Rine By and Through Rine v. Irisari, No. 20459

• Court: West Virginia Supreme Court
• Writing for the Court: McHUGH
• Citation: 187 W.Va. 550,420 S.E.2d 541
• Parties: Michael RINE, an Infant and Incompetent, By and Through his Mother, Natural Guardian and Next of Friend, Traci L. RINE, and Traci L. Rine, Individually, Plaintiffs Below, Appellants, v. Oscar S. IRISARI, M.D., Defendant Below, Appellee.
• Docket Number: No. 20459
• Decision Date: 11 June 1992

Page 541

420 S.E.2d 541 187 W.Va. 550 Michael RINE, an Infant and Incompetent, By and Through his
Mother, Natural Guardian and Next of Friend, Traci
L. RINE, and Traci L. Rine,
Individually, Plaintiffs
Below, Appellants,
v.
Oscar S. IRISARI, M.D., Defendant Below, Appellee. No. 20459. Supreme Court of Appeals of
West Virginia. Submitted April 28, 1992.
Decided June 11, 1992.

[187 W.Va. 551]

Page 542

Syllabus by the Court

1. A negligent physician is liable for the aggravation of injuries resulting from subsequent negligent medical treatment, if foreseeable, where that subsequent medical treatment is undertaken to mitigate the harm caused by the physician's own negligence.

2. "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

3. As a condition precedent to the admissibility of former testimony under W.Va.R.Evid. 804(b)(1), the proponent of such testimony must show the unavailability of the witness. If the witness is available, the in-court testimony of that witness is preferred.

4. Where the adverse party or a witness favorable to the adverse party is

Page 543

[187 W.Va. 552] called as a witness by the opponent, leading questions by the adverse party's own counsel on cross-examination will usually not be allowed.

Robert P. Fitzsimmons, William E. Parsons, Fitzsimmons & Parsons, and Gregory A. Gaudino and William G. Petroplus, Petroplus & Gaudino, Wheeling, for appellants.

Herbert G. Underwood, Steptoe & Johnson, Clarksburg, for appellee.

McHUGH, Chief Justice:

The appellants, Michael Rine, an infant, and his mother, Traci L. Rine, appeal from a jury verdict entered in a medical malpractice action in the Circuit Court of Marshall County in favor of Oscar S. Irisari, M.D., an obstetrician. Upon review of the record before us, we conclude that this case should be remanded for a new trial.

I

Ms. Rine employed Dr. Irisari to treat her during her pregnancy in 1983. Dr. Irisari was specializing in obstetrics ¹ and practicing in a partnership with his wife, Elisa Irisari, M.D. Ms. Rine was first examined by Dr. Irisari on January 10, 1983, and the expected date of the birth of her child was August 8, 1983. She continued regular office visits with Dr. Irisari until June of 1983.

On June 24, 1983, Ms. Rine experienced premature labor and was admitted to Reynolds Memorial Hospital. ² Dr. Irisari initially attempted to stop Ms. Rine's labor with medication. Dr. Irisari did not use an electronic fetal heart monitor to determine fetal distress. Moreover, Dr. Irisari did not transfer Ms. Rine to a "high-risk" facility for labor and delivery. Michael Rine was born prematurely at Reynolds Memorial Hospital on June 25, 1983.

A few seconds after his birth, Michael stopped breathing. James Edward Goodwin, M.D., the pediatrician selected to be Michael's doctor upon birth, attempted to resuscitate Michael by intubating him. Two and one-half hours later, a team from West Virginia University arrived at Reynolds Memorial Hospital and had to reintubate Michael because the tube was placed in his esophagus instead of his trachea. The record indicates that Dr. Goodwin did not have privileges at Reynolds Memorial Hospital to care for premature infants experiencing complications.

Now, at eight years of age, Michael has severe to profound mental retardation, severe developmental delays, cerebral palsy, left hemiplegia, grand mal and petit mal seizures, attention deficit with hyperactivity, no meaningful speech, and aggressive behavior which is sometimes self-abusive. Michael is currently functioning at the level of a one-year-old child.

Ms. Rine filed a medical malpractice action against Dr. Irisari based on the theory that Dr. Irisari was negligent in failing to transport Ms. Rine to a high-risk medical facility, in failing to use an electronic fetal heart monitor, in failing to monitor Ms. Rine's labor and fetus, ³ and in failing to organize an adequate resuscitation team. Ms. Rine alleges that Dr. Irisari's negligence caused or contributed to Michael's injuries. ⁴

Page 544

[187 W.Va. 553] A six-day trial was held before a jury in November of 1990, and at the conclusion, the jury returned a verdict in favor of Dr. Irisari. The appellants now seek to have the jury verdict and judgment set aside, and a new trial awarded.

