Belcher v. Charleston Area Medical Center

• Decision Date: 15 July 1992
• Docket Number: No. 20481,20481
• Court: West Virginia Supreme Court
• Parties: Larry D. BELCHER, Sr., Administrator of the Estate of Larry D. BELCHER, Jr., Deceased, Plaintiff Below, Appellant, v. CHARLESTON AREA MEDICAL CENTER, a Corporation, Charleston Pediatric Group, a West Virginia Corporation, and M.B. Ayoubi, M.D., Defendants Below, Appellees.

Page 827

422 S.E.2d 827

188 W.Va. 105

Larry D. BELCHER, Sr., Administrator of the Estate of Larry D. BELCHER, Jr., Deceased, Plaintiff Below, Appellant, v. CHARLESTON AREA MEDICAL CENTER, a Corporation, Charleston Pediatric Group, a West Virginia Corporation, and M.B. Ayoubi, M.D., Defendants Below, Appellees.

No. 20481.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1992.

Decided July 15, 1992.

Syllabus by the Court

1. "As a general rule, the conduct of trials and the order of introducing testimony, subject to well established rules of practice and procedure, rest within the sound discretion of the trial court, and that rule is applicable to the admissibility of evidence in rebuttal which could and should have been introduced by the plaintiff in chief." Syl. pt. 9, Edmiston v. Wilson, 146 W.Va. 511, 120 S.E.2d 491 (1961).

2. Under Rule 611(a) of the West Virginia Rules of Evidence, a trial court has broad discretion in permitting or excluding the admission of rebuttal testimony, and this Court will not disturb the ruling of a trial court on the admissibility of rebuttal evidence unless there has been an abuse of discretion.

3. "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 not an agent or employee of the hospital during the period in question." Syl. pt. 7, Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982).

4. Except in very extreme cases, a physician has no legal right to perform a procedure upon, or administer or withhold treatment from a patient without the patient's consent, nor upon a child without the consent of the child's parents or guardian, unless the child is a mature minor, in which case the child's consent would be required. Whether a child is a mature minor is a question of fact. Whether the child has the capacity to consent depends upon the age, ability, experience, education, training, and degree of maturity or judgment obtained by the child, as well as upon the conduct and demeanor of the child at the time of the procedure or treatment. The factual determination would also involve whether the minor has the capacity to appreciate the nature, risks, and consequences of the medical procedure to be performed, or the treatment to be administered or withheld. Where there is a conflict between the intentions of one or both parents and the minor, the physician's good faith assessment of the minor's maturity level would immunize him or her from liability for the failure to obtain parental consent. To the extent that Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492 (1922) and its progeny are inconsistent herewith, it is modified.

Gerald R. Lacy, Henry C. Bias, Jr., Charleston, for appellant.

Ralph C. Dusic, Jr., Karen Speidal Rodgers, Kay, Casto, Chaney, Love & Wise, Charleston, for appellee, Charleston Area Medical Center.

Stephen D. Annand, Paul L. Weber, Shuman, Annand & Poe, Charleston, for appellee, M.B. Ayoubi, M.D.

McHUGH, Chief Justice:

This case is before the Court upon the appeal of Larry Belcher, Sr., administrator of the estate of Larry Belcher, Jr., and plaintiff below, from the judgment of the Circuit Court of Kanawha County. ¹ The appellees, and defendants below, are Charleston Area Medical Center (CAMC), Charleston Pediatric Group, Inc., and M.B. Ayoubi, M.D.

I.

The decedent, Larry Belcher, Jr. (Larry), who was seventeen years and eight months old, suffered from muscular dystrophy, and was confined to a wheelchair. On December 19, 1986, Larry became choked and stopped breathing. His father, the appellant herein, removed mucus from the decedent's throat and, through mouth-to-mouth resuscitation, revived Larry. Larry was taken to Women & Children's Hospital, part of CAMC, by ambulance. Following an examination by the emergency room physicians, it was determined that Larry had a viral syndrome, or in laymen's terms, a "cold." According to the appellee Ayoubi, because of Larry's muscular dystrophy, the cold had an exaggerated effect on his condition.

Later that day, after being admitted to the hospital, Larry had another breathing failure, and was intubated, placed on a respirator, and transferred to the pediatric intensive care unit.

