The Opinion of the Court was delivered PER CURIAM.
Per Curiam:
Linda and Clinton Farley (hereinafter referred
to as “the Farleys”) appeal from an order entered September 27, 2004,
by the Circuit Court of Cabell County. By that order, the circuit court granted
summary judgment in favor of the remaining defendants, podiatrists Jeffrey Shook,
D.P.M., and Kirt Miller, D.P.M. (hereinafter “Dr. Shook” and “Dr.
Miller,” respectively), and dismissed the case. Gabriel C. Fornari, M.D.
(hereinafter “Dr. Fornari”), an emergency room physician, and St. Mary's
Hospital of Huntington (hereinafter “St. Mary's”) had already been
dismissed by way of summary judgment by order entered March 30, 2004. (See
footnote 1) On appeal, this Court is asked to review both summary
judgment awards. (See footnote
2) Based
upon the parties' arguments, the record designated for our consideration, and
the pertinent authorities, we affirm the circuit court's award of summary judgment
to Dr. Fornari and St. Mary's; we reverse the circuit court's award of summary
judgment to Dr. Shook and Dr. Miller; and we remand the case to the circuit
court for further proceedings consistent with this opinion.
The next
day, Mrs. Farley called Dr. Shook's office on several occasions with complaints
of pain. She was instructed to come to the office; however, she was unable to
find transportation. Later that night, the pain became unbearable, and Mrs. Farley
called for an ambulance and was taken to the emergency department at St. Mary's.
Upon arrival, she was seen by Dr. Fornari, an emergency room physician. Dr. Fornari
contacted Dr. Shook's office to inform him that one of his recent surgical patients
was in the emergency room. Dr. Fornari spoke with Dr. Miller, a resident working
with Dr. Shook who had assisted during the subject surgery. Dr. Miller indicated
to Dr. Fornari that there was no need to remove the surgical dressing because,
during a previous conversation with Dr. Shook's office, Mrs. Farley had informed
the office employees that she had already loosened her dressing. Mrs. Farley
had no fever and had stable vital signs, as well as good color in her leg and
toes; therefore, the plan was to medicate Mrs. Farley for pain, discharge her
from the emergency room to home, and for her to be seen the next day in Dr. Shook's
office.
Mrs. Farley went to Dr. Shook's office the
next morning, February 23, 2000. It was noted that Mrs. Farley's ankle and foot
were discolored and that blisters were present near the wound site. Mrs. Farley
was sent to the hospital where it was confirmed that she was suffering from necrotizing
fasciitis caused by bacteria, clostridium septicum. In lay terms, Mrs. Farley
was suffering from gas gangrene, which can occur after surgery or trauma. Her
condition was characterized by tissue death requiring removal of the dead tissue
to
prevent the infection from spreading and to save her life. This condition is
rare and life- threatening and resulted in an emergent, above-the-knee amputation
of her leg.
A lawsuit was filed on January 10, 2002,
alleging that all of the defendants committed malpractice in the medical care
provided to Mrs. Farley. An agreed order was entered on March 14, 2002, signed
by all counsel, wherein it was recognized that expert testimony would be required
on the issues of standard of care and causation. A scheduling order was entered
on July 1, 2002, setting December 2, 2002, as the Farleys' expert disclosure
deadline. When the Farleys failed to meet this deadline, Dr. Fornari and St.
Mary's filed a motion to compel disclosure of the Farleys' expert witness. On
December 9, 2002, the Farleys disclosed Dr. Albert Weihl, an emergency medicine
doctor, as their expert witness.
The defendant doctors and St. Mary's disclosed
expert witnesses on April 7, 2003, after asking for and receiving a stipulation
from counsel for the Farleys as to an extension of time in which to disclose
their experts. Thereafter, the Farleys' only expert, Dr. Weihl, was deposed.
He testified as to deviations from the standard of care as it related to Dr.
Fornari and St. Mary's; however, he was unable to testify regarding causation
as to Dr. Fornari and St. Mary's. Moreover, because his area of expertise is
emergency medicine, he did not testify as to any deviation of the standard of
care as it would apply to podiatrists such
as Dr. Shook and Dr. Miller. Thus, Dr. Fornari and St. Mary's filed motions
for summary judgment based on the lack of any expert who could opine as to
a causal link in the care provided to Mrs. Farley and her alleged injuries.
The Farleys filed no responsive pleading or affidavits. The circuit court granted
Dr. Fornari's and St. Mary's joint motion for summary judgment. In so doing,
the circuit court found that “plaintiffs failed to produce evidence, to
a reasonable degree of medical probability from expert or treating physicians,
or a causal link between the breaches of the standard of care testified to
by Dr. Weihl and the amputation.”
