Totten v. Adongay

• Decision Date: 30 October 1985
• Docket Number: No. 16432,16432
• Citation: 337 S.E.2d 2,175 W.Va. 634
• Court: West Virginia Supreme Court
• Parties: Brady C. TOTTEN and Betty Totten v. Luis P. ADONGAY.

Page 2

337 S.E.2d 2

175 W.Va. 634

Brady C. TOTTEN and Betty Totten v. Luis P. ADONGAY.

No. 16432.

Supreme Court of Appeals of

West Virginia.

Oct. 30, 1985.

Syllabus by the Court

1. "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932).

2. "In an action for damages against a physician for negligence or want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff." Syl. pt. 4, Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967).

3. "It is the general rule that want of professional skill can be proved only by expert witnesses. However, cases may arise where there is such want of skill as to dispense with expert testimony." Syl. pt. 2, Howell v. Biggart, 108 W.Va. 560, 152 S.E. 323 (1930).

4. In medical malpractice cases where lack of care or want of skill is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience, failure to present expert testimony on the accepted standard of care and degree of skill under such circumstances is not fatal to a plaintiff's prima facie showing of negligence.

5. "Medical testimony to be admissible and sufficient to warrant a finding by the jury of the proximate cause of an injury is not required to be based upon a reasonable certainty that the injury resulted from the negligence of the defendant. All that is required to render such testimony admissible and sufficient to carry it to the jury is that it should be of such character as would warrant a reasonable inference by the jury that the injury in question was caused by the negligent act or conduct of the defendant." Syl. pt. 1, Pygman v. Helton, 148 W.Va. 281, 134 S.E.2d 717 (1964).

James W. St. Clair, Marshall & St. Clair, Huntington, for appellant.

Jerry N. Ragan, Wood, Grimm & Delp, Huntington, for appellee.

McGRAW, Justice:

This is an appeal from an order of the Circuit Court of Wayne County awarding Dr. Luis P. Adongay, the defendant in this medical malpractice action, a directed verdict against Brady and Betty Totten, the plaintiffs.

The plaintiffs instituted this action in the circuit court below on October 19, 1981, alleging that the defendant negligently failed to properly diagnose and timely treat an injury to the right wrist of Brady Totten, thereby resulting in further injury to Mr. Totten and concomitant economic losses for both plaintiffs. The case proceeded to trial before a jury on November 17, 1983. At the conclusion of the presentation of the plaintiffs' evidence, the defendant moved for a directed verdict, citing, as grounds therefor, the plaintiffs' failure to offer expert testimony concerning the allegation that Mr. Totten's injuries were caused by negligence or want of skill on the part of the defendant. Upon consideration, the circuit court concluded that the plaintiffs had failed to establish a prima facie case and directed a verdict for the defendant. The plaintiffs maintain there was sufficient evidence presented to the jury on the question of the defendant's liability and, therefore, contend in this appeal that circuit court's decision to direct a verdict for the defendant constitutes reversible error.

The well settled rule regarding the presentation of proof relevant to a claim is that when the plaintiff's evidence does not establish a prima facie right of recovery, a motion for a directed verdict on behalf of the defendant should be sustained by the trial court. See, e.g., Syl. pt. 3, Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979); Syl. pt. 2, Pinfold v. Hendricks, 155 W.Va. 489, 184 S.E.2d 731 (1971); Syl. pt. 1, Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906); Syl. pt. 6, Hi Williamson & Co. v. Nigh, 58 W.Va. 629, 53 S.E. 124 (1906). However, it is equally established that a claim should remain within the hands of a jury unless manifest insufficiencies in the evidence compel otherwise. Accordingly, it has long been the rule in this jurisdiction that:

Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.

Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932). ¹

Of course, this standard favoring jury determinations on all triable issues inures to the benefit of the nonmoving party, whether it be the plaintiff or the defendant. See Syl. pt. 2, Ashland Oil, Inc. v. Donahue, 164 W.Va. 409, 264 S.E.2d 466 (1980); Syl. pt. 5, Young v. Ross, 157 W.Va. 548, 202 S.E.2d 622 (1974); Syl. pt. 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973); Jones, Inc. v. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 272, 201 S.E.2d 248, 256 (1973); Syl. pt. 1, Thomas v. Ramey, 156 W.Va. 191, 192 S.E.2d 873 (1972); Syl. pt. 1, Lambert v. Goodman, 147 W.Va. 513, 129 S.E.2d 138 (1963); Laphew v. Consolidated Bus Lines, 133 W.Va. 291, 294, 55 S.E.2d 881, 883 (1949); Adkins v. Raleigh Transit Co., 127 W.Va. 131, 135, 31 S.E.2d 775, 777 (1944); Webb v. Harrison, 127 W.Va. 124, 130, 31 S.E.2d 686, 689 (1944); Smith v. Smith, 125 W.Va. 24, 30, 22 S.E.2d 647, 650 (1942); Syl. pt. 4, Bank of White Sulphur Springs v. Lynch, 93 W.Va. 382, 116 S.E. 685 (1923).

Within this procedural context, the broad question in this case is simply whether the plaintiffs met their burden of proof. As stated in Syllabus point 4 in Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967), "In an action for damages against a physician for negligence or want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff." See also Syl. pt. 1, Hinkle v. Martin, supra; Syl. pt. 1, Schroeder v. Adkins, 149 W.Va. 400, 141 S.E.2d 352 (1965); Syl. pt. 1, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964); Syl., White v. Moore, 134 W.Va. 806, 62 S.E.2d 122 (1950); Syl. pt. 2, Dye v. Corbin, supra.

The plaintiffs' evidence, which, for the purpose of this appeal from a directed verdict for the defendant, must be taken as true and given every favorable inference, reveals the following course of events. During the latter part of September, 1979, Brady Totten injured his right wrist while cutting firewood for home heating use in the coming winter. The pain and discomfort failed to subside, and became a hindrance to Mr. Totten in his work as a mine electrician. Therefore, on October 3, 1979, Mr. Totten consulted the defendant at his clinic office in Crum. Dr. Adongay physically examined the injured area and had x-rays taken. Based upon his examination and reading of the x-rays, the defendant ruled out a fracture or dislocation as the cause of Mr. Brady's discomfort. Dr. Adongay prescribed aspirin, heat and massage as treatment.

However, the pain did not abate, and on October 31, 1979, Mr. Totten again went to the defendant. Again the defendant told him there was no fracture. Nevertheless, Mr. Totten's injury continued to be a source of pain and discomfort. On February 13, 1980, approximately five months after his injury, Mr. Totten went to see Dr. Robert Ashworth, an orthopedic surgeon. After an examination and x-rays, Dr. Ashworth advised Mr. Brady that there was a fracture in the scaphoid navicular bone of his right wrist which had been present for some time. Dr. Ashworth further advised Mr. Brady that the fracture and continued nonunion of the bone had caused a complete loss of blood supply to part of the bone, thereby resulting in aseptic necrosis. Dr. Ashworth recommended that the dead bone be removed and replaced with a plastic implant.

Mr. Brady brought, to this first examination by Dr. Ashworth, the x-rays taken by Dr. Adongay on October 3, 1979. In deposition testimony taken after the institution of this action, Dr. Ashworth testified that he could see the fracture in Mr. Brady's right wrist on the x-rays taken and read by the defendant.

Mr. Brady was hospitalized from February 21-24, 1980. Dr. Ashworth surgically removed the necrotic bone and replaced it with a prosthetic substitute. Mr. Brady's wrist was in a cast for 4-5 weeks after his release from the hospital. He later underwent physical therapy. At the time of the trial, he had not regained full use of his hand.

At the trial, the plaintiffs first called, as an adverse witness, the defendant. The defendant admitted that Mr. Totten's fracture was shown on the x-ray taken and read in his office on October 3, 1979. Dr. Adongay's explanation as to why he did not diagnose the fracture was that his attention was focused or diverted to where Mr. Totten was complaining of pain, the middle of the body of the hand. ²

The only other medical testimony in the plaintiffs' case-in-chief was the deposition testimony previously given by Dr. Ashworth in February of that year. The transcript of this deposition was admitted into evidence and read to the jury. Dr. Ashworth's testimony principally covered the nature of Mr. Totten's injury, his diagnosis and treatment of the problem, and his post-surgery observations of the results of the corrective operation. Dr. Ashworth's deposition also contained testimony concerning his viewing of the x-rays taken and read by the defendant. As previously mentioned, Dr. Ashworth related that the fracture in the navicular bone was shown on the defendant's film. In his deposition, Dr....