Beto v. Stewart
| Decision Date | 17 April 2003 |
| Docket Number | No. 30631.,30631. |
| Court | West Virginia Supreme Court |
| Parties | Michelle M. BETO, Plaintiff Below, Appellant, v. Daniel H. STEWART, M.D., Defendant Below, Appellee, and P. Gregory Haddad, Intervenor. |
David J. Romano, Esq., Christine Jones Pacyna, Esq., Romano Law Office, Clarksburg, for Appellant.
Beth A. Raffle, Esq., Steptoe & Johnson PLLC, Morgantown, Ancil A. Ramey, Esq., Steptoe & Johnson PLLC, Charleston, for Appellee.
Rebecca A. Betts, Esq., Allen Guthrie & McHugh, Charleston, for Intervenor.
The appellant, Michele M. Beto, appeals the order of the Circuit Court of Harrison County which found no obstruction of the discovery process by the appellee, Dr. Daniel H. Stewart, or his attorney, P. Gregory Haddad, in the underlying medical malpractice action. Ms. Beto avers that Attorney Haddad attempted to conceal material evidence and argues the circuit court abused its discretion by concluding that no discovery obstruction occurred. She also believes the circuit court erred by deciding the collateral issue in an in camera proceeding. We find no abuse of the discovery process.
I.
On February 11, 1998, Dr. Stewart surgically removed three perineal cysts from Ms. Beto's right groin area.1 The surgery did not involve her left leg. Nonetheless, immediately following surgery, Ms. Beto's left lower leg and foot were numb. During her hospitalization, the condition in her left leg and foot did not improve. Ms. Beto's doctors determined that she was suffering from "left-sided sciatica neuropathy related to operative positioning in the lithotomy position." In other words, she sustained a nerve injury which left her with a dropped left foot. After going through treatment at the Cleveland Clinic and physical therapy, Ms. Beto's condition improved. However, her left foot and leg are permanently impaired.
Ms. Beto sued United Hospital Center, Dr. Stewart, and the nurse anesthetist who participated in the surgery, alleging medical malpractice. The hospital and the nurse anesthetist settled with Ms. Beto pre-trial. Ms. Beto proceeded to trial against Dr. Stewart. She criticized two aspects of Dr. Stewart's care: (1) his use of the lithotomy or frog-leg position; and (2) the fact that he utilized no padding beyond that which is built into the operating table. The jury returned a verdict in favor of Ms. Beto in the amount of $714,000.00. Dr. Stewart petitioned this Court for review of the jury verdict. His petition was denied on March 13, 2002.
The collateral issue, discovery obstruction, which is the crux of this appeal, revolves around the failure to utilize additional padding during the surgical procedure. The operative report written by Dr. Stewart is silent as to whether lateral padding was used during surgery, and Dr. Stewart has never contended that additional padding was utilized. Shortly after the surgical procedure was performed, Dr. Stewart wrote two letters to his professional liability insurance carrier, The Doctors Company (TDC),2 delineating the facts surrounding Ms. Beto's surgery because he believed the incident would result in litigation. On March 12, 1998, Dr. Stewart wrote, inter alia, On March 20, 1998, Dr. Stewart explained that Ms. Beto was seeking a second opinion at the Cleveland Clinic and that she declined his advice to seek care at a pain clinic. The use of padding, or lack thereof, was not mentioned in this letter.
On March 29, 2000, Ms. Beto served on Dr. Stewart a "Notice of Videotaped Depositions and Production of Documents." Attached was a request for production of documents which asked the medical records custodian to provide:
Any and all documents or tangible items of whatever kind or nature which in any manner relate to the diagnosis or treatment provided to Plaintiff, Michele M. Beto, which is the subject of this Civil Action, including, but not limited to, any personal notes or diaries, memoranda, correspondence, medical records, or any other such items, INCLUDING ANY MEDICAL RECORDS OR OTHER DOCUMENTS RECEIVED FROM ANY HOSPITAL, CLINIC, PHYSICIAN, OR INDIVIDUAL, OR ANY OTHER SUCH ENTITY. This request is to be construed broadly to include any and all documents or tangible items that might in any way relate to this case involving Michele M. Beto, and the record custodian should err on the side of producing any documents as opposed to withholding any such documents or tangible items that might be considered not within the scope of this request.