Subsequently, Dr. Shook and Dr. Miller moved
for summary judgment on the ground that the Farleys failed to put forth any requisite
expert testimony as to any alleged deviations from the standard of care from
the perspective of a doctor of podiatry. In response, the Farleys filed a motion
to reconsider the court's previous granting of summary judgment in favor of Dr.
Fornari and St. Mary's. The trial court denied the motion for reconsideration,
and further granted summary judgment in favor of Dr. Shook and Dr. Miller. In
so ruling, the circuit court found that “Dr. Weihl admitted at his deposition
that he lacked the competency to testify as to any alleged deviations from the
standard of care by either Dr. Shook or Dr. Miller, both of whom are Doctors
of Podiatric Medicine[.]” Further, the trial court found that “[t]here
are no genuine issues of material fact as to the alleged deviations from the
standard of care by Dr. Shook and Dr. Miller as the [p]laintiffs have failed
to
establish the same via the testimony of a competent expert witness.” The
case was dismissed from the circuit court's docket. It is from the combination
of the circuit court's decisions rendered on March 30, 2004, and September
27, 2004, that the Farleys now appeal.
“'A
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.' Syllabus Point 3, Aetna
Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va.
160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon,
187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter, 192 W. Va. 189, 451 S.E.2d 755.
Moreover,
[s]ummary
judgment is appropriate where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, such as where the nonmoving party
has failed to make a sufficient showing on an essential element of
the case that it has the burden to prove.
Syl. pt. 4, Painter, id. We are also mindful that “[t]he
circuit court's function at the summary judgment stage is not to weigh the
evidence and determine the truth of the matter, but is to determine whether
there is a genuine issue for trial.” Syl. pt. 3, Painter, id. Mindful
of these applicable standards, we now consider the substantive issues herein
raised.
In the present case pending before this Court,
the Farleys alleged malpractice against Dr. Fornari, the emergency room doctor,
and contended that he negligently failed to remove Mrs. Farley's surgical dressing
when she presented to his department on February 22, 2000. The Farleys also averred
that St. Mary's was negligent in that its nurses failed to repeat Mrs. Farley's
vital signs during her emergency room visit on February 22, 2000. As to the claims
against the podiatric defendants, the Farleys asserted that Dr. Shook and Dr.
Miller negligently performed her cyst removal surgery, and that they mismanaged
her care postoperatively, including failure to evaluate her while she was a patient
in the emergency room. These medical issues and alleged breaches relate to complex
matters of diagnosis and treatment that are not within the understanding of lay
jurors by resort to common knowledge and experience. Therefore, expert witness
testimony was required to establish any breach of the standard of care and any
causal connection to Mrs. Farley's injuries.
Significantly, the parties recognized that
medical experts would be required. By order entered March 14, 2002, and signed
by all counsel, the parties acknowledged that “expert medical testimony
as to standard of care and causation will be necessary in this case.” Moreover,
we recognize that “'a trial court is vested with discretion under W. Va.
Code § 55-7B-7 (1986) to require expert testimony in medical professional
liability cases, and absent an abuse of that discretion, a trial court's decision
will not be disturbed on appeal.' Syl. Pt. 8, McGraw v. St. Joseph's Hosp.,
200 W. Va. 114, 488 S.E.2d 389 (1997).” Syl. pt.
3, Daniel v. Charleston Area Med. Ctr., 209 W. Va. 203, 544 S.E.2d
905 (2001). Thus, it is clear that the nature of the case required expert testimony,
and the trial court did not abuse its discretion in requiring expert testimony
to prove both breaches of the applicable standards of care and to prove causation.
Having set forth the requirements for maintaining
a medical malpractice cause of action, we now are able to consider the summary
judgment awarded to Dr. Fornari and St. Mary's. The circuit court awarded summary
judgment to Dr. Fornari and St. Mary's on the basis that “plaintiffs failed
to produce evidence, to a reasonable degree of medical probability from expert
or treating physicians, or a causal link between the breaches of the standard
of care testified to by Dr. Weihl and the amputation.” Thus, our analysis
must include an examination of the nature of the Farleys' expert disclosure.
The Farleys identified one expert witness, Dr. Albert Weihl, who is a highly-credentialed
emergency room physician. The Farleys anticipated that Dr. Weihl would provide
testimony regarding Dr. Fornari's and St. Mary's deviations from the applicable
standards of care, as well as testimony regarding a causal link to Mrs. Farley's
injuries. During his deposition, Dr. Weihl testified regarding breaches in the
standard of care provided to Mrs. Farley. He testified that Dr. Fornari failed
to perform a complete examination, and failed to remove the surgical dressing
and visualize the surgical wound. Dr. Weihl further stated that the emergency
room nurses deviated from the standard of care in failing to retake Mrs. Farley's
vital signs during her course in the
emergency room, thereby implying their deviation to St. Mary's. However, Dr.
