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Brown v. Berkeley Family Medicine Associates, Inc.

Supreme Court of West Virginia

September 1, 2017

Lisa Brown, Individually and as the Administrator of the Estate of Ronald Brown, Plaintiff Below, Petitioner
v.
Berkeley Family Medicine Associates, Inc., and Heather Jewell, PA-C., Defendant Below, Petitioner

         Berkley County 13-C-850

          MEMORANDUM DECISION

         Petitioner Lisa Brown, Individually, and as the Administrator of the Estate of Ronald Brown, by counsel Christopher T. Nace, appeals the Circuit Court of Berkley County's May 12, 2016, order denying her motion for new trial. Respondent Berkeley Family Medicine Associates, Inc. ("BFMA") and Heather Jewell, PA-C, by counsel Curtis G. Power, III, filed a response in support of the circuit court's order. Petitioner filed a reply. Petitioner contends that the circuit court erred in denying her motion for new trial and in admitting and excluding certain evidence at trial.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On August 12, 2011, petitioner's decedent presented at BFMA with complaints of coughing, shortness of breath, and chest pain, and was seen by Respondent Jewell. During her treatment of the decedent, Respondent Jewell obtained a medical history from him, noting his use of Enbrel, a potentially immunosuppressive drug. Following her initial clinical examination of the decedent, Respondent Jewell noted that he did not physically appear ill; exhibited no confusion, kidney dysfunction, or blood pressure abnormalities; and had a temperature of only 99.5 degrees. Upon listening to the decedent's breathing, Respondent Jewell detected a crackling sound consistent with inflammation or infection in the lungs and ordered a chest x-ray. Based upon the results of the x-ray, Respondent Jewell sent the decedent directly to Berkeley Medical Center for a CT scan of his chest. The CT scan results were read by a radiologist and noted to be consistent with pneumonitis of uncertain etiology.

         Following his x-ray, CT scan, and clinical examination, the decedent was prescribed an antibiotic, Levaquin, and a follow-up appointment was made for his return to BFMA on August 17, 2011. The decedent was directed to return to BFMA earlier if his condition deteriorated or persisted.

         By August 16, 2017, the decedent's condition had deteriorated such that he was unable to climb stairs at his home. When he returned to BFMA for his follow-up appointment on August 17, 2011, he complained of shortness of breath and decreased appetite. The decedent was transported directly from BFMA to City Hospital, by ambulance, where, on August 21, 2011, he died.

         On July 29, 2013, petitioner initiated the underlying action by sending a notice of claim to respondents, pursuant to West Virginia Code § 55-7B-6. On November 21, 2013, petitioner filed the underlying complaint against respondents in the Circuit Court of Berkeley County. In addition to Respondents Jewell and BFMA, petitioner named Dr. Harvey Reisenweber of BFMA as a defendant. Petitioner alleged that Respondents BFMA and Heather Jewell deviated from the accepted standard of care in their treatment of the decedent, proximately causing or contributing to his death. Petitioner further alleged that BFMA and Dr. Reisenweber negligently supervised Respondent Jewell. Ultimately, prior to trial, Dr. Reisenweber was dismissed as a party defendant.

         During pre-trial proceedings, on February 26, 2016, respondents filed motions in limine. In these motions, respondents sought to exclude or limit petitioner from presenting certain evidence and making certain inferences at trial. Among these motions was a motion to prohibit petitioner from arguing that jurors had the power to improve the personal and community safety of jury members by reaching a verdict that would reduce or eliminate allegedly dangerous or unsafe conduct. Respondents contend that such an argument encourages jurors to depart from impartiality. The circuit court held a hearing on respondents' motions on March 21, 2016, following which, the circuit court denied, in part, respondents' motions, but granted respondents leave to renew the same by timely objection at trial.

         Trial began on March 22, 2016. During his opening statement, petitioner's counsel likened the standard of care to be adhered by medical professionals as a "rule". In response to an objection made by respondents' counsel, the circuit court ruled that the standard of care must be described to the jury, by both parties, simply as a standard of care, not a rule. Additionally, in response to another objection made by respondents, petitioner's counsel was cautioned by the court to refrain from using the term "danger" or "dangerous" to describe the decedent's medical condition.

         At the conclusion of the four-day trial, the jury returned a verdict determining that Respondent Jewell deviated from the accepted standard of care in her treatment of petitioner's decedent, but that such deviation did not proximately cause or contribute to the decedent's death. Further, the jury determined that BFMA did not deviate from the accepted standard of care in its treatment of petitioner's decedent. Thereafter, petitioner filed a motion for new trial, to which respondents replied. By order dated May 12, 2016, the circuit court denied petitioner's motion. It is from this order that petitioner now appeals.

         With respect to our review of an order denying a motion for new trial, we have held that

"the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

Sydenstricker v. Mohan, 217 W.Va. 552, 556-57, 618 S.E.2d 561, 565-66 (2005). We have further explained that,

[a]s a general proposition, we review a circuit court's ruling on a motion for a new trial under an abuse of discretion standard. In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994) (Asbestos Litigation). Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusions as to the existence of reversible error under an abuse of discretion standard, and we review the ...

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