Michael on Behalf of Estate of Michael v. Sabado, 22032

• Citation: 192 W.Va. 585,453 S.E.2d 419
• Decision Date: 21 December 1994
• Docket Number: No. 22032,22032
• Court: Supreme Court of West Virginia
• Parties: Sandra K. MICHAEL, as Administratrix and Personal Representative on Behalf of the ESTATE OF Randi Nichole MICHAEL, Plaintiff Below, Appellant v. Francisco D. SABADO, Jr., M.D., Defendant Below, Appellee.

Page 419

453 S.E.2d 419

192 W.Va. 585

Sandra K. MICHAEL, as Administratrix and Personal

Representative on Behalf of the ESTATE OF Randi

Nichole MICHAEL, Plaintiff Below, Appellant v. Francisco D. SABADO, Jr., M.D., Defendant Below, Appellee.

No. 22032.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 4, 1994.

Decided Dec. 21, 1994.

Syllabus by the Court

1. " ' "[T]he inquiry made of a jury on its voir dire are within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)[, overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990) ].' Syllabus Point 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987)." Syllabus Point 5, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

2. The official purposes of voir dire is to elicit information which will establish a basis for challenges for cause and to acquire information that will afford the parties an intelligent exercise of peremptory challenges. The means and methods that the trial judge uses to accomplish these purposes are within his discretion.

3. A trial court may not limit voir dire to the extent that the very purpose of voir dire has been substantially undermined or frustrated. Thus, a trial court may abuse its discretion if it so limits the voir dire that the litigants are unable to determine whether the jurors are statutorily qualified or free from bias.

4. Allowance of a party to present additional evidence on rebuttal depends upon the circumstances of the case and rests within the discretion of the individual most able to weigh the competing interests and circumstances--the trial judge.

5. Rule 403 of the West Virginia Rules of Evidence is explicit in the discretion granted a trial judge to admit or exclude contradictions found to be "relevant" under Rule 401. Many of the evils that Rule 403 is designed to avoid are similar to those sought to be avoided by the exclusion of extrinsic evidence on a collateral matter to impeach credibility. These evils include confusion of the issues, misleading the jury, undue delay, and waste of time.

6. " ' "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, through [sic] 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).' Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986)." Syllabus Point 3, Lenox v. McCauley, 188 W.Va. 203, 423 S.E.2d 606 (1992).

7. Punitive damage instructions are legitimate only where there is evidence that a defendant acted with wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear or where the legislature so authorizes.

Laura Coltelli Rose, Ronald M. Harman, Martinsburg, for appellant.

Richard L. Douglas, Claudia W. Bentley, Bowles, Rice, McDavid, Graff & Love, Martinsburg, for appellee.

CLECKLEY, Justice:

The plaintiff below and appellant, Sandra K. Michael, appeals from a jury verdict finding no liability in a wrongful death/medical malpractice case. This civil action arose from the death of the plaintiff's four year old daughter, Randi Nichole Michael, who died five days after Francisco D. Sabado, Jr., M.D., the defendant below and appellee, performed a tonsillectomy.

I. FACTS

On November 21, 1988, Randi Nichole Michael hemorrhaged to death apparently as the result of complications arising from a tonsillectomy performed by Dr. Sabado five days earlier. The plaintiff, Sandra Michael, filed suit and the case proceeded to trial on March 31, 1993. Following several days of trial, the jury rendered a verdict favoring the defendant. By order dated May 14, 1993, the trial court denied the plaintiff's motion for a new trial. The plaintiff appeals from The primary factual dispute in this case centers on the diagnosis leading to the tonsillectomy performed on Randi Michael. The plaintiff does not dispute that the tonsillectomy was properly performed. Instead, she claims that the defendant was negligent in his diagnosis of her daughter which led to the performance of an unnecessary tonsillectomy, and that Randi was released too early following the surgery.

[192 W.Va. 590] the final judgement and assigns numerous errors to this Court. ¹

The facts and events leading up to the tonsillectomy and death of Randi Michael are greatly disputed. The primary controversy is whether at the time of her tonsillectomy on November 16, 1988, the plaintiff's daughter suffered from symptomatology associated with infectious mononucleosis (not treatable by removal of tonsils), as is claimed by the plaintiff, as opposed to chronic tonsillitis (indicating a tonsillectomy).

