.

....

(c) The periods of limitation set forth in this section shall
be tolled for any period during which the health care provider or
its representative has committed fraud or collusion by
concealing or misrepresenting material facts about the injury.
7
Dr. Jackson’s motion to dismiss merely stated that it was made pursuant to
(continued...)

4
repose found in W. Va. Code § 55-7B-4.8 In granting the motion, however, the circuit court

relied on matters outside the pleadings. In this regard, the order expressly refers to the

opinion of Dr. Edward W. Eskew. Dr. Eskew’s opinion was contained in the certificate of

merit that was attached, along with the notice of claim, as an exhibit to the complaint.9 This

7
(...continued)
Rule 12(b) of the West Virginia Rules of Civil Procedure, and did not specifically identify
the particular subsection of the rule being applied. Insofar as the basis for the motion was
that the claim was not timely filed pursuant to W. Va. Code § 55-7B-4, we note that the
motion properly falls under Rule 12(b)(6) as failing to assert a claim upon which relief can
be granted. 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 349 (3d ed. 2008) (“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.” (footnote omitted)).
8
Statutes of limitation and repose are affirmative defenses. See Cleckley,
Davis, & Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 8(c)[i],
at 189 (“The statute of limitations is a defense which should be set forth affirmatively
pursuant to Rule 8(c) . . . .” (footnote omitted)). However, it has been explained that,

[i]n an appropriate case, an affirmative defense may be
adjudicated on a motion to dismiss for failure to state a claim.
Two conditions must be met for such a dismissal. First, the facts
that establish the defense must be definitively ascertainable from
the allegations of the complaint, the documents (if any)
incorporated therein, matters of public record, and other matters
of which the court may take judicial notice. Second, the facts so
gleaned must conclusively establish the affirmative defense.

Id. § 12(b)(6)[2], at 349 (footnotes omitted) (citing Pani v. Empire Blue Cross Blue Shield,
152 F.3d 67 (2d Cir. 1998); In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 289
F. Supp. 2d 429 (S.D.N.Y. 2003); Ingram v. Rencor Controls, Inc., 217 F. Supp. 2d 141 (D.
Me. 2002)). These conditions have been met in the instant case.
9
W. Va. Code § 55-7B-6(b) (2003) (Repl. Vol. 2008) requires a claimant to
serve each prospective defendant with a notice of claim and screening certificate of merit as
(continued...)

5
 9
(...continued)
a prerequisite for filing a medical professional liability action against a health care provider.
See, e.g., Syl. pt. 3, Davis v. Mound View Health Care, Inc., 220 W. Va. 28, 640 S.E.2d 91
(2006) (“Where a medical malpractice action is dismissed for failure to comply with the
pre-suit notice of claim provision set forth in W. Va. Code § 55-7B-6(b) (2003) and the
dismissal order does not specify the dismissal to be with prejudice, the dismissal is deemed
to be without prejudice. . . .”); State ex rel. Miller v. Stone, 216 W. Va. 379, 384, 607 S.E.2d
485, 490 (2004) (“Because Petitioner’s certificate of merit was not filed until June 20, 2003,
her medical malpractice claim could not be filed until 30 days later . . . .”). W. Va. Code
§ 55-7B-6(b) states:

At least thirty days prior to the filing of a medical
professional liability action against a health care provider, the
claimant shall serve by certified mail, return receipt requested,
a notice of claim on each health care provider the claimant will
join in litigation. The notice of claim shall include a statement
of the theory or theories of liability upon which a cause of action
may be based, and a list of all health care providers and health
care facilities to whom notices of claim are being sent, together
with a screening certificate of merit. The screening certificate
of merit shall be executed under oath by a health care provider
qualified as an expert under the West Virginia rules of evidence
and shall state with particularity: (1) The expert’s familiarity
with the applicable standard of care in issue; (2) the expert’s
qualifications; (3) the expert’s opinion as to how the applicable
standard of care was breached; and (4) the expert’s opinion as
to how the breach of the applicable standard of care resulted in
injury or death. A separate screening certificate of merit must
be provided for each health care provider against whom a claim
is asserted. The person signing the screening certificate of
merit shall have no financial interest in the underlying claim, but
may participate as an expert witness in any judicial proceeding.
Nothing in this subsection may be construed to limit the
application of rule 15 of the rules of civil procedure.

