Gilman v. Choi

• Decision Date: 19 December 1990
• Docket Number: No. 19635,19635
• Citation: 406 S.E.2d 200,185 W.Va. 177
• Court: West Virginia Supreme Court
• Parties: Gladys GILMAN and Bruce Gilman v. Young I. CHOI, M.D., Pleasant Valley Hospital, Inc., a Corporation, Bakshy Chhibber, M.D., and Thomas J. Moskalewicz, M.D.

Page 200

406 S.E.2d 200

185 W.Va. 177

Gladys GILMAN and Bruce Gilman v. Young I. CHOI, M.D., Pleasant Valley Hospital, Inc., a Corporation, Bakshy Chhibber, M.D., and Thomas J Moskalewicz, M.D.

No. 19635.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1990.

Opinion of Chief Justice Neely

Concurring in Part and Dissenting in Part

Jan. 25, 1991.

Syllabus by the Court

W.Va.Code, 55-7B-7 [1986], being concerned primarily with the competency of expert testimony in a medical malpractice action, is valid under Rule 601 of the West Virginia Rules of Evidence.

Herbert H. Henderson, Gail Henderson-Staples, Huntington, for Gladys Gilman and Bruce Gilman.

Michael Farrell, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for Pleasant Valley Hosp.

Don R. Sensabaugh, Jr., Edward C. Martin, Kay, Casto, Chaney, Love & Wise, Charleston, for Thomas J. Moskalewicz.

Sprague W. Hazard, Steptoe & Johnson, Charleston, for Young I. Choi.

Stephen D. Annand, Donald L. Stennett, Shuman, Annand & Poe, Charleston, for Dr. Bakshy Chhibber, M.D.

McHUGH, Justice:

In this certified question case this Court is asked essentially to decide the validity of a recent statute on expert testimony in a medical malpractice action, specifically, W.Va.Code, 55-7B-7 [1986], in light of the West Virginia Rules of Evidence. The Circuit Court of Mason County upheld the validity of the statute, and we, too, believe the statute is valid, but for a reason not assigned by the circuit court.

I

One of the two plaintiffs, Gladys Gilman, sustained a hip fracture and dislocation as the result of a recreational vehicle accident in October, 1986. ¹ Soon after the accident, Mrs. Gilman was seen in the Pleasant Valley Hospital emergency room by defendant Thomas J. Moskalewicz, M.D., an emergency room physician working in that hospital's emergency department. Dr. Moskalewicz ascertained that Mrs. Gilman had suffered a fracture of the left hip. He contacted defendant Dr. Young Choi, a general surgeon, and Mrs. Gilman was admitted to the hospital.

The plaintiffs have alleged in their medical malpractice action that Dr. Moskalewicz, an emergency room physician, Dr. Bakshy Chhibber, an internist/family practitioner and the plaintiffs' family physician, as well as Dr. Choi, a general surgeon, and Pleasant Valley Hospital were each negligent in their treatment and care of Mrs. Gilman, thereby necessitating a total hip replacement and causing her to endure permanent pain and suffering.

The plaintiffs have designated Dr. Thomas G. Galli, a board certified orthopedic surgeon who practices the specialty of orthopedics, as an alleged expert witness against all of the defendants. Two of the defendant doctors, Dr. Chhibber and Dr. Moskalewicz, filed motions in limine asserting that Dr. Galli, as an orthopedic surgeon, is not qualified to testify as an expert witness as to the standard of care of an internist/family practitioner or of an emergency room physician.

The trial court (the Circuit Court of Mason County) ruled that Dr. Galli was not qualified to testify against Dr. Chhibber and Dr. Moskalewicz under condition precedent (e) set forth in W.Va.Code, 55-7B-7 [1986]. ² The trial court also ruled that W.Va.Code, 55-7B-7 [1986] was not in conflict with Rule 702 of the West Virginia Rules of Evidence. ³ At the request of the plaintiffs, and pursuant to Rule 13 of the West Virginia Rules of Appellate Procedure and the provisions of W.Va.Code, 58-5-2 [1967], the trial court certified the following question to this Court, which question was answered in the negative by the trial court:

Is West Virginia Code § 55-7B-7 (Cum.Supp.1988), requiring that an expert in a medical malpractice case be qualified in the 'same or substantially similar' medical field as a physician defendant against whom he/she intends to testify, in conflict with Rule 702 of the West Virginia Rules of Evidence which provides that an individual may testify as an expert if he/she is 'qualified' because of 'knowledge, skill, experience, training or education' to assist the trier of fact and, if so, does any such conflict invalidate the statute or otherwise render it inapplicable?

II

W.Va.Code, 55-7B-7 [1986], see supra note 2, authorizes a trial court to require "the testimony of one or more knowledgeable, competent expert witnesses" to establish the applicable standard of care in a medical malpractice action and a defendant's failure to meet that standard, if at issue. (emphasis added) That same statute also sets forth five specific foundational prerequisites for admissibility of such testimony. The only one of these foundational requirements at issue here mandates that "(e) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider."

