Banfi v. American Hosp. for Rehabilitation, 26659.

• Citation: 207 W.Va. 135,529 S.E.2d 600
• Decision Date: 24 April 2000
• Docket Number: No. 26659.,26659.
• Court: Supreme Court of West Virginia
• Parties: Judy BANFI, Executrix of the Estate of Bertha Cunningham, Deceased, Plaintiff Below, Appellant, v. AMERICAN HOSPITAL FOR REHABILITATION, a Corporation, and Manjula Narayan, M.D., Defendants Below, Appellees.

529 S.E.2d 600
207 W.Va. 135

Judy BANFI, Executrix of the Estate of Bertha Cunningham, Deceased, Plaintiff Below, Appellant,
v.
AMERICAN HOSPITAL FOR REHABILITATION, a Corporation, and Manjula Narayan, M.D., Defendants Below, Appellees

No. 26659.

Supreme Court of Appeals of West Virginia.

Submitted February 22, 2000.

Decided April 24, 2000.

529 S.E.2d 602

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.

529 S.E.2d 601

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

529 S.E.2d 603

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

I.

FACTUAL AND PROCEDURAL HISTORY

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

529 S.E.2d 604

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 the Defendants breached the appropriate standard of care by failing to restrain, or order the restraint, of Bertha Cunningham.

Based upon the pleadings and evidence produced in this case, this Court is of the opinion that the decision of whether to restrain the patient or not is a medical decision, which requires the order of a physician.

The Court further f[ound] that there is no evidence that any physician ordered restraint, and that to prevail upon this case, the Plaintiff would need to show that the failure to order restraint for Bertha Cunningham was a deviation from the applicable standard of care.

It is further uncontested that the side rails on Bertha Cunningham's bed were raised when Ms. Cunningham got out of bed and subsequently fell.

The issue or issues of negligence against the respective defendants involve complex medical knowledge regarding the issuance of restraints or in the case against Dr. Narayan, the possible aggravation of a previous injury due to delay in treatment. Both of these matters require expert testimony.

This case does not involve negligence of such an apparent nature that it could be resolved without the use of expert testimony, therefore the Court is of the opinion that the case of McGraw v. St. Joseph's Hospital, [200 W.Va. 114] 488 S.E.2d 389 (W.Va.1997) does not apply.

Accordingly, the court granted the defendants' motions for summary judgment, ruling:

A. This case is a medical malpractice action involving complex medical decisions requiring the use of an expert under West Virginia law to provide the Court and jury

529 S.E.2d 605

with the appropriate standard of care to be met by the Defendants; [and]

B. The Plaintiff has failed to provide any expert to testify on her behalf with regard to the standard of care and therefore cannot establish a prima facie case against either Manjula Narayan, M.D. or American Hospital for Rehabilitation.

From this order, Banfi appeals to this Court.

II.

STANDARD OF REVIEW

The standard of review governing our decision of this case is two-fold. In reviewing the circuit court's order generally granting summary judgment, we employ a plenary review. "`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)." Syl. pt. 1, McGraw v. St. Joseph's Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997). However, with respect to the specific question of whether expert testimony is required to prove the claims of negligence asserted against the defendants, we review the circuit court's decision for an abuse of discretion. "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." Syl. pt. 8, McGraw, 200 W.Va. 114, 488 S.E.2d 389. Having stated the applicable standards of review, we now consider...