Any privilege which might be asserted to prevent documents or tangible items from being discovered was to be made known at the April 4, 2000 deposition.
Neither Dr. Stewart nor his records custodian appeared for the deposition. A subsequent notice of deposition with production of documents was served on May 11, 2000; the deposition was rescheduled for May 19, 2000. In response, Dr. Stewart submitted to Ms. Beto an affidavit with documents attached. Because she could find no reference in these documents relating to whether lateral padding was used during her surgery, Ms. Beto requested that a telephone deposition of the records custodian, Kim Eplin, be conducted. During the deposition, Ms. Eplin failed to identify the two letters. Ms. Beto contends that Attorney Haddad was aware that the letters existed at the time the deposition of the records custodian was conducted, but he chose to remain silent. She believes that he intentionally chose not to correct or clarify Ms. Eplin's inaccurate testimony.
On June 16, 2000, during Dr. Stewart's deposition, the doctor acknowledged that he had summarized the circumstances surrounding Ms. Beto's surgery in letter form and had mailed the letters to his insurer. Ms. Beto later learned that on this same date, June 16, 2000, Attorney Haddad called Michelle Bennett, a claims representative for TDC, to ask if the insurance company had the letters and if copies could be sent to him. Ms. Bennett informed "Mr. Haddad that before these letters could be sent to him, we would need a letter from him explaining the circumstances and why he wanted them, along with a copy of the Complaint filed in this action." Ms. Beto contends that after Dr. Stewart and Attorney Haddad became aware that copies of the letters could be obtained, they denied having this knowledge. However, she admits that Dr. Stewart asserted the work product doctrine to protect the letters from discovery.
Ms. Beto claims that before the documents were finally produced, she sent six notices of deposition and production of documents to Dr. Stewart. The circuit court referred the matter of the letters to a discovery commissioner. The commissioner scheduled a hearing for October 24, 2000. After listening to counsels' arguments, the discovery commissioner declined to rule on the merits of the dispute. Instead of making a determination regarding whether the documents were protected by the work product privilege, the commissioner recommended that the letters be produced based on waiver of the claimed privilege. The commissioner's recommended order specifically states that the privilege was The circuit court entered the recommended order on November 6, 2000. However, the documents were not produced at that time because Dr. Stewart filed a motion to hold the court's order in abeyance pending petition to this Court. Also, Dr. Stewart and TDC filed a motion to reconsider or, in the alternative, to make findings of fact and conclusions of law.
In the meantime, before the circuit court entered the discovery commissioner's recommended order, Ms. Beto moved for sanctions and a finding of contempt and discovery obstruction based upon her characterization of Dr. Stewart's delay in identifying and producing the letters. She also requested attorney fees and costs for the time expended in seeking production of the withheld documents. These motions were transferred to the discovery commissioner. In his recommended order, the commissioner found that Dr. Stewart did not obstruct the discovery process; deferred his ruling regarding whether Attorney Haddad obstructed the discovery process until the commissioner could be briefed by counsel; and deferred to the circuit court the ruling on discovery sanctions. The circuit court entered the recommended order on January 3, 2001.
The circuit court held its own hearing on the contempt and obstruction motions on January 23, 2001. By order entered on February 2, 2001, the court directed that the motion to hold Dr. Stewart in contempt be held in abeyance until the trial in this matter was completed; that the letters written from Dr. Stewart to his insurance company be furnished to Ms. Beto's counsel; and that Dr. Stewart pay Ms. Beto $5,197.50 as attorney's fees and costs for 34.65 hours of work expended seeking production of the letters. The letters were produced that day. In light of the approaching trial date of March 5, 2001, the parties agreed that the circuit court would retain jurisdiction over the matter of whether Attorney Haddad obstructed discovery. That particular issue would be resolved following completion of the trial.
On July 24, 2001, the circuit court ordered that all...
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