Adrian Osborne v. Kevin Mace, M.D., Montana Boyce, R.N., United Hospital Center, Inc., and West Virginia University Board of Governors

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

Fall 2025 Term

November 12, 2025

_____________________ released at 3:00 p.m.

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

No. 25-ICA-72 OF WEST VIRGINIA

_____________________

ADRIAN OSBORNE,

Plaintiff Below, Petitioner,

v.

KEVIN MACE, M.D., MONTANA BOYCE, R.N., UNITED HOSPITAL CENTER,

INC., AND WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS,

Defendants Below, Respondents.

___________________________________________________________

Appeal from the Circuit Court of Harrison County

Honorable D. Andrew McMunn, Circuit Judge

Civil Action No.: CC-17-2024-C-231

AFFIRMED

_________________________________________________________

Submitted: October 21, 2025

Filed: November 12, 2025

Michael D. Crim, Esq. Chelsea V. Brown, Esq.

Clarksburg, West Virginia Morgantown, West Virginia

Counsel for Petitioner Blair E. Wessels, Esq.

Charleston, West Virginia

Counsel for Respondents West

Virginia University Board of Governors, and

Kevin Mace, M.D.

Lauren T. Krupica, Esq.

Joshua K. Boggs, Esq.

Morgantown, West Virginia

Counsel for Respondents

United Hospital Center, Inc., and

Montana Boyce, R.N.

JUDGE GREEAR delivered the Opinion of the Court.

JUDGE WHITE concurs and reserves the right to file a separate opinion.

GREEAR, Judge:

Adrian Osborne appeals the January 31, 2025, order from the Circuit Court

of Harrison County granting the Respondents West Virginia University Board of

Governors (“WVBOG”), Kevin Mace, M.D. (“Dr. Mace”), Montana Boyce, R.N. (“Nurse

Boyce”) and United Hospital Center, Inc.’s (“UHC”) (collectively “respondents”) motions

to dismiss, respectively. On appeal, Mr. Osborne argues the circuit court erred when it

dismissed the complaint which was timely filed within two years of Mr. Osborne reaching

the age of eighteen as provided for in West Virginia Code § 55-2-15 (2020). Further, Mr.

Osborne asserts the circuit court erred when it failed to conclude that West Virginia Code

§ 55-7B-4 (2022) violated the equal protection clause of the West Virginia Constitution as

applied to minors, effectively denying him the application of the tolling provisions

provided by West Virginia Code § 55-2-15. Based on our review of this matter, we find no

error in the circuit court’s decision to dismiss Mr. Osborne’s complaint. Accordingly, we

affirm the circuit court order of January 31, 2025.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2021, Mr. Osborne sought emergency medical treatment at

UHC due to an injury of his lower right leg sustained while playing high school soccer. At

the time of his injury, Mr. Osborne was a sixteen-year-old minor. Dr. Mace was Mr.

Osborne’s attending physician who provided care and treatment at UHC. After reviewing

the x-ray of Mr. Osborne’s leg, Dr. Mace determined that Mr. Osborne had fractures in his

tibia and fibula. At the time, Dr. Mace noted calf tenderness in Mr. Osborne’s leg, but also

1

found that his compartments were not tense. After a consultation with Joseph Fazalare,

M.D. (“Dr. Fazalare”), an orthopedic surgeon, Dr. Mace ordered splinting of Mr. Osborne’s

lower right leg. Pursuant to Dr. Mace’s orders, Nurse Boyce applied an orthoglass splint to

Mr. Osborne’s lower right leg.

On September 2, 2021, at a follow up appointment, Mr. Osborne was

diagnosed by Dr. Fazalare, in consultation with a vascular surgeon, as having compartment

syndrome and underwent an emergency four-compartment fasciotomy of his lower right

leg. As a result of the surgery, Mr. Osborne required skin grafting surgery and ultimately

had to have the right tibia fracture repaired. Mr. Osborne continues to undergo treatment

to regain use of his lower right leg.

