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Hamilton v. Ryu

Supreme Court of West Virginia

October 20, 2017

Donna Hamilton, Plaintiff Below, Petitioner
v.
Jaiyoung Ryu, M.D., Defendant Below, Respondent

         Monongalia County 14-C-691

          MEMORANDUM DECISION

         Petitioner Donna Hamilton ("petitioner"), by counsel Stephen P. New, Amanda Taylor, Mark R. Staun, and David B. Lunsford, appeals the Circuit Court of Monongalia County's order denying her motion for a new trial following a defense verdict in the trial of her medical malpractice action. Respondent Jaiyoung Ryu, M.D. ("Dr. Ryu"), by counsel William E. Galeota, Rodney L. Bean, and Crystal Bombard-Cutright, filed a response.

         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.

         Factual and Procedural Background

         In this appeal, petitioner challenges multiple evidentiary rulings made by the circuit court in the trial of her medical malpractice suit against Dr. Ryu.[1] In her suit, petitioner alleged that she experienced permanent ulnar nerve injury in her left arm following a total elbow arthroplasty (total elbow replacement) performed by Dr. Ryu. At the conclusion of six days of trial, the jury returned a verdict finding that petitioner failed to prove that Dr. Ryu breached the standard of care in his treatment of petitioner's elbow. The circuit court denied petitioner's motion for a new trial, and this appeal followed.

         The evidence at trial revealed that petitioner injured her elbow in September of 2011 when she fell while working as a cook in a school kitchen. She reported to the Appalachian Regional Hospital emergency room, which referred her to Dr. Nathan Doctry, an orthopedic surgeon in Beckley, West Virginia. After her visit with Dr. Doctry, petitioner sought treatment from a second orthopedist. However, she returned to Dr. Doctry in October of 2011.[2] Dr. Doctry ordered a CT scan of petitioner's left arm and discussed with petitioner the possibility of performing either a radial head replacement or radial head excision on petitioner's elbow. Dr. Doctry then referred petitioner to Dr. Ryu at the West Virginia University Orthopedic Clinic.

         Petitioner presented to Dr. Ryu for evaluation in December of 2011. Petitioner reported to Dr. Ryu that she lacked motion in her left upper extremity, experienced pain in the elbow when lifting, and that she was unable to perform any task at face level. Dr. Ryu performed a physical examination of petitioner and reviewed her prior x-rays and CT scan. The imaging showed a posterior subluxation of the radial head, coronoid fracture, capitellum fracture, moderate arthritis at the ulnotrochlear joint, and post-traumatic deformity at the radial capitellum joint. Based on his evaluation, Dr. Ryu recommended a total elbow arthroplasty, and petitioner agreed.[3]

         Petitioner returned to Dr. Ryu's office in January of 2012 for a history and physical to ensure that she was medically fit to undergo surgery. Physician Assistant Jon Kline saw petitioner during this visit. Mr. Kline obtained petitioner's signature on the informed consent form, which listed possible risks of surgery to include "infection, pain, stiffness, damage to nerve, artery, vein or soft tissue." The informed consent form also stated that petitioner "acknowleg[ed] that residents, fellows, physician assistants and/or other nonphysician health care professionals, under the supervision and direction of the above-named physician, may perform portions of this procedure."

         Petitioner underwent the total elbow arthroplasty on February 12, 2012, after which she experienced numbness in her arm and hand. The surgery was performed by Dr. Ryu and a medical resident. Post-operative testing showed damage to the sensory portion of the ulnar nerve. Dr. Ryu opined that petitioner's ulnar nerve neuropathy was caused by the performance of the total arthroplasty and it was a common complication of the surgery. Petitioner's expert witness, Dr. Scott Desman, testified that petitioner should not have undergone a full-elbow replacement because it was unnecessary and inappropriate. Dr. Desman testified that, instead, petitioner should have undergone a radial head resection or excision because these procedures do not expose the ulnar nerve to potential damage.

         On April 6, 2016, the jury returned a verdict finding that petitioner failed to prove by a preponderance of the evidence that Dr. Ryu was negligent in his treatment. Petitioner filed a motion for a new trial in which she argued, in relevant part, that the circuit court erred by (1) permitting Dr. Ryu to testify to expert opinions that had not been disclosed to her; (2) prohibiting petitioner from questioning Dr. Ryu about the "special care" that he exercised regarding petitioner's ulnar nerve during the surgery; and (3) permitting Dr. Ryu to elicit undisclosed opinions from his expert witness, Dr. David Glaser. Following a hearing, the circuit court denied petitioner's motion for a new trial by order entered on August 10, 2016. This appeal followed.

         Discussion

         On appeal, petitioner raises three assignments of error. First, she argues that the circuit court erred in allowing Dr. Ryu to present testimony and argument regarding the ulnar nerve and performance of the surgery, while prohibiting her from introducing any evidence or argument regarding the same. Second, petitioner argues that the circuit court erred when it permitted Dr. Ryu to offer his own undisclosed expert opinions at trial. Third, petitioner argues that the circuit court erred in allowing Dr. Ryu's expert witness, Dr. David Glaser, to offer undisclosed opinions. Petitioner contends that these alleged errors entitle her to a new trial.

         Rule 59(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, that "[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law[.]" This Court has held as follows:

When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion. Syl. Pt. 3, In re: State Public Bldg. Asbestos ...

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