653 S.E.2d 632
REVERSED AND REMANDED
4. Where there are several approved methods of performing a particular
medical procedure, the fact that a physician who is qualified to offer an expert opinion based
on field of practice and expertise utilizes a different method than the doctor whose actions
are at issue does not prevent the physician from offering testimony on the applicable
standard of care in a medical malpractice case.
Albright, Justice:
Jonathan Brian Walker appeals from the June 21, 2006, order of the Circuit
Court of Cabell County through which Appellee Tara C. Sharma, M.D., was granted
judgment as a matter of law in a medical malpractice action. Appellant argues that the
circuit court erred in concluding that Appellant's expert, Dr. Lewis, could not testify
regarding the national standard of care, or any deviation therefrom, based on the expert's
testimony that he was unfamiliar with the specific method employed to dilate urethral
strictures at hospitals not located in Columbus, Ohio, where he practices. As a result of this
conclusion, the trial court ruled at the conclusion of Appellant's case-in-chief that he had
failed to meet his burden of proof on the issue of standard of care and causation. Upon a full
review of the record in this case, we determine that the trial court committed error in
concluding that an experienced, board-certified urologist could not testify as to the standard
of care applicable to this case. Accordingly, the decision of the trial court is reversed and
remanded for further proceedings consistent with this opinion.
The appellate standard of review for the granting of a
motion for a directed verdict pursuant to Rule 50 of the West
Virginia Rules of Civil Procedure is de novo. On appeal, this
court, after considering the evidence in the light most favorable
to the nonmovant party, will sustain the granting of a directed
verdict when only one reasonable conclusion as to the verdict
can be reached. But if reasonable minds could differ as to the
importance and sufficiency of the evidence, a circuit court's
ruling granting a directed verdict will be reversed.
We proceed to apply this standard to the case before us.
Expert testimony may only be admitted in evidence if the
foundation therefor is first laid establishing that: (1) The
opinion is actually held by the expert witness; (2) the opinion
can be testified to with reasonable medical probability; (3) the
expert witness possesses professional knowledge and expertise
coupled with knowledge of the applicable standard of care to
which his or her expert opinion testimony is addressed; (4) the
expert witness maintains a current license to practice medicine
with the appropriate licensing authority of any state of the
United States: Provided, That the expert witness' license has
not been revoked or suspended in the past year in any state; and
(5) the expert witness is engaged or qualified in a medical field
in which the practitioner has experience and/or training in
diagnosing or treating injuries or conditions similar to those of
the patient. If the witness meets all of these qualifications and
devoted, at the time of the medical injury, sixty percent of his or
her professional time annually to the active clinical practice in
his or her medical field or specialty, or to teaching in his or her
medical field or speciality in an accredited university, there shall
be a rebuttable presumption that the witness is qualified as an
expert.
W.Va. Code § 55-7B-7.
In deciding whether Appellant had established the requisite standard of care
that applied to this case, the trial court found conclusive the testimony of Dr. Lewis,
Appellant's expert witness, “that he was not familiar with the methods employed for the
dilation of urethral strictures at the hospitals in Huntington, West Virginia or at Duke
University or at other hospitals where he does not practice.” Based solely on Dr. Lewis'
testimony that he lacked knowledge regarding the specific technique employed for dilating
urethral strictures in hospitals outside of the Ohio venues in which he practiced, the trial
court ruled that Appellant had failed to “establish both what constituted the national standard
of care and that a deviation from the national standard of care occurred.”
The decision regarding the qualification of a proffered witness to testify as an
expert witness lies unquestionably within the discretion of the trial court. See Kiser v.
Caudill, 210 W.Va. 191, 195, 557 S.E.2d 245, 249 (2001); but see Cargill v. Balloon Works,
Inc., 185 W.Va. 142, 146, 405 S.E.2d 642, 646 (1991) (recognizing that when an “expert
witness is qualified by knowledge, skill, experience, training, or education as an expert and
. . . the individual's specialized knowledge will assist the trier of fact, it is an abuse of the
trial court's discretion to refuse to qualify that individual as an expert”). In this case, the
trial court had little difficulty in ruling that Dr. Lewis “was qualified to testify as an expert
witness on the subject [urological procedures] pursuant to W.Va. Code § 55-7B-7.” (See footnote 2) Concerning the issue of Dr. Lewis' qualifications, the trial court found the following:
Plaintiff's expert witness, Robert Lewis, D.O., is a physician
currently licensed to practice medicine in the State of Ohio; is
board certified in the medical specialty of urology; and devotes
in excess of 60% of his professional time to the active clinical
practice of urology. He further testified on direct examination
that he is familiar with the standard of care required by a
urologist through his training and research in the dilation of
urethral strictures using the Bard instrument system; and he
holds opinions to a reasonable medical probability as to whether
Dr. Sharma complied with acceptable standards of care in the
performance of the procedure of January 4, 2003. As such, Dr.
