Torrence v. Kusminsky

• Decision Date: 29 July 1991
• Docket Number: Nos. 19864,19865,s. 19864
• Citation: 408 S.E.2d 684,185 W.Va. 734
• Court: West Virginia Supreme Court
• Parties: Mary E. TORRENCE, Plaintiff Below, Appellee, v. Roberto E. KUSMINSKY, Charleston Area Medical Center, David Maxwell Gray, Jean A. Bjorling, and Unknown Physician Consultant, Defendants Below, Charleston Area Medical Center, David Maxwell Gray, Jean A. Bjorling, and Unknown Physician Consultant, Appellants. Mary E. TORRENCE, Appellee, v. Roberto E. KUSMINSKY, Charleston Area Medical Center, David Maxwell Gray, Jean A. Bjorling, and Unknown Physician Consultant, Defendants Below, Roberto E. Kusminsky, Appellant.

Page 684

408 S.E.2d 684

185 W.Va. 734

Mary E. TORRENCE, Plaintiff Below, Appellee, v. Roberto E. KUSMINSKY, Charleston Area Medical Center, David

Maxwell Gray, Jean A. Bjorling, and Unknown

Physician Consultant, Defendants Below,

Charleston Area Medical Center, David Maxwell Gray, Jean A.

Bjorling, and Unknown Physician Consultant, Appellants.

Mary E. TORRENCE, Appellee, v. Roberto E. KUSMINSKY, Charleston Area Medical Center, David

Maxwell Gray, Jean A. Bjorling, and Unknown

Physician Consultant, Defendants Below,

Roberto E. Kusminsky, Appellant.

Nos. 19864, 19865.

Supreme Court of Appeals of

West Virginia.

Submitted May 15, 1991.

Decided July 29, 1991.

Syllabus by the Court

1. Where a hospital makes emergency room treatment available to serve the public as an integral part of its facilities, the hospital is estopped to deny that the physicians and other medical personnel on duty providing treatment are its agents. Regardless of any contractual arrangements with so-called independent contractors, the hospital is liable to the injured patient for acts of malpractice committed in its emergency room, so long as the requisite proximate cause and damages are present.

2. "The exclusion of a juror for insufficient cause is not reversible error if the twelve jurors who are finally chosen to try the case are legally qualified." Syllabus Point 2, Ritz v. Kingdon, 139 W.Va. 189, 79 S.E.2d 123 (1953), overruled on other grounds, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955).

3. " ' "Jurors may be questioned on their voir dire not only for the purpose of showing cause for a challenge, but also, within reasonable limits, to elicit such facts as enable the parties to exercise intelligently their right of peremptory challenge. The nature and extent of the examination, however, should be left largely to the discretion of the trial court." State v. Stonestreet, Point 1 Syllabus, 112 W.Va. 668 [166 S.E. 378 (1932) ].' Syl. pt. 4, Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186 (1961)." Syllabus Point 1, McCroskey v. Proctor, 175 W.Va. 345, 332 S.E.2d 646 (1985).

4. "A statement is not hearsay if the statement is offered against a party and is a statement by his [or her] agent or servant concerning a matter within the scope of his [or her] agency or employment, made during the existence of the relationship. W.Va.R.Evid. 801(d)(2)(D)." Syllabus Point 3, Canterbury v. West Virginia Human Rights Commission, 181 W.Va. 285, 382 S.E.2d 338 (1989).

5. "Where not required by statute, special interrogatories in aid of a general verdict should be used cautiously and only to clarify rather than to obfuscate the issues involved." Syllabus Point 16, Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 207 S.E.2d 897 (1974).

6. " 'Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.' Syl. pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977)." Syllabus Point 5, Roberts v. Stevens Clinic Hospital, 176 W.Va. 492, 345 S.E.2d 791 (1986).

7. "A judgment will not be reversed because of the admission of improper or irrelevant evidence when it is clear that the verdict of the jury could not have been affected thereby." Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28 (1918).

8. "If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal." Syllabus Point 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980).

9. "A party cannot complain of admission of an answer responsive to a question propounded to a witness, by himself, on cross-examination." Syllabus Point 13, Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492 (1922).

Rudolph L. di Trapano, Melissa M. Hambrick, Lonnie C. Simmons, Di Trapano & Jackson, Charleston, W.Va., for appellee Mary E. Torrence.

David L. Shuman, J. Victor Flanagan, Shuman, Annand & Poe, Charleston, W.Va., for appellant Roberto E. Kusminsky.

Ralph C. Dusic, Jr., Carol P. Smith, Kay, Casto, Chaney, Love & Wise, Charleston, W.Va., for appellants Charleston Area Medical Center, David Maxwell Gray, Jean A. Bjorling, and Unknown Physician Consultant.

