A Judge for the People Leaves in Honor
The West Virginia Record wrote on January 9, 2009 a wonderful article about former Justice Larry Starcher overviewing his last days of his term and his fight to the end to protect the rights of individuals, including the areas of medical malpractice.
CHARLESTON - To the end, the old West Virginia Supreme Court of Appeals worked hard at making decisions. And former Justice Larry Starcher worked hard at disagreeing.
Starcher filed seven dissents on Dec. 30, the last day of his 12-year term, all celebrating his conviction that judges should keep rewriting laws."
One such dissent was a medical malpractice case which The Record summarized as follows:
Forshey v. Jackson
Left-handed locksmith Paul Forshey developed carpal tunnel syndrome, a wrist injury. Physician Theodore Jackson performed surgery in 1995.
Forshey's pain continued and a knot formed under his thumb. Jackson set exploratory surgery but cancelled it four days ahead of time.
Jackson rescheduled it, but Forshey cancelled it four days ahead of time.
In 2005, Forshey injured his left index finger. An X-ray revealed a piece of knife blade.
In 2006, Forshey sued Jackson in Kanawha Circuit Court.
Jackson moved to dismiss, relying on state law that sets an absolute limit of ten years on a medical malpractice claim.
Forshey argued that the statute didn't start running in 1995. He argued that it started running in 1997, when Jackson cancelled the exploratory surgery.
Circuit Judge Jennifer Bailey Walker dismissed the suit, and on Nov. 25 the Justices affirmed her.
Justice Robin Davis wrote that in order to beat the statute of limitations, Forshey had to show repetitious wrongful conduct.
"Merely establishing the continuation of the ill effects of an original wrongful act will not suffice," Davis wrote.
In dissent Starcher wrote, "The injury in this case wasn't just the scalpel blade left in the plaintiff's hand."
He wrote, "It was that the defendant doctor screwed up and committed malpractice by failing to properly diagnose the error in two years of trying."
He wrote that Walker should have let Forshey pursue the action, "which most likely would have resulted in a speedy settlement."
He wrote that "this Court will do whatever it takes to protect doctors and lawyers from malpractice claims -- no matter how meritorious those claims might be."
I believe the last line says it all!!!!
