Foster v. Sakhai, 29339.

CourtSupreme Court of West Virginia
Writing for the CourtMCGRAW, Chief Justice.
Citation559 S.E.2d 53,210 W.Va. 716
PartiesHelen FOSTER, Individually and as the Executrix of the Estate of Hoy Dale Foster, Deceased, Plaintiff Below, Appellant, v. Hossein SAKHAI, M.D., Defendant Below, Appellee.
Docket NumberNo. 29339.,29339.
Decision Date12 December 2001

559 S.E.2d 53
210 W.Va.

Helen FOSTER, Individually and as the Executrix of the Estate of Hoy Dale Foster, Deceased, Plaintiff Below, Appellant,
Hossein SAKHAI, M.D., Defendant Below, Appellee

No. 29339.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2001.

Decided December 12, 2001.

559 S.E.2d 58
Roger D. Williams, Esq., Sprague W. Hazard, Esq., Charleston, for Appellant

C. Benjamin Salango, Esq., William J. Cooper, Esq., Flaherty, Sensabaugh & Bonasso, Charleston, for Appellee.

559 S.E.2d 54
559 S.E.2d 55
559 S.E.2d 56

559 S.E.2d 57
MCGRAW, Chief Justice

Appellant Helen Foster (sometimes also referred to as "plaintiff" in the course of this opinion) and her late husband filed a medical malpractice suit against appellee Dr. Hossein Sakhai for personal injuries the Fosters alleged as a result of brain surgery performed by Dr. Sakhai upon Mr. Foster. Mr. Foster died before the case could come to trial, but at the trial, the jury awarded Mrs. Foster and the estate of Mr. Foster $800,000. The trial judge granted a new trial to Dr. Sakhai because of alleged confusion in the jury charge and because of certain statements made by plaintiff's counsel during closing argument. Because we find any alleged error below to have been harmless error, we reverse and remand for the reinstatement of the jury's verdict.



Hoy Dale Foster lived in Mason County, West Virginia with his wife Helen Foster. In 1995, Mr. Foster had recently retired from his job in a local aluminum plant when he began to experience some unusual problems with his vision. On December 20, 1995, Mr. Foster visited his doctor, a Dr. Brubaker, who ordered an MRI of Mr. Foster. Both Dr. Brubaker and another doctor, a neurologist named Dr. Levert, reviewed the MRI of Mr. Foster. According to Mrs. Foster, the MRI showed that Mr. Foster had a single brain tumor located in the base of his brain, the cerebellum.

Dr. Levert referred Mr. Foster to another doctor, the defendant below and appellee in this action, Dr. Hossein Sakhai, a neurosurgeon practicing in Huntington, West Virginia. Less than a month later, on January 9, 1996, Dr. Sakhai performed brain surgery on Mr. Foster in an effort to remove the tumor. The pathology report from St. Mary's Hospital in Huntington, where Dr. Sakhai performed the surgery, revealed that the tissue removed was not a cancerous tumor. According to Mrs. Foster, the report also indicated that the material had been removed not from the base of Mr. Foster's brain, but rather from one of the hemisphere's of his brain, which together are known as the cerebrum. Although the terms sound similar, the cerebellum, or base of the brain, the alleged location of the tumor shown on the MRI, is an entirely different area then the cerebrum, also called the brain's hemispheres, the area from which Dr. Sakhai allegedly removed the brain tissue.1

Immediately after the operation, all thought it to have been successful. However, Mr. Foster began to experience new symptoms. He complained of new and different vision problems, and claimed that he could no longer tell time, play the guitar, or recognize various familiar objects. After seeking a second opinion, Mr. Foster underwent a second operation on May 22, 1996, at Ohio State Medical Center. During that operation, another doctor removed a so-called metastatic renal cell tumor from Mr. Foster's brain. Because the tumor was metastatic, or one that would spread, Mr. Foster had to undergo radiation therapy.

