Pennington v. Bluefield Orthopedics, P.C., 20463

• Decision Date: 11 June 1992
• Docket Number: No. 20463,20463
• Citation: 419 S.E.2d 8,187 W.Va. 344
• Court: West Virginia Supreme Court
• Parties: Fred PENNINGTON and Colette Elaine Pennington Individually, and as the Parents and Natural Guardians of Lisa Denise Pennington, an Infant Plaintiff Below, Appellees, v. BLUEFIELD ORTHOPEDICS, P.C., a Corporation, and Yogesh Chand, M.D., an Individual, Defendant Below, Appellants.

Page 8

419 S.E.2d 8

187 W.Va. 344

Fred PENNINGTON and Colette Elaine Pennington Individually and as the Parents and Natural Guardians of Lisa Denise Pennington, an Infant Plaintiff Below, Appellees, v. BLUEFIELD ORTHOPEDICS, P.C., a Corporation, and Yogesh Chand, M.D., an Individual, Defendant Below, Appellants.

No. 20463.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1992.

Decided June 11, 1992.

Syllabus by the Court

1. "The execution of a general release in favor of the original tort-feasor or dismissal with prejudice of a civil action against such tort-feasor is prima facie evidence of the intention of the injured party to accept the same as full satisfaction of all damages which naturally flow from the original injury, in the absence of language or circumstances in the release or dismissal indicating a contrary intention of the parties; but whether such release or dismissal is a bar to further action for malpractice against the treating physician or hospital providing care is a question of fact to be answered from the intention of the parties." Syllabus point 5, Thornton v Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).

2. "To determine the intention of the parties with reference to release of successive tort-feasors, the injured party is entitled to introduce parol evidence to explain the terms of a contract of release in favor of, or the circumstances attendant to a dismissal with prejudice of a civil action against, the original tort-feasor." Syllabus point 6, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).

3. "It is generally recognized that there can be only one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury. A plaintiff may not recover damages twice for the same injury simply because he has two legal theories." Syllabus point 7, Harless v. First National Bank of Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).

4. "Where there is a single indivisible loss arising from the actions of multiple parties who have contributed to the loss, the fact that different theories of liability have been asserted against them does not foreclose their right of contribution inter se or prevent them from obtaining a verdict credit for settlements made with the plaintiff by one or more of those jointly responsible." Syllabus point 8, Board of Education of McDowell Co. v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).

5. "As the law regards the negligence of the one who caused the original injury as the proximate cause of the aggravated injuries occurring by reason of the negligence of the treating physician or hospital, the original tort-feasor is liable for all damages, including the successive damages inflicted by the physician or hospital." Syllabus point 3, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).

6. A setoff or verdict credit is appropriate in cases in which any tortfeasors, whether they be characterized as joint or successive and independent, are "jointly responsible" for a single indivisible injury.

7. "At common law, an injured party may have only one full recovery, and complete satisfaction from any tort-feasor is satisfaction of the total damages suffered." Syllabus point 1, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).

Laurie Garrigan McKowen, Masters & Taylor, L.C., Charleston, for appellees.

Harold D. Brewster, Jr., Brewster, Morhous & Cameron, Bluefield, for appellants.

BROTHERTON, Justice:

The appellants, defendants below, are Bluefield Orthopedics, P.C., and Yogesh Chand, M.D., who appeal from the lower court's refusal to grant their post-trial motion and offset an adverse $53,000 medical malpractice verdict against the $72,000 settlement paid by the driver of the vehicle who caused the initial injuries in this case.

On May 19, 1984, Lisa Pennington was injured in an automobile accident while riding in a car driven by Kevin Keyes. On May 20, 1984, an emergency room physician diagnosed several possible injuries and recommended that Lisa take her x-rays and see Dr. R.R. Raub, an orthopedic surgeon. Lisa saw Dr. Raub on May 21, 1984, and Dr. James Thomas and Dr. Edward Litz, an orthopedist, on May 22, 1984. Dr. Litz's records indicate that Lisa's only problem at the time was a fractured right clavicle. Lisa went to Dr. Yogesh Chand on May 30, 1984, for treatment of the fracture.

