Yates v. UNIV. OF WEST VIRGINIA BD.

• Decision Date: 15 May 2001
• Docket Number: No. 28241.,28241.
• Citation: 549 S.E.2d 681,209 W.Va. 487
• Court: West Virginia Supreme Court
• Parties: Jonella R. YATES and Donald Yates, Her Husband, Plaintiffs Below, Appellants, v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, A Statutory West Virginia Agency, Defendant Below, Appellee.

549 S.E.2d 681

209 W.Va. 487

Jonella R. YATES and Donald Yates, Her Husband, Plaintiffs Below, Appellants, v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, A Statutory West Virginia Agency, Defendant Below, Appellee.

No. 28241.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 2001.

Decided May 15, 2001.

Concurring Opinion of Justice Starcher July 9, 2001.

J. Robert Rogers, William D. Thompson, Law Office of J. Robert Rogers, Hurricane, for the Appellants.

Wesley W. Metheney, Paul T. Farrell, Jr., for Amicus Curiae West Virginia Trial Lawyers Association.

Edward Kowal, Jr., Dustin C. Haley, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for the Appellee.

MAYNARD, Justice.

Jonella Yates and her husband, Donald Yates, the appellants and plaintiffs below in a medical malpractice case, appeal the final order of the Circuit Court of Cabell County entered December 3, 1999. The appellants raise several issues on appeal to this Court. After careful consideration of these issues, we reverse the judgment of the circuit court.

I. FACTS

On May 4, 1994, appellant, Jonella Yates ("Mrs.Yates") was hospitalized at St. Mary's Hospital in Huntington, West Virginia, with complaints of chest pain.¹ Mrs. Yates' attending physician at St. Mary's Hospital was Dr. Gretchen Oley, an internal medicine specialist and employee of the Marshall University School of Medicine which was governed at this time by the appellee, University of West Virginia Board of Trustees.²

On May 6, 1994, a cardiac catheterization was performed on Mrs. Yates by Dr. Robert Touchon and she was diagnosed with a 60% stenosis of the left circumflex coronary artery. In order to assess the significance of Mrs. Yates' condition, she underwent a stress test³ on May 9 which was stopped because she experienced a rapid heart beat and chest pain.

On May 10, Dr. Mark Studeny performed an atherectomy on Mrs. Yates, which is the insertion of a catheter with a small blade on the end and the cutting away of deposits from the lining of the artery. Incidental to this procedure, Dr. Studeny discovered that Mrs. Yates' right iliac artery was blocked. The iliac artery is the artery which branches off from the abdominal artery and delivers blood to the legs. There is evidence that this blockage was a rare complication resulting from injury to the internal wall of the artery occurring during the catheterization procedure of May 6.⁴ Dr. Studeny consulted with Dr. Dennis Burton, a radiologist, who attempted, the next day, to dissolve the blockage in the right iliac artery through the performance of an angioplasty, stent placement, and the administration of urokinase, an enzyme used intravenously to dissolve blood clots.

Subsequent angiograms⁵ on May 12 revealed persistent blockage in the iliac artery and an additional blockage in the trifurcation of the popliteal artery. This artery is located at the back part of the knee joint and branches into the anterior and posterior tibial and peroneal arteries.⁶ That evening, Dr. Timothy Robarts, a surgical resident, noted that "if foot not better in a.m. (pulseless now), [Mrs. Yates] will need re-agram and likely embolectomy and fem fem crossover."⁷ Generally, from the time of the discovery of the blockage in the right iliac artery, until May 16, when surgery was ultimately performed, the condition of Mrs. Yates' right foot waxed and waned. Sometimes foot pulses were palpable, or apparent to the touch, and sometimes not. At times the pulses were dopplerable, or audible through a hand-held device, and at times they were not. The foot alternated between being cool to the touch and pale or blue to being pink and warm.

The evidence indicates that on the morning of May 13, Dr. Venkata Raman, a vascular surgeon, became involved in Mrs. Yates' treatment for the first time. Dr. Raman was an employee of the Marshall University School of Medicine. Evidence was presented that Mrs. Yates' right foot had improved by the morning of May 13. Late that night, an angiogram showed that the iliac artery, the trifurcation, and its adjoining vessels were now open. Nevertheless, Mrs. Yates' right foot continued to show signs of ischemia, or lack of oxygen. It was thought that, although all of the major arteries of the right leg were now open, that Mrs. Yates was suffering from blood clots in the small vessels of the foot which carry blood from the major arteries to the muscles. For this reason, the infusion of urokinase was continued to dissolve these clots.

