Miller v. Romano
In Miller v. Romano, 186 W. Va. 523, 413 S.E.2d 178 (1991), the Court addressed a situation where a doctor had allegedly committed malpractice in the treatment of a patient, but then concealed the reasons for the patient's death from her parents.
The doctor had apparently gone so far as to attribute the patient's death to "God's will," and paid part of the family's funeral bills.
The patient's parents did not learn that their daughter's death might have been the result of the doctor's error, and did not file a wrongful death action, until nearly 3 1/2 years after their daughter died. 186 W. Va. at 524, 413 S.E.2d at 179.
In Miller v. Romano, the Court was asked, in a certified question from the circuit court, to determine if the 2-year limitation period could be tolled by the discovery rule.
The Court stated that "a wrongful death action is not a right which was recognized at common law," but is instead "a legislatively created right." 186 W. Va. at 526, 413 S.E.2d at 181.
The Court concluded that the 2-year time limitation is a "condition precedent to the bringing of [a wrongful death] action," and therefore "the statute cannot be interpreted under common law." 186 W. Va. at 526-27, 413 S.E.2d at 181-82.
The Court have interpreted this portion of Miller v. Romero as meaning that "the discovery rule does not operate to toll the two-year filing period for wrongful death claims." Harrison v. Davis, 197 W. Va. 651, 660, 478 S.E.2d 104, 113 (1996).