In September of 2022, Mr. Osborne turned eighteen years of age. On June

20, 2024, Mr. Osborne served the respondents with a notice of claim and certificate of

merit. On September 6, 2024, Mr. Osborne served the respondents with an amended

certificate of merit. On September 12, 2024, Mr. Osborne filed a complaint pursuant to the

West Virginia Medical Professional Liability Act (“MPLA”) in the Circuit Court of

Harrison County alleging negligence against Dr. Mace, Nurse Boyce, and UHC. On

October 10, 2024, Respondents WVBOG and Dr. Mace filed a motion to dismiss. On that

same day, Respondents UHC and Nurse Boyce filed a motion to dismiss. Respondents

argued that Mr. Osborne filed his complaint after the expiration of the statute of limitations.

2

On January 31, 2025, the circuit court granted the respondents’ motions to dismiss. It is

from this order Mr. Osborne now appeals.

II. STANDARD OF REVIEW

“Appellate review of a circuit court's order granting a motion to dismiss a

complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick,

Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). At the motion to dismiss stage, complaints

are to be read liberally as required by the notice pleading standard underlying the West

Virginia Rules of Civil Procedure, and the circuit court, “in appraising the sufficiency of a

complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.” Atkinson v. NCI Nursing Corps., 249 W. Va. 443, 447, 895 S.E.2d

846, 850 (Ct. App. 2023) (internal citations omitted). Although entitlement to relief must

be shown, a plaintiff is not required to set out facts upon which the claim is based; however,

a claim cannot be permitted to continue if such claim is not authorized under West Virginia

law. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. at 776, 461 S.E.2d at 522.

In this matter, we must decide whether the circuit court correctly applied the

MPLA statute of limitations in light of the tolling provision under West Virginia Code §

55-2-15. Our review is guided by the Supreme Court of Appeals of West Virginia's

(“SCAWV”) recognition, in syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.

Va. 138, 459 S.E.2d 415 (1995), that “[w]here the issue on an appeal from the circuit court

3

is clearly a question of law or involving an interpretation of a statute, we apply a de novo

standard of review.” With these standards in mind, we now consider the issues raised on

appeal.

III. DISCUSSION

Mr. Osborne raises two assignments of error challenging the dismissal of his

complaint. First, Mr. Osborne argues the circuit court erred when it dismissed his lawsuit

which was timely filed within the two years provided under West Virginia Code § 55-2-

15. Second, Mr. Osborne asserts the circuit court erred when it failed to conclude that West

Virginia Code § 55-7B-4 violated the equal protection clause found in Section X of Article

III of the West Virginia Constitution in its application to him, as he was a minor at the time

of injury and has been denied the benefit of the tolling provisions of West Virginia Code §

55-2-15. As we find these assignments to be an interrelated challenge to the dismissal of

the complaint, we will consolidate and address them accordingly. See Tudor’s Biscuit

World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (per curiam)

(consolidating assignments of error).

Mr. Osborne argues that the two-year statute of limitations contained in the

MPLA, as provided in West Virginia Code § 55-7B-4, is facially unconstitutional with

respect to its statutory filing limitations regarding civil actions brought by or on behalf of

4

minors.1 Specifically, Mr. Osborne asserts that the circuit court incorrectly determined that

the statute of limitations did not violate the equal protection clause as found in the West

Virginia Constitution.2 Mr. Osborne maintains that the SCAWV established in Shelley D.

Whitlow v. Board of Education of Kanawha County, 190 W. Va. 223, 438 S.E.2d 15 (1993),

that statutory language, identical to the language contained in the MPLA, violated the equal

protection clause to the extent that it denied minors the benefit of the general tolling

provision contained in West Virginia Code § 55-2-15. Arguing for the same application to

the current statutory language, Mr. Osborne contends that the circuit court was required to

find a violation of the West Virginia Constitution, as similarly situated minors are being

denied such tolling provision. We disagree.

