Dupuy v. Allara
| Decision Date | 14 April 1995 |
| Docket Number | No. 22219,22219 |
| Court | West Virginia Supreme Court |
| Parties | Laurence DUPUY and Sheila Dupuy, Plaintiffs Below, Appellants, v. Earl D. ALLARA, Defendant Below, Appellee. |
Syllabus by the Court
1. Syllabus point 4, Horan v. Turnpike Ford, Inc., 189 W.Va. 621, 433 S.E.2d 559 (1993).
2. "Where a physician exercises ordinary skill and diligence, keeping within recognized and approved methods, he is not liable for the result of a mere mistake of judgment." Syllabus point 6, Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906).
3. Syllabus point 3, Livengood v. Kerr, 182 W.Va. 681, 391 S.E.2d 371 (1990).
4. "A trial court has considerable discretion as to matters involving the length of a recess or temporary adjournment of a trial." Syllabus point 8, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).
5. In determining whether a trial court has abused its discretion by granting a recess or temporary adjournment during the trial of a case, this Court will examine the following factors: (1) the prejudice to the complaining party or parties; (2) the reasons necessitating the recess or temporary adjournment; (3) whether there were alternatives available to avoid the interruption of the proceedings; and (4) the length of the recess or temporary adjournment.
David P. Greenberg, Susan K. Paugh, Greenberg & Scales, Martinsburg, for appellants.
William H. Martin, Charles Town, for appellee.
1
The appellants, Laurence and Sheila Dupuy, filed a civil suit against the appellee, Earl D. Allara, M.D., seeking damages for alleged medical malpractice. On 17 December 1992, a jury returned a verdict for Dr. Allara and awarded no damages to the appellants. By final order dated 14 May 1993, the Circuit Court of Jefferson County, West Virginia, denied the appellants' motion for a new trial. The appellants now appeal from this order, contending the trial court improperly instructed the jury, erred by denying the appellants' motion to strike for cause certain jurors, and abused its discretion by allowing a thirteen-day mid-trial recess.
The record before us reveals the following facts. On 31 March 1989, Laurence Dupuy went to see his family physician, Dr. Allara, after experiencing flu-like symptoms of fever, cold chills, night sweats, and fatigue for several days. Dr. Allara diagnosed Mr. Dupuy as having a simple upper respiratory infection and prescribed a medication called Cipro.
Mr. Dupuy returned to Dr. Allara on 17 April 1989 with worsening symptoms, including headaches, drenching night sweats, fever, chills, and fatigue. At this time, Dr. Allara diagnosed Type A influenza, a simple viral infection, and gave Mr. Dupuy a prescription for a one-week course of an antibiotic known as Amantadine.
Mr. Dupuy broke his foot on 27 April 1989, and he was treated at the Jefferson Memorial Hospital emergency room. His pulse and temperature were normal at this time.
After several weeks passed with no improvement in his condition, Mr. Dupuy sought additional medical assistance on 8 May 1989, and was examined by Dr. Robert Bowen in the emergency room at City Hospital, Inc., in Martinsburg, West Virginia. Dr. Bowen suspected Mr. Dupuy had either pneumonia or endocarditis, and ordered a blood culture, which was positive for sub-acute bacterial endocarditis. Dr. Bowen began an antibiotic therapy.
On 14 May 1989, Mr. Dupuy's aortic valve ruptured, and he was transported by ambulance from City Hospital, Inc., to Georgetown University Hospital, where he underwent an emergency aortic heart valve replacement. Because Mr. Dupuy was close to death, there was not enough time to prepare him for the preferred replacement heart valve, and a porcine (pig) valve was used.
Mr. Dupuy developed endocarditis again in November, 1989, and he underwent a second aortic valve replacement at Georgetown University Hospital. A human allograft valve was used this time. Mr. Dupuy, a racehorse jockey, was off work for approximately fifteen months. He returned to riding in August, 1990.
The appellants contend that a correct and timely diagnosis and treatment by Dr. Allara would have prevented the cardiac failure and its consequences.