Dr. Chand performed a closed reduction of the clavicle fracture on May 31, 1984, and Lisa was placed in a cast. On June 5, Dr. Chand performed an open reduction and pinning of the clavicle because fragments had become displaced. On July 9, it was determined that osteomyelitis had developed in the clavicle at the site of the open reduction. Lisa was hospitalized for thirty days so that she could receive antibiotics and six cleansing procedures could be performed on the operative site to clear up the osteomyelitis.

The Penningtons asserted a claim against the driver, Kevin Keyes, and negotiated a $72,000 settlement. The Circuit Court of Mercer County approved the settlement in a summary proceeding. A petition and order stated that the settlement was for:

... any and all claims and demands which said Lisa Denise Pennington, an infant, has or may hereafter have against Kevin Keyes for and on account of any injury sustained by the said Lisa Denise Pennington including a fractured right clavicle, which was treated by an open reduction, external fixation, using a Steinmann pin, complicated by osteomyelitis, while a passenger in an automobile driven by Kevin Keyes.... (Emphasis added.)

The settlement was payable in two installments, and from these proceeds, $10,482 was authorized to be paid to Fred Pennington as compensation for expenses incurred for Lisa's treatment which were not covered by his insurance. With regard to Kevin Keyes, the order stated that the $72,000 payment was:

... in settlement and satisfaction of any and all claims and demands which said Lisa Denise Pennington ever had, now has or may hereafter have, for or on account of any and all injuries sustained by her, arising out of said accident, and for or on account of all damages therefore, and in consideration of the release of the said Kevin Keyes, from any and all claims and demands for said injuries, be, and the same is, hereby approved....

Following the settlement with Keyes, the Penningtons filed suit against Dr. Chand and Bluefield Orthopedics, alleging negligent medical treatment. The defendants denied any negligence, and the case went to trial.

The plaintiffs filed a motion in limine prior to trial, requesting that the court preclude any reference to the Keyes settlement during trial. The trial court granted this motion. The defendants state that they agreed to defer the issue of an offset credit from the Keyes settlement until after judgment, except for $3,465, which represented expenses already paid to Fred Pennington that the plaintiffs planned to introduce at trial as expenses they could also recover against the defendant.

It is important to point out that the defendants do not argue that the Penningtons were barred from proceeding against them because of the prior release of Keyes. For this reason, the defendants claim that they did not see the point in raising the issue of release in their pleadings. However, the defendants maintain that they did raise the issue of being allowed a setoff against the prior $72,000 settlement in the event of an adverse verdict.

The jury returned a $50,000 verdict for Lisa Pennington and awarded $3,000 to her parents. The defendants then moved the court to permit the earlier $72,000 settlement to offset the $53,000 judgment against them. The motion was denied by an order dated May 17, 1991, from which the defendants appeal.

The defendants now argue that because Kevin Keyes was the original tortfeasor, he is liable for all injuries and damages incurred by Lisa Pennington, including any aggravation of the original injuries resulting from Dr. Chand's allegedly negligent medical treatment. Further, the defendants also contend that the plaintiffs' damage claim against Keyes included the same damages which they later asserted against Dr. Chand, and that the tortfeasors' liability in this case is joint and not capable of division.

It is our determination that Keyes and Chand were not joint tortfeasors, but instead were successive and independent tortfeasors, defined by this Court as those whose negligence "did not 'in point of time and place concur,' which is [the] test for joint or concurrent negligence." Sansom v. Physicians Associates, Inc., 182 W.Va. 113, 386 S.E.2d 480 (1989). Any alleged negligence by the driver, Kevin Keyes, clearly "did not 'in point of time and place concur' " with the allegedly negligent medical treatment which the plaintiff subsequently received from Dr. Chand.

Having ascertained that Keyes and Chand were successive and independent tortfeasors, we now consider what effect, if any, the plaintiffs' release of Kevin Keyes "from any and all claims and demands for said injuries" had on the plaintiff's subsequent suit against Dr. Chand. In Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975), this Court adopted the modern rule which provides that the release of an original tortfeasor may not necessarily bar further recovery against a successive and independent tortfeasor who is negligent in the treatment of the injury caused by the original tortfeasor. ¹ "Beyond question, an injured party has a separate cause of action against a successive and independent tort-feasor who negligently renders medical or hospital care in the treatment of injuries suffered at the hands of another." Id. at 108. We found that it was "patently illogical to conclusively presume, in the absence of...