We have previously explained that,

[u]nder W. Va. Code, 55-7B-6 [2003] the purposes of
(continued...)

6
Court has previously held that

[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),

9
(...continued)
requiring a pre-suit notice of claim and screening certificate of
merit are (1) to prevent the making and filing of frivolous
medical malpractice claims and lawsuits; and (2) to promote the
pre-suit resolution of non-frivolous medical malpractice claims.
The requirement of a pre-suit notice of claim and screening
certificate of merit is not intended to restrict or deny citizens’
access to the courts.

Syl. pt. 2, Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005).

7
 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

8
 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,

9
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)).

10
 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.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.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

10
The Forsheys appear to have experienced some confusion based upon the
circuit court’s inclusion of findings of fact in its order granting the 12(b) motion to dismiss.
Notably, however, this Court has held that “[a] circuit court’s order granting dismissal should
set out factual findings sufficient to permit meaningful appellate review. Findings of fact
include facts which the circuit court finds relevant, determinative of the issues, and
undisputed.” Syl. pt. 1, P.T.P., IV by P.T.P, III v. Board of Educ. of the County of Jefferson,
200 W. Va. 61, 488 S.E.2d 61 (1997). See also Easterling v. American Optical Corp., 207
W. Va. 123, 134 n.15, 529 S.E.2d 588, 599 n.15 (2000) (“The decision in P.T.P. modified
W. Va. R. Civ. P. 52(a), which provides that findings of fact and conclusions of law are
unnecessary for decisions on Rule 12(b) motions.”).
11
We note that the Forsheys’ brief indicates that additional exhibits were
attached to their memorandum in opposition to Dr. Jackson’s motion to dismiss. However,
the record submitted to this Court for review does not disclose that any such exhibits were
attached. “The responsibility and burden of designating the record is on the parties, and
appellate review must be limited to those issues which appear in the record presented to this
Court.” In re Michael Ray T., 206 W. Va. 434, 525 S.E.2d 315 (1999). Additionally, we
observe that the circuit court’s order clearly states that it was dismissing the matter based
upon Dr. Jackson’s 12(b) motion to dismiss.

11
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

12
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.

III.

DISCUSSION

Pursuant to W. Va. Code § 55-7B-4(a) (1986) (Repl. Vol. 2008),

[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.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.

12
Accordingly, we need not discuss the discovery rule provisions of W. Va.
Code § 55-7B-4 (a) (1986) (Repl. Vol. 2008).

13
 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.

A. Continuous Medical Treatment Doctrine

The Forsheys urge this Court to adopt the continuous medical treatment

doctrine and to apply the same to their cause of action in order to conclude that it accrued on

January 31, 1997, the day Dr. Jackson rescheduled the exploratory surgery on Mr. Forshey’s

hand.13

With respect to the statute of repose contained in W. Va. Code § 55-7B-4, this

Court has observed that

[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[.]”

13
As noted above, Mr. Forshey later cancelled the exploratory surgery.

14
 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).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.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

14
The circuit court concluded, and we agree, that the Forsheys’ complaint does
not set out claims for concealment or misrepresentation of material facts by Dr. Jackson.
Likewise, the complaint does not allege fraud.
15
Moreover, the Forsheys observe that this Court has adopted the continuous
representation doctrine in legal malpractice actions. See Syl. pt. 6, Smith v. Stacy, 198
W. Va. 498, 482 S.E.2d 115 (1996) (“West Virginia adopts the continuous representation
doctrine through which the statute of limitations in an attorney malpractice action is tolled
until the professional relationship terminates with respect to the matter underlying the
malpractice action.”).

