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Smith v. Clark

Supreme Court of West Virginia

June 10, 2019

ROBERT SMITH, AS ADMINISTRATOR AND PERSONAL REPRESENTATIVEOF THE ESTATE OF A. S., DECEASED, Plaintiff Below, Petitioner
v.
CAROLYN CLARK, M.D. ANDCABELL HUNTINGTON HOSPITAL, INC., Defendants Below, Respondents

          Submitted: April 9, 2019

          Appeal from the Circuit Court of Cabell County Civil Action No. 15-C-312 The Honorable Gregory L. Howard, Judge

          Christopher J. Regan Zachary J. Zatezalo Bordas & Bordas, PLLC Wheeling, West Virginia Attorney for Petitioner

          D.C. Offutt, Jr. Ryan Q. Ashworth Offutt Nord Ashworth, PLLC Huntington, West Virginia Attorneys for Carolyn Clark, M.D.

          Thomas L. Craig Rebecca C. Brown Ralph J. Hagy Bailes, Craig & Yon, PLLC Huntington, West Virginia Attorneys for Cabell Huntington Hospital Inc.

          JUSTICE WORKMAN and JUSTICE HUTCHISON dissent and reserve the right to file dissenting opinions.

         SYLLABUS BY THE COURT

         1. "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).

         2. "In medical malpractice cases, the 'multiple methods of treatment' jury instruction (which states that a health care provider is not negligent if he or she selects and utilizes in a non-negligent manner one of two or more generally recognized methods of diagnosis or treatment within the standard of care) is appropriate where the evidence shows that the challenged method of diagnosis or treatment enjoys such substantial support within the medical community that it is, in fact, widely and generally recognized. The necessity of presenting evidence sufficient to support a multiple methods of [treatment] jury instruction rests with the defendant." Syllabus point 5, Yates v. University of West Virginia Board of Trustees, 209 W.Va. 487, 549 S.E.2d 681 (2001).

         3. "'A judgment will not be reversed because of the admission of improper or irrelevant evidence, when it is clear that the verdict of the jury could not have been affected thereby.' Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W.Va. 587, 96 S.E. 28 (1918)." Syllabus point 3, Graham v. Wallace, 214 W.Va. 178, 588 S.E.2d 167 (2003).

         4. "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syllabus point 7, State ex rel. Weirton Medical Center v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002) (internal quotations and citations omitted).

         5. "The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard." Syllabus point 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

         6. "When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the evidence or without sufficient evidence to support it." Syllabus point 9, Neely v. Belk Inc., 222 W.Va. 560, 668 S.E.2d 189 (2008).

         7. "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 10, Neely v. Belk Inc., 222 W.Va. 560, 668 S.E.2d 189 (2008).

         8. "In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." Syllabus point 12, Neely v. Belk Inc., 222 W.Va. 560, 668 S.E.2d 189 (2008).

          OPINION

          JENKINS, JUSTICE

         Petitioner Robert Smith ("Mr. Smith") herein appeals the November 17, 2017 order of the Circuit Court of Cabell County denying his motion for a new trial and renewed motion for judgment as a matter of law.[1] Mr. Smith alleges that the evidence at trial constituted a clear case of medical negligence and that certain trial errors circumvented the evidentiary process and forced a verdict against the weight of the evidence. Respondent Carolyn Clark, M.D. sets forth a cross-assignment of error, [2] arguing that the circuit court erred in denying her motion for judgment as a matter of law[3] because Mr. Smith's expert improperly invoked the "Locality Rule." Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we find no error. Accordingly, we affirm the order of the circuit court.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         This matter appears before this Court upon the appeal of the plaintiff below and petitioner herein, Mr. Smith, as the Administrator and Personal Representative of the Estate of A. S. ("infant"). The Circuit Court of Cabell County denied Mr. Smith's post-trial motions-a motion for a new trial and a motion for judgment as a matter of law, based on his claims of trial error[4]-following a jury verdict for the defendants below.

