Smith v. Clark

Decision Date10 June 2019
Docket NumberNo. 17-1086,17-1086
Citation828 S.E.2d 900,242 W.Va. 81
CourtWest Virginia Supreme Court
Parties Robert SMITH, as Administrator and Personal Representative of the Estate of A. S., Deceased, Plaintiff Below, Petitioner v. Carolyn CLARK, M.D. and Cabell Huntington Hospital, Inc., Defendants Below, Respondents

Christopher J. Regan, Zachary J. Zatezalo, Bordas & Bordas, PLLC, Wheeling, West Virginia, Attorney for Petitioner

D.C. Offutt, Jr., Ryan Q. Ashworth, Offutt Nord Ashworth, PLLC, Huntington, West Virginia, Attorneys for Carolyn Clark, M.D.

Thomas L. Craig, Rebecca C. Brown, Ralph J. Hagy, Bailes, Craig & Yon, PLLC, Huntington, West Virginia, Attorneys for Cabell Huntington Hospital Inc.

Jenkins, Justice:

Petitioner Robert Smith ("Mr. Smith") herein appeals the November 17, 2017 order of the Circuit Court of Cabell County denying his motion for a new trial and renewed motion for judgment as a matter of law.1 Mr. Smith alleges that the evidence at trial constituted a clear case of medical negligence and that certain trial errors circumvented the evidentiary process and forced a verdict against the weight of the evidence. Respondent Carolyn Clark, M.D. sets forth a cross-assignment of error,2 arguing that the circuit court erred in denying her motion for judgment as a matter of law3 because Mr. Smith’s expert improperly invoked the "Locality Rule." Having considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we find no error. Accordingly, we affirm the order of the circuit court.


This matter appears before this Court upon the appeal of the plaintiff below and petitioner herein, Mr. Smith, as the Administrator and Personal Representative of the Estate of A. S. ("infant"). The Circuit Court of Cabell County denied Mr. Smith’s post-trial motions—a motion for a new trial and a motion for judgment as a matter of law, based on his claims of trial error4 —following a jury verdict for the defendants below.

On the morning of June 23, 2014, Carolyn Clark, M.D. ("Dr. Clark") induced Chasity Smith’s ("Mrs. Smith") labor at Cabell Huntington Hospital, Inc. ("Cabell Huntington") in Huntington, West Virginia. According to the medical records, Mrs. Smith’s labor was unremarkable, and the infant’s fetal heart rate tracing remained in the normal range for much of the labor. At approximately 5:17 p.m., Dr. Clark inserted an intrauterine pressure catheter

to check Mrs. Smith’s contraction strength. Upon removal, the catheter returned blood. Dr. Clark then told the nursing staff to flush the blood from the catheter. At trial, it was not disputed that Mrs. Smith had suffered a placental abruption ; however, Mr. Smith took the position that Dr. Clark caused the placental abruption by incorrectly inserting the catheter. To the contrary, Respondents used the testimony of expert pathologist, Dr. Carolyn Salafia, to explain how concealed placental abruptions can occur spontaneously in the face of thrombophilia (a blood clotting abnormality), which Mrs. Smith experienced, and how abruptions relate to faster dilation.

Around 5:20 p.m., the infant’s heartbeat showed an abnormal reading on the monitor. At trial, Mr. Smith argued that the infant’s fetal heart tracing was lost. Conversely, Dr. Clark and Cabell Huntington (collectively "Respondents") countered that the movements were audible on the monitor. A few minutes later, a lower heartbeat was traced on the monitor and the nursing staff paged Dr. Clark for assistance. Around 5:33 p.m., Dr. Clark reviewed the infant’s heartbeat. The nursing staff asked Dr. Clark if they were going to the operating room for a caesarean section—Dr. Clark did not respond.

