| Stephen R. Brooks, Esq. Robert C. James, Esq. Flaherty, Sensabaugh & Bonasso Wheeling, West Virginia Alfred F. Belcuore, Esq. Montedonico, Belcuore & Tazzara Washington, D.C. Attorneys for Appellant |
Christopher J. Regan, Esq. Geoffrey C. Brown, Esq. Wheeling, West Virginia Attorneys for Appellee |
The Opinion of the Court was delivered PER CURIAM.
JUSTICE WORKMAN concurs in part, dissents in part, and reserves the right to file
a separate opinion.
2. “In determining whether there is sufficient evidence to support a jury
verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2)
assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing
party; (3) assume as proved all facts which the prevailing party's evidence tends to prove;
and (4) give to the prevailing party the benefit of all favorable inferences which reasonably
may be drawn from the facts proved.” Syllabus Point 5, Orr v. Crowder, 173 W. Va. 335,
315 S.E.2d 593 (1983).
3. “W. Va. Code, 55-7B-8, as amended, which provides that “the maximum
amount recoverable as damages for noneconomic loss” in a medical professional liability
action “against a health care provider” is $1,000,000, applies as one overall limit to the
aggregated claims of all plaintiffs against a health care provider, rather than applying to each
plaintiff separately.” Syllabus Point 6, Robinson v. Charleston Area Med. Center, 186 W.
Va. 720, 414 S.E.2d 877 (1991).
4. “In contract or tort actions, prejudgment interest is available to a litigant
as part of compensatory damages if there is an ascertainable pecuniary loss.” Syllabus Point
3, Capper v. Gates, 193 W. Va. 9, 454 S.E.2d 54 (1994).
5. “The imposition of sanctions by a circuit court under W. Va. R. Civ. P. 37(b) for the failure of a party to obey the court's order to provide or permit discovery is within the sound discretion of the court and will not be disturbed upon appeal unless there has been an abuse of that discretion.” Syllabus Point 1, Bell v. Inland Mut. Ins. Co., 175 W. Va. 165, 332 S.E.2d 127 (1985).
6. “In formulating the appropriate sanction, a court shall be guided by
equitable principles. Initially, the court must identify the alleged wrongful conduct and
determine if it warrants a sanction. The court must explain its reasons clearly on the record
if it decides a sanction is appropriate. To determine what will constitute an appropriate
sanction, the court may consider the seriousness of the conduct, the impact the conduct had
in the case and in the administration of justice, any mitigating circumstances, and whether
the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.”
Syllabus Point 2, Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996).
7. “Although Rules 11, 16, and 37 of the West Virginia Rules of Civil
Procedure do not formally require any particular procedure, before issuing a sanction, a court
must ensure it has an adequate foundation either pursuant to the rules or by virtue of its
inherent powers to exercise its authority. The Due Process Clause of Section 10 of Article
III of the West Virginia Constitution requires that there exist a relationship between the
sanctioned party's misconduct and the matters in controversy such that the transgression
threatens to interfere with the rightful decision of the case. Thus, a court must ensure any
sanction imposed is fashioned to address the identifiable harm caused by the party's
misconduct.” Syllabus Point 1, Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996).
8. “Punitive damage instructions are legitimate only where there is
evidence that a defendant acted with wanton, willful, or reckless conduct or criminal
indifference to civil obligations affecting the rights of others to appear or where the
legislature so authorizes.” Syllabus Point 7, Michael v. Sabado, 192 W. Va. 585, 453 S.E.2d
419 (1994).
Per Curiam:
The appellant, Anandhi Murthy, M.D., appeals two orders entered by the
Circuit Court of Wetzel County on July 29, 2008, in the underlying wrongful death action
brought against her. One order denied Dr. Murthy's motion to alter the jury verdict, and
entered judgment against her for $4 million plus pre- and post-judgment interest. The other
order awarded attorney fees and costs against Dr. Murthy. For the reasons set forth below,
we affirm in part, reverse in part, and remand this case to the circuit court for proceedings
consistent with this opinion.
After Mrs. Karpacs' admission into the hospital's intensive care unit, Dr.
Murthy proceeded to attempt to rehydrate Mrs. Karpacs by means of an intravenous solution
and to prescribe antibiotics. Throughout the day and evening, Dr. Murthy adjusted the
amount of fluids given to Mrs. Karpacs. Dr. Murthy last visited Mrs. Karpacs at about 8:20
p.m.
