Calhoun v. Traylor

• Decision Date: 16 December 2005
• Docket Number: No. 32526.,32526.
• Citation: 624 S.E.2d 501
• Court: West Virginia Supreme Court
• Parties: Barbara CALHOUN, Individually and as the Executrix of the Estate of Robert L. Calhoun, Plaintiff Below, Appellant v. Jack R. TRAYLOR, Jr., M.D., an Individual; Tri-State Surgical Group, a Partnership; Robert E. Turner, M.D., an Individual; Ultimate Health Services, Inc., a West Virginia Corporation, D/B/A Huntington Internal Medicine Group; Denise Chambers, an Individual; and River Cities Anesthesia, Inc., a West Virginia Corporation, Defendants Below, Appellees.

624 S.E.2d 501

Barbara CALHOUN, Individually and as the Executrix of the Estate of Robert L. Calhoun, Plaintiff Below, Appellant v. Jack R. TRAYLOR, Jr., M.D., an Individual; Tri-State Surgical Group, a Partnership; Robert E. Turner, M.D., an Individual; Ultimate Health Services, Inc., a West Virginia Corporation, D/B/A Huntington Internal Medicine Group; Denise Chambers, an Individual; and River Cities Anesthesia, Inc., a West Virginia Corporation, Defendants Below, Appellees.

No. 32526.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 2005.

Decided November 17, 2005.

Concurring Opinion of Justice Davis December 6, 2005.

Concurring and Dissenting Opinion of Justice Starcher December 16, 2005.

Syllabus by the Court

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).

2. "The question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined." Syl. Pt. 5, Aetna Cas. & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. "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).

4. "`"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

5. "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).

6. "To defeat summary judgment, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained. To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain." Syl. Pt. 4, Kiser v. Caudill, 215 W.Va. 403, 599 S.E.2d 826 (2004).

Gerard R. Stowers, J. Mark Adkins, Bowles Rice McDavid Graff & Love, L.L.P., Charleston, for the Appellant.

Don R. Sensabough, Jr., Jeffrey M. Wakefield, Elizabeth S. Cimino, Flaherty, Sensabaugh & Bonasso, P.L.L.C., Charleston, for the Appellees, Jack R. Traylor, Jr., M.D. and Tri-State Surgical Group.

Michael J. Farrell, Tamela J. White, Neisha Ellis Brown, Farrell, Farrell & Farrell, L.C., Huntington, for the Appellees, Robert E. Turner, M.D. and Denise Chambers.

Thomas J. Hurney, Jr., Jeff C. Woods, Jackson Kelly, P.L.L.C., Charleston, for the Appellee, River Cities Anesthesia, Inc.

PER CURIAM:

This is an appeal by Barbara Calhoun (hereinafter "Appellant"), individually and as executrix of the estate of her deceased husband, Robert Calhoun, from an order of the Circuit Court of Cabell County granting partial summary judgment in favor of the Appellees/defendants in the underlying medical malpractice action.¹ The lower court premised the partial summary judgment upon its finding that a supplemental report submitted by one of the Appellant's experts, Dr. Paul vonRyll Gryska, did not satisfy the requirement that the Appellants must present expert testimony stating that the standard of care had been breached in the post-surgical care of the decedent. The Appellant maintains that the lower court erred by refusing to consider Dr. Gryska's affidavit and by granting partial summary judgment in favor of the Appellees. Having thoroughly reviewed the record, briefs, and applicable precedent, this Court affirms the decision of the lower court.

I. Factual and Procedural History

On May 12, 1997, Mr. Robert Calhoun was evaluated by Dr. Jack Traylor regarding possible hernia surgery. Previously undiagnosed hypertension was discovered, and blood pressure medication was initiated. On May 27, 1997, laparoscopic hernia surgery was performed, despite the existence of continued high blood pressure. On May 29, 1997, Mr. Calhoun suffered a stroke, paralyzing his speech and the left side of his body.

By late June 1997, Mr. Calhoun's wife, Appellant Barbara Calhoun, contacted another physician, Dr. David Denning, to examine Mr. Calhoun in an effort to determine the source of his continuing medical difficulties. Dr. Denning discovered that Mr. Calhoun had suffered a bowel perforation that had previously been undiagnosed. Emergency bowel surgery was performed by Dr. Denning, and a colostomy and feeding tube were installed.

On May 12, 1999, Mr. and Mrs. Calhoun filed a medical malpractice civil action against the Appellees, alleging (1) negligence in the performance of surgery despite elevated blood pressure; and (2) failure to diagnose and treat the perforated bowel during post-stroke hospitalization. On July 5, 2000, Mr. Calhoun died, and a wrongful death claim was thereafter added to the civil action. The Amended Complaint alleged medical malpractice in the treatment of Mr. Calhoun prior to the surgery, during the surgery, and the post-surgical care by failing to timely diagnose and treat resulting infections.

The deposition of Dr. Gryska was taken on December 16, 2003. In that deposition, Dr. Gryska indicated that there had been a deviation from standard of care in the initial decision to perform surgery. However, Dr. Gryska would not say that there was a deviation from the standard of care in the post-surgical treatment of Mr. Calhoun. Motions for partial summary judgment were thereafter filed by the Appellees based upon the absence of expert testimony that there was a deviation from the standard of care in the post-surgical period.

Dr. Denning, the physician who had performed the bowel surgery, was deposed on February 10, 2004. In his deposition, Dr. Denning explained the necessity for the abdominal surgery, indicating that tests had shown the presence of free air in the abdomen and ruptured diverticula. Dr. Denning declined to state that there had been a deviation from the standard of care in the post-surgical treatment. By supplemental affidavit dated February 29, 2004, and based upon Dr. Denning's explanations, Dr. Gryska altered his original position and asserted that indeed there had been a deviation from the standard of care in the post-surgical care, regarding the abdominal complications and the requirement for bowel surgery.

In assessing the partial summary judgment motions, the lower court refused to consider the supplemental affidavit of Dr. Gryska and granted partial summary judgment to the Appellees, finding that the Appellant had failed to present expert testimony that there had been a deviation from the standard of care by any of the Appellees in the post-surgical treatment of Mr. Calhoun. The lower court disregarded Dr. Gryska's supplemental affidavit based upon the guidance of the Fourth Circuit Court of Appeals in Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970 (4th Cir.1990), discussed in detail below. The Appellant now appeals to this Court.

II. Standard of Review

This Court has consistently held that "[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). In syllabus point five of Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court stated that "[t]he question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined." With specific emphasis on medical malpractice issues, this Court has also stated 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." Syl. Pt. 8, McGraw v. St. Joseph's Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997). This Court also pointed out in Neary v. Charleston Area Medical Center, Inc., 194 W.Va. 329, 460 S.E.2d 464 (1995) that "[w]hen the principles of summary judgment are applied in a medical malpractice case, one of the threshold questions is the existence of expert witnesses opining the alleged negligence." 194 W.Va. at 334, 460 S.E.2d at 469.

This Court has also expressed that under Rule 56(c) of the West Virginia Rules of Civil Procedure, "`"[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). In order to prevail on a motion for summary judgment, the movant must...