Catlett v. MacQueen, No. 17634

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM
Citation180 W.Va. 6,375 S.E.2d 184
PartiesKenwood Junior CATLETT v. Ian MacQUEEN v. Timothy D. BENNETT.
Decision Date10 November 1988
Docket NumberNo. 17634

Page 184

375 S.E.2d 184
180 W.Va. 6
Kenwood Junior CATLETT
v.
Ian MacQUEEN
v.
Timothy D. BENNETT.
No. 17634.
Supreme Court of Appeals of West Virginia.
Nov. 10, 1988.

Page 185

[180 W.Va. 7] Syllabus by the Court

1. " ' "Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983).' Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)." Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).

2. "An instruction which tends to mislead the jury is erroneous and should be refused." Syllabus Point 6, Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982).

3. " 'Except in very extreme cases, a surgeon has no legal right to operate upon a patient without his consent, nor upon a child without the consent of its parent or guardian.' Browning v. Hoffman, 90 W.Va. 568, 581, 111 S.E. 492, 497 (1922)." Syllabus Point 1, Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982).

4. "If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).

5. "Where conflicting theories of a case are presented by the evidence, each party is entitled to have his view of the case presented to the jury by proper instructions. Whitmore v. Rodes, 103 W.Va. 301 [137 S.E. 747 (1927) ]" Syllabus Point 2, Morris v. Parris, 110 W.Va. 102, 157 S.E. 40 (1931).

6. "Where a plaintiff in a malpractice case has demonstrated that a defendant's acts or omissions have increased the risk of harm to the plaintiff and that such increased risk of harm was a substantial factor in bringing about the ultimate injury to the plaintiff, then the defendant is liable for such ultimate injury." Syllabus Point 5, Thornton v. CAMC, --- W.Va. ----, 305 S.E.2d 316 (1983).

Charles A. Kiser, Martinsburg, Thomas A. Schultz, Jr., Harrison & Johnson, Winchester, for Kenwood Junior Catlett.

Gray Silver, III, Martinsburg, for Ian MacQueen.

Richard L. Douglas, Martinsburg, for Timothy Bennett.

PER CURIAM:

In this medical malpractice case, the plaintiff, Kenwood Junior Catlett, appeals a jury verdict rendered in favor of the defendant, Ian J. MacQueen, M.D. The plaintiff assigns as error the exclusion of three color photographs of his injuries, as well as instructional error. For the reasons discussed below, we find no error and affirm the judgment.

I.

On the morning of December 25, 1982, at approximately 3:30 a.m., the plaintiff was brought to the emergency room at the City Hospital in Martinsburg, suffering from injuries received about one hour earlier in an automobile accident. The plaintiff had been a passenger in a sports car driven by Timothy D. Bennett. While attempting to negotiate a curve at an excessive speed, Mr. Bennett lost control of the vehicle, which then spun across the road and crashed into a tree on the passenger's side.

As a result of the accident, the plaintiff received serious wounds to his feet which became contaminated with roadside dirt and other debris. Other less serious injuries included an abrasion on his right leg, lacerations on his right thigh, and a laceration on his right shoulder. After an emergency room physician and a nurse assessed the nature and extent of the injuries, the nurse called the defendant, who was the orthopedic surgeon on call. The defendant promptly came to the emergency room for the purpose of examining and treating the plaintiff. After the examination was completed, he discussed with the plaintiff the

Page 186

[180 W.Va. 8] nature of the injuries and his recommended course of treatment. 1

The plaintiff signed a consent form and was taken to one of the hospital's operating rooms. 2 There, the defendant performed debridement of the wounds, removing dead tissue, dirt, and other debris from the plaintiff's feet. As consented to by the plaintiff, the defendant amputated three smaller toes on the plaintiff's right foot. During the operative procedure, the defendant placed sutures in the wounds on both of the plaintiff's feet. The parties, and their respective experts, disagreed at trial as to whether sutures were needed, whether the sutures were loosely or tightly placed, whether the placement of the sutures adversely affected the plaintiff's prognosis, and whether more extensive procedures were indicated at the time.

The operation was completed at about 9:00 a.m. on December 25, and the plaintiff was taken from the recovery room to his room about two hours later. Over the next thirty-six hours, the condition of the plaintiff's feet worsened. The defendant then determined that an anaerobic infection 3 had developed in the plaintiff's right foot. After consultation with another orthopedic surgeon in Martinsburg, whose second opinion was requested by the plaintiff's wife, the defendant directed that the plaintiff be transferred by helicopter to the Shock Trauma Center operated by the University of Maryland at Baltimore.

