Roberts v. Stevens Clinic Hosp., Inc.

• Citation: 176 W.Va. 492,345 S.E.2d 791
• Decision Date: 02 April 1986
• Docket Number: 16599,Nos. 16598,s. 16598
• Court: West Virginia Supreme Court
• Parties: Kenneth L. ROBERTS v. STEVENS CLINIC HOSPITAL, INC. and Vernon J. Magnus, M.D.

Page 791

345 S.E.2d 791

176 W.Va. 492

Kenneth L. ROBERTS v. STEVENS CLINIC HOSPITAL, INC. and Vernon J. Magnus, M.D.

Nos. 16598, 16599.

Supreme Court of Appeals of

West Virginia.

April 2, 1986.

Dissenting Opinions June 12, 1986.

[176 W.Va. 493] Syllabus by the Court

(1) A trial court is afforded wide discretion in determining the admissibility of videotapes and motion pictures.

(2) "Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone." Syl. Pt. 3, Lambert v. Great Atlantic[176 W.Va. 494] & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971).

(3) "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl. Pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

(4) "In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true. Point 3, Syllabus, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syl. Pt. 2, Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975).

(5) "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., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977).

(6) Even when there are no data by which the amount of excess in a jury's verdict is definitely ascertainable, entry of remittitur is permissible.

(7) Although at a trial, pretrial settlement negotiations have no bearing on the progress or outcome of a case and, in fact, are usually privileged, an appellate court may require parties to brief the progress of pretrial settlement negotiations in cases where a court wishes to instruct itself for public policy reasons on the affect a remittitur would have on future settlement agreements.

G. David Brumfield, Ballard & Brumfield, Welch, for appellee.

Lawrence E. Morhous, David M. Kersey, Hudgins, Coulling, Brewster, Morhous & Cameron, Bluefield, George Sharp, Kay, Casto & Chaney, Charleston, for Stevens Clinic.

David L. Shuman, Stephen D. Annand, Shuman, Annand & Poe, Edward T. Eardley, Steptoe & Johnson, Charleston, Rudolph J. Murensky, Lacaria & Murensky, Welch, for Vernon J. Magnus, M.D.

NEELY, Justice:

In this appeal we decide whether we should sustain a McDowell County Circuit Court $10,000,000 jury award in favor of the parents and two siblings of Michael Joseph Roberts, a 2 1/2-year-old child who died as the result of medical malpractice. We find no reversible error in the conduct of the trial, but we find it appropriate to enter a remittitur of $7,000,000.

Kenneth and Joyce Roberts are a young couple who were married in 1976. Joyce had two children, Pepper and Ritchie, before she and Kenneth were married. And even though Ken adopted Pepper and Ritchie after the marriage, Ken and Joyce wanted to have a child of their own. After three years, Joyce gave birth to Michael Joseph Roberts on 22 December 1979. Because of a hysterectomy after Michael's birth, Joyce is no longer able to have children.

The evidence at trial indicated that Michael was the darling of the whole family. He was both an intelligent and happy little boy who was particularly close to his mother. The jury had before it substantial evidence that since Michael's death Joyce has been overwhelmed by grief and that the Roberts' family is no longer a happy household. Dr. Kenneth J. Manges, clinical psychologist, testified that each member of the Roberts' family suffered psychological injury because of the death of Michael. Ritchie is now withdrawn, and no longer sleeps in the bedroom he and Michael formerly shared. The impact, however, has been greatest on Joyce. Dr. Manges testified that Joyce had difficulty sleeping, eating, concentrating, organizing herself and her thoughts, and that she had become overly protective of her other children. At the time of trial Joyce had spent many nights crying and writing poems to Michael,[176 W.Va. 495] and there was evidence that she continues to suffer from chronic diarrhea and vomiting. Furthermore, Dr. Manges testified that the manner in which the child died, and the parents' involvement with the child at the hospital immediately before his death increased their suffering, guilt, and anger.

The events leading to Michael's death began on the evening of 12 June 1982 when Michael had an episode of rectal bleeding following a bowel movement. Joyce was concerned, but was unable to reach Michael's pediatrician, Allen B. Carr, M.D. Joyce called Vernon J. Magnus, M.D., who attended the same church as the Roberts. Dr. Magnus checked Michael, and although the bleeding stopped after his bowel movement, Dr. Magnus recommended that Michael return for a barium x-ray. The x-ray was normal, but Dr. Magnus suggested that he do a sigmoidoscopy--a procedure by which a doctor examines a patient's rectum and lower colon.