Lewis was qualified to testify as an expert witness on the
subject pursuant to W. Va. Code § 55-7B-7. (emphasis
supplied)
According to the trial court's order, Dr. Lewis “testified to and demonstrated
on direct examination the manner in which the Bard system of instruments is used to dilate
or stretch a urethral stricture.” (See footnote 3) Additionally, as reflected by the trial court's order, “Dr.
Lewis testified that there were multiple methods of dilating urethral strictures,” with the
Bard instrument method being one of those methods. (See footnote 4) Despite his undisputed qualification
as an expert in the area of urology, the trial court found that Dr. Lewis' lack of familiarity
with the specific technique for dilating urethral strictures employed at various hospitals
outside those in Columbus, Ohio, where he practiced, was fatal with regard to his ability to
testify regarding the national standard of care to be applied to this case.
What this case demonstrates is how this Court's decision to abandon the
locality rule (See footnote 5) in medical malpractice cases in favor of a standard of care more national in
approach is often misemployed to prevent qualified physicians from offering testimony in
cases brought under the Act. See Paintiff v. City of Parkersburg, 176 W.Va. 469, 345
S.E.2d 564 (1986) (abolishing use of “locality rule” in medical malpractice cases); accord
Arbogast v. Mid-Ohio Valley Medical Corp., 214 W.Va. 356, 360-61, 589 S.E.2d 498, 502-
03 (2003). While decided shortly before the enactment of the Act, the Paintiff case is
nonetheless apposite with regard to the factors relied upon by the trial court in ruling on
whether Appellant had demonstrated a national standard of care or deviation therefrom. In
rejecting the testimony of two physicians offered as experts in Paintiff, the trial court found
the first physician's testimony inadmissible because he could not testify “concerning the
accepted, customary and usual medical practice and procedure among general surgeons in
good standing in Parkersburg, West Virginia in 1981” because the physician at issue was a
obstetrician-gynecologist licensed in West Virginia who did not practice in Parkersburg.
176 W.Va. at 470, 345 S.E.2d at 565. The second expert whose testimony the trial court
rejected in Paintiff did practice in Parkersburg, but he too was an obstetrician-gynecologist
rather than a general surgeon like the defendant doctor. In formally rejecting the locality
rule, (See footnote 6) this Court was emphatic in stating: “The trial court should not have excluded their
testimony either because they were not general surgeons or because they were unfamiliar
with the peculiarities of surgical practice in Parkersburg.” Paintiff, 176 W.Va. at 471, 345
S.E.2d at 566.
As we observed in Paintiff, the need for employing a locality rule in medical
malpractice cases was no longer present due to the omnipresence of medical information
relative to the treatment of diseases and injuries:
“The same is true with respect to all new methods and devices
of the surgical art. The ubiquity of such knowledge, the
popularity of ethical standards in every part of the nation and
the uniformity of curricula in medical schools have combined
to create one community of medical practitioners out of the 48
states and the District of Columbia. Surely, a surgeon in San
Luis Obispo has acquired practically the same knowledge of
surgery that is practiced in both San Francisco and Los
Angeles.”
Paintiff, 176 W.Va. at 471, 345 S.E.2d at 567 (quoting Gist v. French, 136 Cal.App.2d 247,
288 P.2d 1003[,1017 (1955)]. The impetus for imposing a scope more national or uniform
in approach for purposes of identifying the standard of care in medical malpractice cases was
the recognition that doctors have substantially similar backgrounds in terms of education,
training, and continuing exposure to medical information. Given the more uniform, or
certainly comparable, availability of medical knowledge and techniques, the previous
justification for limiting expert testimony in medical malpractice cases to those physicians
whose practice was in the same locale or identical to the defendant doctor was essentially
obliterated.
By eliminating the locality rule, courts such as ours clearly sought to remove
the requirement that an expert was not qualified to testify in a medical malpractice case
unless he was intimately familiar with local procedures and techniques. In reasoning that
Dr. Lewis' extrajurisdictional practice prevented him from being able to testify as to the
standard of care that applied in this case, the trial court hinged its decision on the same
rationale which underlies the now-rejected locality rule. The trial court wrongly read into
a national standard of care (which is nothing more than the rejection of the locality rule) a
requirement that an expert has to be familiar with each and every procedure and piece of
equipment used by local physicians to testify as to the standard of care. Simply put, the
adoption of a standard of care that is national in approach does not prevent an otherwise
qualified expert from testifying as to the applicable standard of care based solely on the fact
that the expert employs a medically accepted but different method of performing the same
type of procedure at issue in a medical malpractice suit. (See footnote 7) We certainly appreciate that a
given plaintiff might prefer to have as his expert a physician who is intimately familiar with
the exact method or instrument set at issue in a given medical malpractice case. That,
however, is nothing more than an issue of how much weight is to be accorded to the expert's
testimony; it does not go to the admissibility of that expert's testimony in the first place. See
Gentry v. Mangum, 195 W.Va. 512, 527, 466 S.E.2d 171, 186 (1995) (recognizing that
“[d]isputes as to the strength of an expert's credentials, mere differences in the methodology,
or lack of textual authority for the opinion go to weight and not to the admissibility of their
testimony”) (emphasis supplied).