As a result of the second surgery and the subsequent radiation treatment, Mr. Foster developed a number of complications and suffered various complaints, including continuing vision problems and difficulty reading and walking. On January 9, 1998, two years after the first operation, Mr. and Mrs. Foster filed the underlying medical malpractice action. Unfortunately, Mr. Foster's cancer treatments proved unavailing, and he died about two months later, on March 7, 1998,

559 S.E.2d 59
some twenty-six months after the operation performed by Dr. Sakhai.

The trial in the case began on July 17, 2000. Summarizing and somewhat simplifying the arguments of the parties, Mrs. Foster argued that Dr. Sakhai had operated on the wrong part of her husband's brain, removed healthy tissue, and thus required Mr. Foster to undergo a second operation that, absent Dr. Sakhai's mistake, should not have been necessary. As a result, she argued, Mr. Foster suffered various complications and problems that significantly reduced his ability to enjoy his final days. Dr. Sakhai argued, in essence, that he did not violate any standard of care in his operation on Mr. Foster, and that the problems Mr. Foster suffered, though unfortunate, resulted from the second operation in Ohio, or from uncontrollable, post-operative complications from the first surgery.

After four days of trial, the jury returned a verdict of $800,000 in favor of Mrs. Foster, granting $250,000 for pain in suffering, $200,000 for mental anguish, emotional distress and fright, and $350,000 for loss of enjoyment of life. The circuit court entered the judgment order on July 28, 2000, but allowed the parties to submit post trial motions. On September 29, 2000, the lower court granted Dr. Sakhai a new trial, overturning the jury's verdict. The order stated that the circuit court granted the new trial for two reasons.

The Court finds that the comments by plaintiff's counsel during closing argument regarding the non-economic cap in medical malpractice cases, standing alone, warrants a new trial. The Court further finds the Jury Charge was at variance and confusing and, standing alone, warrants a new trial. Therefore, the Court GRANTS Defendant's Motion and ORDERS a new trial on liability and damages.

After entry of this order, Mrs. Foster appealed to this Court.



We have previously described the standard of review we apply to a case such as this:

We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). However we have also explained that:

Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Accord, Stillwell v. The City of Wheeling, 210 W. Va. 599, 604, 558 S.E.2d 598, 603 (2001); Syl. pt. 1, Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

Although the standard when considering a court's granting of a new trial is abuse of discretion, we have cautioned that this discretion is not without limit: "Ordinarily, when a circuit court is afforded discretion in making a decision, this Court accords great deference to the lower court's determination. However, when we find that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed." Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or in other words: "We grant trial court judges wide latitude in conducting the business of their courts. However, this authority does not go unchecked, and a judge may not abuse the discretion granted him or her under our law." Lipscomb v. Tucker County Com'n., 206 W.Va. 627, 630, 527 S.E.2d 171, 174 (1999).

Furthermore, when we are asked to decide if a jury received the proper instructions in a given trial our review is de novo.

559 S.E.2d 60
"As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).



The lower court stated in its order that it granted the new trial for two reasons: the use of certain language by plaintiff's counsel during closing argument, and the particular phrasing of certain sections of the charge to the jury. We shall deal with each in turn, but before reaching those issues we must address a question raised by Dr. Sakhai.


Appealing an Order Granting a New Trial

Dr. Sakhai argues that an order for a new trial is not the sort of order that may be appealed to this Court. In support of this contention, the appellant directs us to a change in the statute discussing appeals to this Court. The question of whether or not this Court has the authority to review an order granting a new trial implicates the basic powers of this Court. The West Virginia Constitution establishes those powers: § 1. Judicial Power

The judicial power of the State shall be vested solely in a supreme court of appeals and in the circuit courts, and in such intermediate appellate courts and magistrate courts as shall be hereafter established by the legislature, and in the justices, judges and magistrates of such courts.
§ 3. Supreme Court of Appeals; Jurisdiction and Powers; Officers and Employees; Terms
The supreme court of appeals shall have original jurisdiction of proceedings in habeas corpus, mandamus, prohibition and certiorari.
The court shall have appellate jurisdiction in civil cases at law where the matter in controversy, exclusive of interest and costs, is of greater value or amount than three hundred dollars. . . .

W. Va. Const. art. VIII, §§ 1,3.2 We believe that this Constitutional grant of authority has always permitted this Court to review orders of...

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