Estate of Fout-Iser v. Hahn

• Decision Date: 21 May 2007
• Docket Number: No. 33189.,33189.
• Court: West Virginia Supreme Court
• Parties: The ESTATE OF Alexia Sheree FOUT-ISER, by Maranda L. FOUT-ISER, Fiduciary; Maranda L. Fout-Iser, Individually; and Jeremy T. Iser, Individually, Plaintiffs Below, Appellants v. John L. HAHN, M.D.; Thomas Joseph Schmitt, M.D.; Myung-Sup Kim, M.D.; Grant Memorial Hospital; Regional Healthcare Center; Potomac Valley Hospital of W.Va., Inc., a Corporation; and John Doe, Fiduciary of the Estate of Russell Rhee, M.D., Defendants Below, Appellees.

649 S.E.2d 246

The ESTATE OF Alexia Sheree FOUT-ISER, by Maranda L. FOUT-ISER, Fiduciary; Maranda L. Fout-Iser, Individually; and Jeremy T. Iser, Individually, Plaintiffs Below, Appellants v. John L. HAHN, M.D.; Thomas Joseph Schmitt, M.D.; Myung-Sup Kim, M.D.; Grant Memorial Hospital; Regional Healthcare Center; Potomac Valley Hospital of W.Va., Inc., a Corporation; and John Doe, Fiduciary of the Estate of Russell Rhee, M.D., Defendants Below, Appellees.

No. 33189.

Supreme Court of Appeals of West Virginia.

Submitted: March 13, 2007.

Decided: May 21, 2007.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "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 Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. "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." Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

4. "It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses." Syllabus Point 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964).

5. When a particular defendant's failure to meet the standard of care is at issue in medical malpractice cases, the sufficiency and nature of proof required is governed by West Virginia Code § 55-7B-7(a) (2003), which specifically provides that: "The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court."

6. Once it is established that a particular expert is to be used as a standard of care witness, the trial court must determine the qualifications of that expert witness pursuant to W.Va.Code § 55-7B-3(a)(1)(2003), which provides that a plaintiff in a medical malpractice action must show that: "The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances[.]"

7. "The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syllabus Point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Robert P. Fitzsimmons, Esq., Robert J. Fitzsimmons, Esq., Fitzsimmons Law Offices, Wheeling, for the Appellants.

Thomas J. Hurney, Jr., Esq., Matthew A. Nelson, Esq., Jackson & Kelly, PLLC, Charleston, for the Appellees.

MAYNARD, Justice.

In this case, the Circuit Court of Mineral County entered a summary judgment order dismissing a medical malpractice action filed by the Estate of Alexia Sheree Fout-Iser, by Maranda L. Fout-Iser as fiduciary and individually, and Jerry T. Iser, the appellants and plaintiffs below (hereinafter referred to as "the Isers"). The circuit court granted summary judgment to Anita M. Rhee, Administratrix of the Estate of Russell Rhee, appellee and defendant below, (hereinafter referred to as "Dr. Rhee")¹ on the grounds that the Isers failed to produce a medical expert who would testify that Dr. Rhee breached the standard of care and proximately caused the death of Alexia Sheree Fout-Iser. In this appeal, the Isers contend that summary judgment was inappropriate because their medical experts provided opinions on the standard of care and causation. Alternatively, the Isers contend that no expert was needed to prove a breach of the standard of care or causation. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, we reverse the decision of the circuit court.

I. FACTS

At around 4:20 p.m. on July 30, 1999, Maranda L. Fout-Iser (hereinafter "Maranda") went to the emergency room at Potomac Valley Hospital. At the time, Maranda was approximately eight months pregnant. Maranda complained of abdominal pain, fever, chills, shortness of breath, vomiting, blurred vision, inability to urinate, and diarrhea. At approximately 4:45 p.m., an emergency room physician, Dr. Thomas J. Schmitt, saw Maranda and ordered an abdominal sonogram. Maranda was then taken to the radiology department for the abdominal sonogram. At around 5:22 p.m., an x-ray technician, Marla Niland, began taking ultrasound images. Ms. Niland was able to produce eight ultrasound images.

At around 5:53 p.m. Ms. Niland sent the eight ultrasound images to the home of Dr. Rhee via teleradiology.² At the time, Dr. Rhee was the on-call radiologist for the Hospital. After sending the ultrasound images, Ms. Niland called Dr. Rhee at around 6:00 p.m. According to Ms. Niland, Dr. Rhee voiced strong objections during the conversation by shouting profanities with regard to the poor quality of the images. Dr. Rhee also explained to Ms. Niland that more images needed to be taken. Ms. Niland testified that due to Maranda's condition she was seeking direction from Dr. Rhee. She also explained to Dr. Rhee that she needed his assistance because she had only participated in approximately five previous ultrasounds, all or most of which had occurred during her training period.

According to Ms. Niland, she said during her telephone conversation with Dr. Rhee: "Look, I need help here. I've never — I've not seen this before, and I need help, and he said — I said we don't do that many OB ultrasounds, and I've not seen this before, and he told me that it was my job to know what to do." Ms. Niland then said that Dr. Rhee told her that he "didn't have time to come to Keyser to do a f* * *ing ultrasound." She also said that Dr. Rhee told her to contact Vanessa Miller, a certified ultrasound technician, to help her in obtaining adequate images. Ms. Miller, who was not on call on that day, was unable to come to the hospital.

After speaking with Ms. Miller, Ms. Niland proceeded to take fifty additional ultrasound images. At around 6:35 p.m., as Ms. Niland was completing the ultrasound, she received a call from Dr. Rhee. He called the radiology department to find out if Ms. Niland had contacted Ms. Miller. Ms. Niland spoke with Dr. Rhee and informed him that a decision had been made to transfer Maranda to another hospital.³ Even so, Ms. Niland transmitted the ultrasound images to Dr. Rhee. Subsequently, Dr. Rhee issued a report indicating the presence of a live fetus.

At around 7:15 p.m., Valley Medical Transport arrived and took Maranda to Grant Memorial Hospital. After Maranda arrived at Grant Memorial, at about 8:00 p.m., it was determined that she required a C-section. At 9:59 p.m. the baby was delivered, but it had already died as a result of placental abruption.⁴

In July of 2001, the Isers filed the instant medical malpractice action against Dr. Rhee.⁵ After a lengthy period of discovery, Dr. Rhee moved for summary judgment. The circuit court conducted hearings on the motion and, on August 30, 2005, issued an order granting Dr. Rhee summary judgment. In doing so, the circuit court found that the Isers failed to produce a medical expert who would testify as to the standard of care and causation. This appeal followed.

II. STANDARD OF REVIEW

We have been called upon to determine whether the circuit court correctly granted summary judgment in favor of Dr. Rhee. In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court held that: "A circuit court's entry of summary judgment is reviewed de novo." We have also held that, "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 Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In Syllabus Point 2 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), this Court explained that,

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.

We also pointed out in Neary v. Charleston Area Medical Center, Inc., 194 W.Va. 329, 334, 460 S.E.2d 464, 469 (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." With these principles in mind, we now consider the parties' arguments.

III. DISCUSSION

One of the reasons given by the circuit court for granting summary judgment to Dr. Rhee was that the Isers failed to present a medical expert who would testify that Dr. Rhee violated the applicable standard of care.⁶ "It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses." Syllabus Point 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964).

Moreover, when a particular defendant's failure to meet the standard of care is at issue in medical malpractice cases, the sufficiency and nature of proof required is governed by West Virginia Code § 55-7B-7(a)...