As our case law makes clear, “Rule 702 of the West Virginia Rules of
Evidence (See footnote 8) 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) (footnote added). In this case, the trial court had no difficulty in
determining that Dr. Lewis was qualified to offer expert testimony based on the fact that he
was a board- certified urologist who spends more than sixty percent of his professional time
in the active clinical area of urology. See W.Va. Code § 55-7B-7. The fact that Dr. Lewis
was a board certified urologist certainly dispels any issue regarding his knowledge about the
urologic condition for which Appellant was being treated.
And while the trial court ruled that Appellant had failed to meet his burden of
proof on the issue of standard of care and causation, the record is replete with testimony that
Dr. Lewis did in fact provide critical and compelling testimony in both these areas. The trial
court's order reflects the following findings:
13. Dr. Lewis testified on direct examination to his expert
opinion to a reasonable medical probability that in performing
urethral dilation using the Bard Heyman instrument system,
applicable standards of care required a urologist to definitively
confirm that the filiform catheter was in the urinary bladder
before proceeding to pass dilators along the catheter. He
further testified that the belief or assumption of the surgeon that
the catheter had passed into the bladder was not sufficient to
comply with that standard of care. (emphasis supplied)
14. Dr. Lewis testified on direct examination to his expert
opinion to a reasonable medical probability that Dr. Sharma
deviated from that required standard of care as evidenced by the
fact that in both copies of Dr. Sharma's dictated and signed
Operative Report of the procedure as contained in Plaintiff's
hospital records and Dr. Sharma's office records, and admitted
into evidence, he states, “[T]he Hymen [sic.] catheter did not
seem to go into the bladder area.” In further support for his
opinion, Dr. Lewis testified that an additional note dictated by
Dr. Sharma, contained in his office records and admitted into
evidence states, “I thought that we had went to the bladder, but
apparently we did not.”
After indicating that Dr. Lewis identified two alternative methods by which
a surgeon can “definitively and visually confirm the placement of the catheter in the
bladder,” the trial court's order further reflects that Dr. Lewis offered specific testimony
regarding the manner in which the standard of care was breached in this case:
17. Dr. Lewis testified on direct examination to his expert
opinion to a reasonable medical probability that Dr. Sharma
deviated from the required standard of care of definitively and
visually confirming bladder placement of the catheter by not
employing either of the methods described in the instructions
for use to visually confirm bladder placement. In support of
this opinion, Dr. Lewis testified that neither Dr. Sharma's
Operative Note nor any other medical record contain any
reference to the use of the methods described in the instructions
for use or any other technique to definitively and/or visually
confirm placement of the catheter in the bladder prior to the
passing of the dilators. The medical records further contain no
reference that the catheter was ever found or seen to be within
the bladder. (emphasis supplied)
As to the issue of causation, the trial court found that:
18. Dr. Lewis testified on direct examination to his expert
opinion to a reasonable medical probability that the failure of
Dr. Sharma to comply with the applicable standards of care
caused the rectal perforation by one of two potential and
alternative mechanisms. . . .
20. Dr. Lewis testified on direct examination to his expert
opinion to a reasonable medical probability that regardless of
which mechanism produced the rectal perforation, in the
attempted dilation of a urethral stricture using the Bard Heyman
instrument system, such injury is an event which does not
ordinarily occur in the absence of negligence. . . .
21. While Dr. Lewis testified that there were multiple methods
of passing a catheter into the bladder, such as by direct vision,
feel, indirect vision, aspiration of urine, passage of an
endoscope through a suprapubic catheter, and taking of x-rays, standards of care using the Bard Heyman instrument system
required definitive confirmation of catheter placement in the
bladder, such as by methods listed in the instructions for use of
the system. (emphasis supplied)
Where the trial court went astray in making its ruling was to equate Dr. Lewis'
purported lack of familiarity with a particularized instrument system with lack of knowledge
as to the standard of care that applied to the use of that set of instruments. The fact that Dr.