At 5:37 p.m., Dr. Clark applied forceps in an attempt to deliver the baby vaginally. Although the medical chart is silent as to Mrs. Smith’s labor progression at the exact time Dr. Clark began her attempt at vaginal delivery, the most progressed recorded dilation states that her cervix was dilated to 8-9 centimeters prior to any vaginal attempts at delivery. Mr. Smith argued at trial, that the silence in the medical record on dilation completeness meant that Mrs. Smith was never fully dilated and therefore was unable to deliver vaginally. Respondents disputed this contention. According to Dr. Clark and her expert, Dr. Frank Manning, dilation is progressive and exponential. In the words of Dr. Manning, dilation is "hard to get started and then it suddenly goes." The medical records in this case reveal that Mrs. Smith progressed in dilation quickly from six centimeters to nine centimeters. Therefore, Respondents maintained throughout the trial, that Mrs. Smith was fully dilated and that Dr. Clark knew the position of the baby’s head at all times during her attempt at a vaginal delivery. The nursing staff inquired once again about going to the operating room for a caesarean section

. Instead, Dr. Clark prepared Mrs. Smith’s bed, and put her in stirrups to prepare for a vaginal birth. After attempting a vaginal delivery with the assistance of forceps, Dr. Clark called for a caesarean section at approximately 5:54 p.m. At 6:04 p.m., the infant was born asphyxiated with Apgar scores of 0/05 and was immediately transferred to the newborn intensive care unit. The next day, life support was withdrawn and the infant was pronounced dead.

In November of 2015, Mr. Smith filed a medical professional liability action against Respondents. In his complaint, Mr. Smith alleged that Dr. Clark and Cabell Huntington were negligent and breached the applicable standards of care by failing to timely deliver the infant, thereby resulting in the infant’s death. More specifically, Mr. Smith contended that fetal bradycardia6 was documented in the medical record and the fetal heart rate readings were classifiable as a Category 3 under the American College of Obstetricians and Gynecologists’ ("ACOG") Fetal Heart Rate Monitoring

protocol, which required immediate delivery by either operative vaginal delivery or caesarean section. Mr. Smith further alleged that Cabell Huntington’s nurses breached the standard of care by failing to invoke the hospital’s chain of command policy.7

The trial in this matter commenced on May 16, 2017, and lasted for eight days. While Mr. Smith furthered his theory that Dr. Clark breached the applicable standard of care by failing to more quickly deliver the infant in the face of fetal bradycardia, Dr. Clark presented rebuttal evidence—including her own testimony—to propound her position that Mrs. Smith was fully dilated at the time she attempted a forceps-assisted vaginal delivery, and therefore met the standard of care. Additionally, Cabell Huntington asserted that its nursing staff followed all hospital policies and procedures during the course of the infant’s delivery, and, therefore, met the standard of care.

After the trial, the jury returned a verdict in favor of Dr. Clark and Cabell Huntington, finding that neither party breached their applicable standard of care. Because the jury determined that the applicable standard of care had not been breached, it rendered a defense verdict without the need to make a determination as to causation or damages. The circuit court entered its Final Judgment Order on June 6, 2017. On June 16, 2017, Mr. Smith renewed his previously filed motion for judgment as a matter of law under Rule 50(b)8 of the West Virginia Rules of Civil Procedure

, and also moved for a new trial under Rule 59.9 Both of Mr. Smith’s post-trial motions were denied in an order of the Circuit Court of Cabell County dated November 12, 2017. It is from this Order that Mr. Smith now appeals.


This case comes to the Court after the circuit court denied Mr. Smith’s post-trial motion for a new trial and his renewed motion for judgment as a matter of law. With regard to our standard for reviewing a circuit court’s ruling on a motion for a new trial, we have explained that

[a]s a general proposition, we review a circuit court’s rulings on a motion for a new trial under an abuse of discretion standard. In re State Public Building Asbestos Litigation , 193 W. Va. 119, 454 S.E.2d 413 (1994) ( Asbestos Litigation ). Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Found., Inc ., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995). It has also been noted that, "a new trial should not be granted unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." McInarnay v. Hall , 241 W. Va. 93, ––––, 818 S.E.2d 919, 924 (2018) (internal quotation marks and citations omitted).

Further, "[t]he appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo." Syl. pt. 1, Fredeking v. Tyler , 224 W. Va. 1, 680 S.E.2d 16 (2009). This Court has also stated that it

reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the

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