We now consider the appellants' two assignments of error relating to the trial court's instruction of the jury. First, the appellants argue the trial court erred in instructing the jury that "if ... a physician exercises ordinary skill and care while keeping within recognized and approved methods, he is not liable for a result which may flow from a mere mistake of reasonable and honest judgment on his part...." 2
We find this instruction correctly states the law on this point. Syllabus point 4, Horan v. Turnpike Ford, Inc., 189 W.Va. 621, 433 S.E.2d 559 (1993). "In Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906), this Court set the standard for an instruction which is used when one party believes that an error in judgment, rather than negligence, occurred." Davis v. Wang, 184 W.Va. 222, 226-27, 400 S.E.2d 230, 234-35 (1990). In syllabus point 6, the Dye Court held:
Where a physician exercises ordinary skill and diligence, keeping within recognized and approved methods, he is not liable for the result of a mere mistake of judgment.
Dye, 53 S.E. at 150. The Dye instruction is virtually identical to the Defendant's Instruction No. 26 given in this case.
This Court found error in the use of the Dye instruction in Davis v. Wang, supra, in which a jury returned a verdict for the defendant hospital and physicians, finding they were not negligent in a medical malpractice action for the death of the plaintiff's five-month-old son. On appeal, the plaintiffs alleged error because the instruction exonerated the attending physician for a mere mistake of judgment. This instruction stated:
If in the diagnosis and treatment of a patient such as Bryan Davis, a physician exercises ordinary skill and care, while keeping within recognized and approved methods, he is not liable for a result which may flow from a mere mistake of reasonable and honest judgment on his part.
Therefore, if you believe from a preponderance of all the evidence in this case that Drs. Neal and Arthurs did exercise ordinary skill and judgment in their care of Bryan Davis and that the death of Bryan Davis was a consequence of an error of judgment on their part, then your verdict should be for the defendants, Drs. Neal and Arthurs and the West Virginia Board of Regents.
The plaintiffs in Davis argued that neither their evidence nor the evidence presented by the attending physician supported a theory that the failure to diagnose the child's illness was a mere mistake of judgment. The plaintiffs argued that the error was gross, and that the child received grossly inadequate treatment from the attending physician, Dr. Neal, who was also the head of the Department of Pediatrics. Dr. Neal maintained that his limited involvement in the child's actual treatment comported with the standard of care for an attending physician in a teaching hospital. Id. 184 W.Va. at 227, 400 S.E.2d at 235.
This Court agreed with the plaintiffs' argument that the Dye instruction should not have been given for Dr. Neal. Id.
However, in Davis this Court also concluded that the Dye instruction, which permits a jury to exonerate a doctor for a mere mistake of judgment, was a proper instruction for the resident on duty, Dr. Arthurs, who examined the child, treated him, and failed to diagnose Kawasaki's disease. Id.
In the case now before us, the appellants allege that Dr. Allara committed malpractice arising from alleged negligent acts or omissions in misdiagnosing Mr. Dupuy as having an upper respiratory infection instead of sub-acute bacterial endocarditis. However, Dr. Allara argues that he presented evidence at trial which tended to show that, at most, his was but "a mere mistake of judgment." For example, one of his experts, Dr. William Miller, testified that "many physicians in this particular situation would not have diagnosed the illness under these circumstances," and that "endocarditis can be difficult to diagnose." Dr. Raymond Hoare, a cardiologist and internist who also testified as an expert for Dr. Allara, stated that because the tell-tale sign of endocarditis, a heart murmur, was not present in Mr. Dupuy, it was not even an error in judgment on Dr. Allara's part to not prescribe blood tests on his second visit.
Unlike the situation in Davis, where it was doubtful that Dr. Neal ever examined the patient or reviewed his chart, the record now before us indicates Dr. Allara presented evidence at trial to support the theory that he committed a mistake or error in judgment, rather than negligence. Consequently, we find no error in the lower court's decision to give Defendant's Instruction No. 26...
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