After being advised to go home and come back the next day, the Karpacs
family was suddenly called back to the hospital late that night and informed that nothing else
could be done for Mrs. Karpacs. Mrs. Karpacs' family subsequently executed a “do not
resuscitate” or DNR order. Mrs. Karpacs eventually slipped into shock and died at 5:55 a.m.
on June 2, 2001, apparently from the effects of a dead bowel.
Mrs. Karpacs' daughter, Andrea Karpacs-Brown, the appellee, thereafter
brought a wrongful death action against Dr. Murthy, individually and as the administratrix
of the estates of her mother and father. (See footnote 1) Mediation failed and a trial was held in the Circuit
Court of Wetzel County from January 22, 2008, to January 25, 2008. The appellee presented
expert testimony that Dr. Murthy failed to rehydrate Mrs. Karpacs sufficiently to prepare her
for exploratory abdominal surgery which was necessary to preserve Mrs. Karpacs' life. Dr.
Murthy presented expert testimony that due to underlying conditions suffered by Mrs.
Karpacs she could not have been rehydrated more aggressively in preparation for surgery.
In addition, the appellee and her two siblings testified of their close relationship with their
mother and the pain they endured as a result of her death.
At the close of the evidence, the jury found that Dr. Murthy's negligence
caused or substantially contributed to Mrs. Karpacs' death. The jury awarded $1 million
each to the appellee, her two siblings, and for the pain and suffering of Mrs. Karpacs prior
to her death for a total verdict of $4 million. In its July 29, 2008, judgment order, the circuit
court denied Dr. Murthy's motion to alter the jury verdict to conform to the $1 million limit
on non-economic damages in W. Va. Code § 55-7B-8 (1986). (See footnote 2) The circuit court entered
judgment on behalf of the appellee in the amount of $4 million plus $1,992,238.77 in
prejudgment interest and $1,600.67 per day from January 25, 2008, until the judgment is
satisfied. In a separate order also entered on July 29, 2008, the circuit court granted the
appellee's motion for attorney fees and costs.
On appeal to this Court, Dr. Murthy alleges several errors with regard to an
evidentiary ruling made during the trial, the validity of the verdict rendered against her, and
the circuit court's award of attorney fees and costs to the appellee. This Court will now
proceed to address the issues raised by Dr. Murthy.
In determining whether there is sufficient evidence to support a jury
verdict the court should: (1) consider the evidence most favorable to the
prevailing party; (2) assume that all conflicts in the evidence were resolved by
the jury in favor of the prevailing party; (3) assume as proved all facts which
the prevailing party's evidence tends to prove; and (4) give to the prevailing
party the benefit of all favorable inferences which reasonably may be drawn
from the facts proved.
Syllabus Point 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983).
First, Dr. Murthy alleges that the award of damages for Mrs. Karpacs' pain and
suffering was error because there was insufficient proof of such damages. Dr. Murthy posits
that no evidence was offered to prove that Mrs. Karpacs suffered conscious pain as a
proximate result of Dr. Murthy's actions. According to Dr. Murthy, the pain suffered by
Mrs. Karpacs upon her arrived at the hospital cannot be attributed to Dr. Murthy. Also, while
at the hospital, Mrs. Karpacs was made comfortable through treatment. Finally, Dr. Murthy
asserts that there is no assurance that Mrs. Karpacs would have been pain free had Dr.
Murthy performed exploratory abdominal surgery on her.
The appellee counters that Mrs. Karpacs entered the hospital with a very
painful condition, and evidence shows that Dr. Murthy's failure to treat this condition
needlessly prolonged her pain. Also, there is evidence that Mrs. Karpacs began exhibiting
signs of shock at approximately 8:20 p.m. Later, Mrs. Karpacs' daughter noticed that she
was cold and clammy and had a difficult time responding. As Mrs. Karpacs' condition
worsened, a full oxygen mask was placed on her which made communicating with her family
difficult. There was also evidence that Mrs. Karpacs had to say goodbye to her family,
including a young grandchild, in her final hours.
Again, we find no error on this issue. The jury found that Dr. Murthy's
negligence caused Mrs. Karpacs' death. As a result, it is reasonable for the jury to infer that
the physical pain and emotional turmoil suffered by Mrs. Karpacs as a result of her
deteriorating condition were also caused by Dr. Murthy's negligence. Therefore, we find no
merit to Dr. Murthy's alleged error on this issue, and we affirm the circuit court.
