Sydenstricker v. Mohan

• Decision Date: 30 June 2005
• Docket Number: No. 32159.,No. 32158.,32158.,32159.
• Citation: 618 S.E.2d 561
• Parties: Nashala SYDENSTRICKER, as Mother and Natural Guardian of Michael Shawn George, II, an Infant, Plaintiff Below, Appellant, v. Petaiah MOHAN, M.D., Defendant Below, Appellee, and Nashala Sydenstricker, as Mother and Natural Guardian of Michael Shawn George, II, an Infant, Plaintiff Below, Appellee, v. Petaiah Mohan, M.D., Defendant Below, Appellant.
• Court: West Virginia Supreme Court

618 S.E.2d 561

Nashala SYDENSTRICKER, as Mother and Natural Guardian of Michael Shawn George, II, an Infant, Plaintiff Below, Appellant, v. Petaiah MOHAN, M.D., Defendant Below, Appellee, and Nashala Sydenstricker, as Mother and Natural Guardian of Michael Shawn George, II, an Infant, Plaintiff Below, Appellee, v. Petaiah Mohan, M.D., Defendant Below, Appellant.

No. 32158.

No. 32159.

Supreme Court of Appeals of West Virginia.

Submitted May 24, 2005.

Decided June 30, 2005.

COPYRIGHT MATERIAL OMITTED

Harold F. Salsbery, Jennifer S. Fahey, Bailey & Glasser, Charleston, for Ms. Sydenstricker.

D.C. Offutt, Jr., Perry W. Oxley, David E. Rich, Offutt, Fisher & Nord, Huntington, for Dr. Mohan.

DAVIS, Justice:

This proceeding addresses two appeals from a medical malpractice action involving the same parties: Nashala Sydenstricker, plaintiff below, appellant and appellee (hereinafter referred to as "Ms. Sydenstricker"), and Dr. Petaiah Mohan, defendant below, appellee and appellant (hereinafter referred to as "Dr. Mohan"). Ms. Sydenstricker appeals from an order of the Circuit Court of Raleigh County denying her motion for a new trial. In Ms. Sydenstricker's appeal, she argues that she should have been granted a new trial, because the circuit court erred during the trial by: (1) allowing evidence of negligence committed by Dr. Carlos Lucero, a dismissed co-defendant; (2) allowing evidence that Dr. Mohan continued to treat her son after she sued Dr. Mohan for malpractice; (3) denying a motion to bifurcate liability and damages; (4) permitting Dr. Mohan to present inconsistent defenses; and (5) denying a new trial when the weight of the evidence justified a new trial. Here, Dr. Mohan contends that the circuit court erred in approving a settlement between Ms. Sydenstricker and Dr. Lucero; and further erred in denying his motion to set aside the settlement agreement.¹ We consolidated these two appeals for the purpose of rendering our decision. After a thorough review of the briefs, the designated record, and the oral arguments of the parties, we affirm the circuit court's denial of Ms. Sydenstricker's motion for a new trial. Further, we dismiss Dr. Mohan's appeal as moot.

I. FACTUAL AND PROCEDURAL HISTORY

On March 6, 1998, Ms. Sydenstricker gave birth to a son, Michael Shawn George, II, at Raleigh General Hospital.² After Michael's birth, Ms. Sydenstricker selected Dr. Carlos Lucero as her son's pediatrician. Dr. Lucero examined Michael and authorized his release from the hospital on March 10, 1998. After Ms. Sydenstricker took Michael home, she began noticing blisters on his scalp. On March 12, 1998, Ms. Sydenstricker contacted Dr. Lucero's office regarding Michael's blisters. Ms. Sydenstricker was advised that Dr. Lucero was on vacation; however, arrangements had been made for Dr. Mohan to see Dr. Lucero's patients.³ Ms. Sydenstricker therefore took her child to Dr. Mohan's office.

During Dr. Mohan's examination of the child, he developed a differential diagnosis of either a bacterial or viral infection. Nevertheless, Dr. Mohan believed that the blisters were probably due to a bacterial infection. Consequently, he obtained a tissue culture of the area. Dr. Mohan sent the tissue culture to a laboratory for analysis.⁴ Meanwhile, Dr. Mohan prescribed an antibiotic ointment, Bactroban, to treat the blisters. Ms. Sydenstricker was instructed to return to Dr. Mohan's office if the blisters got worse, and was told to follow-up with Dr. Lucero when he returned from vacation.⁵

On March 16, 1998, Ms. Sydenstricker took Michael to see Dr. Lucero, who had returned from vacation, because the blisters on Michael's scalp had grown worse. Dr. Lucero believed the blisters became worse as a result of an allergic reaction to the Bactroban ointment. Dr. Lucero instructed Ms. Sydenstricker to discontinue use of the Bactroban ointment, and prescribed a sterile solution for Michael's scalp. Ms. Sydenstricker was told to return to Dr. Lucero's office in three weeks.