From its 1893 inception, West Virginia Code § 55-2-15 has generally

provided for the tolling of statutory filing provisions as applied to persons under a

disability, including minors. West Virginia Code § 55-2-15(b) provides:

If any person to whom the right accrues to bring any personal

action other than an action described in subsection (a) of this

section [sexual assault or sexual abuse], suit, or scire facias, or

any bill to repeal a grant, shall be, at the time the same accrues,

1

We note Mr. Osborne, through counsel, conceded that West Virginia Code §§ 55-

2-15 and 55-7B-4 must be viewed in conflict and cannot be read harmoniously together.

2

We note the West Virginia Constitution does not contain an equal protection clause.

Instead, West Virginia's equal protection principles emanate from the West Virginia

Constitution's due process clause. Syl. Pt. 3, Robertson v. Goldman, 179 W. Va. 453, 369

S.E.2d 888 (1988) (“The concept of equal protection of the laws is inherent in article three,

section ten of the West Virginia Constitution, and the scope and application of this

protection is coextensive or broader than that of the fourteenth amendment to the United

States Constitution.”).

5

an infant or insane, the same may be brought within the like

number of years after his or her becoming of full age or sane

that is allowed to a person having no such impediment to bring

the same after the right accrues, or after such acknowledgment

as is mentioned in § 55-2-8 of this this code, except that it shall

in no case be brought after 20 years from the time when the

right accrues.

However, the Legislature enacted a separate tolling provision for minors who allege

medical professional liability against health care providers and health care facilities. West

Virginia Code § 55-7B-4 specifically provides:

(a) A cause of action for medical injury to a person alleging

medical professional liability against a health care provider,

except a nursing home, assisted living facility, their related

entities or employees, or a distinct part of an acute care hospital

providing intermediate care or skilled nursing care or its

employees, arises as of the date of medical injury, except as

provided in subsection (c) of this section, and must be

commenced within two years of the date of such injury or

death, or within two years of the date when such person

discovers, or with the exercise of reasonable diligence, should

have discovered such medical injury, whichever last occurs:

Provided, That in no event shall any such action be

commenced more than 10 years after the date of medical

injury.

[…]

(c) A cause of action for injury to a minor, brought by or on

behalf of a minor who was under the age of 10 years at the time

of such injury, shall be commenced within two years of the

date of such injury, or prior to the minor's 12th birthday,

whichever provides the longer period.

6

As the parties suggest, these tolling provisions cannot be reconciled.3 The

parties agree that “[t]he general rule of statutory construction requires that a specific statute

be given precedence over a general statute relating to the same subject matter where the

two cannot be reconciled.” Syl. Pt. 1, UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325

S.E.2d 120 (1984); see also Vance v. Ritchie, 178 W. Va. 155, 358 S.E.2d 239 (1987);

State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970). With this

understanding, the parties acknowledge that the specific minors tolling provisions in West

Virginia Code § 55-7B-4(c) take precedence over the general tolling provisions contained

in West Virginia Code § 55-2-15. Therefore, Mr. Osborne’s sole challenge relates to the

constitutionality of West Virginia Code § 55-7B-4(c)4 as applied to minors. In support of

his constitutional challenge, Mr. Osborne places substantial reliance on Whitlow, 190 W.

Va. 223, 438 S.E.2d 15.

In Whitlow, a fifteen-year-old student was injured when bleachers at her

junior high school collapsed. When Ms. Whitlow became an adult, over three years after

3

We note the primary object in construing similar statutory provisions is to give full

force and effect to statutory provisions and the policies they were designed to serve. As

such, the courts are required to read statutory provisions in pari materia and understand

that in creating a comprehensive body of law, lawmakers are presumed to do so holistically,

such that their contents be unified and read in harmony. However, the parties, as well as

the SCAWV in Whitlow, acknowledge that these tolling provisions cannot be reconciled.

4

W. Va. Code § 55-7B-4(c) states: “A cause of action for injury to a minor, brought

by or on behalf of a minor who was under the age of 10 years at the time of such injury,

shall be commenced within two years of the date of such injury, or prior to the minor's 12th

birthday, whichever provides the longer period.”