Next, Dr. Murthy avers that the circuit court erred in not reducing the $4
million damages award to conform to the 1986 version of W. Va. Code § 55-7B-8, of the
Medical Professional Liability Act, which set the maximum recoverable amount for all non-
economic loss at $1 million. (See footnote 3) Specifically, Dr. Murthy contends that no evidence of
economic loss was offered by the appellee at trial. Instead, the claims were for Mrs.
Karpacs' pain and suffering, and her children's claims were for sorrow suffered from losing
their mother. According to Dr. Murthy, there was no effort to cast Mrs. Karpacs' relationship
to her children in economic terms. Mrs Karpacs was not described as someone who baby sat
her grandchildren, cooked for her children or grandchildren, or otherwise performed specific,
quantifiable services.
In its order denying Dr. Murthy relief from the verdict, the circuit court found
that Dr. Murthy's failure to ask for a verdict form that clearly separated economic from non-
economic damages or to ask for an interrogatory separating economic loss from non-
economic loss is fatal to Dr. Murthy's request for a review of the damages awarded. The
circuit court relied on this Court's decision in Gerver v. Benavides, 207 W. Va. 228, 530
S.E.2d 701 (1999), for its decision in this matter.
In Gerver, the plaintiff sued his surgeon for allegedly botching his vasectomy
surgery. The plaintiff presented evidence at trial of lost future earning capacity as follows:
[T]he plaintiff's physicians testified to the permanence of the plantiff's injury,
and one testified that the effects of the injury were “crippling” to the plaintiff.
One physician testified that nothing further could be done surgically for the
plaintiff which would reduce or eliminate his pain. Furthermore, [the plaintiff]
testified that, because of his chronic pain and his dependence on methadone
to function, he was unable to return to gainful employment. The jury was
presented with records showing the plaintiff's past wages and benefits (such
as health insurance); with evidence that the plaintiff could no longer earn these
wages and benefits; and with evidence that the plaintiff was a 34 year-old-man
with a life expectancy of 41.4 more years.
Gerver, 207 W. Va. at 233-234, 530 S.E.2d at 706-707 (footnote omitted). Both the jury
instructions and the verdict form merged economic damages with non-economic damages.
The defendant did not object to the verdict form's merger of certain economic and non-economic damages together under the heading of “general damages” and did not submit
special interrogatories that would allow the jury to separate economic from non-economic
losses. Specifically, the verdict form stated as follows with regard to general damages:
We the jury, further find, with regard to GENERAL DAMAGES including the following categories:
_ For medical expenses in the future; and
_ For past and future physical pain and suffering and mental anguish; and
_ For loss or impairment of future earning capacity and benefits; and
_ For loss of capacity to enjoy life and to function as a “whole man:”
$2,000,000.00
207 W. Va. at 234-235 n. 7, 530 S.E.2d at 707-708 n. 7. In his cross-appeal, the defendant
in Gerver contended that the jury's award of $2 million in “general damages” exceeded the
$1 million cap on non-economic damages in W. Va. Code § 55-7B-8 (1986), and asked this
Court to reduce the general damages portion of the verdict to $1 million.
This Court found no merit to the defendant's alleged error in Gerver and
explained:
This Court has held on several occasions that when a litigant seeks to
make procedural distinctions between “special” damages and “general”
damages, that litigant bears the burden of insuring that the circuit court
distinguishes between types of damages in the jury's verdict form. See, e.g.,
Grove By and Through Grove v. Myers, 181 W. Va. 342, 382 S.E.2d 536
(1989). In Syllabus Point 7 of Miller v. Monongahela Power Co., 184 W. Va.
663, 403 S.E.2d 406 (1991), we made clear that “when the defendant fails to
submit a special jury interrogatory asking the jury to set forth special or
liquidated damages, this Court's attention to such errors is entirely a matter of
grace[.]”
207 W. Va. at 235, 530 S.E.2d at 708. Accordingly, this Court indicated that “[a]s there is
no means to determine whether the non-economic damages assessed by the jury exceeded the
$1,000,000 statutory limit, this Court will not presume that error occurred.” Id.
We find that Gerver does not apply to the instant case. In this case, unlike in Gerver, there was no evidence presented of economic damages suffered as a result of Dr.
