Banfi v. Amer. Hospital for Rehab., 26659

CourtSupreme Court of West Virginia
Decision Date24 April 2000
Docket Number26659

Appeal from the Circuit Court of Cabell County

Honorable John L. Cummings, Judge, Civil Action No. 94-C-642


1."'A circuit court's entry of summary judgment is reviewed de novo.' Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." Syllabus point 1, McGraw v. St. Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997).

2."A trial court is vested with discretion under W. Va. Code 55-7B-7 (1986) to require expert testimony in medical professional liability cases, and absent an abuse of that discretion, a trial court's decision will not be disturbed on appeal." Syllabus point 8, McGraw v. St. Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997).

3."'"It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses." Syl. pt. 2, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964).' Syl. Pt. 1, Farley v. Meadows, 185 W. Va. 48, 404 S.E.2d 537 (1991)." Syllabus point 5, McGraw v. St. Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997).

4."'In medical malpractice cases where lack of care or want of skill is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience, failure to present expert testimony on the accepted standard of care and degree of skill under such circumstances is not fatal to a plaintiff's prima facie showing of negligence.' Syl. Pt. 4, Totten v. Adongay, 175 W. Va. 634, 337 S.E.2d 2 (1985)." Syllabus point 6, McGraw v. St. Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997).

5."The standard of nonmedical, administrative, ministerial or routine care in a hospital need not be established by expert testimony, because the jury is competent from its own experience to determine and apply a reasonable care standard." Syllabus point 9, McGraw v. St. Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997).

6."Roughly stated, a 'genuine issue' for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed 'material' facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law." Syllabus point 5, Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451 (1995).

7."If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact." Syllabus point 4, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

Thomas M. Plymale Plymale Law Office Wayne, West Virginia Attorney for the Appellant
William L. Mundy Debra A. Nelson Mundy & Adkins Huntington, West Virginia Attorneys for the Appellee, American Hospital for Rehabilitation

D.C. Offutt, Jr. Sonja L. Carpenter Offutt, Fisher & Nord Huntington, West Virginia Attorneys for the Appellee, Manjula Narayan, M.D.


The Opinion of the Court was delivered PER CURIAM.

Per Curiam:

The appellant herein, and plaintiff below, Judy Banfi [hereinafter "Banfi"], as executrix of the estate of Bertha Cunningham [hereinafter "Mrs. Cunningham" or "the decedent"], 1 appeals from an order entered February 25, 1999, by the Circuit Court of Cabell County. In that order, the court granted summary judgment to the appellees herein, and defendants below, American Hospital for Rehabilitation [hereinafter "American Hospital"] and Manjula Narayan, M.D. [hereinafter "Dr. Narayan"], 2 based upon Banfi's failure to produce expert testimony in support of her claims of medical negligence asserted against these defendants. On appeal to this Court, Banfi complains that the circuit court erred by (1) requiring her to produce expert testimony regarding the defendants' culpability for a fall Mrs. Cunningham sustained while she was a patient of American Hospital and (2) granting summary judgment when there exists a genuine issue of material fact concerning the circumstances surrounding the decedent's fall. Having reviewed the parties' arguments, the appellate record, and the pertinent authorities, we find that the circuit court did not err by ruling that expert testimony is required to determine the defendants' negligence in failing to restrain Mrs. Cunningham and in diagnosing and treating her injuries following her fall. We also find, however, that the circuit court erroneously decided that our prior decision in McGraw v. St. Joseph's Hospital, 200 W. Va. 114, 488 S.E.2d 389 (1997), does not apply to Banfi's claim that the defendants were negligent by not preventing Mrs. Cunningham's fall. In addition, we conclude that the circuit court improperly granted summary judgment to the defendants on the fall prevention claim when there exists a genuine issue of material fact as to this incident. Accordingly, we affirm, in part, and reverse, in part, the order of the Circuit Court of Cabell County and remand this case for further proceedings consistent with this opinion.


The majority of facts underlying the instant appeal are generally not disputed by the parties. Mrs. Cunningham suffered a stroke in 1992. After treatment therefor at St. Mary's Hospital, she was transferred to American Hospital, on September 9, 1992, as a result of her weakened condition. 3 Upon her admission to American Hospital, Mrs. Cunningham was evaluated by various medical personnel. Dr. Narayan, 4 to whose care Mrs. Cunningham was assigned upon her admission, observed that Mrs. Cunningham's rehabilitation would focus on improvement of her safety awareness, judgment, and communicative abilities. The doctor also informed Mrs. Cunningham that she was not permitted to get out of bed without assistance and instructed hospital staff to transfer Mrs. Cunningham in all of her movements. Dr. Narayan did not, however, specifically order direct observation or restraint of Mrs. Cunningham. Similarly, Laurie Mills [hereinafter "Nurse Mills"], a registered nurse employed by American Hospital, evaluated Mrs. Cunningham's condition at the time of her admission and noted that the patient's safety would be a concern. Finally, a physical therapy initial evaluation, conducted by Mary Alice Pullen, who was also a hospital employee, indicated that Mrs. Cunningham was impulsive, had problems with safety awareness and balance, infrequently stumbled, and would require assistance in all of her ambulatory activities.

Thereafter, on September 14, 1992, Nurse Mills found Mrs. Cunningham lying on the floor of her room's bathroom around 3:50 a.m. The accounts of how Mrs. Cunningham came to be in this position vary. Morris Cunningham [hereinafter "Mr. Cunningham"], Mrs. Cunningham's husband, testified that, according to his wife, she had repeatedly requested assistance to travel to the bathroom, but her calls were not answered. She then walked to the bathroom unassisted and fell. This account allegedly is corroborated by a social worker for St. Mary's Hospital where Mrs. Cunningham was taken later that morning for treatment of a fractured right hip, which was surgically repaired the next day. 5 By contrast, Nurse Mills reported that she heard a noise and, upon going to Mrs. Cunningham's room, found her on the floor of her bathroom. The nurse also indicated that Mrs. Cunningham was apologetic because she knew she had been instructed not to get out of bed without assistance, but claimed that she did not call for help because she did not want to bother anyone. 6

As a result of Mrs. Cunningham's resultant injuries, Mr. Cunningham, as his wife's attorney-in-fact and next friend, 7 filed a civil action in the Circuit Court of Cabell County on September 13, 1994, alleging that American Hospital and Dr. Narayan had been negligent in their care and treatment of her and that they had failed to provide for her safety. Following Mrs. Cunningham's death, 8 her action was pursued by Judy Banfi [hereinafter "Banfi"], as executrix of the decedent's estate. 9 More specifically, Banfi contends that the defendant hospital was negligent in failing to adequately train its personnel to provide for Mrs. Cunningham's safety by restraining and supervising her and in not instructing its personnel regarding proper treatment of injuries. Likewise, Banfi avers that Dr. Narayan negligently failed to order Mrs. Cunningham's restraint and supervision and to diagnose and treat her injuries following her fall. Following discovery, both defendants filed motions for summary judgment alleging that they were entitled to judgment as a matter of law because Banfi had not produced an expert witness to testify as to the applicable standard of care and the defendants' failure to meet said standard, as required by W. Va. Code 55-7B-7 (1986). 10 By order entered February 25, 1999, the circuit court:

f[ound] that this case is governed by the West Virginia Medical Professional Liability Act as found in Chapter 55, Article 7b of the West Virginia Code.

Plaintiff in this case has produced no expert to establish that either American Hospital for Rehabilitation or Manjula Narayan, M.D. breached the appropriate standard of care in their treatment of Bertha Cunningham, Plaintiff's decedent.

Plaintiff alleges that...

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