Shiel v. Ryu

• Decision Date: 10 July 1998
• Docket Number: No. 24443, No. 24444.
• Citation: Shiel v. Ryu, 506 S.E.2d 77, 203 W.Va. 40 (W. Va. 1998)
• Court: West Virginia Supreme Court
• Parties: Jerry M. SHIEL, Plaintiff Below, Appellee, v. Jaiyoung RYU, M.D.; University of West Virginia Board of Trustees; and West Virginia University Hospital, Inc., Defendants Below, Appellants.

506 S.E.2d 77

203 W.Va. 40

Jerry M. SHIEL, Plaintiff Below, Appellee, v.Jaiyoung RYU, M.D.; University of West Virginia Board of Trustees; and West Virginia University Hospital, Inc., Defendants Below, Appellants.

Nos. 24443, 24444.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1998.

Decided July 10, 1998.

Jacques R. Williams, Hamstead, Hamstead & Williams, Morgantown, for Appellee Shiel.

William E. Galeota, P. Greg Haddad, Steptoe & Johnson, Morgantown, for Appellants Ryu and University of West Virginia Board of Trustees.

Ancil G. Ramey, Steptoe & Johnson, Charleston, for Appellants Ryu and University of West Virginia Board of Trustees.

Edward C. Martin, Jeffrey Wakefield, Christine S. Vaglienti, Flaherty, Sensabaugh & Bonasso, Charleston, for AppellantWest Virginia University Hospital, Inc.

PER CURIAM:¹

Dr. Jaiyoung Ryu, M.D., the University of West Virginia Board of Trustees, and West Virginia University Hospital, Inc., (hereinafter collectively referenced as "Appellants") appeal a decision of the Circuit Court of Monongalia County granting a new trial in a medical malpractice case, subsequent to a defense verdict.We reverse the decision of the lower court and remand for reinstatement of the jury verdict.

I.FACTS AND UNDERLYING LITIGATION

Mr. Jerry M. Shiel(hereinafter "Appellee"), a building maintenance worker at EG & G in Morgantown, was initially diagnosed with carpal tunnel syndrome in 1991 and was treated surgically in 1991 by David Fogarty, M.D.Dr. Fogarty, not a party in this civil action, performed bilateral carpal tunnel releases during that surgery.

Mr. Shiel's symptoms of carpal tunnel syndrome returned in 1993, and Mr. Shiel was examined on November 16, 1993, by Dr. Ryu, an orthopedist with a sub-specialty certification in hand surgery.Dr. Ryu recommended that Mr. Shiel undergo surgery to relieve the pressure on the median nerves caused by the scar tissue which had formed subsequent to the surgery performed by Dr. Fogarty in 1991.Thus, on January 5, 1994, (left wrist) and February 9, 1994, (right wrist) Dr. Ryu surgically separated the nerves that had adhered to scar tissue and placed an interpositional material² between the nerves and the scar tissue to protect the nerves from further adhesion to the scar tissue.Mr. Shiel thereafter suffered inflammation³ and pain in the wrists, prompting additional surgery on both wrists.Thus, on March 30, 1994, (right wrist) and July 6, 1994, (left wrist), Dr. Ryu performed a second set of surgical procedures, removing the interpositional material that had been employed as a barrier.During the left wrist surgery in July 1994, some of the fascicles⁴ of the nerve were unavoidably severed, causing loss of sensation in Mr. Shiel's left hand.

Mr. Shiel filed a medical malpractice action filed in Monongalia County on October 10, 1995, alleging that Dr. Ryu had breached the standard of care in the manner in which he performed the surgical procedures on Mr. Shiel's wrists.During a July 1996 trial, Mr. Shiel introduced the testimony of Dr. Stanley Feingold, a board certified orthopedic surgeon practicing in Hicksville, New York.Prior to his retention in this case, Dr. Feingold admitted that he had never heard of umbilical vein grafts in carpal tunnel syndrome surgery.Dr. Feingold further explained that he had not examined the Mr. Shiel until the morning of his testimony.Dr. Feingold concluded that based upon his research into the subject matter since he was hired on this case, Dr. Ryu had failed to wrap the nerve properly during the first surgery, had failed to pursue more conservative treatments prior to that surgery, and had failed to use a more conservative approach to resolving Mr. Shiel's recurrent carpal tunnel syndrome.The Appellants emphasized Dr. Feingold's lack of experience in recurrent carpal tunnel syndrome surgery and particularly involving the use of interpositional material.Dr. Feingold also admitted that he did not "know what the true standard of care is" among hand surgeons concerning the use of human umbilical vein grafts for carpal tunnel surgeries.⁵The Appellants presented the testimony of Dr. Victoria R. Masear, the physician who devised the graft barrier techniques for use in carpal tunnel syndrome surgery.Dr. Masear is a certified orthopedic surgeon specializing in hand surgery, and ninety percent of her practice involves hand surgery.She testified that umbilical vein implants had been used in over 50,000 surgical cases, mostly involving vascular surgery, and there had not been any reported cases of rejection.Dr. Masear also explained that the method utilized by Dr. Ryu differed slightly from her own method.Dr. Ryu used the material as a barrier without wrapping it around the nerve, while Dr. Masear used a "barber pole" or "pantaloon" method for wrapping.Dr. Masear did acknowledge, however, that some surgeons merely used the material as a barrier between the nerve and the scar tissue.She stated, "I can't criticize what they do any more than they can criticize what I do because nobody knows the right answer."Dr. Masear also testified that more conservative treatments would not have been beneficial, and that contrary to the plaintiff's theory, the post-operative problems were caused by infection, not rejection of the grafts.