II

One issue raised in this case which has not previously been addressed by this Court is whether the negligence of subsequent treating physicians, if such negligence may be foreseen, is chargeable to the original medical tortfeasor. The judge in the present case refused the jury instruction offered by the appellants regarding a negligent physician's liability for subsequent negligent medical treatment which is undertaken to mitigate the harm caused by the original physician's own negligence.

The appellants' theory of the case was that Dr. Irisari was responsible, not only for his own negligence in treating Ms. Rine, but also for the negligence of subsequent treating physicians which would have been foreseeable. Such a theory is consistent with the rule stated in section 457 of the Restatement (Second) of Torts (1965), which provides:

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

Many courts have recognized the rule that, in cases of successive malpractice, the original medical tortfeasor is liable for subsequent negligent medical treatment which is undertaken to mitigate the harm caused by the original medical tortfeasor. Daly v. United States, 946 F.2d 1467 (9th Cir.1991); Cokas v. Perkins, 252 F.Supp. 563 (D.C.1966); Davidson v. Gaillard, 584 So.2d 71 (Fla.Dist.Ct.App.1991); Carter v. Shirley, 21 Mass.App. 503, 488 N.E.2d 16 (App.Ct.1986); Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788 (1970); Lindquist v. Dengel, 92 Wash.2d 257, 595 P.2d 934 (1979). See also Gilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421 (1974), aff'd, 233 Ga. 453, 211 S.E.2d 744 (1975); Alberstett v. Country Mutual Insurance Co., 79 Ill.App.3d 407, 34 Ill.Dec. 788, 398 N.E.2d 611 (1979); Sall v. Ellfeldt, 662 S.W.2d 517, 525 n. 4 (Mo.Ct.App.1983); Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971); Corbett v. Clarke, 187 Va. 222, 46 S.E.2d 327 (1948).

In Lindquist v. Dengel, the Washington Supreme Court found that

where malpractice results in an injury for which a physician is liable, the risk created includes that of additional medical treatment and, perhaps, additional harm. There is no reason in principle to create a special exception to the rule of liability for harm which is foreseeable and within the scope of the risk merely because the tort-feasor is a physician.

595 P.2d at 937. In reaching this decision, the court relied on the basic rule of liability for harm resulting from treatment of injuries caused by a tortfeasor's negligent conduct which is stated in Restatement (Second) of Torts § 457 (1965).

The Ninth Circuit recently clarified the rule stated by the Washington Supreme Court in Lindquist. The Ninth Circuit pointed out, in Daly v. United States, that "[t]he relationship between the harm inflicted by the first physician and the treatment initiated by the second is crucial to holding the first physician liable for subsequent malpractice." 946 F.2d at 1471. The court stated that section 457 of the Restatement (Second) of Torts (1965) "applies only when the subsequent treatment is undertaken to mitigate harm inflicted by a prior physician." Id.

The District Court of Appeal of Florida addressed the issue of the foreseeability of the subsequent negligent treatment in Davidson v. Gaillard, supra. That court also cited section 457 of the Restatement (Second) of Torts (1965) and recognized that "[t]he rationale for this rule is that negligent medical treatment is within the scope of the risk created by the original negligent conduct." 584 So.2d at 73. The court also observed that when an original tortfeasor's negligent act causes a plaintiff

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[187 W.Va. 554] to seek medical treatment which is negligently provided, such negligent medical treatment is foreseeable as a matter of law. Id. However, the court acknowledged that if the nature of the subsequent negligent treatment is "highly unusual, extraordinary or bizarre," such negligence would be unforeseeable as a matter of law. 584 So.2d at 74.

Finally, the Appeals Court of Massachusetts, in Carter v. Shirley, also found that the rule stated in the Restatement (Second) of Torts § 457 (1965) should apply to "physicians whose original negligence causes the intervention of a second physician who either improperly diagnoses the case and performs an unnecessary operation or makes a proper diagnosis and performs a necessary operation negligently." 488 N.E.2d at 20.

Although we have never addressed this issue in a case involving successive malpractice, this Court has recognized that a person who negligently causes personal injuries is liable for increased damages due to the negligence of a physician who treats and aggravates the original injury when the injured person exercises reasonable care in selecting the physician. Syl. pt. 1, Mier v. Yoho, 114 W.Va. 248, 171 S.E. 535 (1933), overruled on another point, syl. pt. 4, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975). ⁵ We observed that the reason given for this rule "is that the aggravation caused by the negligent or unskillful treatment by a physician of the original injury would not have occurred if there had been no original injury[.]" Makarenko v. Scott, 132 W.Va. 430, 441, 55 S.E.2d...