On June 3, 1988, the defendant hospitalized Randi with a diagnosis of acute tonsillitis. The medical records indicate that this was the first medically diagnosed instance of tonsillitis. According to the plaintiff, the defendant decided that Randi needed a tonsillectomy based solely on this June, 1988, episode and without any prior documented instances of tonsillitis or throat infections. The plaintiff notes that when Randi arrived at City Hospital in Martinsburg by ambulance, Randi was in very serious condition, had severe difficulty swallowing, and her tonsils were infected. The tonsils were observed as being 4 +. ²

The defendant examined Randi again at a follow-up appointment on June 16, 1988. He testified that at this appointment Randi's tonsils were enlarged, her neck showed swelling of the lymph nodes, and her ears were retracted. Further, he stated that it was at this examination, and not on June 3, that he informed the plaintiff that her daughter's condition required surgery. Based upon this advice, the plaintiff on June 29, 1988, signed the surgical consent form for Randi's surgery.

Randi's tonsillectomy originally was scheduled for August 3, 1988. However, upon arriving at the hospital on that date, the plaintiff was informed that her daughter's surgery had been postponed. The plaintiff claims that after the hospital representative was unable to explain why Randi's surgery had been postponed, she consulted with her family physician at the Tri-State Community Health Center. That doctor informed the plaintiff that Randi's surgery had been postponed due to an enlarged liver. However, the defendant claims that he spoke to the plaintiff and advised her of the abnormalities in Randi's lab work.

The plaintiff argues that the defendant based his treatment of Randi, including surgery, only on a history of sore throats and the June 3, 1988, tonsillitis incident and did not review any of Randi's medical records until ten days before trial, which was over four years after Randi's death. However, the defendant counters that the plaintiff downplays the interaction between himself and Randi's treating physicians at the Tri-State Community Health Center. Dr. Sabado admits that he did not review the medical records until trial; but, nonetheless, he maintains that he did have telephone conferences with the Tri-State Community Health Center concerning Randi's status.

The parties disagree over whether Randi's surgery was rescheduled during August The plaintiff surmises that the defendant misdiagnosed her daughter, in part, because the defendant failed his ear, nose, and throat medical board examination six times that he could recall and that the defendant was never able to pass the oral portion of the test that dealt with rendering a diagnosis in patient scenarios.

                [192 W.Va. 591] 1988, or on October 20, 1988, for a November 16, 1988, surgical date. 3  The plaintiff claims that the defendant did not perform any other examination or test on Randi during the five-month period to determine whether Randi's condition still necessitated surgery.  Apparently, the defendant also failed to conduct any sort of investigation to discover why Randi's liver was enlarged. 4  The plaintiff asserts that Randi's medical records indicated tonsillitis.  However, the defendant admitted in court that at the time he recommended the tonsillectomy in June, 1988, he also documented Randi as having no history of tonsillitis.  At the time the defendant diagnosed Randi with tonsillitis, he did not order a test for mononucleosis. 5
                

At trial, the defendant's expert contended that "chronic" tonsillitis includes symptomatology that does not favorably respond to antibiotic treatment. The defendant admitted that Randi favorably responded to antibiotic treatment. However, the history and physical documents indicate that sore throat, tonsillitis with ear infections, reported historical sore throats, and tonsillitis with ear infections recurred in spite of antibiotic treatment. The defendant stated that he could not recall whether he examined Randi within thirty days prior to the surgery, as required by hospital rules; that his office records reflected no examination; and that Randi's "History and Physical" examination report must have been made by his assistant via a telephone conversation with Randi's mother.

The plaintiff's expert witness, Dr. Carl Cather, testified that Randi suffered from infectious mononucleosis instead of tonsillitis as diagnosed by the defendant. Dr. Cather also noted that the defendant's treatment of Randi was negligent because her medical history did not indicate the need for a tonsillectomy and that the defendant violated postoperative discharge procedures by releasing Randi four and one-half hours after surgery instead of waiting six to eight hours. ⁶ The early discharge is crucial under the...