On December 22, 1986, Ayoubi discussed with the appellants the likelihood of Larry suffering another respiratory arrest and also discussed his (Ayoubi's) concern that Larry would become "respirator-dependent" if he were to remain on it. Furthermore, long-term respirator support would cause Larry's throat to swell shut, thus requiring a tracheotomy and feeding through a tube. Ayoubi also asked the appellants about whether they would want Larry subjected to resuscitative measures, including reintubation, in the event he suffered another respiratory failure.

The next morning, December 23, 1986, Ayoubi contends that the appellants indicated that they had not yet decided on whether Larry should be intubated and placed on a respirator again in the event of another breathing failure. Later that day, December 23, 1986, at 10:30 a.m., Larry was taken off the respirator and was extubated. Small doses of morphine sulphate were prescribed to relieve Larry's pain and anxiety. Ayoubi observed Larry becoming anxious and apprehensive as he was disconnected from the respirator. Ayoubi advised Larry that he could be reintubated, but Larry motioned his head "no," indicating that he did not want to be reintubated.

Later that day, December 23, 1986, the appellants told Ayoubi that they decided they did not want Larry reintubated or resuscitated unless Larry requested it. Accordingly, Ayoubi had the appellants sign a progress note stating that Larry was not to be reintubated or resuscitated in the event of a respiratory failure. ² The progress note was formalized into a "Do Not Resuscitate" order. ³

Larry was not involved in this decision because, as Ayoubi contends: (1) he was emotionally immature due to his disease; (2) he was on medication which diminished his capacity; (3) involving him in the decision would have increased his anxiety, thus reducing his chances of survival; and (4) Larry's parents told Ayoubi that they did not want Larry involved.

At 3:00 a.m. on December 24, 1986, Larry had another respiratory arrest, suffered cardiac failure, and died. The hospital staff attempted, within the limits of the "Do Not Resuscitate" order, to administer "precordial thumps," repositioned his head, and attempted to blow oxygen into his mouth, all to no avail.

The appellants filed this action for wrongful death, alleging medical malpractice, on September 16, 1988, in the Circuit Court of Kanawha County. Following trial, the jury returned a verdict in favor of the appellees.

In this appeal, the appellants raise issues involving: the circuit court's refusal to allow certain proffered rebuttal evidence; and the circuit court's refusal to allow the case to go to the jury on a theory that Larry should have been consulted prior to the issuance of the "Do Not Resuscitate" order, thus, recognizing the so-called "mature minor" exception to the common law rule of parental consent.

II.

A. Rebuttal Evidence

Primarily, the appellants contend that the circuit court committed error by refusing to allow rebuttal testimony by their medical expert, Dr. Kenneth Schonberg, a pediatrician who specializes in adolescent medicine.

The appellants focus on four areas in this regard: (1) Dr. Leon Charash testified for the defense, that in December, 1986, hospitals throughout the United States were not required to have a specific policy on "Do Not Resuscitate" orders. The appellants recalled Schonberg for the purpose of proving that Charash's statement was technically true, but misleading because there was a policy for all procedures (or non-procedures); (2) Dr. Potterfield testified for the defense that the morphine sulphate given to Larry did not harm him because the effects of that drug dissipate from the body within one-half to two hours, and since Larry died five hours after the morphine sulphate injections, then this prescription did him no harm. The appellants recalled Schonberg for the purpose of proving that the effect of the drug was cumulative due to Larry's illness; (3) Dr. Potterfield also testified that at the time of Larry's death, the law provided that only parental consent was necessary to perform an operation. The appellants recalled Schonberg to testify that the standard of care involved obtaining the consent of a mature minor as well as that of the parents, or, in the absence thereof, a court order; and (4) Dr. Ayoubi testified that he was not required to discuss with Larry or his parents the possibilities of long-term respirator support as an alternative to the "Do Not Resuscitate" order. The appellants recalled Schonberg for the purpose of testifying that such respirator support constituted a "reasonable alternative" and therefore, it should have been discussed.

We do not agree with the appellant's contentions in this regard. Rather, we agree with the appellees' argument, that the appellants' proffered rebuttal testimony merely amounts to an attempt to reopen their case, and the circuit court did not abuse its discretion in refusing to allow this testimony.

It is well established that the trial court has broad discretion in permitting or excluding evidence that is offered as rebuttal evidence. Moreover, the trial court's discretion is especially broad in the situation where the plaintiff's proffered rebuttal evidence is such that it could have and should have been part of its case-in-chief.

As a general rule, the conduct of trials and the order of introducing testimony, subject to well established rules of practice and procedure, rest within the sound...