The terms of this statute indicate that the legislature's paramount concern was with the competency of the proffered expert testimony. Under Rule 601 of the West Virginia Rules of Evidence, "[e]very person is competent to be a witness except as otherwise provided for by statute or these rules." (emphasis added) Accordingly, this Court, by virtue of Rule 601 of the West Virginia Rules of Evidence, has elected to defer to the legislature when it enacts statutes on the competency of witnesses. For example, this Court, in the recent case of Cross v. State Farm Mutual Automobile Insurance Co., 182 W.Va. 320, 387 S.E.2d 556 (1989), concluded that a particular statute on the competency of witnesses, namely, the Dead Man's Statute, W.Va.Code, 57-3-1 [1937], is still valid under Rule 601. Id. 182 W.Va. at 324, 387 S.E.2d at 560.

In view of the foregoing we hold that W.Va.Code, 55-7B-7 [1986], being concerned primarily with the competency of expert testimony in a medical malpractice action, is valid under Rule 601 of the West Virginia Rules of Evidence.

It is, therefore, not necessary to decide whether W.Va.Code, 55-7B-7 [1986] conflicts with Rule 702 of the West Virginia Rules of Evidence, which is concerned primarily with the relevancy of expert testimony. See syl. pts. 1-2, State v. McCoy, 179 W.Va. 223, 366 S.E.2d 731 (1988). "In a certified case this Court will not consider certified questions not necessary to a decision of the case." Syl. pt. 6, West Virginia Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957). Accord, State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5 (1990); syl. pt. 5,Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990); syl. pt. 7,Shell v. Metropolitan Life Insurance Co., 181 W.Va. 16, 380 S.E.2d 183 (1989).

Moreover, upon receiving certified questions from circuit courts of this state, we retain some flexibility in determining how and to what extent those questions will be answered. Belcher v. Goins, 184 W.Va. 395, 398 n. 2, 400 S.E.2d 830, 833 n. 2 (1990); State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5 (1990); Deeds v. Lindsey, 179 W.Va. 674, 676 n. 2, 371 S.E.2d 602, 604 n. 2 (1988); City of Fairmont v. Retail, Wholesale & Department Store Union, 166 W.Va. 1, 3-4, 283 S.E.2d 589, 590 (1980). Cf. Maynard v. Board of Education, 178 W.Va. 53, 60, 357 S.E.2d 246, 253 (1987) (this Court addressed issue of laches, which was related to certified question on statute of limitations).

Although the question of abuse of discretion is not before us, we note that whether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court, and its ruling on that point ordinarily will not be disturbed unless it clearly appears that its discretion has been abused. Syl. pt. 12, Board of Education v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990), and 182 W.Va. at 612, 390 S.E.2d at 811 (citing cases).

In this regard it would be an abuse of discretion for a trial court to require the proffered expert witness to be board certified in the same medical specialty as a particular defendant health care provider. W.Va.Code, 55-7B-7 [1986] does not impose such a requirement by the use, in condition precedent (e), of the words "qualified in the same or substantially similar medical field[.]" If the legislature had intended such a board certification requirement, it could have provided explicitly therefor, as, for example, the legislature of Florida did in enacting Fla.Stat.Ann. § 766.102 (West 1988). ⁴

Rule 702 of the West Virginia Rules of Evidence, see supra note 3, also does not require the proffered expert witness to be board certified in the same medical specialty as a defendant health care provider. See, e.g., Darling v. Reid, 534 So.2d 255, 257 (Ala.1988) (lack of board certification goes to weight, not to admissibility); Pearson v. Parsons, 114 Idaho 334, 336-37, 757 P.2d 197, 199-200 (1988) (in part, discussing a state evidentiary statute on medical malpractice expert testimony which was nearly identical to W.Va.Code, 55-7B-7 (1986)); Glover v. Ballhagen, 232 Mont. 427, 756 P.2d 1166 (1988) (involving Mont.R.Evid 702, which is identical to W.Va.R.Evid. 702).

While we do not decide in this case whether W.Va.Code, 55-7B-7 [1986] is more restrictive than Rule 702 of the West Virginia Rules of Evidence, there are certain common-law principles which are applicable under either that statute or that evidentiary rule. First, a medical expert, otherwise qualified, is not barred from testifying merely because he or she is not engaged in practice as a specialist in the field about which his or her testimony is offered; on the other hand, it is clear that a medical expert may not testify about any medical subject without limitation. Swanson v. Chatterton, 281 Minn. 129, 139, 160 N.W.2d 662, 669 (1968). Second, a plaintiff in a medical malpractice action must prove that the defendant specialist failed to meet the standard of care required of physicians in the same specialty practiced by the...