Murthy's negligence. (See footnote 4) Second, the appellee did not propose any jury instructions on
economic damages. In fact, the subject of economic damages was not mentioned at all in the
discussion by the parties and the court on jury instructions. Further, the appellee's counsel
did not argue for a finding of economic damages during his closing argument. Finally, the
verdict form does not clearly provide for a finding of economic damages. Rather, the form
simply provides for an amount of damages upon a finding of “Past and future sorrow, mental
anguish and solace, loss of companionship, comfort and guidance, and loss of services,
protection, care and assistance suffered by [each one of Mrs. Karpacs' children].”
The circuit court, in its order denying relief to Dr. Murthy on this issue,
characterized the phrase in the verdict form, “loss of services, protection, care and
assistance” as clearly indicating economic damages under our law. However, in light of the
absence of evidence of economic damages, the fact that such damages were not clearly
addressed in the jury instructions, and the fact that economic damages were not argued to the
jury, it cannot be concluded that Dr. Murthy was fairly put on notice that the phrase “loss of
services, protection, care and assistance” permitted the jury to find that there were economic
damages.
In Miller v. Monongahela Power Co., 184 W. Va. 663, 403 S.E.2d 406 (1991), overruled on other grounds by Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999),
this Court discussed the issue of the calculation of prejudgment interest in the context of our
decision in Grove By and Through Grove v. Myers, supra. In Grove, this Court indicated
that the defendant has the burden of submitting a special interrogatory to the jury for the
designation of the amount of special or liquidated damages for the purpose of calculating
prejudgment interest, otherwise the plaintiff is entitled to prejudgment interest on the entire
amount of a general verdict. In Miller, we cautioned that our statement in Grove needed to
be clarified, and we proceeded to explain that
We did not intend with our statement in Grove to create a trap for the
unwary defendant and a jackpot for the silent plaintiff. Our job is not to bail
careless defense counsel out of problems of their own making, but neither is
it to provide a windfall for plaintiffs who sit by and allow the matter of
damages and prejudgment interest to become hopelessly confused.
Consequently, we would clarify the Grove rule here by adding that when the
lawyers and the trial court can sort out the parts of a judgment on which
interest should be added, even without the special interrogatories, the trial
court should do so.
Miller, 184 W. Va. at 673, 403 S.E.2d at 416.
Our reasoning in Miller applies to the present case. In light of the fact that the
appellee did not present her case below as one including economic damages, she did not
proffer jury instructions on economic damages, and such damages were not included in the
closing argument to the jury, it was reasonable for Dr. Murthy to not ask for a verdict form
or an interrogatory separating economic from non-economic damages. As a result, Dr.
Murthy should not be penalized in light of the reasonableness of her action in this regard.
Therefore, this Court finds that Gerver does not apply to prevent this Court from reviewing
the sufficiency of the evidence to support a verdict of economic damages in this case.
The circuit court concluded that sufficient evidence of economic loss was
adduced below based on the following findings:
Services of a parent at issue in this case included (grand)child care, the
loss of which is generally regarded as an economic loss, as well as certain
household tasks like the cooking of holiday meals that also fall into that
category. Of course the concepts of “assistance and care” are also partly
economic in nature and embrace all of the sometimes prosaic, but highly
valuable tasks performed by a modern grandmother, including, for example,
serving and assisting her daughters at the births of grandchildren and in the
early infancy of grandchildren when a grandmother is leaned on more heavily
than any employee could be. Andrea Karpacs Brown testified about the
importance of having the assistance of her mother at the birth of her eldest
daughter, Alexandria, born before June 2001, and the loss of those services for
her afterborn sons, Nicholas and Zachary and daughter, Adrianna. The jury
would be justified in awarding amounts for the economic value of Mrs.
Karpacs' lost services whether or not Mrs. Karpacs would have charged for
them because the purpose of the Wrongful Death Act is to compensate the
decedent's beneficiaries as fully as possible. (Footnotes omitted).
This Court's review of the record indicates that the circuit court's finding of
sufficient evidence to support the award of economic damages is error. We find no evidence
in the record that Mrs. Karpacs assisted in caring for her grandchildren, cooked holiday
meals, or otherwise aided or advised her children. While the appellee indicates that her
mother was present for the birth of her daughter Alexandria, she does not indicate that Mrs.