On March 21, 1998, Ms. Sydenstricker took Michael to Raleigh General Hospital because he began suffering seizures at home. Tests performed at the hospital determined that Michael's seizures were caused by a herpes virus, which had also caused the earlier scalp blisters. Treatment was initiated to prevent encephalitis, a viral infection of the brain. Unfortunately, the condition had progressed too far and, as a consequence, Michael sustained permanent brain damage. Ms. Sydenstricker subsequently filed a medical malpractice action, individually and as mother and natural guardian of her infant son, on March 2, 2001. The complaint named as defendants Drs. Mohan and Lucero.⁶ Dr. Mohan filed an answer to the complaint that included a cross-claim against Dr. Lucero.

After a brief period of discovery, it became clear that Dr. Lucero's insurer, Western Indemnity Insurance Company, was having financial problems and would most likely end up in receivership.⁷ As a consequence, Ms. Sydenstricker entered into a settlement agreement with Dr. Lucero. Although Dr. Lucero's medical malpractice policy had a limit of $1,000,000.00, Ms. Sydenstricker agreed to settle with Dr. Lucero for $200,000.00. During the July 22, 2002, settlement hearing, Dr. Mohan objected to the settlement arguing that the "settlement unfairly and unjustly left the onus of liability solely on his shoulders, and if the Court were to exclude evidence of Dr. Lucero's negligence, the settlement would destroy Dr. Mohan's ability to defend himself." Dr. Mohan's objections were denied. The settlement was approved by the court in an order entered on September 5, 2002. The order approving the settlement specifically held "that all claims asserted or which could have been asserted against [Dr. Lucero], by plaintiffs in this civil action, or which were asserted against him by the co-defendants by way of cross-claim are hereby DISMISSED WITH PREJUDICE[.]"

On May 16, 2003, Dr. Mohan filed a motion to set aside the order approving the settlement. Dr. Mohan also filed a motion to permit the introduction of evidence regarding Dr. Lucero's negligence. By order entered July 7, 2003, the circuit court denied Dr. Mohan's motion to set aside the order approving the settlement. In a separate order entered on August 22, 2003, the circuit court granted Dr. Mohan's motion to introduce to the jury evidence of Dr. Lucero's negligence.

The case proceeded to trial on September 8, 2003. On September 16, 2003, the jury returned a verdict in favor of Dr. Mohan. Ms. Sydenstricker filed a motion for a new trial, which was denied. Thereafter, separate appeals were filed by Ms. Sydenstricker and Dr. Mohan. We consolidated these appeals for the purpose of rendering our decision in this matter.

II. STANDARD OF REVIEW

Ms. Sydenstricker appealed from an order denying her motion for a new trial. We have held that

"the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

Moreover, in Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995), we explained:

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.

Our cases have made clear that "[a]n appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence." Syl. pt. 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937). Accord Yates v. University of West Virginia Bd. of Trustees, 209 W.Va. 487, 494, 549 S.E.2d 681, 688 (2001). Therefore,

[i]n 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.

Syl. pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). Accord In re Tobacco Litigation, 215 W.Va. 476, 480, 600 S.E.2d 188, 192 (2004).

With respect to the appeal by Dr. Mohan, we are called upon to review the trial court's determination that the settlement agreement between Dr. Lucero and Ms. Sydenstricker was made in good faith. We have held that "when this Court undertakes the appellate review of a circuit court's order [involving] a settlement agreement, an abuse of discretion standard of review is employed." DeVane v. Kennedy, 205 W.Va. 519, 527, 519 S.E.2d 622, 630 (1999).

With these standards in mind, we proceed to review the issues presented by the particular circumstances before us. Additional standards that are specific to certain issues addressed in this opinion will be discussed in connection with our analysis of those issues.

III. DISCUSSION

A. Issues Raised by Ms. Sydenstricker

Because Ms. Sydenstricker has raised several assignments of error, we will proceed to separately address each matter raised by her.

1. Allowing evidence of negligence committed by Dr. Lucero. The first issue raised by Ms. Sydenstricker is that the trial court erroneously allowed the introduction of evidence regarding Dr. Lucero's negligence in treating her child.⁸ Ms. Sydenstricker argues that evidence of Dr. Lucero's negligence was inadmissible under Syllabus point 7 of Rowe v. Sisters of Pallottine Missionary Society, 211 W.Va. 16, 560 S.E.2d 491 (2001).⁹ The trial court allowed the...