649 S.E.2d 246
2. “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 Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. “Summary judgment is appropriate if, from the totality of the evidence presented, the record 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.” Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
4. “It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.” Syllabus Point 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964).
5. When a particular defendant's failure to meet the standard of care is at issue in medical malpractice cases, the sufficiency and nature of proof required is governed by West Virginia Code § 55-7B-7(a) (2003), which specifically provides that: “The applicable standard of care and a defendant's failure to meet the standard of care, 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.”
6. Once it is established that a particular expert is to be used as a standard of care witness, the trial court must determine the qualifications of that expert witness pursuant to W.Va. Code § 55-7B-3(a)(1) (2003), which provides that a plaintiff in a medical malpractice action must show that: “The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances[.]”
7. “The 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.” Syllabus Point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d
755 (1994).
Maynard, Justice:
In this case, the Circuit Court of Mineral County entered a summary judgment
order dismissing a medical malpractice action filed by the Estate of Alexia Sheree Fout-Iser,
by Maranda L. Fout-Iser as fiduciary and individually, and Jerry T. Iser, the appellants and
plaintiffs below (hereinafter referred to as “the Isers”). The circuit court granted summary
judgment to Anita M. Rhee, Administratrix of the Estate of Russell Rhee, appellee and
defendant below, (hereinafter referred to as “Dr. Rhee”) (See footnote 1) on the grounds that the Isers failed
to produce a medical expert who would testify that Dr. Rhee breached the standard of care
and proximately caused the death of Alexia Sheree Fout-Iser. In this appeal, the Isers
contend that summary judgment was inappropriate because their medical experts provided
opinions on the standard of care and causation. Alternatively, the Isers contend that no
expert was needed to prove a breach of the standard of care or causation. After reviewing
the facts of the case, the issues presented, and the relevant statutory and case law, we reverse
the decision of the circuit court.
Summary judgment is appropriate if, from the totality of the evidence presented, the record 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.
We also pointed out in Neary v. Charleston Area Medical Center, Inc., 194 W.Va. 329, 334,
460 S.E.2d 464, 469 (1995) that “[w]hen the principles of summary judgment are applied in
a medical malpractice case, one of the threshold questions is the existence of expert
witnesses opining the alleged negligence.” With these principles in mind, we now consider
the parties' arguments.
Q. Okay. So what you have stated thus far is your view,
is your opinion, rather, to a reasonable medical probability, that
Dr. Rhee, by not doing what you suggested, violated some
medical standard of care?
A. Yes.
Q. Well, what is the violation of the standard of care? I'm
still not clear.
A. Dr. Rhee, in his capacity as a radiologist, was
responsible for providing an interpretation of the images. Per
Ms. Niland's testimony, Dr. Rhee was not satisfied with the
quality of the images he was receiving. Since he is the one that's
responsible for rendering that interpretation, I would consider it
his responsibility to provide some additional either guidance or
direction by himself or somebody else that would allow him to
be comfortable rendering an interpretation of the patient and the
images that he received.
We find that Dr. Dicke's testimony regarding Dr. Rhee's deviation in the
standard of care was adequate to defeat Dr. Rhee's motion for summary judgment with
regard to that issue. While the entire transcript of Dr. Dicke's second deposition is not in the
record before us, there is no dispute with regard to the accuracy of the aforementioned
quote. (See footnote 9) It has been quoted verbatim by both parties in countless pleadings before this Court
as well as in the circuit court. And, while Dr. Rhee argues that the complete transcript shows
that Dr. Dicke testified that Dr. Rhee did not violate the standard of care with regard to some
of the specific actions he performed, it is equally clear to us that Dr. Dicke did, in fact, testify
that Dr. Rhee violated the standard of care within a reasonable medical probability with
regard to some of his actions.
In consideration of all of the above, it is possible that a jury may find from Dr.
Dicke's testimony that it was ultimately Dr. Rhee's responsibility to make sure that readable
images of Maranda were completed to ensure proper diagnosis and treatment. A jury may
also reasonably find that Dr. Rhee was the doctor on call that day, while Ms. Niland was the
x-ray technician dealing with a very sick patient. Also, Ms. Niland openly explained to Dr.
Rhee her concerns surrounding Maranda as well as making it quite clear to him that she
needed immediate assistance. Thus, given all the underlying circumstances it seems
reasonable that a jury could conclude that simply instructing Ms. Niland to call another
ultrasound technician for assistance was an inadequate response. A jury may further
reasonably find that the other x-ray technician was not a doctor, was not on call, and lived
a significant distance from the hospital. And, that jury may conclude that even if another x-ray technician would have made it to the hospital that day this would have led to even more
delay in treating Maranda, who was eight months pregnant and was vomiting, sweating,
experiencing severe abdominal pain, fever, chills, shortness of breath, blurred vision,
inability to urinate, and diarrhea.
