Rowe v. SISTERS OF PALLOTTINE MISSIONARY

• Decision Date: 11 December 2001
• Docket Number: No. 29161.,29161.
• Citation: 211 W.Va. 16,560 S.E.2d 491
• Parties: Brian W. ROWE, Plaintiff Below, Appellee, v. SISTERS OF THE PALLOTTINE MISSIONARY SOCIETY, a non-profit corporation, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

560 S.E.2d 491

211 W.Va. 16

Brian W. ROWE, Plaintiff Below, Appellee, v. SISTERS OF THE PALLOTTINE MISSIONARY SOCIETY, a non-profit corporation, Defendant Below, Appellant.

No. 29161.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2001.

Decided December 11, 2001.

Concurring and Dissenting Opinion of Justice Davis December 12, 2001.

Concurring Opinion of Chief Justice McGraw December 18, 2001.

William D. Levine, Esq., St. Clair & Levine, Huntington, for the Appellee.

Joseph M. Farrell, Jr., Esq., Robert L. Hogan, Esq., Farrell, Farrell & Farrell, L.C., Huntington, for the Appellant. STARCHER, Justice.

In this medical malpractice action from the Circuit Court of Cabell County, we are asked to examine a judgment order adopting a jury's verdict awarding damages to appellee, Brian W. Rowe ("Mr. Rowe"). The appellant is the Sisters of Pallottine Missionary Society, which does business as St. Mary's Hospital. The appellant hospital contends that the circuit court erred in refusing to instruct the jury on the principles of comparative negligence.

As set forth below, we find the circuit court correctly refused to give comparative negligence instructions to the jury. We therefore affirm the circuit court's judgment order.

I.

Facts & Background

On the afternoon of Sunday, September 6, 1987, 17-year-old appellee Brian W. Rowe lost control of his motorcycle while participating in a motocross event. During the crash, the motorcycle tumbled onto Mr. Rowe's left leg, injuring his knee. Mr. Rowe was transported by ambulance to the emergency room of the appellant, St. Mary's Hospital.

Mr. Rowe arrived at St. Mary's Hospital at approximately 4:05 p.m., where his left leg was examined by emergency room nurses. Over the course of the next 2½ hours, the nurses made extensive notes in Mr. Rowe's patient file. The notes indicate that Mr. Rowe complained of severe pain in his left knee and numbness in his foot. The nurses were repeatedly unable to find a pulse in Mr. Rowe's lower left leg and foot either by palpitation or with the assistance of a portable Doppler ultrasound device.

Mr. Rowe was also examined by a St. Mary's Hospital emergency room physician, Dr. Willard F. Daniels,¹ a defendant below. Dr. Daniels noted tenderness and swelling in the left knee and lower left leg, and he had difficulty finding — but claimed he did find — a pulse in Mr. Rowe's lower leg and foot. A nurse testified that she told Dr. Daniels that she was unable to detect a pulse in Mr. Rowe's foot, that she asked Dr. Daniels why she wasn't getting a pulse, and that Dr. Daniels replied, "I don't know[.]" While x-rays showed fragments of bone in Mr. Rowe's knee joint, Dr. Daniels noted in the patient file that Mr. Rowe had a "severe sprain, [left] knee."

Mr. Rowe was discharged at 6:20 p.m. to be taken home by his mother. He was given instructions to elevate his left leg and apply ice to the knee. Mr. Rowe was also told that the nurses could not find a pulse in his lower leg, but that this condition was probably caused by the swelling, and that a pulse would return when the swelling went down. Mr. Rowe was instructed to make an appointment with an orthopedist several days later, and was told that in the meanwhile, if his pain continued or became worse, he should return to St. Mary's emergency room.

That night, Mr. Rowe's knee and leg continued to swell, and the pain intensified. His parents called several physicians by phone, and one agreed to see Mr. Rowe at 10:00 a.m. the next morning at Cabell Huntington Hospital's emergency room.

An examination revealed that Mr. Rowe had a dislocated knee and a lacerated popliteal artery, an artery which passes behind the knee joint and provides circulation to the lower leg. Because of the loss of blood flow, the physician contemplated amputation of the lower left leg. However, after extensive surgery to repair the knee and artery, to relieve pressure on the leg and to remove dead tissue, the lower leg was saved. Mr. Rowe was hospitalized for 35 days, and currently has significant impairment to the use of his left leg.

