Price v. Charleston Area Medical Center

• Decision Date: 14 July 2005
• Docket Number: No. 31774.,31774.
• Citation: 619 S.E.2d 176
• Court: West Virginia Supreme Court
• Parties: Ercelle E. PRICE, Plaintiff Below, Appellant, v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation; University of West Virginia Board of Trustees; and Associated Radiologists, Inc., a West Virginia Corporation, Defendants Below, Appellees.

619 S.E.2d 176

Ercelle E. PRICE, Plaintiff Below, Appellant, v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation; University of West Virginia Board of Trustees; and Associated Radiologists, Inc., a West Virginia Corporation, Defendants Below, Appellees.

No. 31774.

Supreme Court of Appeals of West Virginia.

Submitted February 22, 2005.

Decided June 24, 2005.

Dissenting Opinion of Justice Starcher July 14, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marvin W. Masters, Esq., Julie N. Langford, Esq., The Masters Law Firm, L.C., Charleston, for Appellant, Price.

Dina M. Mohler, Esq., Cheryl A. Eifert, Esq., Office of the General Counsel, Charleston Area Medical Center, Inc., Charleston, for Appellee, Charleston Area Medical Center, Inc.

Charles R. Bailey, Esq., Susan M. Harman, Esq., George J. Joseph, Esq., Bailey & Wyant, P.L.L.C., Charleston, for Appellee, University of West Virginia Board of Trustees.

Mark A. Robinson, Esq., C. Benjamin Salango, Esq., Flaherty, Sensabaugh & Bonasso, P.L.L.C., Charleston, for Appellee, Associated Radiologists, Inc.

BENJAMIN, Justice.

In this appeal, the appellant and plaintiff below, Ercelle E. Price, challenges the December 4, 2003, order of the Circuit Court of Kanawha County, West Virginia, denying his motion for a new trial following an adverse jury verdict in his medical malpractice action. The appellees and defendants below are Charleston Area Medical Center, Inc.; University of West Virginia Board of Trustees; and Associated Radiologists, Inc. The appellant's cause of action was based upon the alleged failure of the appellees to timely diagnose and treat his appendicitis and ruptured appendix. The appellant contends that, as a result, he suffered medical complications and permanent injury.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. One of the appellant's assignments of error concerns the assertion that the Circuit Court erred in granting, sua sponte, each of the appellees 3 peremptory challenges from the panel of 20 potential jurors. According to the appellant, the total of 9 peremptory challenges thus granted the appellees, compared to the 3 peremptory challenges granted him, resulted in the denial of a fair and impartial jury, especially since, as the appellant argues, the appellees presented a united defense against him.

Upon careful review, this Court finds merit in the appellant's assertion concerning the peremptory challenges afforded to the parties. Therefore, for the reasons expressed herein, the December 4, 2003, order of the Circuit Court is reversed, and this action is remanded to that Court for a new trial.

I. Factual and Procedural Background

On November 26, 1998, appellant Price, age 74, went to the emergency room of Charleston Area Medical Center, Inc., (hereinafter "CAMC") complaining of nausea, shortness of breath and pain in the lower abdomen. His abdomen was distended, and he had a history of urinary problems, prostatitis (inflammation of the prostate) and alcoholism. The appellant was admitted to CAMC for observation.

The appellant asserted at trial that, while under the care of the appellees, his symptoms, examinations and test results clearly indicated appendicitis and a resulting ruptured appendix which should have been diagnosed early-on and promptly treated. The appellees asserted, however, that the symptoms, examinations and test results were common to a "host of medical problems," including: an ileus (an obstruction of the bowel), acute prostatitis or a combination of the two. According to the appellees, appendicitis was never ruled out, even though all indications, such as the absence of peritoneal symptoms, were atypical of a diagnosis in that regard.

While in CAMC, appellant Price was seen by a number of physicians. A November 27, 1998, CT scan of the appellant was interpreted by Dr. James T. Smith as suggesting an ileus.¹ Dr. Smith was a radiologist working at CAMC and employed by Associated Radiologists, Inc. Three days later, however, the appellant began exhibiting symptoms consistent with alcohol withdrawal. The latter conclusion was in accord with the findings of Dr. Glen Allen Wright, a psychiatrist who saw the appellant in response to a physician's consultation request. Dr. Wright worked at CAMC and was employed by the University of West Virginia Board of Trustees. As later determined, however, the appellant was in the beginnings of sepsis (an infection related to his appendix).

