Brooks v. Galen of West Virginia, Inc.

• Decision Date: 19 April 2007
• Docket Number: No. 33207.,33207.
• Citation: 649 S.E.2d 272
• Parties: Eric Jason BROOKS, Plaintiff Below, Appellant v. GALEN OF WEST VIRGINIA, INC., D/B/A Greenbrier Valley Medical Center and Greenbrier Valley Medical Center, LLC, D/B/A Greenbrier Valley Medical Center, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

649 S.E.2d 272

Eric Jason BROOKS, Plaintiff Below, Appellant v.GALEN OF WEST VIRGINIA, INC., D/B/A Greenbrier Valley Medical Center and Greenbrier Valley Medical Center, LLC, D/B/A Greenbrier Valley Medical Center, Defendants Below, Appellees.

No. 33207.

Supreme Court of Appeals of West Virginia.

Submitted February 28, 2007.

Decided April 19, 2007.

Syllabus by the Court

1."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 v. St. Joseph's Hosp., 200 W.Va. 114, 488 S.E.2d 389(1997).

2."A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard."Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469(1998).

3."The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings.Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court.Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard."Syl. Pt. 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788(1995).

4."`Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3)the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4)the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.'Syllabus point 1, State v. Miller,194 W.Va. 3, 459 S.E.2d 114(1995)."Syl. Pt. 1, Haba v. The Big Arm Bar and Grill, Inc., 196 W.Va. 129, 468 S.E.2d 915(1996).

5."To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect."Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162(1996).

6."To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings."Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114(1995).

7."[The plain error] doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result."Syl. Pt. 4, in part, State v. England,180 W.Va. 342, 376 S.E.2d 548(1988).

8."An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect.In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice.The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings."Syl. Pt. 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613(1996).

9."The fact that a workers' compensation claimant has been awarded social security disability benefits is persuasive evidence that the claimant is permanently and totally disabled for workers' compensation purposes, and where social security disability is founded on work-related medical conditions that are substantially similar to those being asserted in connection with a workers' compensation claim for permanent total disability, the social security disability award should be given considerable weight."Syl. Pt. 4, Lambert v. Workers' Compensation Div., 211 W.Va. 436, 566 S.E.2d 573(2002).

10."In an action alleging unlawful discrimination under the West Virginia Human Rights Act, a trial court may, in its discretion, admit evidence from the record of a prior administrative proceeding held before the West Virginia Human Rights Commission.In making the admissibility determination, a trial court should consider whether the evidence sought to be introduced (1) contains legal conclusions in addition to its factual content; (2) raises questions of trustworthiness under W. Va. R. Evid. 803(8)(C);(3) presents problems cognizable under W. Va. R. Evid. 403; and (4) any other relevant factor."Syl. Pt. 3, McKenzie v. Carroll International Corp., 216 W.Va. 686, 610 S.E.2d 341(2004).

11."A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal."Syl. Pt. 1, Maples v. West Virginia Department of Commerce, 197 W.Va. 318, 475 S.E.2d 410(1996).

12."`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).

Richard E. Hardison, Jr., Beckley, for the Appellant.

William F. Foster, II, The Foster Law Firm, PLLC, Charleston, for the Appellees.

PER CURIAM:

This is an appeal by Eric Jason Brooks(hereinafter "Appellant") from a jury verdict in the Circuit Court of Greenbrier County in favor of Galen of West Virginia, d/b/a Greenbrier Valley Medical Center (hereinafter "GVMC" or "Appellee").The Appellant contends that the lower court erred by taking judicial notice of a Social Security disability hearing which found the Appellant disabled due to a somatoform disorder and in excluding the Appellant's allegations of deviations from the standard of care by GVMC emergency room physicians.Subsequent to thorough review of the briefs, record, arguments, and applicable precedent, this Court affirms the findings of the lower court.

I.Factual and Procedural History

On February 21, 2000, the Appellant arrived at GVMC complaining of acute abdominal pain.The Appellant was admitted to the hospital to rule out an appendicitis.Intraveneous (hereinafter "IV") fluids and medications were administered through the Appellant's left hand during his hospitalization.On February 23, 2000, the Appellant was discharged.He returned to the emergency room of GVMC several hours later with swelling and pain in his left hand and arm.He was diagnosed with phlebitis, an infection that occurs at an IV site after the IV is removed.On February 27, 2000, the Appellant returned to the emergency room for a second time.Subsequent to examination, he was instructed to elevate his arm and was diagnosed with superficial thrombophlebitis and questionable cellulitis.The Appellant returned to the emergency room on March 14, 2000, and he thereafter continuously sought treatment from numerous physicians and has been provided with a morphine pump for the treatment of continuing pain.

On February 14, 2002, the Appellant filed a civil action against GVMC, alleging negligence by GVMC physicians, nurse, agents, and employees in the improper insertion of an IV in the Appellant's arm, resulting in infiltration and the development of reflex sympathetic dystrophy (hereinafter "RSD"), a nerve disorder which creates a burning sensation in parts of the body.

In preparing for trial, the deposition of Dr. Thomas Furlow was conducted on October 6, 2004.A telephonic deposition of Dr. Furlow was conducted on March 9, 2005.On July 7, 2005, the Appellant's counsel informed the lower court that a medical negligence claim against GVMC's emergency room physicians would be pursued at the trial scheduled for August 22, 2005, and that such medical negligence claim would be pursued through the testimony of Dr. Furlow as a neurology expert.On July 13, 2005, GVMC filed a motion in limine seeking to excludethe Appellant's claims against emergency room physicians based upon the absence of expert testimony substantiating allegations of negligence, as required by West Virginia Code § 55-7B-7(1986)(Repl.Vol.2000),¹ a portion of the Medical Professional Liability Act.The lower court granted GVMC's motion in limine.

On August 18, 2005, this Court refused to issue a rule to show cause on the Appellant's requested writ of prohibition to prevent the lower court from enforcing its limiting order.On August 29, 2005, the jury returned a verdict for GVMC.The Appellant's motion to set aside the jury verdict and to award a new trial was denied on January 30, 2006.This appeal followed.

II.Standard of Review

This Court reviews a decision requiring expert testimony to prove claims of negligence under an abuse of discretion standard.In syllabus point eight of McGraw v. St. Joseph's Hospital,200 W.Va. 114, 488 S.E.2d 389(1997), this Court explained that "[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."See alsoDaniel v. Charleston Area Med. Ctr.,209 W.Va. 203, 544 S.E.2d 905(2001);Banfi v. American Hosp. for Rehabilitation,207 W.Va. 135, 529 S.E.2d 600(2000).

With regard to the allegation of error in the jury's receipt of evidence of the Social Security disability findings, this Court has consistently held that "[a]trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard."Syl. Pt. 4, ...