         On the morning of June 23, 2014, Carolyn Clark, M.D. ("Dr. Clark") induced Chasity Smith's ("Mrs. Smith") labor at Cabell Huntington Hospital, Inc. ("Cabell Huntington") in Huntington, West Virginia. According to the medical records, Mrs. Smith's labor was unremarkable, and the infant's fetal heart rate tracing remained in the normal range for much of the labor. At approximately 5:17 p.m., Dr. Clark inserted an intrauterine pressure catheter to check Mrs. Smith's contraction strength. Upon removal, the catheter returned blood. Dr. Clark then told the nursing staff to flush the blood from the catheter. At trial, it was not disputed that Mrs. Smith had suffered a placental abruption; however, Mr. Smith took the position that Dr. Clark caused the placental abruption by incorrectly inserting the catheter. To the contrary, Respondents used the testimony of expert pathologist, Dr. Carolyn Salafia, to explain how concealed placental abruptions can occur spontaneously in the face of thrombophilia (a blood clotting abnormality), which Mrs. Smith experienced, and how abruptions relate to faster dilation.

         Around 5:20 p.m., the infant's heartbeat showed an abnormal reading on the monitor. At trial, Mr. Smith argued that the infant's fetal heart tracing was lost. Conversely, Dr. Clark and Cabell Huntington (collectively "Respondents") countered that the movements were audible on the monitor. A few minutes later, a lower heartbeat was traced on the monitor and the nursing staff paged Dr. Clark for assistance. Around 5:33 p.m., Dr. Clark reviewed the infant's heartbeat. The nursing staff asked Dr. Clark if they were going to the operating room for a caesarean section-Dr. Clark did not respond.

         At 5:37 p.m., Dr. Clark applied forceps in an attempt to deliver the baby vaginally. Although the medical chart is silent as to Mrs. Smith's labor progression at the exact time Dr. Clark began her attempt at vaginal delivery, the most progressed recorded dilation states that her cervix was dilated to 8-9 centimeters prior to any vaginal attempts at delivery. Mr. Smith argued at trial, that the silence in the medical record on dilation completeness meant that Mrs. Smith was never fully dilated and therefore was unable to deliver vaginally. Respondents disputed this contention. According to Dr. Clark and her expert, Dr. Frank Manning, dilation is progressive and exponential. In the words of Dr. Manning, dilation is "hard to get started and then it suddenly goes." The medical records in this case reveal that Mrs. Smith progressed in dilation quickly from six centimeters to nine centimeters. Therefore, Respondents maintained throughout the trial, that Mrs. Smith was fully dilated and that Dr. Clark knew the position of the baby's head at all times during her attempt at a vaginal delivery. The nursing staff inquired once again about going to the operating room for a caesarean section. Instead, Dr. Clark prepared Mrs. Smith's bed, and put her in stirrups to prepare for a vaginal birth. After attempting a vaginal delivery with the assistance of forceps, Dr. Clark called for a caesarean section at approximately 5:54 p.m. At 6:04 p.m., the infant was born asphyxiated with Apgar scores of 0/0[5] and was immediately transferred to the newborn intensive care unit. The next day, life support was withdrawn and the infant was pronounced dead.

         In November of 2015, Mr. Smith filed a medical professional liability action against Respondents. In his complaint, Mr. Smith alleged that Dr. Clark and Cabell Huntington were negligent and breached the applicable standards of care by failing to timely deliver the infant, thereby resulting in the infant's death. More specifically, Mr. Smith contended that fetal bradycardia[6] was documented in the medical record and the fetal heart rate readings were classifiable as a Category 3 under the American College of Obstetricians and Gynecologists' ("ACOG") Fetal Heart Rate Monitoring protocol, which required immediate delivery by either operative vaginal delivery or caesarean section. Mr. Smith further alleged that Cabell Huntington's nurses breached the standard of care by failing to invoke the hospital's chain of command policy.[7]

         The trial in this matter commenced on May 16, 2017, and lasted for eight days. While Mr. Smith furthered his theory that Dr. Clark breached the applicable standard of care by failing to more quickly deliver the infant in the face of fetal bradycardia, Dr. Clark presented rebuttal evidence-including her own testimony-to propound her position that Mrs. Smith was fully dilated at the time she attempted a forceps-assisted vaginal delivery, and therefore met the standard of care. Additionally, Cabell Huntington asserted that its nursing staff followed all hospital policies and procedures during the course of the infant's delivery, and, therefore, met the standard of care.

