Reager v. Anderson

Decision Date22 July 1988
Docket NumberNo. 17123,17123
Citation371 S.E.2d 619,179 W.Va. 691
PartiesWilliam REAGER, Sr., Father and Next Friend of William Reager, Jr., and William Reager, Sr., Individually v. Carl ANDERSON, M.D. and Joseph Melia, M.D.
CourtWest Virginia Supreme Court
Syllabus by the Court

1. "Where a plaintiff in a malpractice case has demonstrated that a defendant's acts or omissions have increased the risk of harm to the plaintiff and that such increased risk of harm was a substantial factor in bringing about the ultimate injury to the plaintiff, then the defendant is liable for such ultimate injury." Syl. pt. 5, Thornton v. CAMC, 172 W.Va. 360, 305 S.E.2d 316 (1983).

2. In a comparative negligence or causation action the issue of apportionment of negligence or causation is one for the jury or other trier of the facts, and only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference from them should such issue be determined as a matter of law. The fact finder's apportionment of negligence or causation may be set aside only if it is grossly disproportionate.

3. "Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption." Syl. pt. 1, Addair v. Majestic Petroleum Co., 160 W.Va. 105, 232 S.E.2d 821 (1977).

4. "When improper or incompetent evidence for the plaintiff is erroneously permitted to go to a jury, but it affirmatively appears, from the competent evidence in the case that the verdict of the jury in favor of the plaintiff was fully warranted, the error aforesaid will be treated as harmless and nonprejudicial, and the verdict so returned, and the judgment based thereon, will not be disturbed by this Court. The same principle applies to a case where improper testimony favors a defendant, and the verdict is in his favor." Syl. pt. 2, Mills v. Miller, 135 W.Va. 627, 64 S.E.2d 111 (1951).

5. Disclosure to the jury of the general nature of a "Mary Carter" settlement agreement is not required in each case; such disclosure lies within the sound discretion of the trial court. Where the "Mary Carter" agreement is not reached until after all or most of the evidence has been presented, and the settling defendant during closing argument and examination does not indicate to the jury a realignment of loyalties so as to prejudice the nonsettling defendant(s), it is within the sound discretion of the trial court to refuse to disclose the general nature of the "Mary Carter" agreement to the jury.

6. In a case in which a settling defendant, pursuant to a "Mary Carter" settlement agreement, remains an active party and incurs a joint judgment, a verdict for the plaintiff will be reduced by the amount guaranteed in the settlement, and the defendants' right to comparative contribution will be preserved.

7. Where the matters designated for inclusion in the appellate record are relevant to the issues presented by the appeal or cross-assignment(s) of error, this Court will not divide the costs of reproducing the record. W.Va.R.App.P. 8(d).

Frederick P. Stamp, Frank X. Duff, Patrick S. Casey, Schrader, Stamp, Byrd, Byrum & Companion, Wheeling, for Dr. Melia.

John B. Garden, R. Noel Foreman, Wheeling, for Dr. Anderson.

Monty L. Preiser, Charleston, for William Reager, Sr. McHUGH, Chief Justice:

This action is before this Court upon the appeal of Joseph Melia, M.D., the appellant and one of two defendants below, from a final order of the Circuit Court of Ohio County, West Virginia ("the trial court") denying the appellant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Having reviewed the voluminous record, the petition for appeal and the excellent briefs and oral argument of counsel, we affirm the trial court's final order.


This case involves a minor whose left leg was amputated above the knee. According to the jury's verdict, the amputation was required because of the combined medical malpractice of the appellant, an orthopedic surgeon, and of Carl Anderson, M.D., a general surgeon. A chronology of the medical treatment provided in this case is presented here. Other facts will be stated in subsequent sections of this opinion in conjunction with the issues of law raised by those facts.

On Sunday, May 16, 1982, at about 2:30 p.m., William Reager, Jr. ("the patient"), at the time thirteen years of age, falls eighteen to twenty feet off a cliff and sustains injuries to his head and left leg. The patient arrives at Reynolds Memorial Hospital in Moundsville, West Virginia, at about 3:30 p.m., and is examined shortly thereafter in the hospital's emergency room by Dr. Carl Anderson, a general surgeon. X-rays are taken. At about 6:30 p.m., the nurses' notes indicate that the patient's toes on his left foot are cold, white and numb. The same symptoms are noted by the nurses at 8:15 p.m., at which time Dr. Anderson is called. After this call Dr. Anderson does not see the patient or do anything else for the patient. The nurses' notes throughout the remainder of the night of the 16th into the 17th indicate that the circulatory problems in the patient's left foot and leg come and go and that the patient constantly complains of severe pain in the left foot and leg.