Weihl was unable to link any of these alleged breaches in care to the ultimate
outcome in Mrs. Farley's case. As to any questions regarding causation, Dr.
Weihl stated that he would have to defer to another specialty, and he specifically
mentioned an infectious disease expert would be the appropriate type of practitioner
to answer those questions. Thus, Dr. Weihl was unable to provide any testimony
regarding causation as it relates to Dr. Fornari or St. Mary's.
The Farleys bear the burden of proving negligence
and lack of skill on the part of the physician proximately caused the injuries
suffered. Hicks v. Chevy, 178 W. Va. 118, 121, 358 S.E.2d 202, 205
(1987); Syl. pt. 2, Totten v. Adongay, 175 W. Va. 634, 337 S.E.2d
2 (1985); Syl. pt. 1, Hinkle v. Martin, 163 W. Va. 482, 256 S.E.2d
768 (1979); Syl. pt. 4, Hundley v. Martinez, 151 W. Va. 977, 158
S.E.2d 159 (1967); 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). See W. Va. Code § 55-7B-7 (1986) (Repl. Vol. 2000) (“The
applicable standard of care and a defendant's failure to meet said standard,
if at issue, shall be established in medical professional liability cases by
the plaintiff[.]”). Thus, because Dr. Weihl was the only expert designated
to provide standard of care and causation testimony against the emergency room
physician and the hospital, and because he was unable to provide the necessary
causal links, the Farleys were unable to prove their case against these two appellees.
The circuit court was
correct in awarding summary judgment to Dr. Fornari and St. Mary's, and we
accordingly affirm the circuit court's ruling.
Having determined that the first summary
judgment award to Dr. Fornari and St. Mary's was appropriate, we now turn to
a discussion of the propriety of the second summary judgment that was awarded
to Dr. Shook and Dr. Miller. In awarding summary judgment to Dr. Shook and Dr.
Miller, the circuit court found “Dr. Weihl admitted at his deposition that
he lacked the competency to testify as to any alleged deviations from the standard
of care by either Dr. Shook or Dr. Miller, both of whom are Doctors of Podiatric
Medicine[.]” Further, the trial court found that “[t]here are no genuine
issues of material fact as to the alleged deviations from the standard of care
by Dr. Shook and Dr. Miller as the [p]laintiffs have failed to establish the
same via the testimony of a competent expert witness.”
The circuit court's ruling recognized that
if an expert is going to be required by the Court or proffered by a party, the
expert must be competent to testify. See W. Va. Code § 55-7B-7
(“The applicable standard of care and a defendant's failure to meet said
standard, if at issue, shall be established in medical professional liability
cases by the plaintiff by testimony of one or more knowledgeable, competent expert
witnesses if required by the court.”). “Rule 702 of the West Virginia
Rules of Evidence is the paramount authority for determining whether or not
an expert is qualified to give an opinion.” Syl. pt. 6, in part,
Mayhorn v. Logan Med. Found., 193 W. Va. 42, 454 S.E.2d 87 (1994).
Rule 702 of the West Virginia Rules of Evidence provides: “If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.”
While a physician does not have to be board
certified in a specialty to qualify to render an expert opinion, the physician
must have some experience or knowledge on which to base his or her opinion. See Fortney
v. Al-Hajj, 188 W. Va. 588, 425 S.E.2d 264 (1992) (stating that experience
may qualify physician to render an expert opinion and that a physician does not
necessarily need to be “board certified” in a medical field to work
in that medical field for purposes of physician's qualification to testify as
expert). In the present case, Dr. Weihl was the only expert designated by the
Farleys. During his deposition, he was clear that he did not have the knowledge
or skill to testify as to the applicable standard of care as it would apply to
a physician in the field of podiatry. Consequently, he had no ability to opine
whether Dr. Shook or Dr. Miller breached the standard of care. Based on the lack
of any expert rendering an opinion as to whether the podiatric defendants breached
the standard of care, the circuit court granted summary judgment. While we agree
with the circuit court that Dr. Weihl was not a competent expert witness based
on his lack of familiarity with the field of podiatry to testify against Dr.
Shook and Dr. Miller, the particular
facts of this case require scrutiny beyond Dr. Weihl's competence to testify
about podiatry practices.
We are cognizant of the particular procedural
history of this case, and are aware that the summary judgment awarded to Dr.