Dr. L. Andrew Koman, a board certified hand surgeon, also testified for the Appellants.Dr. Koman explained that approximately sixty percent of his practice involved hand surgery and that he performed umbilical grafts in twenty-five to thirty recurrent carpal tunnel syndrome cases.Dr. Koman concluded that Dr. Ryu did not deviate from the standard of care and that the post-operative problems stemmed from inflammation and infection, not rejection of the barrier material placed by Dr. Ryu.

Dr. Gregg Michael O'Malley, a certified orthopedic surgeon with certification in hand surgery, testified that he had performed over 200 surgeries for carpal tunnel syndrome.He explained that recurrent carpal tunnel syndrome occurs in only one percent of patients and that such surgeries are ten times more difficult to perform than a primary carpal tunnel release.Dr. O'Malley also concluded that Dr. Ryu did not deviate from the standard of care.

Dr. Mark Joel Davis, a fifth year resident in charge of obtaining informed consent, testified that Mr. Shiel was informed that if the nerve was found to be adherent to the scar, Dr. Ryu would interpose this vein graft in between the nerve and the scar.Dr. Davis also testified that he had discussed available options with Mr. Shiel, including splinting the wrists, anti-inflammatory drugs, steroid injections, or decreased activity.

Dr. Ryu also testified regarding his treatment of Mr. Shiel, explaining that Mr. Shiel suffered from a recurrence of carpal tunnel syndrome and that alternatives to surgery were discussed with Mr. Shiel.Dr. Ryu testified regarding each option discussed with Mr. Shiel and provided the jury with his assessment of the potentials for success of each option and the rationale for the surgery decision.Dr. Ryu explained the surgical procedures in detail.

Based upon the extensive evidence presented, the jury returned a verdict in favor of the Appellants.Mr. Shiel subsequently filed a motion for a new trial, alleging that the verdict was contrary to the evidence.The lower court granted a new trial on November 15, 1996, reasoning that the verdict was against the clear weight of the evidence.Specifically, the lower court found as follows:

The evidence presented by the defendants was not sufficient to overcome the clear evidence of devastating personal injury suffered by the plaintiff following 10 months of treatment by Dr. Ryu and multiple surgical procedures, in two of which Dr. Ryu admitted to having cut fascicles in the plaintiff's nerves....The medical records contain multiple references to infection and rejection attributable to the implantation of foreign material, even though Ryu denied the relationship and blamed the discrepancy between his recollection and 10 months worth of medical records on the lack of knowledge or sophistication by the residents who dictated the notes for his signature.The clear weight of the evidence was that these multiple rejections and infections were attributable to the use of foreign tissue implant material and that this in turn damaged the median nerves in the plaintiff's wrists....The clear weight of the evidence on these issues, and others addressed in plaintiff's Motion for New Trial, is that Dr. Ryu, while performing a procedure with a vein graft for only the 3rd and 4th times, did not perform the procedure in the manner detailed by the innovator; did not perform it on the category of severely impaired patient for whom this type of treatment is normally reserved; cut nerves in the process of removing the implants following reaction, and that as a result of all of this the plaintiff left the care of Dr. Ryu substantially crippled which he had not been before.

The Appellants instituted this appeal, alleging that the lower court abused its discretion in granting a new trial in this case.

II.STANDARD OF REVIEW

Pursuant to Rule 59(a) of the West Virginia Rules of Civil Procedure, a new trial may be granted "in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law."The Appellants allege that the lower court's grant of a new trial in the present matter constitutes an abuse of discretion under the principles of syllabus point three of In re State Public Building Asbestos Litigation,193 W.Va. 119, 454 S.E.2d 413(1994), cert. denied,515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857(1995), as follows:

A motion for a new trial is governed by a different standard than a motion for a directed verdict.When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the

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