Dellinger v. Pediatrix Med. Grp., P.C.

• Decision Date: 25 October 2013
• Docket Number: No. 12–1069.,12–1069.
• Citation: 750 S.E.2d 668,232 W.Va. 115
• Parties: Teresa DELLINGER, individually and In her capacity as Executrix of the Estate of Amber Dellinger, deceased, Plaintiff Below, Petitioner v. PEDIATRIX MEDICAL GROUP, P.C., Defendant Below, Respondent.
• Court: West Virginia Supreme Court

232 W.Va. 115

750 S.E.2d 668

Teresa DELLINGER, individually and In her capacity as Executrix of the Estate of Amber Dellinger, deceased, Plaintiff Below, Petitioner

v.PEDIATRIX MEDICAL GROUP, P.C., Defendant Below, Respondent.

No. 12–1069.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 2, 2013.

Decided Oct. 25, 2013.

SYLLABUS BY THE COURT

1. “This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm Mut. Automobile Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

2. “Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. “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).

4. “In a malpractice case, the plaintiff must not only prove negligence but must also show that such negligence was the proximate cause of the injury.” Syl. Pt. 4, Short v. Appalachian OH–9, Inc., 203 W.Va. 246, 507 S.E.2d 124 (1998).

5. “Where a physician is testifying as to the causal relation between a given physical condition and the defendant's negligent act, he need only state the matter in terms of a reasonable probability.” Syl. Pt. 3, Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335 (1980).

John D. Wooton, Esq., Beckley, WV, for Petitioner.

Tamela J. White, Esq., Bernard S. Vallejos, Esq., Farrell, White & Legg PLLC, Huntington, WV, for Respondent.

PER CURIAM:

Petitioner/plaintiff below, Teresa Dellinger, individually and in her capacity as Executrix of the Estate of Amber Dellinger, deceased (hereinafter “petitioner”), appeals the Circuit Court of Kanawha County's July 26, 2012, order granting summary judgment in favor of respondent/defendant below, Pediatrix Medical Group, P.C. (hereinafter “respondent”). The circuit court found that petitioner failed to offer evidence sufficient to establish a prima facie case of medical professional liability under West Virginia Code § 55–7B–3 (2003). In particular, the circuit court found that 1) petitioner's expert effectively conceded that he could point to no evidence establishing that Pediatrix's employee, Dr. Manuel Caceres (hereinafter “Dr. Caceres”), breached the standard of care; and 2) petitioner's expert could not state to a reasonable degree of medical probability that any alleged acts of Dr. Caceres proximately caused petitioner's decedent's death. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we agree that petitioner failed to produce sufficient evidence to preclude entry of summary judgment and we therefore affirm the circuit court's entry of summary judgment on behalf of respondent.

I. FACTS AND PROCEDURAL HISTORY

On September 18, 2007, petitioner took her daughter, Amber, age six, to Raleigh General Hospital with complaints of headache and fever for several days, along with several scattered bug bites on her body. She was treated and released. Her symptoms worsened and she returned to the hospital the following day with nosebleed, vomiting, abdominal pain and backache, whereupon she was admitted. Her condition worsened and on September 21, 2007, she was transferred to Charleston Area Medical Center (hereinafter “CAMC”). Laboratory tests confirmed that she was suffering from La Crosse encephalitis.¹

At or around 2:15 a.m. on September 23, Amber complained of pain at the site of the IV in her arm. A CAMC nurse took Amber to a “treatment room” and made multiple attempts to start a new IV; during this process, Amber became agitated, began having seizures and lost consciousness.² At 2:30 a.m., Dr. Anita Hawks–Henley, a CAMC pediatric resident physician, called Dr. Caceres, who was the on-call attending physician for the pediatric intensive care unit (hereinafter “PICU”) employed by respondent Pediatrix. Dr. Hawks–Henley relayed the emergency regarding Amber and advised Dr. Caceres that Amber was being transferred to the PICU. Between 2:45 and 3:00 a.m., following Amber's admission to the PICU, Dr. Hawks–Henley made a second call to Dr. Caceres wherein they developed a treatment plan, including ordering a blood gas test and chest x-ray. Dr. Caceres apparently advised Dr. Hawks–Henley to notify him if the seizure medication was ineffective. Around 3:35 a.m., Dr. Hawks–Henley called Dr. Caceres a third time to advise that Amber's anti-seizure medication was not working. As a result of this third call, Dr. Caceres came to the hospital to intubate Amber as a result of the seizures.

