Neary v. Charleston Area Medical Center, Inc.

• Decision Date: 11 July 1995
• Docket Number: No. 22576,22576
• Parties: Franklin NEARY and Patricia Neary, Plaintiffs Below, Appellants, v. CHARLESTON AREA MEDICAL CENTER, INC., Defendant Below, Appellee.
• Court: West Virginia Supreme Court

Page 464

460 S.E.2d 464

194 W.Va. 329

Franklin NEARY and Patricia Neary, Plaintiffs Below, Appellants, v. CHARLESTON AREA MEDICAL CENTER, INC., Defendant Below, Appellee.

No. 22576.

Supreme Court of Appeals of

West Virginia.

Submitted May 10, 1995.

Decided July 11, 1995.

Syllabus by the Court

1. " '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).

2. " 'The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant's negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.' Syl. Pt. 5, Davidson's, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965)." Syl. pt. 2, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991).

3. "Although expert medical testimony is not required under the patient need standard to establish the scope of a physician's duty to disclose medical information to his or her patient, expert medical testimony would ordinarily be required to establish certain matters including: (1) the risks involved concerning a particular method of treatment, (2) alternative methods of treatment, (3) the risks relating to such alternative methods of treatment and (4) the results likely to occur if the patient remains untreated." Syl. pt. 5, Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982).

4. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Harvey D. Peyton, Nitro, for appellants.

Richard D. Jones, Christine H. Fox, Flaherty, Sensabaugh & Bonasso, Charleston, for appellee.

PER CURIAM:

Franklin and Patricia Neary appeal a summary judgment order of the Circuit Court of Kanawha County dismissing their complaint without prejudice against the Charleston Area Medical Center, Inc. (CAMC). On appeal, Mr. and Mrs. Neary argue that summary judgment should not have been granted because: (1) there was a material issue of fact concerning whether CAMC's treatment of Mr. Neary was negligent; (2) the doctrine of res ipsa loquitur, which applies to this case, precludes summary judgment; and (3) CAMC failed in its duty to warn Mr. Neary of the risks of the surgery. Because Mr. Neary did not present any expert opinion concerning CAMC's alleged negligence or duty to warn and the doctrine of res ipsa loquitur does not apply in this case, we affirm the circuit court's order.

On February 12, 1991, Mr. Neary underwent a surgical micro lumbar laminectomy at CAMC. After several weeks of an apparently normal post operative recovery, on May 10, 1991, Mr. Neary developed severe pain, apparently caused by a staphylococcus aureus bacterial infection within the spinal disc space, which was the site of his February 1991 operation. After some initial treatment for the infection at CAMC, Mr. Neary was treated by Donlin Long, M.D. at the Johns Hopkins Medical Center. Mr. Neary maintains that because of the infection he has constant pain and is disabled from all gainful activity.

Mr. Neary claims that CAMC caused his infection because of a break in the sterile surgical technique which allowed the infection to enter the disc space. Mr. Neary also claims that CAMC failed to warn him of the risks of operative infections and his increased susceptibility to infection because he is an insulin dependant diabetic.

On August 27, 1992, Mr. Neary filed a complaint against CAMC, alleging CAMC was negligence in his treatment and failed to warn him of the increased risks. As part of discovery, the deposition of Dr. Long, one of Mr. Neary's post-infection treating physicians, was taken on March 21, 1993. Dr. Long provided the only expert testimony in the record. CAMC moved for summary judgment alleging that Dr. Long had no opinion concerning CAMC's alleged negligence and no opinion concerning CAMC's alleged failure to warn. Mr. Neary maintains that the doctrine of res ipsa loquitur, which he claims applies to this case, precludes summary judgment and submitted an affidavit stating that CAMC had not warned him of his increased risk of surgical infection.

After the circuit court granted CAMC summary judgment, Mr. and Mrs. Neary appealed to this Court. ¹

I

This case is a medical professional liability action within the meaning of W.Va.Code 55-7B-1 [1986] et seq., the Medical Professional Liability Act.