Lewis, as a practicing urologist, uses a different method to perform a urethral dilation
procedure (See footnote 9) does not disqualify him from giving testimony on the standard of care to be
employed when performing this type of procedure. Because Dr. Lewis was clear in his
testimony that he personally used a different method than the defendant doctor, the jury
would have been free to attach whatever weight they decided to Dr. Lewis' testimony given
that he did not employ the Bard instrument set in performing the procedure at issue. See
Gentry, 195 W.Va. at 527, 466 S.E.2d at 186. Following a trial court's decision that a
physician is qualified to offer expert testimony in a given field, issues that arise as to the
physician's personal use of a specific technique or procedure to which he or she offers
expert testimony go only to the weight to be attached to that testimony and not to its
admissibility. See id. at 527, 466 S.E.2d at 186.
Unlike the situation presented in Kiser v. Caudill, 215 W.Va. 403, 599 S.E.2d
826 (2004) (“Kiser II”), in which the expert witness specifically testified that he was not
familiar with the standard of care that applied to tethered spinal cords at hospitals other than
where he worked in Columbus, Ohio, Dr. Lewis never testified that he was unfamiliar with
the standard of care applicable to the use of the Bard instrument set. Id. at 408, 599 S.E.2d
at 831. What Dr. Lewis testified to was that he was not familiar with the specific methods
used for dilation of urethral strictures at hospitals outside those in which he worked. This
is a critical distinction. Because there were “multiple methods of passing a catheter into the
bladder,” the fact that Dr. Lewis could not definitively identify which particular method the
Huntington hospitals employed (assuming there is just one method that is uniformly
employed in all of the Huntington hospitals), this lack of information has no bearing on
whether Dr. Lewis had been trained to employ methods other than that which he used to
perform a urethral dilation procedure or whether he had the necessary education, training,
or expertise from which to identify the applicable standard of care that would pertain to use
of the Bard instrument set. (See footnote 10)
Given our previous recognition that a physician can acquire the degree of
knowledge necessary to render an expert opinion through multiple means, which include
both training and research, a physician who is qualified in his field of expertise should not
be limited to offering expert testimony relative to the standard of care in a medical
malpractice case based on the specific techniques and or procedures that he/she employs in
his personal practice. See Gilman, 185 W.Va. at 181, 406 S.E.2d at 204. Accordingly,
where there are several approved methods of performing a particular medical procedure, the
fact that a physician who is qualified to offer an expert opinion based on his field of practice
and expertise utilizes a different method than the doctor whose actions are at issue does not
prevent the physician from offering testimony on the applicable standard of care in a medical
malpractice case. See Wright v. Kaye, 593 S.E.2d 307, 313 (Va. 2004) (holding that three
physicians in defendant physician's specialty who had never removed urachral cyst were
qualified to testify as experts because applicable standard of care issue was laparoscopic
surgery in vicinity of bladder with surgical stapler); see also Todd v. United States, 570
F.Supp. 670, 677 (D. S.C. 1983) (observing that “mere fact that the plaintiff's expert may
use a different approach or different instrument in performing surgery is not considered a
deviation from the recognized standard of medical care”). The critical inquiry to
determining whether Dr. Lewis was qualified to testify on the standard of care was his
degree of knowledge regarding the standard of care applicable to urethral dilation
procedures. (See footnote 11)
The record is clear in this case that Dr. Lewis testified that he was “familiar
with the standard of care required by a urologist through his training and research in the
dilation of urethral strictures using the Bard instrument system.” Moreover, as Dr. Lewis
testified, regardless of the method employed for dilating a urethral stricture, the standard of
care required initially that the surgeon follow the manufacturer's instructions pertinent to the
chosen set of instruments. And with regard to the Bard instrument set chosen by Dr.
Sharma, the standard of care required that the surgeon “definitively confirm that the filiform
catheter was in the urinary bladder before proceeding to pass dilators along the catheter.”
Upon our careful review of the record in this matter, we are convinced that the
trial court committed error in ruling that Appellant had failed to meet his burden of proof
with regard to the standard of care and causation. Quite simply, the trial court wrongly
employed the precept of employing a standard in care that is national in approach to
determine that Dr. Lewis' lack of familiarity with the particular method employed by
surgeons operating at Huntington area hospitals prevented him from testifying as to the
standard of care applicable to this case. (See footnote 12) Given that Dr. Lewis' education, training, and
practice clearly qualified him to offer an opinion in this matter, the trial court should have
permitted the case to proceed to a jury; it was up to the panel to determine what weight to
accord Dr. Lewis' testimony on the issue of standard of care and causation. (See footnote 13)
Based on the foregoing, the order of the Circuit Court of Cabell County is
hereby reversed and this matter is remanded for further action consistent with this opinion.
Reversed and remanded.