         After the trial, the jury returned a verdict in favor of Dr. Clark and Cabell Huntington, finding that neither party breached their applicable standard of care. Because the jury determined that the applicable standard of care had not been breached, it rendered a defense verdict without the need to make a determination as to causation or damages. The circuit court entered its Final Judgment Order on June 6, 2017. On June 16, 2017, Mr. Smith renewed his previously filed motion for judgment as a matter of law under Rule 50(b)[8] of the West Virginia Rules of Civil Procedure, and also moved for a new trial under Rule 59.[9] Both of Mr. Smith's post-trial motions were denied in an order of the Circuit Court of Cabell County dated November 12, 2017. It is from this Order that Mr. Smith now appeals.

         II.

         STANDARD OF REVIEW

         This case comes to the Court after the circuit court denied Mr. Smith's post- trial motion for a new trial and his renewed motion for judgment as a matter of law. With regard to our standard for reviewing a circuit court's ruling on a motion for a new trial, we have explained that

[a]s a general proposition, we review a circuit court's rulings 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 conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). It has also been noted that, "a new trial should not be granted unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." McInarnay v. Hall, 241 W.Va. 93, ___, 818 S.E.2d 919, 924 (2018) (internal quotation marks and citations omitted).

         Further, "[t]he appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo." Syl. pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). This Court has also stated that it

reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.

Syl. pt. 2, id.

         Each of the issues herein raised are addressed by this Court under slightly different standards of review. Specifically, the assignments of error analyzed in Discussion Sections "A" through "E" are reviewed for an abuse of discretion. Further, relating to the assignment of error examined in Discussion Section "F, "

[i]n 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.

Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983). Accordingly, we now proceed to consider the parties' arguments.

         III.

         DISCUSSION

         In his brief, Mr. Smith raises nine separate assignments of error. Each issue will be addressed in turn.

         A. Jury Instructions

         Mr. Smith argues that certain jury instructions should not have been given by the circuit court, and, likewise, that other instructions should have been given to the jury. First, he states that the circuit court erred by giving the "multiple methods of treatment" instruction. Second, he asserts that the circuit court erred when it refused to instruct the jury on the "eggshell plaintiff" instruction. After identifying the appropriate standards of review for these particular issues, we will address each of these assignments of error separately.

         This Court has observed that

[t]he formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.

Syl. pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97');">194 W.Va. 97, 459 S.E.2d 374 (1995).

         Further, "[i]t will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions were prejudicially erroneous or that the instructions refused were correct and should have been given." Syl. pt. 1, State v. Turner, 137 W.Va. 122, 70 S.E.2d 249 (1952). Moreover, we observed in Syllabus point 4 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

         1. "Multiple Methods of Treatment" Instruction.

         Mr. Smith first contends that the jury was misled by the circuit court's inclusion of the "multiple methods of treatment" instruction. Specifically, Mr. Smith contends that the circuit court acted under a misapprehension of the law and erred by giving a "multiple methods of treatment" instruction where the only liability issue for determination involved the timing of the infant's delivery. The instruction, as read to the jury, stated:

Sometimes the standard of care for treating a patient involves consideration of different methods of diagnosis or treatment that are widely and generally recognized within the medical community.
A healthcare provider must use its professional judgment in choosing what it believes to be the most effective treatment option in a given situation. Just because a healthcare provider chooses one recognized method of treatment instead of another does not mean it breached the standard of care. A healthcare provider is not negligent if it selects and utilizes, in a non[-]negligent manner, one of two or more generally recognized methods of treatment within the standard of care.
However, a healthcare provider that uses a widely and generally recognized method of treatment or diagnosis must utilize the method with the degree of care, skill, and learning that would be provided by a reasonable and prudent healthcare provider in the same or similar circumstances.

