DAVIS, Chief Justice:
In this certified question action, this Court is asked to determine the application of the West Virginia borrowing statute, i.e., W. Va. Code § 55-2A-2 (1959) (Repl.Vol.2008),
In the action underlying this certified question, it has been alleged that Jill Willey (hereinafter referred to as "Mrs. Willey"), a resident of Wheeling, Ohio County, West Virginia, sought medical treatment from Dr. Samuel J. Bracken, Jr., a gynecologist who was engaged in the practice of medicine in the states of West Virginia and Ohio. On December 15, 2004, Dr. Bracken performed a laparoscopic tubal ligation on Mrs. Willey, on an outpatient basis, at East Ohio Regional Hospital in Martins Ferry, Ohio. Mrs. Willey returned to West Virginia, and, on December 19, 2004, as a result of severe abdominal pain, she sought treatment in the emergency room at Ohio Valley Medical Center, a facility that is located in West Virginia. She was originally thought to have a bowel obstruction and was sent home. However, her pain continued, and she returned to the Ohio Valley Medical Center Emergency Room in the early morning hours of December 20, 2004, when she received emergency surgery for a perforation of the sigmoid colon in the area in which the tubal ligation had been performed. According to the Willeys' complaint, the emergency surgery included a colostomy. She was later subjected to additional surgery to reverse the colostomy.
An expert witness retained by Mrs. Willey in connection with the instant litigation, Dr. Melvyn J. Ravitz, has indicated that certain methods used by Dr. Bracken in performing Mrs. Willey's laparoscopic tubal ligation resulted in some sort of insult that led to a delayed perforation. Likewise, Dr. Howard Shackelford, Jr., who performed the emergency
Mrs. Willey and her husband (hereinafter referred to as "the Willeys") initiated this action by serving on Dr. Bracken their "Notice of Claim" dated October 27, 2006, and a Screening Certificate of Merit authored by Dr. Ravitz and dated August 23, 2006. Thereafter, on December 14, 2006, the Willeys filed their complaint against Dr. Bracken alleging medical negligence. In their complaint, the Willeys aver that Dr. Bracken was negligent toward [Mrs. Willey], in one or more of the following particulars:
On May 18, 2009, Dr. Bracken submitted a "Revised Motion for Summary Judgment" in which he asserted that, pursuant to W. Va. Code § 55-2A-2, West Virginia's borrowing statute, the court was required to apply the statute of limitations of the State of Ohio, because Mrs. Willey's tubal ligation was performed in Ohio.
In its Certification Order, the circuit court expressly concluded that
By order entered March 30, 2010, this Court accepted the certified question for review.
It is well established that "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Accord Syl. pt. 1, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009); Syl. pt. 1, Copier Word Processing Supply, Inc. v. WesBanco Bank, Inc., 220 W.Va. 39, 640 S.E.2d 102 (2006).
Prior to addressing the issues raised in connection with the questions certified to this Court by the Circuit Court of Ohio County, we choose to exercise our authority to reformulate the questions presented. See Syl. pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993) ("When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va.Code, 51-1A-1, et seq. and W. Va.Code, 58-5-2 [(1998) (Repl. Vol.2005)], the statute relating to certified questions from a circuit court of this State to this Court."). Accord Potesta v. United States Fid. & Guar. Co., 202 W.Va. 308, 313 n. 9, 504 S.E.2d 135, 140 n. 9 (1998). Cf. W. Va.Code § 51-1A-4 (1996) (Repl.Vol.2008) ("The Supreme Court of Appeals of West Virginia may reformulate a question certified to it."). In order to fully and clearly address the legal issues presented in this action, we find it necessary to answer only one question. Accordingly, we reformulate the questions herein certified as follows:
The issue raised in the foregoing question requires that we examine the borrowing statute to determine whether it applies to the circumstances presently before the Court. Before engaging in our analysis, we observe that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). However, if a statute is plain, this Court lacks authority to construe its provisions, and we must, instead, apply its clear terms. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
The West Virginia borrowing statute states that "[t]he period of limitation applicable to a claim accruing outside of this State shall be either that prescribed by the law of the place where the claim accrued or by the law of this State, whichever bars the claim."
The parties to this action contend that the certified question may be resolved based upon the meaning of the term "accrue" as used in W. Va.Code § 55-2A-2. Dr. Bracken submits that, "[g]enerally, a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs. . . ." Syl. pt. 3, Stuyvesant v. Preston Cnty. Comm'n, 223 W.Va. 619, 678 S.E.2d 872 (2009) (quoting Syl. pt. 1, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992), overruled in part on other grounds by Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009)). Therefore, he urges, this Court should find that the Willeys' claim accrued in Ohio, where her tubal ligation was performed.
The Willeys, on the other hand, submit that Mrs. Willey's injury was sustained in West Virginia when her sigmoid colon actually perforated. The Willeys further contend that "`[a] cause of action accrues in the state where the final significant event essential to the bringing of a claim occurs. . . .'" Hayes v. Roberts & Schaefer Co., 192 W.Va. at 371, 452 S.E.2d at 462 (quoting Rostron v. Marriott Hotels, 677 F.Supp. 801, 802 (E.D.Pa. 1987)).