15
 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,

16
 [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)).16 In the Lane case, the plaintiff

16
As the Forsheys note, it appears that some form of the continuous medical
treatment doctrine has been adopted in a majority of jurisdictions. See Preer v. Mims, 323
S.C. 516, 519, 476 S.E.2d 472, 473 (1996) (commenting that the continuous treatment
doctrine “has been adopted in one form or another by a significant number of courts around
the country,” and collecting cases). See, e.g., Lane v. Lane, 295 Ark. 671, 676, 752 S.W.2d
25, 28 (1988) (“Given the rationale behind the [continuing treatment] rule, and its growing
acceptance, we believe its application in appropriate circumstances is proper.”); Anderson
v. George, 717 A.2d 876, 878 (D.C. 1998) (“[W]e now hold that the continuous treatment
rule is applicable in the District of Columbia.”); Ewing v. Beck, 520 A.2d 653, 663 n.11 (Del.
1987) (recognizing continuous negligent medical treatment doctrine); Cunningham v.
Huffman, 154 Ill. 2d 398, 406, 609 N.E.2d 321, 325, 182 Ill. Dec. 18, 22 (1993) (holding that
“a plaintiff is not barred by the statute of repose if she can demonstrate that there was an
ongoing course of continuous negligent medical treatment. To prevail under this cause of
action a plaintiff must demonstrate: (1) that there was a continuous and unbroken course of
negligent treatment, and (2) that the treatment was so related as to constitute one continuing
wrong”); Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005) (adopting continuous
treatment doctrine); In re Noe, 958 So. 2d 617, 624 (La. 2007) (“The continuous treatment
doctrine [was] adopted by this court in Carter [v. Haygood, 892 So. 2d 1261 (2005).]”);
Sheldon v. Sisters of Mercy Health Corp., 102 Mich. App. 91, 94, 300 N.W.2d 746, 748
(continued...)

17
 16
(...continued)
(1980) (“[U]nder the statute [M.C.L. § 600.5838; M.S.A. § 27A.5838], a malpractice suit is
barred if brought more than two years after the last treatment by a defendant or six months
after discovery of the malpractice.” (emphasis added)); Doyle v. Kuch, 611 N.W.2d 28, 31
(Minn. Ct. App. 2000) (“Generally, the ‘cause of action accrues when the physician’s
treatment for a particular condition ceases.’ . . . This is the general termination of treatment
rule.” (internal citation omitted)); Hampton v. Shaw, 14 Neb. App. 499, 500, 710 N.W.2d
341, 343 (2006) (applying continuing treatment doctrine, but concluding that under facts
presented it did not operate to toll the statute of limitations); McDermott v. Torre, 56 N.Y.2d
399, 405, 437 N.E.2d 1108, 1110, 452 N.Y.S.2d 351, 353 (1982) (“[T]he time in which to
bring a malpractice action is stayed ‘when the course of treatment which includes the
wrongful acts or omissions has run continuously and is related to the same original condition
or complaint.’” (citation omitted)); Gilbert v. Bartel, 144 S.W. 3d 136, 140-41 (Tex. Ct. App.
2004) (noting that “[t]he [statutory] limitations period for medical negligence claims is
measured from one of three dates: . . . the last date of the relevant course of treatment”);
Harper v. Evans, 185 P.3d 573, 576 (Utah Ct. App. 2008) (“[T]he continuous negligent
treatment rule [was] first adopted in Peteler v. Robison, 81 Utah 535, 17 P.2d 244 (1932).”);
Farley v. Goode, 219 Va. 969, 976, 252 S.E.2d 594, 599 (1979) (“[W]hen malpractice is
claimed to have occurred during a continuous and substantially uninterrupted course of
examination and treatment in which a particular illness or condition should have been
diagnosed in the exercise of reasonable care, the date of injury occurs, the cause of action for
that malpractice accrues, and the statute of limitations commences to run when the improper
course of examination, and treatment if any, for the particular malady terminates.”); Caughell
v. Group Health Co-op. of Puget Sound, 124 Wash. 2d 217, 229-30, 876 P.2d 898, 905
(1994) (“We affirm today that malpractice claimants have the right to allege the entire course
of continuing negligent treatment as one claim. . . . therefore . . . where the tort is continuing,
the claim is continuing.”); Westphal v. E.I. du Pont de Nemours & Co., Inc., 192 Wis. 2d
347, 370, 531 N.W.2d 386, 394 (Wis. Ct. App. 1995) (“The continuous negligent treatment
doctrine was adopted in Tamminen [v. Aetna Casualty and Surety Co., 109 Wis. 2d 536, 553,
327 N.W.2d 55, 63 (1982)].”); Metzger v. Kalke, 709 P.2d 414, 417 (Wyo. 1985) (“We hold
with the foregoing authorities that the act, error or omission which starts the running of the
statute of limitations against medical malpractice actions is the termination of the course of
treatment for the same or related illnesses or injuries.”). But see Bousset v. Walker, 285 Ga.
App. 102, 103, 645 S.E.2d 593, 595 (2007) (“In [Young v. Williams, 274 Ga. 845, 560 S.E.2d
690 (2002)], the Supreme Court reversed, rejected this court’s adoption of the continuous tort
doctrine, and held that the statute of limitation in a medical malpractice action begins to run
at the time of the misdiagnosis.”); Ratcliff v. Graether, 697 N.W.2d 119, 125 (Iowa 2005)
(“We need not decide whether we should reject the continuous treatment doctrine outright
(continued...)