On Monday, May 17, 1982, Dr. Anderson examines the patient's leg at about 9:15 a.m. He does not remove the ace bandage from the leg during the examination. At about 10:00 a.m. Dr. Anderson runs into the appellant, Dr. Melia, an orthopedic surgeon, at the elevator in the hospital. Both Dr. Anderson and the appellant agree that Dr. Anderson asked the appellant to look at the x-rays of the patient's leg. Dr. Anderson testified that he also at this time asked the appellant for a consultation; this is denied by the appellant. Within about five minutes thereafter, the appellant confirms what the radiologists had diagnosed from the x-rays, specifically, a nondisplaced, simple fracture of the tibia (the "shinbone") near the knee joint of the left leg of the patient. During the remainder of the 17th, the patient continues to have pain in his left leg; his leg becomes swollen; and his toes on his left foot are alternately cold and white, then pink and warm, with numbness in the toes and occasional burning sensation in the heel. The nurses' notes throughout this entire period of time indicate a pedal pulse, taken by placing two fingers on the bones at the top of the foot.

On Tuesday, May 18, 1982, Dr. Anderson sees the patient at about 9:45 a.m., but administers no treatment. At about 10:30 a.m., Dr. Anderson has a nurse call the appellant's office for a consult and writes "consult Dr. Melia [the appellant]." The appellant calls the hospital at about 12 noon and talks to a nurse and the patient's father. The appellant does not inquire of Dr. Anderson, of the nurse or of the patient's father about the patient's condition but tells the patient's father that he will visit the patient the next morning. Neither Dr. Anderson nor the appellant examine the patient until the next morning. During the remainder of the 18th, pain in the patient's left leg and impeded circulation signs continue.

On Wednesday, May 19, 1982, the appellant at about noon examines the patient, unwraps the ace bandage and notices compartmental syndrome, which is increased pressure and swelling and decreased circulation of blood and oxygen to the muscles in an enclosed area. Without looking at the patient's chart the appellant immediately thereafter performs a fasciotomy, an excision into the leg to release the pressure and built-up fluids. He notices necrotic, or dead, muscles in the anterior part of the leg but viable muscles in the posterior part of the leg. He does not debride, or remove, the dead muscles. He does not call in a vascular surgeon; does not use a Doppler, a device used to "hear" a pedal pulse; and he does not order an arteriogram, in order to determine if there had been any damage to the popliteal artery, the main artery supplying blood to the lower leg, which is located behind the knee. Circulation after the fasciotomy improved somewhat, according to the appellant. A pedal pulse was present on several occasions during the evening of the 19th into the 20th.

On Thursday, May 20th, 1982, at about 4:00 to 4:30 p.m., three nurses note that there is no pedal pulse. Dr. Anderson and the appellant do nothing.

On May 22, 1982, the appellant uses a Doppler and confirms no pedal pulse.

On May 23, 1982, Dr. Anderson consults with Dr. Reed, a vascular surgeon.

On May 27, 1982, the patient is transferred to the Children's Hospital in Pittsburgh, Pennsylvania. Exploratory surgery indicates that muscles in all four compartments of the patient's left leg are dead.

On May 28, 1982, the patient's left leg is amputated above the knee. The pathological report indicates that a two-centimeter thrombosis (clot) was found in the popliteal artery at the level of the simple tibial fracture. There was also a very small bone fragment found there. The trauma to the leg had caused a clot in the popliteal artery. The reduced blood blow in the leg eventually resulted in the death of the muscles in the leg.

The patient's father subsequently brought this medical malpractice action for medical expenses and other special damages incurred by him and, on behalf of the patient, a minor, for his damages.

At trial in October, 1984, the appellant and his medical experts testified that the patient's left leg was lost due to a total occlusion (blockage) of the popliteal artery within "the golden period," that is, within approximately twelve hours, after the injury from the fall; that is, the left leg was lost by about 3:00 a.m. on May 17, 1982, which was before the appellant was even asked to look at the x-rays. The plaintiffs'/appellees' medical experts testified that the total...

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    ... ... is that the decision addressed Mary Carter agreements. We summarized the four essential features of a Mary Carter agreement in Reager v. Anderson, 179 W.Va. 691, 701, 371 S.E.2d 619, 629 (1988) : ... "(1) The agreeing defendant(s) must remain in the action in the posture of ... ...
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