Karpacs assisted the birth in any way. Having found insufficient evidence to support an
award of economic damages, we are compelled to conclude that the entire amount awarded
by the jury to the appellee is for non-economic loss. The maximum recoverable amount for
all non-economic loss under the version of W. Va. Code § 55-7B-8 in effect at the time the
underlying claim was brought was $1 million. This Court held in Syllabus Point 6 of Robinson v. Charleston Area Med. Center, 186 W. Va. 720, 414 S.E.2d 877 (1991), that
W. Va. Code, 55-7B-8, as amended, which provides that “the maximum
amount recoverable as damages for noneconomic loss” in a medical
professional liability action “against a health care provider” is $1,000,000,
applies as one overall limit to the aggregated claims of all plaintiffs against a
health care provider, rather than applying to each plaintiff separately.
Applying this rule to the instant facts, we find that the maximum amount recoverable in this
case is $1 million. Therefore, we conclude that the circuit court erred in denying Dr.
Murthy's motion to reduce the verdict accordingly.
The fourth alleged error raised by Dr. Murthy is the circuit court's award of
prejudgment interest. Our decision above that the appellee failed to present evidence of
economic loss is dispositive of this issue. This Court held in Syllabus Point 3 of Capper v.
Gates, 193 W. Va. 9, 454 S.E.2d 54 (1994), that “[i]n contract or tort actions, prejudgment
interest is available to a litigant as part of compensatory damages if there is an ascertainable
pecuniary loss.” Because there is no ascertainable pecuniary loss in the instant case,
prejudgment interest is not available. Accordingly, we conclude that the circuit court erred
in awarding prejudgment interest to the appellee.
The last assignment of error raised by Dr. Murthy is that the circuit court
improperly awarded attorney fees and costs to the appellee. In an order entered by the circuit
court on July 29, 2008, the court awarded attorney fees and costs to the appellee based on
findings that Dr. Murthy and/or her insurer acted vexatiously or in bad faith. (See footnote 5) The first basis
for this award was the vexatious settlement strategy of Dr. Murthy's malpractice insurer,
Woodbrook. Second, the circuit court found that an expert witness designated by Dr.
Murthy, Dr. Roger Abrahams, was not prepared and could not offer fully formed opinions
when deposed by the appellee. Third, the court found that Dr. Murthy altered her deposition
testimony by testifying for the first time at trial that Mrs. Karpacs had expressed to her an
extreme fear of the prospect of surgery. In its order awarding attorney fees and costs, the
circuit court did not award a sum certain, but rather directed the appellee to tender to the
appellant a calculation of all attorney fees, expenses, and costs within thirty days. If the
parties were unable to agree on the proper amount recoverable, the appellee was instructed
to contact the circuit court for a hearing on the matter. (See footnote 6) Finally, the court indicated that it
was granting fees and costs according to its inherent power to do so as well as pursuant to
West Virginia Rules of Civil Procedure 26(e) and 37. (See footnote 7)
On appeal, Dr. Murthy argues that the circuit court erred in several ways in
awarding fees and costs. First, says Dr. Murthy, the court erred in awarding costs and fees
against her based on the actions of her insurer. Second, while Dr. Murthy does not concede
error with regard to the matter of Dr. Abrahams, she asserts that the proper course would
have been to award reasonable fees incurred in connection with the events surrounding Dr.
Abrahams' deposition, not to award fees and costs for the entire litigation. Finally, Dr.
Murthy contends that her single episode of impeached trial testimony in this case does not
serve as the basis for the award of fees and costs for the entire trial.
The appellee responds that the circuit court properly awarded fees and costs
because the appellant violated trial court orders; repeatedly failed to appear at scheduled
hearings; filed misleading pleadings with the court; attempted to present an expert under a
false premise; presented inherently incredible testimony at trial; and behaved vexatiously and
oppressively, wasting the time of the Court and the appellee in litigation that lasted for five
years.
As a preliminary matter, we note that our review of the circuit court's decision
to award attorney fees and costs is for an abuse of discretion. This Court has held:
The imposition of sanctions by a circuit court under W. Va. R. Civ. P. 37(b) for the failure of a party to obey the court's order to provide or permit
discovery is within the sound discretion of the court and will not be disturbed
upon appeal unless there has been an abuse of that discretion.
Syllabus Point 1, Bell v. Inland Mut. Ins. Co., 175 W. Va. 165, 332 S.E.2d 127 (1985).