18
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

16
(...continued)
in all circumstances.”); Toas v. Shapiro, 23 Mass. L. Rptr. 194, ___ n.6, 2007 WL 3014763,
at *3 n.6 (Mass. Super. Ct. 2007) (“To date, the [Supreme Judicial Court of Massachusetts]
has not adopted the continuous treatment doctrine.”); Carpenter v. Rohrer, 714 N.W.2d 804,
814 (N.D. 2006) (“We have not adopted the continuous treatment rule in medical malpractice
cases, although we have alluded to the rule in several of our past decisions.”); Haggart v.
Cho, 703 A.2d 522, 527 (Pa. Super. Ct. 1997) (“Pennsylvania has not adopted a per se
‘continuous treatment rule,’ tolling the statute of limitations in a malpractice case until the
end of treatment by the defendant. . . . Rather, the courts of this Commonwealth simply
apply the discovery rule to determine the date when a patient could reasonably be expected
to know of his injury.” (citations omitted)); Harrison v. Bevilacqua, 354 S.C. 129, 139, 580
S.E.2d 109, 114 (2003) (“[W]e reject adoption of the continuous treatment rule.”); Stanbury
v. Bacardi, 953 S.W.2d 671, 672 (Tenn. 1997) (“We conclude that the common law doctrine
of continuing medical treatment has been completely abrogated by adoption of the discovery
rule in Tennessee.”).

19
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.”

20
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.

B. Continuing Tort

The Forsheys next argue that, even in the absence of the continuing medical

treatment doctrine, they have timely filed their cause of action because additional visits Mr.

Forshey had with Dr. Jackson in 1996 and 1997, wherein Dr. Jackson failed to order an x-ray

of Mr. Forshey’s hand, amounted to continuing torts. We disagree.

In Graham v. Beverage, 211 W. Va. 466, 566 S.E.2d 603 (2002), this Court

formally adopted the continuing tort theory in a non-medical malpractice setting by holding

that “[w]here a tort involves a continuing or repeated injury, the cause of action accrues at

and the statute of limitations begins to run from the date of the last injury or when the

tortious overt acts or omissions cease.” However, in the earlier case of Ricottilli v.

Summersville Memorial Hospital, 188 W. Va. 674, 677, 425 S.E.2d 629, 632 (1992), this

Court recognized the continuing tort doctrine in a context similar to medical malpractice and

ultimately found that it did not apply under the facts presented due to the absence of

repetitious wrongful conduct.17 Ricottilli involved a suit filed by a mother asserting, in

17
The plaintiff in Ricottilli attempted to bring her claim as a medical
(continued...)

21
relevant part, a claim for outrageous conduct against Charleston Area Medical Center

(hereinafter “CAMC”) arising from CAMC’s autopsy of her deceased daughter. The

Ricottilli Court explained that

[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.

17
(...continued)
malpractice action; however, this Court held that, “[b]y definition, a deceased individual does
not qualify as a ‘patient’ under the Medical Professional Liability Act (‘Act’), West Virginia
Code §§ 55-7B-1 to -11 (Supp.1992), and therefore cannot be the basis for a cause of action
alleging medical professional liability pursuant to the Act.” Syl. pt. 1, Ricottilli v.
Summersville Mem’l Hosp., 188 W. Va. 674, 677, 425 S.E.2d 629, 632 (1992).

22
 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

23
 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

24
[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

25
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).

26
 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.

IV.

CONCLUSION

Based upon the forgoing, we affirm the April 3, 2007, order of the Circuit

Court of Kanawha County, which granted Dr. Jackson’s motion to dismiss this action.

Affirmed.

27