In the early morning hours of May 14, Mrs. Yates suffered a retroperitoneal hematoma which is a mass of blood in the membrane lining the abdominal cavity apparently caused by a break in a blood vessel. Evidence was presented that this break in the vessel may have occurred during the angioplasty and initial infusion of urokinase on May 12. The hematoma resulted in significant blood loss which was treated with several blood transfusions. Also, infusions of urokinase and administration of heparin, an anticoagulant use to prevent clotting, were discontinued at this time in order to aid in stopping the blood loss. The blood transfusions were successful in treating the hematoma.

However, after the infusion of urokinase and administration of heparin were stopped, Mrs. Yates' right leg artery reclotted. Also, the condition of her right foot continued to worsen. As a result, on May 16 Dr. Raman performed an embolectomy on Mrs. Yates to remove the blood clot and a fasciotomy to release the pressure in her swollen and tender right calf. It was subsequently discovered that Mrs. Yates had suffered significant muscle death in her right foot and lower leg, and a below the knee amputation was performed on May 29.

On May 6, 1996, Mrs. Yates and her husband brought a medical malpractice action against all of the doctors involved in her treatment, Radiology, Inc., of which Dr. Burton was an employee, and St. Mary's Hospital. By the time of the trial, in June, 1999, all of the defendants had been dismissed from the case except the University of West Virginia Board of Trustees who was substituted in lieu of defendants Drs. Oley and Raman.

At trial, the appellants' theory was that Dr. Oley, Mrs. Yates' attending physician, and Dr. Raman, her vascular surgeon, were tardy in their treatment of her right iliac artery, and this tardiness resulted in the amputation. Specifically, they alleged that when the blockage was first discovered on May 10, Dr. Oley should have immediately consulted with a vascular surgeon instead of a radiologist. Also, they alleged that Dr. Raman, upon becoming involved in Mrs. Yates' treatment on May 13, should have immediately performed surgery rather than assenting to the continued infusion of urokinase. In support of this theory, the appellants presented the testimony of Dr. Alex Zachariah, a cardiovascular and thoracic surgeon, who opined that Dr. Oley deviated from the applicable standard of care by not consulting a vascular surgeon on May 10, and that Dr. Raman was negligent in not operating to remove the blood clots on May 13.

In response, the appellee presented the testimony of Dr. John Bergan, a vascular surgeon, who opined that interventional radiology is an acceptable method of treating the blockage of an artery so that Dr. Oley was not negligent in consulting a radiologist rather than a vascular surgeon. Likewise, he testified that Dr. Raman was not negligent in assenting to the radiology treatment already initiated when he became involved in the case on May 13.

After a five-day trial, the jury returned a verdict for the appellee. The trial court subsequently denied the appellants' motion to set aside the verdict and for a new trial. As a result, the appellants now appeal to this Court.

II. DISCUSSION

The appellants complain, first, that the trial court abused its discretion in admitting the expert opinion testimony of Dr. John Bergan because there was no evidence that Dr. Bergan was licensed to practice medicine in one of the states of the United States as required by W.Va.Code § 55-7B-7 (1986).⁸ The appellee responds that the appellants waived this assignment of error by failing to make a timely objection at trial. We agree.

The record shows that prior to Dr. Bergan's testimony, appellants' counsel objected to Dr. Bergan as a witness on the grounds that Dr. Bergan and Dr. Raman were friends; Dr. Bergan testified previously on behalf of Dr. Raman in a medical malpractice case; on the evening prior to Dr. Bergan's scheduled testimony, Dr. Bergan helped Dr. Raman to prepare for his impending testimony; and Dr. Bergan has not performed vascular surgery on the arterial system in the last ten years. These objections were rejected by the trial court, and Dr. Bergan proceeded to testify on Friday, June 18. On cross-examination, appellants' counsel questioned Dr. Bergan on the matters raised in their objections. On Tuesday, June 22, following the testimony of Dr. Raman, the defense rested.⁹ At that point, appellants' counsel moved to strike the testimony of Dr. Bergan because it was not disclosed whether Dr. Bergan was licensed to practice medicine in a state of the United States.¹⁰

Our rules clearly indicate that a party who assigns error on appeal based on a trial court's admission of evidence must timely object to that evidence. Rule 103 of the West Virginia Rules of Evidence states:

(a) Effect of erroneous ruling. ____ Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(b) Objection. ____ In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of the objection, if the specific ground was not apparent from the context[.]

In addition, this Court has held that "[a] proper objection to the competency of a witness must be made and the point saved when the witness or his testimony is offered...