7

the incident occurred, she filed suit against the Board of Education. The circuit court

dismissed the complaint as being time barred under West Virginia Code § 29-12A-6 (1986)

(establishing a two-year statute of limitations for actions against a political subdivision).

On appeal, Ms. Whitlow argued that West Virginia Code § 29-12A-6 violated the equal

protection clause. In that matter, the SCAWV determined that the equal protection standard

applicable to this type of challenge was the rational basis test set out in Syllabus Point 2 of

O'Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992):

Where economic rights are concerned, we look to see whether

the classification is a rational one based on social, economic,

historic or geographic factors, whether it bears a reasonable

relationship to a proper governmental purpose, and whether all

persons within the class are treated equally. Where such

classification is rational and bears the requisite reasonable

relationship, the statute does not violate Section 10 of Article

III of the West Virginia Constitution which is our equal

protection clause.

Syl. Pt. 2, Whitlow, 190 W. Va. 223, 438 S.E.2d 15 (internal citations omitted). The

SCAWV ultimately held that West Virginia Code § 29-12A-6(b) violated this state’s equal

protection clause because its purpose lacked a rational basis.

The parties do not dispute that West Virginia Code § 29-12A-6(b) contains

nearly identical language to West Virginia Code § 55-7B-4(c); however, the SCAWV

expressly refused to address the constitutionality of the specific minor tolling provisions in

the MPLA.5 Therefore, we do not find Whitlow to be dispositive on the issue. Every

5

In Whitlow, the SCAWV specifically recognized the MPLA tolling provisions:

8

legislative enactment, challenged on its constitutionality, requires its own comprehensive

discussion under the appropriate level of scrutiny.

In considering the constitutionality of a legislative enactment,

courts must exercise due restraint, in recognition of the

principle of the separation of powers in government among the

judicial, legislative and executive branches. Every reasonable

construction must be resorted to by the courts in order to

sustain constitutionality, and any reasonable doubt must be

resolved in favor of the constitutionality of the legislative

enactment in question. Courts are not concerned with questions

relating to legislative policy. The general powers of the

legislature, within constitutional limits, are almost plenary. In

considering the constitutionality of an act of the legislature, the

negation of legislative power must appear beyond reasonable

doubt.

Justice v. W. Va. AFL-CIO, 246 W. Va. 205, 212-13, 866 S.E.2d 613, 620-21 (2021). When

presented with an equal protection challenge under the West Virginia Constitution, we first

determine which one of three tests apply: strict scrutiny, intermediate scrutiny, or rational

basis. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 691, 408 S.E.2d 634, 641

(1991). The parties agree the rational basis test applies to the challenge at issue.

Although not before us in this case, we note that W. Va. Code, 55-7B-4(b),

contains a tolling provision for minors identical to W. Va. Code, 29-12A-

6(b), in regard to medical malpractice claims. We need not address the

constitutionality of that provision at this time. We note that other

jurisdictions have addressed this type of malpractice statute of limitations for

minors and have held it to violate equal protection principles.

190 W. Va. at 231 n.16, 438 S.E.2d at 23 n.16.

9

In the years since Whitlow, the SCAWV has continued the development of

our rational basis test. As discussed in State ex rel. W. Va. Secondary Sch. Activities

Comm'n [“SSAC”] v. Cuomo, 247 W. Va. 324, 333, 880 S.E.2d 46, 55 (2022),

A plaintiff challenging a statute or rule under the rational basis

test faces “a tremendous uphill battle.” Payne v. Huntington

Union Free Sch. Dist., 219 F. Supp.2d 273, 284 (E.D.N.Y.

2002). “There is a ‘strong presumption of validity’ when

examining a statute under rational basis review, and the burden

is on the party challenging the validity of the legislative action

to establish that the statute is unconstitutional.” Maages

Auditorium v. Prince George's Cnty., 4 F. Supp.3d 752, 776

(D. Md. 2014) (citation omitted), aff'd, 681 F. App'x 256 (4th

Cir. 2017) (per curiam). “To find that a rule or statute is

unconstitutional, it must be shown that the rule or statute is

unconstitutional beyond a reasonable doubt[.]” Johnson v. Bd.

of Stewards of Charles Town Races, 225 W. Va. 340, 342, 693

S.E.2d 93, 95 (2010). Consequently, challenges to a statute or

rule under rational basis review rarely succeed.

