McAllister v. Weirton Hosp. Co.

• Citation: 173 W.Va. 75,312 S.E.2d 738
• Decision Date: 10 November 1983
• Docket Number: No. 15703,15703
• Parties: Phillip McALLISTER, etc., et al. v. WEIRTON HOSPITAL CO., et al.
• Court: West Virginia Supreme Court

Page 738

312 S.E.2d 738

173 W.Va. 75

Phillip McALLISTER, etc., et al. v. WEIRTON HOSPITAL CO., et al.

No. 15703.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Rehearing Denied Dec. 15, 1983.

Syllabus by the Court

1. "A verdict will not be disturbed for want of a proper instruction, unless it was requested and refused ...." Syl. pt. 5, Henry C. Werner Company v. Calhoun, 55 W.Va. 246, 46 S.E. 1024 (1904).

2. "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl. pt. 2, Jennings v. Smith, 272 S.E.2d 229 (W.Va.1980), quoting, syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

3. "Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, though one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone." Syl. pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971).

4. "On appeal of a case involving an action covered by the Rules of Civil Procedure, this Court will disregard and regard as harmless any error, defect or irregularity in the proceedings in the trial court which does not affect the substantial rights of the parties." Syl. pt. 2, Boggs v. Settle, 150 W.Va. 330, 145 S.E.2d 446 (1965).

5. "An instruction which does not correctly state the law is erroneous and should be refused." Syl. pt. 3, West Virginia Dept. of Highways v. Buckley, 260 S.E.2d 826 (W.Va.1979), quoting, syl. pt. 2, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

6. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syl. pt. 1, Ratlief v. Yokum, 280 S.E.2d 584 (W.Va.1981), quoting, syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).

Bogarad & Robertson and David N. Dittmar and William R. Kiefer, Weirton, for appellants.

DeLaMater, Hagg & Bohach and W. Dean DeLaMater, Weirton, for Weirton Hosp.

O'Brien, Cassidy & Gallagher and Timothy F. Cogan, Wheeling, for Leonard E. Yurko, M.D.

McGRAW, Chief Justice:

This appeal from the Circuit Court of Hancock County is brought by Phillip McAllister and his mother and next friend, Helen McAllister, the plaintiffs below, after a jury verdict in favor of the defendants, the Weirton Hospital Company and Dr. Leonard E. Yurko. The appellants allege that the trial court erred in giving certain erroneous instructions; in failing to give one of their own proposed instructions; and in not directing a verdict as to the issue of the defendants' negligence.

On July 3, 1976, at approximately 9:45 p.m., Phillip McAllister, then fifteen years old, was cleaning his uncle's 44 magnum revolver when it accidently discharged sending a bullet through his lower right leg, severing two of the three main arteries which supply blood to the lower right leg and foot. An ambulance was summoned, and he was taken to the emergency room of the Weirton General Hospital, arriving at approximately 10:35 p.m.

Dr. Louis Torres, the emergency room physician on duty, administered emergency treatment consisting of a tetanus shot, x-rays, wrapping the leg with a tensor bandage, and packing the leg in ice. At approximately 11:40 p.m., Phillip was discharged from the emergency room, was admitted to the hospital, and was taken to a semiprivate room. Because the x-rays of McAllister's leg revealed a broken bone, Dr. Torres had him admitted as a patient of Dr. Leonard E. Yurko, a local orthopedist.

When Dr. Torres telephoned Dr. Yurko to inform him of the admission of McAllister as Yurko's patient, Dr. Torres testified that he advised Dr. Yurko that Phillip had a gunshot wound with a compound fracture of the leg. Dr. Yurko, on the other hand, testified that Dr. Torres reported only a simple fracture, and did not report any gunshot wound. Therefore, Dr. Yurko issued orders commensurate with the treatment of a simple leg fracture, and directed Dr. Torres to schedule McAllister for surgery at 10:00 a.m. the following morning. Dr. Torres did not question Dr. Yurko's directions, and scheduled surgery for 10:00 a.m.