On 21 June 1982, Dr. Magnus attempted a sigmoidoscopy in his office at the Stevens Clinic Hospital, but it hurt Michael and he stopped. Dr. Magnus then recommended a sigmoidoscopy under general anesthesia. He believed Michael might have a polyp or a small hemorrhoid in the lower part of his rectum that had caused the bleeding. Dr. Magnus told the Roberts that if Michael had a polyp, it could be snipped off in a simple procedure that might not even require a stitch.

The Roberts family then went on a two-week vacation during which there were two occasions when mild bleeding recurred.

On 13 July Dr. Magnus performed a sigmoidoscopy on Michael. In addition to the sigmoidoscopy, however, Dr. Magnus performed a biopsy without the parents' permission, and in doing so perforated Michael's colon. Fecal material spewed into the child's abdominal cavity and, as a result, Michael developed peritonitis, a severe infection. The sigmoidoscopy and biopsy were performed at approximately 8:30 a.m. and Michael was returned to his room at approximately 9:50 a.m. following the procedure. At that time Mrs. Roberts noticed that Michael's stomach was swollen. She asked nurse Sandy Alderman and Dr. Magnus who came into the room what was wrong with Michael. Dr. Magnus said it was just gas. The jury was entitled to infer that at that point Dr. Magnus had still not informed the Roberts that he had performed an unauthorized biopsy.

Dr. Magnus left immediately after talking with Joyce and Ken. Later in the morning, however, Joyce noticed Michael's throat quivering. She called for a nurse; the nurse checked Michael and determined that he had labored breathing. The nurse informed Joyce that Dr. Magnus had been called, and later the hospital staff inserted

a rectal tube in Michael and Joyce was asked to watch to see if Michael expelled gas through the tube. Michael's breathing was still labored, his stomach was swollen, and he began vomiting and complaining of pain in his stomach

At 2:45 p.m. the nurses pumped Michael's stomach. After visiting Michael at 3 p.m., Nurse Alderman told Joyce and Ken that she did not believe that Michael was getting any better, and advised them to insist that something be done. Up until that time, whenever Ken or Joyce asked what Michael's problem was, they were told that he had gas and was going to be fine. At this point, however, Ken went to the desk and demanded that greater attention be given to Michael. About an hour later, at 4 p.m., Dr. Magnus finally arrived, followed shortly thereafter by Dr. Johnston, another hospital staff surgeon. Then Michael's pediatrician, Dr. Carr, checked Michael. Dr. Carr said that he feared that Michael had a perforated bowel. Michael was later x-rayed, and after his return from x-ray, Dr. Magnus returned to Michael's room and told Joyce he had perforated Michael's colon when he did the biopsy that morning.

Dr. Magnus returned Michael to surgery, placed him under a general anesthetic, and attempted to repair the ruptured bowel. Michael never awakened from the anesthetic.

From the time Michael returned from the biopsy in the morning until he reentered [176 W.Va. 496] the operating room that evening, he received no antibiotics to treat his infection. After the biopsy, the hospital staff had attempted to administer some antibiotics and fluids thorugh an I.V., but because the I.V. needle infused into Michael's tissue rather than his vein, Nurse Alderman removed the I.V. During the day, there were no other attempts to administer either fluids or an antibiotic. Michael finally received fluids through an I.V. in the operating room at 5:35 p.m., and he received his first antibiotic for his severe infection at 5:43 p.m. The operation to repair the hole in Michael's colon was begun at 5:50 p.m., seven minutes after the antibiotic was administered.

On 3 November 1982 Kenneth L. Roberts, as administrator of Michael's estate, sued the Stevens Clinic Hospital and Dr. Magnus for Michael's wrongful death. The complaint alleged simple negligence and enumerated $4,281.55 in medical expenses and $2,591.00 in funeral and burial expenses. The complaint did not ask for punitive damages, but did ask for $20,000,000 in compensatory damages. After two-weeks of trial and two hours of jury deliberations, the jury returned a verdict in favor of the plaintiff in the amount of $10,000,000 compensatory damages. Both Dr. Magnus and...