Concerning factors to be considered by a court in awarding fees and costs, this Court held
in Syllabus Point 2 of Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996):
In formulating the appropriate sanction, a court shall be guided by
equitable principles. Initially, the court must identify the alleged wrongful
conduct and determine if it warrants a sanction. The court must explain its
reasons clearly on the record if it decides a sanction is appropriate. To
determine what will constitute an appropriate sanction, the court may consider
the seriousness of the conduct, the impact the conduct had in the case and in
the administration of justice, any mitigating circumstances, and whether the
conduct was an isolated occurrence or was a pattern of wrongdoing throughout
the case.
This Court finds that there are several problems with the circuit court's order
awarding attorney fees. First, we are unable to properly review whether the award of fees
and costs herein was an abuse of discretion. While the record indicates that a hearing was
held in which the parties argued post-trial motions including the motion for fees and costs,
evidence was not taken at this hearing. In the absence of an evidentiary hearing, this Court
is unable to undertake a meaningful review of the court's factual findings on which it based
its ruling. We are also unable to determine whether the award of all fees and costs is
necessary to compensate the appellee for actual harm suffered as a result of Dr. Murthy's
and/or her insurer's alleged misconduct.
Further, in finding misconduct on the part of Dr. Murthy and/or her insurer, the
court indicated that the insurer has shown a pattern of engaging in vexatious settlement
strategy in other cases before the circuit court and in other states. The court also found that
Dr. Murthy engaged in similar misconduct in a previous medical malpractice case before the
Wetzel County Circuit Court. It is improper, however, to impose sanctions on a party for
general misconduct which is unrelated to any identifiable harm suffered by the other party
in the case. This Court has held:
Although Rules 11, 16, and 37 of the West Virginia Rules of Civil
Procedure do not formally require any particular procedure, before issuing a
sanction, a court must ensure it has an adequate foundation either pursuant to
the rules or by virtue of its inherent powers to exercise its authority. The Due
Process Clause of Section 10 of Article III of the West Virginia Constitution
requires that there exist a relationship between the sanctioned party's
misconduct and the matters in controversy such that the transgression threatens
to interfere with the rightful decision of the case. Thus, a court must ensure
any sanction imposed is fashioned to address the identical harm caused by the
party's misconduct.
Syllabus Point 1, Bartles v. Hinkle, supra. Under our law, awards of fees and costs against
a party should be designed to pay the reasonable expenses caused by the party's failure to
cooperate in discovery. Accordingly, we remand this matter to the circuit court for
proceedings consistent with this opinion.
Finally, in her brief to this Court, the appellee raises a cross-assignment of
error which is that the circuit court erred in precluding the jury from considering the issue
of punitive damages. As evidence to support punitive damages, the appellee points to the
testimony of her medical expert that Dr. Murthy's failure to adequately rehydrate Mrs.
Karpacs, aggressively administer antibiotics, and operate on an emergency basis was
“egregiously bad.” According to the appellee, the evidence indicates that Dr. Murthy acted
with reckless indifference to her patient's safety and, as a result, the issue of punitive
damages should have gone to the jury.
This Court finds no error in the circuit court's refusal to give an instruction
permitting an award of punitive damages. Under our law, “[p]unitive damage instructions
are legitimate only where there is evidence that a defendant acted with wanton, willful, or
reckless conduct or criminal indifference to civil obligations affecting the rights of others to
appear or where the legislature so authorizes.” Syllabus Point 7, Michael v. Sabado, 192 W.
Va. 585, 453 S.E.2d 419 (1994). In the instant case, Dr. Murthy presented a medical expert
who testified that Dr. Murthy did not commit medical malpractice. Dr. Murthy further
testified to the reasons for her method of treating Mrs. Karpacs. We simply do not find
sufficient evidence in the record to support an instruction on punitive damages. For this
reason, we conclude that the circuit court did not err in refusing to give an instruction on
punitive damages.
In sum, we affirm the circuit court's ruling precluding the admission of
evidence on the DNR order signed by Mrs. Karpac's children. We further affirm the circuit
court's finding of sufficient evidence to sustain an award of damages based on Mrs. Karpac's
pain and suffering. However, we reverse the circuit court's denial of Dr. Murthy's motion
to reduce the $4 million jury award to conform to the $1 million limit on non-economic
damages in the 1986 version of W. Va. Code § 55-7B-8, as well as the circuit court's award
of prejudgment interest. In addition, we reverse the circuit court's order awarding attorney
fees and costs to the appellee. Finally, we affirm the circuit court's refusal to instruct the jury
on punitive damages.
Affirmed in part, reversed in part, and remanded.