We are unpersuaded by the parties' arguments as to how the borrowing statute should be applied in the case sub judice. The Willeys' complaint alleges that Dr. Bracken was negligent toward Mrs. Willey by "perforating the sigmoid colon during the performance of a laparoscopic tubal ligation," and by "failing to recognize that he had perforated the colon." (Emphasis added). Thus, from the allegations in the complaint, it is clear that at least part of the cause of action accrued in the State of Ohio. If the complaint in this matter rested solely upon damages resulting from the injury caused in Ohio, this Court would not hesitate to find that the borrowing statute applies. See W. Va.Code § 55-7B-4 (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."). See also Syl. pt. 1, Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986) ("The statute of limitations ordinarily begins to run when the right to bring an action for personal injuries accrues[,] which is when the injury is inflicted."). However, as will be shown, the complaint in this case also seeks relief for harm caused in the state of West Virginia. Ultimately, the unique facts of this case demand that, as a matter of public policy, the mere fact that an injury occurred in another jurisdiction will not automatically invoke the borrowing statute where additional injury occurs in West Virginia.
This Court has previously recognized that,
Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 745, 559 S.E.2d 713, 718 (2001). Furthermore,
Morris v. Consolidation Coal Co., 191 W.Va. 426, 433 n. 5, 446 S.E.2d 648, 655 n. 5 (1994) (quoting Cordle v. General Hugh Mercer Corp., 174 W.Va. at 325, 325 S.E.2d at 114) (additional citation omitted).
Considering the unique set of facts before us, we look to the Certain Remedy Clause of the West Virginia Constitution to determine the effect of public policy upon the application of the borrowing statute to the circumstances presented in the instant case. Pursuant to the Certain Remedy Clause, "[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." W. Va. Const. Art. III, § 17. In other words, "when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication of cases, then the certain remedy provision of Article III, Section 17 of the West Virginia Constitution is implicated." Syl. pt. 6, in part, Gibson v. West Virginia Dep't of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991). See also Syl. pt. 5, Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634 (1991) (setting out two-part analysis for determining if legislation implicates Certain Remedy Clause). Thus, the Certain Remedy Clause prevents application of a statute that improperly denies a citizen his or her right to seek redress in the courts of this State for injuries received in West Virginia. See, e.g., Kyriazis v. University of West Virginia, 192 W.Va. 60, 450 S.E.2d 649 (1994) (finding anticipatory release that served as absolute bar to injury claims by rugby player violated Certain Remedy Clause).
The record in this case indicates that Mrs. Willey had to undergo corrective surgery in West Virginia as a direct result of the alleged negligence of Dr. Bracken. By virtue of the emergency surgeries to correct her ruptured sigmoid colon, Mrs. Willey was subjected to additional invasions of her body, which caused her to sustain pain, suffering, and economic loss in West Virginia that was directly caused by the alleged negligence of Dr. Bracken in Ohio.
The public policy issue we herein discuss is illustrated by the Supreme Court of Virginia in the case of Webb v. Smith, 276 Va. 305, 661 S.E.2d 457 (2008). In Webb, the plaintiff's doctor had agreed to perform two procedures on the plaintiff in a single surgery.
We are cognizant that, in the Webb case discussed above, the plaintiff sued only for her second injury. Presumably, in the instant case, the Willeys could have maintained a cause of action solely for the subsequent surgeries Mrs. Willey underwent in West Virginia. However, the Willeys exercised their right to seek damages for all of the injuries directly caused by Dr. Bracken, and the public policy of this State demands that they be allowed to seek full redress, not partial redress, in a West Virginia court. Consequently, we now hold that, when a cause of action is filed in a West Virginia court seeking damages for a surgical procedure that was negligently performed in a foreign jurisdiction, along with damages for a subsequent surgical procedure performed in West Virginia as a direct result of the negligence in the foreign jurisdiction, public policy demands that the applicable West Virginia statute of limitations applies to the negligence committed in the foreign jurisdiction. Under these unique circumstances, the West Virginia borrowing statute, W. Va.Code § 55-2A-2 (1959) (Repl.Vol.2008), has no application.
We have not reached this result lightly. We fully recognize the Legislature's intent in enacting W. Va.Code § 55-2A-2, and in bright-line fact patterns the borrowing statute can achieve its purpose. However, to apply the borrowing statute to the unique facts of this case would deny the Willey's their constitutional right to full redress for their injuries. This Court has repeatedly acknowledged its "duty to `avoid whenever possible [an application] of a statute which
After considering the certified question from the Circuit Court of Ohio County, as reformulated, we respond as follows:
Having answered the foregoing certified question, as reformulated, we remand this matter to the Circuit Court of Ohio County for further proceedings consistent with this opinion.
Certified Question Answered.
McKinney v. Fairchild Int'l, Inc., 199 W.Va. 718, 724-25, 487 S.E.2d 913, 919-20 (1997). Although the model act upon which our borrowing statute was based has been withdrawn, no amendments to the statute have been undertaken by our Legislature.
Syl. pt. 4, McKinney v. Fairchild Int'l, Inc., 199 W.Va. 718, 487 S.E.2d 913.
Tierman v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 141, 506 S.E.2d 578, 584 (1998).
