McGraw v. St. Joseph's Hosp.

• Decision Date: 16 July 1997
• Docket Number: No. 23540,23540
• Parties: Robert S. McGRAW, Plaintiff Below, Appellant, v. ST. JOSEPH'S HOSPITAL, a Corporation, and Thomas J. Tarney, M.D., Defendants Below, Appellees.
• Court: West Virginia Supreme Court

Page 389

488 S.E.2d 389

200 W.Va. 114

Robert S. McGRAW, Plaintiff Below, Appellant, v. ST. JOSEPH'S HOSPITAL, a Corporation, and Thomas J. Tarney, M.D., Defendants Below, Appellees.

No. 23540.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1997.

Decided Feb. 21, 1997.

Dissenting Opinion of Justice Maynard

July 16, 1997.

Syllabus by the Court

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

2. "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." Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 335 (1995).

3. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 335 (1995).

4. " ' "When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but to apply the statute. Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369 [135 S.E.2d 262 (1964) ]." Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969).' Syl. pt. 3, Central West Virginia Refuse, Inc. v. Public Service Com'n of West Virginia, 190 W.Va. 416, 438 S.E.2d 596 (1993)." Syl. Pt. 2,Keen v. Maxey, 193 W.Va. 423, 456 S.E.2d 550 (1995).

5. " 'It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.' Syl. pt. 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964)." Syl. Pt. 1, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991).

6. "In medical malpractice cases where lack of care or want of skill is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience, failure to present expert testimony on the accepted standard of care and degree of skill under such circumstances is not fatal to a plaintiff's prima facie showing of negligence." Syl. Pt. 4, Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1985).

7. " 'A hospital owes to one who is a patient therein a duty to exercise reasonable care in rendering hospital services to the patient and, in the performance of such duty, due regard must be given to the mental and physical condition of the patient of which the hospital, in the exercise of reasonable care, should have knowledge.' Syl. pt. 2, Duling v. Bluefield Sanitarium, Inc., 149 W.Va. 567, 142 S.E.2d 754 (1965)." Syl. Pt. 3, Utter v. United Hospital Center, Inc., 160 W.Va. 703, 236 S.E.2d 213 (1977).

8. A trial court is vested with discretion under W.Va.Code § 55-7B-7 (1986) to require expert testimony in medical professional liability cases, and absent an abuse of that discretion, a trial court's decision will not be disturbed on appeal.

9. The standard of nonmedical, administrative, ministerial or routine care in a hospital need not be established by expert testimony, because the jury is competent from its own experience to determine and apply a reasonable care standard.

William L. Jacobs, Parkersburg, for Appellant.

Jeffrey M. Wakefield, Don R. Sensabaugh, Flaherty, Sensabaugh & Bonasso, Charleston, for Appellees.

DAVIS, Justice:

This is an appeal by Robert S. McGraw, plaintiff below, from a summary judgment order of the Circuit Court of Wood County dismissing his complaint against the defendant below, St. Joseph's Hospital. ¹ On appeal the plaintiff argues that the circuit court committed error in granting summary judgment on the grounds that medical expert testimony was required to show the defendant violated the standard of care in its treatment of him.

I. FACTUAL BACKGROUND

The facts of this case are straightforward, though some critical points remain in dispute. On May 10, 1991 the plaintiff walked into the defendant's emergency room complaining of shortness of breath. After several hours of waiting to be seen by medical personnel, the plaintiff was admitted into the hospital. On the morning of May 11, four female hospital personnel attempted to assist the plaintiff back into bed. ² The plaintiff testified during his deposition that he informed the four On May 6, 1993 the plaintiff filed the instant action against the defendant. The complaint charged the defendant with dropping or permitting him to fall on two occasions. It was also alleged that he sustained "a fractured neck and other injuries in, about and upon his arms, knees and other parts of his body" as a result of both incidents. After discovery in the case, the defendant moved for summary judgment "premised upon the failure of McGraw to produce expert testimony demonstrating that the hospital deviated from the standard of care and that any deviation caused injury or damage to McGraw."

                [200 W.Va. 117] women that he did not believe they could put him in bed because he weighed too much. 3  The plaintiff's memory of what happened immediately after making that statement is minimal.  He testified that all he could remember is that he "had a sensation of falling." 4  During the early morning hours of May 12 the plaintiff was discovered on the floor near his bed.  The plaintiff indicated in his deposition that he fell out of bed. 5  The plaintiff further testified that on the afternoon of May 21, four female nurses and nurse's aides dropped him while attempting to place him in bed. 6  He stated that "they had to get men to put me--get me up and put me in bed after they had dropped me[.]"  The plaintiff was eventually discharged from the hospital on June 28, 1991
                

By order entered June 16, 1995 the circuit court granted the defendant's motion for summary judgment on the grounds that "West Virginia law requires that a violation of the standard of care by a health care provider be proven by expert testimony," but that the plaintiff "is unable to produce expert testimony as to any violation of the standard of care by the Hospital[.]" This appeal followed. We reverse.

II. STANDARD OF REVIEW

We stated in syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) that "[a] circuit court's entry of summary judgment is reviewed de novo." See also Syl. pt. 1, Jones v. Wesbanco Bank Parkersburg, 194 W.Va. 381, 460 S.E.2d 627 (1995); Syl. pt. 1, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995). Syl. pt. 4, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). We, therefore, apply the same standard as a circuit court. Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 335 (1995). In syllabus point 2 of Williams the Court stated:

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.

Further, in syllabus point 3 of Williams we held:

If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence It is through the above legal principles that we decide the merits of this case.

[200 W.Va. 118] showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.

III. DISCUSSION

We 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." Defendant takes the position that medical expert testimony was mandatory in this case pursuant to W.Va.Code § 55-7B-7 (1986), which provides in relevant part: ⁷

The applicable standard of care and a defendant's failure to meet said standard, 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.

In granting the defendant summary judgment in this case, the circuit court did not cite the above statute. The circuit court held that our law required "a violation of the standard of care by a health care provider ⁸ be proven by expert testimony[.]" We address the meaning of the above quoted passage from W.Va.Code § 55-7B-7.

A. West Virginia Code § 55-7B-7

Our traditional rule of statutory construction is set out in syllabus point 2 of Keen v. Maxey, 193 W.Va. 423, 456 S.E.2d 550 (1995) as follows:

" ' "When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but...