Under the rational basis test, we must ask if the challenged law “rationally furthers a

legitimate state purpose or interest.” SSAC at 333, 880 S.E.2d at 55 (quoting San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 55 (1973)). An equal protection challenge may

not succeed under the rational basis test as long as the question of rational relationship is

“at least debatable.” SSAC at 333, 880 S.E.2d at 55 (quoting W. & S. Life Ins. Co. v. State

Bd. of Equalization, 451 U.S. 648, 674 (1981)).

Here, the parties agree that Mr. Osborne is making a facial challenge to the

legislative enactments at issue. A facial challenge to the constitutionality of legislation is

the most difficult challenge to mount successfully. See Robinson v. Charleston Area

10

Medical Center, Inc., 186 W. Va. 720, 726, 414 S.E.2d 877, 883 (1991). The SCAWV has

consistently held:

Where economic rights are concerned, we look to see whether

the classification is a rational one based on social, economic,

historic or geographic factors, whether it bears a reasonable

relationship to a proper governmental purpose, and whether all

persons within the class are treated equally. Where such

classification is rational and bears the requisite reasonable

relationship, the statute does not violate Section 10 of Article

III of the West Virginia Constitution[.]

Syl. Pt. 2, Whitlow, 190 W. Va. at 223, 438 S.E.2d at 17.

Our rational basis review is highly deferential. “[A] law will be sustained if

it can be said to advance a legitimate government interest, even if the law seems unwise or

works to the disadvantage of a particular group, or if the rationale for it seems tenuous.”

SSAC at 333, 880 S.E.2d at 55 (quoting Romer v. Evans, 517 U.S. 620, 632 (1996)). “[I]f

the State's purpose is found to be legitimate, the state law stands as long as the burden it

imposes is found to be rationally related to that purpose, a relationship that is not difficult

to establish.” Id. (quoting Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 881 (1985)). The

Legislature is not obligated to produce evidence to sustain the rationality, as the burden is

on the challenger to negate every conceivable basis which might support the classification.

See Van Der Linde Housing, Inc. v. Rivanna Solid Waste Authority, 507 F.3d 290, 293 (4th

Cir. 2007).

11

Mr. Osborne argues that the delineation within the minor classification as

contained in West Virginia Code § 55-7B-4(c) treats similarly situated minors in a

disadvantageous manner. Pursuant to Whitlow, Mr. Osborne asserts that such a designation

of subclassifications within the minor classification is considered irrational; however, our

precedent does not preclude the application of the enlarged statutory time frame for minors

under 10 years old. See Cartwright v. McComas, 223 W. Va. 161, 166, 672 S.E.2d 297,

302 (2008) (the statute of limitations under the MPLA is set forth in W. Va. Code § 55-

7B-4 and the enlarged filing period for minors under the age of ten at the time of injury

was applicable; therefore, the four-year-old plaintiff’s filing period did not expire until her

twelfth birthday.).

A governmental classification within a class will be sustained so long as it

“is rationally related to a legitimate state interest.” Justice, 246 W. Va. at 215, 866 S.E.2d

at 623 (citation modified). Even subclassification within a class can be maintained when

there is some reasonable basis for the Legislature's classification scheme. See Appalachian

Power Co. v. State Tax Dep't of W. Virginia, 195 W. Va. 573, 596, 466 S.E.2d 424, 447

(1995). The SCAWV has consistently recognized that “the classification process is

peculiarly a legislative function.” Marcus v. Holley, 217 W. Va. 508, 524, 618 S.E.2d 517,

533 (2005). Any inquiry into the classifications established in a legislative enactment

should be “a relatively relaxed standard reflecting the Court's awareness that the drawing

of lines that create distinctions is peculiarly a legislative task and an unavoidable one.