Shook and Dr. Miller was a direct result of the Farleys' failure to identify
appropriate expert witnesses. We are also aware that the Farleys filed a motion
to extend their expert disclosure deadline, and their request was denied by the
circuit court. The Farleys maintain that the circuit court's improper denial
of their earlier motion for an extension of their expert disclosure deadline
was the sole reason allowing summary judgment to be granted to Dr. Shook and
Dr. Miller. Accordingly, to determine the appropriateness of the summary judgment
awarded, we must look to the circuit court's denial of the Farleys' motion to
enlarge the time in which they could identify expert witnesses.
The applicable standard of review in regards
to the denial of the motion to extend the Farleys' expert disclosure time frame
is an abuse of discretion standard. West Virginia Rule of Civil Procedure, Rule
16(e) provides:
Pretrial
orders. After any conference held pursuant to this rule, an order shall be
entered reciting the action taken. This order shall control the subsequent course
of the action unless modified by a subsequent order. The order following a final
pretrial conference shall be modified only to prevent manifest injustice.
This proposition has been further recognized in our case law. See McCoy
v. CAMC, Inc., 210 W. Va. 324, 328, 557 S.E.2d 378, 382 (2001) (per
curiam) (reiterating that Rule 16 vests in trial courts the discretion to modify
scheduling orders); State ex rel. Crafton v. Burnside, 207 W. Va.
74, 528 S.E.2d 768 (2000) (reviewing the circuit court's decision not to amend
the case management order under an abuse of discretion standard); State
ex rel. State Farm Fire & Cas. Co., 192 W. Va. 155, 161, 451 S.E.2d
721, 727 (1994) (recognizing that it is within the trial court's discretion
to refuse to allow a party to designate or substitute an expert witness after
the expiration of the deadline set forth in the scheduling order); Roark
v. Dempsey, 159 W. Va. 24, 217 S.E.2d 913 (1975) (discussing discretion
of trial court in utilization of Rule 16 of the West Virginia Rules of Civil
Procedure). Thus, we apply an abuse of discretion standard to the trial court's
denial of the Farleys' motion to enlarge their expert disclosure deadline.
The Farleys sought additional time to find
and disclose expert witnesses because they had not yet been able to depose the
defendant doctors. Moreover, the Farleys suggested that they could not disclose
expert witnesses until such time as they could depose the experts identified
by Dr. Shook and Dr. Miller. Even more compelling than the timing of depositions
and the rendering of expert opinions, we place great significance on an agreement
that was reached between the parties. The record reveals that on two separate
occasions, the defendant doctors requested an extension of their expert disclosure
deadline.
Counsel for the Farleys agreed to the request, without hesitation, as a matter of professional courtesy. During the hearing on the motion, counsel for the Farleys conceded that, when the defendants sought enlargement of their expert disclosure deadlines, no reciprocal request was made on behalf of the Farleys. Because counsel for the Farleys had agreed to allow the defendant doctors an extension of time to identify their experts, he stated to the trial court that he anticipated no opposition to his own request for an extension of time. However, he was not treated with the same civility as he had demonstrated, and the defendant doctors did oppose the Farleys' motion for an extension of time. The trial court ruled that the Farleys were not entitled to an extension of time in which to identify experts. (See footnote 3) Therefore, because Dr. Weihl was the only expert identified by the Farleys and he was deemed incompetent to testify against the podiatric physicians, the circuit court granted summary judgment to Dr. Shook and Dr. Miller.
We have previously recognized that “[u]pon
a trial court's determination that an expert witness is required to prove standard
of care or proximate cause in an action brought under the West Virginia Medical
Professional Liability Act, West Virginia Code §§ 55-7B-1 to -11
(1986) (Repl. Vol. 2000), a reasonable period of time must be provided for retention
of an expert witness.” Syl. pt. 4, Daniel, 209 W. Va. 203, 544
S.E.2d 905. In the instant case, because of the impediments to the Farleys' ability
to identify a podiatric expert, the trial court abused its discretion in denying
their motion to enlarge the time within which to identify such an expert. The
situation against Dr. Shook and Dr. Miller is very different than the case against
Dr. Fornari and St. Mary's. As against Dr. Fornari and St. Mary's, the Farleys
were able to identify an expert; however, while competent to testify, that expert
was not able to tie any breaches of the standard of care by Dr. Fornari or St.
Mary's to the Farleys' injuries. Nonetheless, as against Dr. Shook and Dr. Miller,
the Farleys were not afforded adequate time to identify experts in light of the
impediments with which they were faced. Therefore, it follows that the summary
judgment awarded to Dr. Shook and Dr. Miller, on the basis that no expert existed
to testify against them, must be reversed.