The appellee, Mr. Rowe, subsequently brought a lawsuit against Dr. Daniels and against appellant St. Mary's Hospital for negligence. In October 1996, after 8 years of litigation, the appellee settled his cause of action against Dr. Daniels for $270,000.00, and the case proceeded to trial against the hospital alone.

At trial, the appellee asserted that St. Mary's nurses had breached the standard of care by not adequately advocating his interests when he was discharged with unexplained and unaddressed symptoms. The appellee presented evidence that St. Mary's policy — and the guiding standard of care for all emergency room nurses — was that when a nurse "believe[d] that appropriate care [was] not being administered to a patient by a physician," the nurse was to report the situation to a supervisor who would discuss it with the doctor. If that did not alleviate the problem, the matter was to be referred up the chain of command so that another doctor could evaluate the problem.²

The appellee argued that St. Mary's nurses repeatedly found no pulse in his lower left leg or foot, and that when Dr. Daniels did not address this serious symptom, the nurses did not properly report the problem to a supervisor, or otherwise seek another medical opinion. As the plaintiff's expert stated:

[T]he nurses at St. Mary's Hospital failed to advocate for Brian Rowe in the sense that they knew that he had compromised circulation to his left leg. He had no pulse. He was not able to move his foot. He had no sensation in his foot.... [T]he nurses did not intervene with the physician and try to influence his care so that he would have gotten further medical care to address those serious problems.

The evidence showed that, instead of following the hospital's policy, the emergency room nurses simply made notes of their findings in Mr. Rowe's medical file, as one nurse said, "I guess basically to cover myself."

A jury returned a verdict against the appellee hospital for $880,186.00. A judgment order adopting the jury's verdict, with an offset for Dr. Daniels' settlement, was entered on September 13, 1999. The hospital now appeals the circuit court's judgment order.

II.

Standard of Review

In the instant case, we are asked to review the circuit court's refusal to give certain instructions to the jury. We held, at Syllabus Point 1 of State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996), that:

As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo.

III.

Discussion

The appellant, St. Mary's Hospital, argues that the jury should have been instructed on principles of comparative negligence, and been required to assess the contributory negligence of the appellee, Mr. Rowe; the negligence of Dr. Daniels, who settled prior to trial; and the negligence of other individuals, namely the physicians who consulted on the appellee's case by telephone with the appellee's parents, but who would not see the appellee the night of his accident.

Under the comparative negligence doctrine, a plaintiff is not entitled to recover from a negligent tortfeasor if the plaintiff's own contributory negligence equals or exceeds the combined negligence or fault of the other parties involved in the accident or occurrence. As we stated in Syllabus Point 3 of Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979):

A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident.

In operation, the jury must apportion the comparative fault of parties in special interrogatories. 163 W.Va. at 343, 256 S.E.2d at 885-86. The plaintiff's percentage of fault is then deducted from the gross award of the jury, 163 W.Va. at 343, 256 S.E.2d at 886, and the defendants may seek contribution from other defendants in accordance with their percentage of fault.

The appellant contends that the jury should have been instructed to consider the contributory negligence of the appellee, and apportion comparative fault between the appellee and the appellant hospital. The appellant argues that the appellee's own conduct in crashing his motorcycle caused many of his injuries. Furthermore, when the appellee was discharged at 6:20 p.m., he and his mother were told that if his condition persisted or became worse, he should be brought back to St. Mary's emergency department. When his condition did not improve later that night, and the appellee's parents did not return him to the emergency room, the appellant argues the appellee was negligent and contributed to his injury.

We begin by addressing the appellant's first argument, that the appellee's own conduct in crashing his motorcycle contributed to his injury, and that the jury should have been instructed to consider whether this conduct was a proximate cause of the appellee's damages. We find nothing in the record to suggest that the appellee's crash was caused by negligence, but for purposes of this argument, we will assume the appellee's conduct was negligent.

A majority of courts hold that a health care provider cannot compare the plaintiff's negligent conduct that triggered the plaintiff's need for treatment with the health care provider's later negligence in treating the plaintiff. See M. Orr, "Defense of Patient's Contribution to Fault in Medical Malpractice Actions," 25 Creighton L.Rev. 665, 687 (1992). The reason for this rule is simple and obvious:

[A] physician simply may not avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by the patient's own negligence. "Those patients who may have negligently injured themselves

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