MILLER, Chief Justice:

Dr. Roberto E. Kusminsky and Charleston Area Medical Center (CAMC) ¹ appeal a final order of the Circuit Court of Kanawha County, dated November 27, 1989, which denied their motions for judgment notwithstanding the verdict, for a new trial, and for alteration or amendment of the judgment. We affirm the circuit court's final order. ²

I.

At approximately 9:00 p.m. on August 27, 1980, Mary Torrence went to the emergency room at CAMC complaining of severe abdominal pain. Because Ms. Torrence did not have her own surgeon, she was admitted as a surgical service patient. Surgical service is a teaching service for residents at the hospital. Under this program, residents gain experience and training while working on emergency room patients. ³ The program had several physicians, including Dr. Kusminsky, who supervised these residents on a daily basis. Moreover, the supervising physicians had to be on-call for the emergency room on a rotational basis.

Ms. Torrence was initially seen by Dr. David Maxwell Gray, a first-year resident, and Dr. Jean Bjorling, the chief resident of general surgery. ⁴ The two residents took Ms. Torrence's medical history, examined her, and ordered a series of tests. After receiving the results of these tests, both doctors concluded that Ms. Torrence had appendicitis and needed an immediate operation.

Because Dr. Gray and Dr. Bjorling were still in training, the hospital's policy required that they notify the supervising physician on-call before they operated. Indeed, the hospital policy required that there be a licensed physician in attendance during all surgical procedures. After being notified, Dr. Kusminsky apparently agreed with the students' diagnosis and immediately came to the hospital to assist in the surgery.

In the early-morning hours of August 28, 1980, Mary Torrence underwent an exploratory laparotomy, ⁵ which was performed by Dr. Kusminsky and assisted by Dr. Bjorling and Dr. Gray. After examining the appendix and a small section of Ms. Torrence's bowel, the doctors observed a brownish fluid in her abdomen. Noting that such a condition was unusual, the surgeons extended their incision so that they could explore the ovaries.

Sometime after the incision was lengthened, a third resident physician, Dr. Wayne Heinessen, the chief resident of obstetrics and gynecology, was called into the operating room. ⁶ Dr. Heinessen agreed with Dr. Kusminsky that Ms. Torrence had a ruptured corpus luteum cyst and that no treatment of the ovaries was necessary. ⁷ Although Ms. Torrence did not have appendicitis, the doctors removed her appendix, apparently in conformity with standard medical procedure.

Ms. Torrence remained in the hospital until September 1, 1980. On the evening following her release, she once again suffered severe abdominal pain and began to vomit profusely. The next day she was readmitted into the hospital. Following a series of unavailing conservative treatments, ⁸ Ms. Torrence retained the services of another physician, Dr. James Kessell. Upon examining Ms. Torrence, Dr. Kessell found her to be extremely dehydrated and immediately ordered a second surgery.

During the second operation, Dr. Kessell found adhesions so dense that they had obstructed Ms. Torrence's bowel. Moreover, a biopsy revealed that Ms. Torrence suffered from endometriosis. ⁹ Dr. Kessell observed old blood near where the appendix had been. ¹⁰ Dr. Kessell testified that blood can promote the adhesions. Dr. Kessell removed the adhesions and resected the bowel. He also lavaged her abdomen to remove all of the old blood.

On August 27, 1982, Ms. Torrence sued the appellees for medical malpractice. She contended that they failed to properly diagnose her endometriosis and that she received improper medical treatment. Following an eight-day trial, the jury returned a verdict of $207,000. Moreover, the jury found CAMC 60 percent negligent and Dr. Kusminsky 40 percent negligent. We first consider CAMC's assertions of error.

II.

A.

The chief error urged by CAMC was that the trial court erred in refusing to instruct the jury that Dr. Kusminsky was an independent contractor. Because he was an independent contractor, CAMC argues that it could not be liable for his negligence. In support of its contention that Dr. Kusminsky was an independent contractor, the hospital notes: he was not an employee of CAMC, but rather was an employee of West Virginia University; he received no compensation from CAMC; and his patients were billed for his services through the University health service. Moreover, CAMC asserts that Ms. Torrence chose Dr. Kusminsky as her surgeon.

Thus, CAMC relies on Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982), where we held that a hospital is not liable for the negligent acts of a patient's privately retained physician. At issue in Cross was whether the patient consented to an operation performed by his privately retained doctor. In Syllabus Point 7 of Cross, we held that the negligent acts of a privately retained doctor are not generally imputed to the hospital where he operates or treats the patient:

"When a patient asserts that a particular method of medical treatment, such as surgery, was performed by the patient's privately retained physician without the patient's consent, the hospital where that treatment was performed will ordinarily not be held liable to the patient upon the consent issue, where the physician involved was...