12

Perfection in making the necessary classification is neither possible nor necessary.”

Marcus, 217 W. Va. at 524, 618 S.E.2d at 533.

In the midst of a national health care crisis, the West Virginia Legislature

established the MPLA to maintain the affordability and availability of quality health care.

In the introductory “[l]egislative findings and declaration of purpose” of the MPLA, the

Legislature found that “[t]he citizens of this state are entitled to the best medical care and

facilities available and that health care providers offer an essential and basic service which

requires that the public policy of this state encourage and facilitate the provision of such

service to our citizens.” W. Va. Code § 55-7B-1. This emphasis reflects the Legislature’s

duty and responsibility to balance the rights of our individual citizens to adequate and

reasonable compensation for injuries from substandard medical care with the broad public

interest in the provision of services by qualified health care providers and health care

facilities who can themselves obtain the protection of reasonable liability coverage. These

are precisely the types of social, economic, and historical factors which the Legislature

must balance in crafting legislation.

As a part of the effort to stabilize and maintain the health care system and its

quality in West Virginia, the enacted statute of limitations provides health care providers

and their insurance carriers an ability to better predict and account for liability exposure

through the elimination of stale claims. As the SCAWV has held, “[t]he basic purpose of

statutes of limitations is to encourage promptness in instituting actions; to suppress stale

13

demands or fraudulent claims; and to avoid inconvenience which may result from delay in

asserting rights or claims when it is practicable to assert them.” Morgan v. Grace Hosp.,

Inc., 149 W. Va. 783, 791, 144 S.E.2d 156, 161 (1965) (citations omitted). The filing

limitations established under the MPLA limited such exposure to potentially stale claims

in order to ensure the availability of quality health care. The MPLA sought to incentivize

quality health care providers to remain in West Virginia and assist them in obtaining

predictable and competitive insurance premiums by allowing for better estimation of the

malpractice risks. Based upon both the expressed declarations of the Legislature and the

general purpose for statutes of limitations,6 it becomes clear that the limitations provided

in West Virginia Code § 55-7B-4 are rationally related to a legitimate governmental

purpose pursuant to our equal protection standard.7 Thus, Mr. Osborne has failed to meet

6

While Mr. Osborne argues that the Legislature did not specifically state the

rationale for the limitation provision contained in the MPLA, under a rational basis review

the Legislature “need not actually articulate at any time the purpose or rationale supporting

its classification.” Heller v. Doe, 509 U.S. 312, 320 (1993).

7

Other states have similarly upheld the disparity between a general tolling provision

and a specific statutory scheme. See Gomersall v. St. Luke’s Reg’l Med. Ctr., 483 P.3d 365,

377 (Idaho 2021) (under the rational basis test, a statute of limitations that created different

time limits for subclassifications of minors to bring medical malpractice claims was

rationally related to the governmental purpose to reduce the risk faced by insurance

companies and the cost of medical malpractice insurance); Raley v. Wagner, 57 S.W.3d

683, 688 (Ark. 2001) (a shorter two-year statute of limitations that applied to minors with

medical malpractice claims as opposed to minors with other tort claims subject to a general

savings statute did not violate equal protection); Estate of McCarthy v. Montana Second

Jud. Dis. Ct., 994 P.2d 1090, 1096 (Mont. 1999) (the separate tolling provision that applied

to minors under a certain age did not violate equal protection); Smith v. Cobb Cnty.-

Kennestone Hosp. Auth., 423 S.E.2d 235, 239 (Ga. 1992) (a statute that treated medical

malpractice claims of minors differently than other tort claims was constitutional under the

rational basis test).

14

his burden of establishing that West Virginia Code § 55-7B-4(c) lacks a rational basis.

Accordingly, we find no error in the circuit court’s dismissal of Mr. Osborne’s complaint.

IV. CONCLUSION

For the foregoing reasons, we affirm the January 31, 2025, order from the

Circuit Court of Harrison County granting the respondents’ motions to dismiss.

Affirmed.

15