The plaintiff arrived at the Maryland hospital, which was equipped with hyperbaric oxygen 4 for the treatment of anaerobic infections, at around midnight on December 26. The orthopedic surgeon who treated the plaintiff at the University of Maryland, Andrew R. Burgess, M.D., took several color photographs of the plaintiff's feet within about two hours of the plaintiff's arrival. Shortly thereafter, Dr. Burgess amputated the plaintiff's right foot at the ankle level and all of the toes of the plaintiff's left foot. Although the plaintiff's condition stabilized after the operation, Dr. Burgess found it necessary to perform a below-the-knee amputation of the plaintiff's right leg several days later so that the plaintiff could be fitted with a prosthetic device.

On September 7, 1984, the plaintiff filed a medical malpractice action against the defendant in the Circuit Court of Berkeley County. The complaint averred that, as a proximate result of negligent treatment by the defendant, the plaintiff sustained serious and permanent damages, including the loss of the toes of his left foot and the below-the-knee amputation of his right leg, loss of wages and future earning capacity, temporary and permanent disability, and past and future medical bills. The plaintiff

Page 187

[180 W.Va. 9] demanded judgment for two million dollars plus interest and costs.

The trial of this civil action began on January 21, 1986, and ended when the jury rendered its verdict in the defendant's favor shortly before midnight on January 25, 1986. On February 3, 1986, the circuit court entered a judgment order dismissing the plaintiff's action. The plaintiff then moved that the verdict be set aside and that a new trial be ordered. The trial judge refused the plaintiff's motions at a hearing held on March 24, 1986, and a formal order overruling the plaintiff's motions was entered by the trial court nunc pro tunc on September 29, 1986.

II.

The plaintiff first assigns as error the trial court's refusal to admit into evidence plaintiff's proffered Exhibit Nos. 5, 6, and 8. These exhibits were three photographs of the plaintiff's feet taken upon his arrival at the University of Maryland Shock Trauma Center, nearly forty-eight hours after the automobile accident. Two other photographs taken at the same time, Exhibit Nos. 4 and 7, were admitted into evidence by the trial court.

In a videotaped deposition taken prior to trial, Dr. Burgess, the orthopedic surgeon who performed the amputations, opined that the defendant was negligent in treating the plaintiff. Dr. Burgess contradicted the defendant as to the overall severity of the plaintiff's wounds and made two allegations of negligence against the defendant: (1) that the defendant created an environment favorable to the development of an anaerobic infection by suturing the plaintiff's foot wounds; and (2) that, in order to preserve the soft tissue of the plaintiff's left foot, the defendant should have performed a fasciotomy of the foot to vent pressure and improve circulation therein. 5 Dr. Burgess concluded that the defendant's actions and omissions were substantial factors in increasing the plaintiff's ultimate level of amputation.

The trial court ruled that the videotaped version of Dr. Burgess' testimony could not be admitted into evidence due to technical problems with the videotape. The trial court did, however, admit the transcript of the deposition into evidence after ruling upon the defendant's objections thereto. The most significant of these objections related to introduction of the color photographs of the plaintiff's feet which were referred to, in differing degrees, by Dr. Burgess during his testimony. After reviewing the photographs...

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12 practice notes
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137......
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...entirely on such theory.' Syllabus Point 2, Snedecker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 7. "Prejudgment interest, according to West Virginia Code § 56-6-31 (1981) and the decisions of this Court interpreting that......
  • Craighead v. Norfolk and Western Ry. Co., No. 22946
    • United States
    • Supreme Court of West Virginia
    • July 5, 1996
    ...entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137......
  • Wal-Mart Stores E., L.P. v. Ankrom, No. 19-0666
    • United States
    • Supreme Court of West Virginia
    • November 18, 2020
    ...entirely on such theory.’ Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).’ Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137......
  • Request a trial to view additional results
12 cases
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137......
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...entirely on such theory.' Syllabus Point 2, Snedecker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 7. "Prejudgment interest, according to West Virginia Code § 56-6-31 (1981) and the decisions of this Court interpreting that......
  • Craighead v. Norfolk and Western Ry. Co., No. 22946
    • United States
    • Supreme Court of West Virginia
    • July 5, 1996
    ...entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137......
  • Wal-Mart Stores E., L.P. v. Ankrom, No. 19-0666
    • United States
    • Supreme Court of West Virginia
    • November 18, 2020
    ...entirely on such theory.’ Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).’ Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137......
  • Request a trial to view additional results

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