At approximately 12:30 a.m., spurred on by Phillip's complaints of pain and by his family's requests that a doctor check on his condition, a nurse telephoned Dr. Yurko concerning Phillip's condition. Dr. Yurko replied that he did not have a gunshot wound patient, and that McAllister was probably a patient of his nephew, Dr. Anthony Yurko, a local surgeon. After this communication, there is conflicting testimony concerning another conversation which subsequently took place between the hospital and Dr. Yurko. A nurse at the hospital testified that upon confirming that McAllister was indeed Dr. Yurko's patient, she again called him at approximately 1:00 a.m. She testified that Dr. Yurko did not deny that McAllister was his patient, but said that he would examine him at 10:00 a.m. the next morning. Dr. Yurko, on the other hand, testified that he did not remember receiving this second call. Despite this conflicting testimony concerning the hospital's 1:00 a.m. call, however, it is uncontroverted that at approximately 1:45 a.m. another call was made to Dr. Yurko which resulted in Yurko's ordering McAllister transferred to Pittsburgh Presbyterian Hospital where medical personnel qualified to perform the surgery required were located. Dr. Torres contacted Presbyterian, but it refused to admit McAllister. Dr. Torres then contacted Children's Hospital in Pittsburgh, which accepted Phillip as a patient.

At 2:35 a.m. Phillip left Weirton General Hospital. He arrived at Children's Hospital at about 3:30 a.m. At approximately 4:30 a.m. he was taken to the operating room, and surgery began on his leg at around 5:30 a.m. The surgeons performing the operation at Children's Hospital decided not to attempt a revascularization procedure on the two severed arteries in Phillip's leg which could have restored full circulation and minimized the chances that ultimate amputation would be necessary. ¹ Three weeks later, as the result of dry gangrene caused by the lack of circulation in Phillip's leg, a below-the-knee amputation was performed.

On June 28, 1978, the plaintiffs instituted this action against the Weirton General Hospital. On August 19, 1980, they amended their complaint to include Dr. Leonard E. Yurko as a defendant. The plaintiff's claims of negligence were based upon the delay in transferring Phillip to a facility where qualified personnel could perform the surgery required and upon what they interpret as improper treatment of Phillip's injuries. The defendants' position was that despite some initial confusion and delay, Phillip's leg was lost due to the severe arterial damage caused by the gunshot, and was not proximately caused by any delay or improper treatment. After considering the testimony presented, including expert testimony presented on behalf of both plaintiffs and defendants, the jury returned a verdict for the defendants.

The appellants allege that the trial court erred in giving three of defendant Yurko's instructions. First, the appellants contend that the giving of Yurko's Instruction # 3 ² precluded them from securing an instruction based upon the theory of aggravation of an existing injury. The primary difficulty with this contention, however, is that appellants failed to offer any instruction embodying aggravation of an existing injury language. In Syllabus Point 5 of Henry C. Werner Company v. Calhoun, 55 W.Va. 246, 46 S.E. 1024 (1904), this Court stated, "A verdict will not be disturbed for want of a proper instruction, unless it was requested and refused ...." See also Stephenson v. Atlantic Terra Cotta Co., 230 F. 14 (4th Cir.1915); Jaeger v. City Railway Co., 72 W.Va. 307, 78 S.E. 59 (1913). Rule 51 of the West Virginia Rules of Civil Procedure provides, "Either before or at the close of evidence, any party may file written requests that the court instruct the jury on the law as set forth in the requests ...." It is not incumbent upon trial judges to exercise clairvoyance in determining what instructions are desired, particularly when tangential issues or theories of recovery are involved.

In addition to appellants' failure to offer an aggravation instruction, it is not readily apparent how the giving of Yurko's Instruction ## 3, dealing with the plaintiffs' burden of proof, precluded the appellants from securing an instruction on aggravation of an existing injury. Furthermore, even if such an instruction had been tendered, it is difficult to understand how this purported alternative theory of recovery was any different from that for which instructions were given. An allegation of medical malpractice almost always necessarily involves aggravation of a preexisting injury or illness. The mere formulation of an alternative label for the same theory of recovery does not entitle the formulating party to an instruction embodying this alternative label.

In Syllabus Point 2 of Jennings v. Smith, 272 S.E.2d 229 (W.Va.1980), quoting, syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966), this Court stated, "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." See also West Virginia Dept. of Highways v. Buckley, 260 S.E.2d 826 (W.Va.1979); Long v. City of Weirton, 214 S.E.2d 832 (W.Va.1975); Willey v....