Although the testimony is somewhat unclear as to the precise time, Dr. Caceres arrived at CAMC sometime between 3:40 and 3:50 a.m. Upon arrival at the hospital, Dr. Caceres was notified of the blood gas results indicating that Amber was suffering from respiratory acidosis which required immediate intubation, although Dr. Caceres testified he had already planned to intubate due to the seizures. Dr. Caceres immediately intubated Amber, which he completed no later than 4:00 a.m. All parties agree that there is no evidence as to when the blood gas results were actually completed and available. Notwithstanding these interventions, Amber died the following day.

Petitioner filed a medical malpractice suit against CAMC as a result of Amber's death and subsequently amended her complaint to include respondent as a defendant, alleging that Dr. Caceres was negligent in managing Amber's airway. Dr. Caceres and respondent's experts testified in deposition that Amber died from inflammation of the brain due to the La Crosse virus. However, petitioner's lone expert, Dr. Marc Weber, took the position that Amber's death was the result of an hypoxic ischemic event, resulting from laryngospasm which occurred when she was in the treatment room.³ Dr. Weber testified that the failure to more emergently intubate Amber contributed “somewhat” to her death.

With respect to the alleged medical negligence of Dr. Caceres, Dr. Weber opined generally that “there should have been a more emergent intubation and airway management” while she was in the PICU. He had no criticisms of the care Amber was given in the treatment room, nor of Dr. Hawks–Henley. Rather, Dr. Weber's sole criticism of Amber's care was, more specifically, that “the airway should have been managed more aggressively at or around the time that the blood gas results were returned.” He conceded, however, that he did not know when the blood gas results were returned and had no evidence that Dr. Caceres knew about the blood gas results prior to arriving at the hospital. Dr. Weber testified that he had no criticisms of Dr. Caceres' actions once he was aware of the blood gas results, intubating rapidly and appropriately.⁴ Dr. Weber further testified that he could not quantify “any worsening by a claimed failure to intubate earlier” and that he could not say to a reasonable degree of medical probability that Amber would have lived if she had been intubated earlier.

Within days of Dr. Weber's deposition, on May 20, 2011, both respondent and CAMC filed motions for summary judgment. Petitioner responded to the motion, relying solely on the testimony of Dr. Weber to oppose the motion, and asserting that Dr. Weber's testimony was sufficient to create a material issue of disputed fact. Petitioner did not supplement Dr. Weber's deposition testimony, provide additional evidence, or file an affidavit pursuant to W.V.R.C.P. 56(f) seeking additional discovery.⁵ On July 15, 2011, the court conducted a pretrial conference, in the face of a pending motion to continue by petitioner, and heard argument on both CAMC and respondent's motions for summary judgment. The court continued the trial to March 12, 2012, denied both motions for summary judgment, and indicated that discovery would not be reopened in the interim.

On February 23, 2012, respondent renewed its motion for summary judgment; petitioner filed the same response she previously submitted. At the rescheduled pretrial conference on March 5, 2012, the court entertained further argument on respondent's motion for summary judgment,⁶ took it under advisement and directed petitioner and respondent to report back by March 7 as to whether they could reach settlement. The parties thereafter reported by phone on March 7 that they could not reach a settlement; at that time, the court announced that it was granting respondent's motion for summary judgment and directed respondent's counsel to prepare the order. On July 26, 2012, the circuit court entered an order granting summary judgment in favor of respondent.⁷

In its order, the court concluded that there was no material dispute of fact regarding the time of Dr. Caceres' receipt of the blood gas results inasmuch as Dr. Weber conceded that he had no evidence to suggest that Dr. Caceres had the blood gas results prior to his arrival at the hospital and that, thereafter, he met the appropriate standard of care by “properly and timely intubating the patient.” The court further found that petitioner had failed to establish proximate cause since “Dr. Weber admitted his inability to testify as to proximate causation with respect to the timing of the intubation ... [and that] he could not say that the patient more likely than not would have lived if the blood gas result had been given to Dr. Caceres earlier than 3:50 a.m.” It is from this order that petitioner now appeals.

II. STANDARD OF REVIEW

“This Court reviews de novo the denial of a motion for summary judgment, where such a ruling...