Appellant Price's condition further deteriorated, and he was placed in the CAMC intensive care unit. On December 4, 1998, a lavage (washing out) of the appellant's abdomen indicated the presence of an infection. Exploratory surgery was then performed by Dr. John A. DeLuca who discovered that the appellant's appendix had ruptured. Abscess was also noted, and several follow-up surgeries upon the appellant's abdomen were required.

In November 2000, the appellant filed a medical malpractice action in the Circuit Court of Kanawha County against appellees Charleston Area Medical Center, Inc.; University of West Virginia Board of Trustees; and Associated Radiologists, Inc.² The complaint alleged that, as a result of the appellees' negligence, the appellant was injured "in that his appendix was infected and ruptured and went undiagnosed for several days resulting in severe complications and permanent injury."

Trial began on August 25, 2003, and on September 4, 2003, the jury returned a verdict in favor of the appellees. The verdict form contained two questions as to each appellee, the first question asking the jury to determine whether the appellee had deviated from the standard of care in its care and treatment of the appellant, and the second question asking the jury, to determine, if it found such a deviation, whether the deviation proximately caused the appellant's injury. The jury, in each case, found that the appellee had not deviated from the standard of care. As a result, the jury did not reach the issues of proximate cause or damages.

On December 4, 2003, the Circuit Court denied appellant Price's motion for a new trial.

II. Standard of Review

Rule 59(a) of the West Virginia Rules of Civil Procedure authorizes the filing of a motion for a new trial following an adverse jury verdict. See generally, Lugar & Silverstein, West Virginia Rules of Civil Procedure, p. 447-50 (Michie 1960). As long recognized, this Court's standard of review concerning a ruling upon such a motion is whether the circuit court abused its discretion. Williams v. Charleston Area Medical Center, 215 W.Va. 15, 18, 592 S.E.2d 794, 797 (2003); Andrews v. Reynolds Memorial Hospital, 201 W.Va. 624, 629, 499 S.E.2d 846, 851 (1997); In re State Public Building Asbestos Litigation, 193 W.Va. 119, 124-26, 454 S.E.2d 413, 418-20 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995); syl. pt. 1, Cook v. Harris, 159 W.Va. 641, 225 S.E.2d 676 (1976).

More specifically, syllabus point 4 of Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976), holds: "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 2, Phares v. Brooks, 214 W.Va. 442, 590 S.E.2d 370 (2003); syl. pt. 2, Heitz v. Clovis, 213 W.Va. 197, 578 S.E.2d 391 (2003); syl. pt. 1, Matheny v. Fairmont General Hospital, 212 W.Va. 740, 575 S.E.2d 350 (2002); syl. pt. 2, Witt v. Sleeth, 198 W.Va. 398, 481 S.E.2d 189 (1996).

Here, although the Circuit Court conducted a hearing upon the appellant's motion for a new trial, the order of December 4, 2003, does not set forth reasons as to why the motion was denied.

III. Discussion

Appellant Price contends that the Circuit Court committed error in granting, sua sponte, each of the appellees 3 peremptory challenges from the panel of 20 potential jurors. Specifically, in giving the appellees an aggregate of 9 peremptory challenges to the appellant's 3 challenges, the Circuit Court divided the panel into a group of 14, from which the members of the jury would be selected, and a group of 6, from which two alternate jurors would be selected. The appellant and each of the appellees were given 2 peremptory challenges as to the group of 14, and they were each given 1 peremptory challenge as to the group of 6. That procedure resulted in a jury of six members, plus two alternates.³

The appellant challenged the Circuit Court's ruling and asserts before this Court that the 9 peremptory challenges granted the appellees, in relation to the 3 afforded him, resulted in the denial of a fair and impartial jury, especially since the appellees presented a united defense against him. According to the appellant, the appellees' united defense was that, in view of the difficulty of making a clear diagnosis of his immediate medical problem, a close observation of the appellant over a period of time at CAMC, in conjunction with further examinations and tests, did not constitute a deviation from the standard of care and did not proximately cause his injuries.⁴

Rule 47(b) of the West Virginia Rules of Civil Procedure, concerning peremptory challenges, provides as follows:

Unless the court directs that a jury shall consist of a greater number, a jury shall consist of six persons. The plaintiff and the defendant shall each have two peremptory challenges which shall be exercised one at a time, alternately, beginning with the plaintiff. Several defendants or several plaintiffs may be considered as a single party for the purpose of exercising challenges, [or the court] may allow additional peremptory challenges and permit them to be exercised separately or jointly.

A fair reading of Rule 47(b) suggests that it provides a circuit court...