"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). Expert testimony is not required if the matter is within the "common knowledge" of the jurors (see Syl. pt. 4, Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1985)) or the doctrine of res ipsa loquitur (see Farley, supra, 185 W.Va. at 50, 404 S.E.2d at 539). See infra p. 467, discussing the application of the doctrine of res ipsa loquitur in this case.

W.Va.Code 55-7B-7 [1986] requires a plaintiff to establish the "applicable standard of care and a defendant's failure to meet said standard" through "testimony of one or more knowledgeable, competent expert witnesses if required by the court." ²

In this case, Mr. Neary maintains that "the disc space infection itself resulted from some inappropriate break in sterile surgical technique that allowed staphylococcus aureus bacteria to contaminate the disc space." However, Dr. Long, the Nearys' only expert witness, testified that he had not reviewed Mr. Neary's surgical record to develop an opinion of the cause of Mr. Neary's infection and had no opinion concerning whether anyone was negligent in connection with Mr. Neary's surgery. ³

Mr. Neary argues that the doctrine of res ipsa loquitur applies in this case. However, the doctrine does not apply under the circumstances of this case because Mr. Neary's infection could have occurred without anyone's negligence. Syl. pt. 2, Farley, supra, states:

"The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant's negligence is the only inference that can reasonably and legitimately be drawn from the circumstances." Syl. Pt. 5, Davidson's, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965).

One example of the doctrine of res ipsa loquitur given by Farley is the presence of a surgical sponge or scalpel because the "only inference that can be drawn is that the foreign object was left in the chest from surgery." Farley, 185 W.Va. at 50, 404 S.E.2d at 539.

In this case, Dr. Long, Mr. Neary's expert witness, testified that possible causes for infections similar to Mr. Neary's include: (1) foreign object left during surgery; (2) use of non-sterile instruments; (3) non-sterile hands of surgical personnel; (4) other breaks in sterile procedure; (5) post-operative infections of intravenous sites; and (6) presence of the bacteria on the patient's skin. Dr. Long noted that intra-operative infections in laminectomy patients occur in 1 to 3% of the operations.

Although Dr. Long testified that he assumed that Mr. Neary's infection was obtained during the course of his laminectomy, his assumption, in light of his testimony about the other possible causes for such infections and his lack of opinion concerning possible negligence, is not sufficient to invoke the doctrine of res ipsa loquitur. Because CAMC's alleged negligence is not the only inference that can be drawn from the facts, the doctrine of res ipsa loquitur does not apply in this case. ⁴

II

Mr. Neary also argues that CAMC failed to warn him of the possibility that an infection could occur as a result of his surgery. Mr. Neary maintains that because he is an insulin dependant diabetic, he, if properly warned of the dangers of infections, would have elected to have his surgery at Johns Hopkins. Mr. Neary argues that national infection rate of 1 to 3% for laminectomy surgery clearly establishes that CAMC had a duty to warn its patients of the dangers of such surgery.

In Cross v. Trapp, 170 W.Va. 459, 468, 294 S.E.2d 446, 455 (1982), we noted that "a physician has a duty to disclose information to his or her patient in order that the patient may give an informed consent to a particular medical procedure." However, expert testimony is required to show a deviation from the standard of care. W.Va.Code 55-7B-3 [1986] outlines the elements of proof necessary to show that the injury "resulted from the failure of a health care provider to follow the accepted standard of care...." See also W.Va.Code 55-7B-7 [1986], supra note 2, requiring expert testimony to establish the standard of care and a defendant's failure to meet such standard.

Although expert medical testimony is not required under the patient need standard to establish the scope of a physician's duty to disclose medical information to his or her patient, expert medical testimony would ordinarily be required to establish certain matters including: (1) the risks involved concerning a particular method of treatment, (2) alternative methods of treatment, (3) the risks relating to such alternative methods of treatment and (4)...