We further find that the circuit court erred by concluding that the Isers failed
to present evidence of causation. In that regard, the deposition testimony before the circuit
court demonstrated that the delay in treatment of Maranda was significant. This problem is
highlighted by the appellants' expert witness, Dr. Richard D. McLaughlin, who offered
testimony with regard to causation. Dr. McLaughlin, an obstetrician/gynecologist, in
response to questions from counsel for the Isers, testified as follows:
Q. And your second criticism, if you would, please?
A. Would be that the overall time delay while she was at
Potomac Valley, contributed, in part, by failing to order
laboratory tests on a stat or on an emergency basis; a delay in
ultrasound; and a delay in reporting the presence of this patient
to Dr. Hahn, along with the information that had been collected
on her.
(Emphasis added). Dr. McLaughlin further testified:
Q. Doctor, in your earlier testimony, you were critical of
the time that Mrs. Iser spent in ultrasound. Am I correct?
A. Yes.
Q. Do you have any understanding as to what happened
in ultrasound that may have caused any delay?
A. No.
. . . .
Q. Doctor, do you know that the outcome of the fetus
would have been any different, in your opinion? A. Well, the outcome of the fetus as it stands is a dead
baby. The baby was alive in your emergency room [Potomac
Valley Hospital], and earlier treatment with a rescue C-section
could have saved the life of the baby.
Q. Doctor, are you certain within a reasonable degree of
medical certainly that the outcome for the fetus would have been
different, assuming that the fetus presented as a live, viable
fetus?
A. A 32-week fetus has a greater than 90 percent chance
of surviving, so yes.
Dr. Rhee maintains that Dr. McLaughlin did not specifically testify that a
breach of the standard of care by Dr. Rhee was a cause of the Isers' injuries. He further
states that Dr. McLaughlin's testimony surrounded the conduct of other doctors and not Dr.
Rhee. It has been recognized by this Court that “[i]n a malpractice case, the plaintiff must
not only prove negligence but must also show that such negligence was the proximate cause
of the injury.” Syllabus Point 4, Short v. Appalachian OH-9, Inc., 203 W.Va. 246, 507 S.E.2d
124 (1998).
In this case, Dr. McLaughlin testified that the delay in transporting caused the
death of the baby and injuries. His testimony was given on May 3, 2004, more than eight
months prior to the Isers' locating Ms. Niland. As discussed above, Ms Niland testified that
she had experienced significant problems in obtaining proper films and called Dr. Rhee for
help. Then, according to Ms. Niland, instead of coming to the hospital to assist her, Dr. Rhee
became verbally abusive. While Dr. McLaughlin testified that he did not know the cause of
the delay in radiology, he nonetheless clearly testified that the delay was a cause of the death
of the baby. Thus, Dr. McLaughlin's testimony, along with Dr. Dicke's testimony that Dr.
Rhee violated the standard of care surrounding Maranda's sonogram, are necessarily
connected. When read together they constitute evidence that the Isers can present to a jury
demonstrating that Dr. Rhee violated the standard of care and that such violation was a cause
of the Isers' injury. Conversely, Dr. Rhee's counsel will have equal opportunity to dispute
that evidence through cross-examination as well as by presentation of his own expert
witnesses during a trial.
In addition, Dr. Schmitt, the emergency room physician that day, testified that
the delay in reporting the ultrasound result affected the needed medical action for Maranda.
Dr. Schmitt testified that such delay resulted in a violation of the standard of care for getting
the results of the sonogram. This is demonstrated by the following excerpt from his
testimony:
Q. And with an abdominal sonogram in a patient like
Ms. Iser on July 30, 1999, would the standard of care have been
to get those _ have the sonogram done by the hospital, sent out
and interpreted within approximately 45 minutes?
A. Yes, sir
. . . .
Q. And the results of this appear to have been in excess
of two hours; is that correct?
A. Yes.
Q. Before it was conveyed back to you?
A. Yes.
Q. And in excess of an hour and 15 minutes longer than
what you consider the standard of care for getting those results
back?
A. Yes.
Dr. Schmitt even testified that he called three different times trying to find out why there was
a delay in giving him the results of the sonogram.
This Court has held 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.” Syllabus Point 3, Painter, supra.
Having reviewed the record in this case, we believe that genuine issues of material fact exist
with regard to whether Dr. Rhee violated the applicable standard of care and whether that
violation of the standard of care was the cause of injury. As such, the order of the circuit
court of Mineral County is reversed, and this case is remanded for further proceedings
consistent with this opinion. (See footnote 10)
Reversed and Remanded.