         This Court has previously had the occasion to discuss the propriety of the "multiple methods of treatment" instruction in Yates v. University of West Virginia Board of Trustees, 209 W.Va. 487, 549 S.E.2d 681 (2001). In Yates, we held that

[i]n medical malpractice cases, the "multiple methods of treatment" jury instruction (which states that a health care provider is not negligent if he or she selects and utilizes in a non-negligent manner one of two or more generally recognized methods of diagnosis or treatment within the standard of care) is appropriate where the evidence shows that the challenged method of diagnosis or treatment enjoys such substantial support within the medical community that it is, in fact, widely and generally recognized. The necessity of presenting evidence sufficient to support a multiple methods of [treatment] jury instruction rests with the defendant.

Syl. pt. 5, id. When offering this instruction to a jury,

[i]t is insufficient to show that there exists only a small minority of physicians who agree with the defendant's challenged treatment. On the other hand, it is not necessary for the defendant to show that the challenged treatment is utilized by the majority of physicians. Rather, the defendant must show that the challenged treatment enjoys such substantial support within the medical community that it truly is generally recognized. In order to make this showing, the defendant's expert must opine that the challenged method of diagnosis or treatment has substantial support and is generally recognized within the medical community. This testimony should usually be supported by sufficient extrinsic evidence such as medical textbooks, treatises, journal articles, or other similar evidence. Upon a proper showing by the defendant, a multiple methods of treatment instruction may properly be given. Once the trial court makes this determination, it is ultimately a question for the jury to determine whether it believes that the challenged method of diagnosis or treatment is generally recognized, and the burden of persuasion on that issue remains with the plaintiff.

Id. at 495-96, 549 S.E.2d at 689-90.

         It is Mr. Smith's contention that this instruction ignored the issue of "timing" and essentially informed the jury that a physician is not negligent when he or she performs one or more approved methods of treatment within the standard of care. Mr. Smith maintains that the issue for jury determination had nothing to do with Dr. Clark's choice of delivery method, but instead, the issue had everything to do with the timing of the infant's delivery, and therefore the instruction does nothing but provide confusion for the jury. Additionally, Mr. Smith cites to Yates for the proposition that Respondents failed to submit extrinsic evidence supportive of a "multiple methods" instruction.

         In their respective briefs, Dr. Clark and Cabell Huntington reject this notion and emphasize that the "timing of delivery" theory is simply inaccurate. According to the Respondents, this case has never been about "timing," and has always been about Dr. Clark and her choice to attempt a vaginal delivery versus a caesarean section once Mrs. Smith was fully dilated. Moreover, in its order denying all post-trial motions, the circuit court explained, "that sufficient evidence was presented to support a finding that Mrs. Smith was completely dilated at the time Dr. Clark attempted vaginal delivery. Therefore, the evidence submitted at trial also warranted the 'multiple method instruction.'"

         Respondents rebut that not only was the "multiple methods of treatment" instruction appropriate, but also necessary. They argue, that although Mr. Smith characterizes his argument as a "timing" issue, Mr. Smith's real argument boils down to the method of delivery: vaginal versus caesarean. In the case at hand, this Court must recognize that it was Mr. Smith who first triggered the issue of the "multiple methods of treatment" when his Complaint and expert witness both asserted that delivery of the infant was necessary by either vaginal delivery or caesarean section.[10] In particular, Mr. Smith's expert stated that vaginal delivery is an accepted method of childbirth, and that if a patient is fully dilated, it is often faster than performing caesarean sections. Specifically, Mr. Smith's expert testified:

Now, [the American College of Obstetricians and Gynecologists] doesn't say whether you do a vaginal delivery or whether you do a C-section. But, obviously, it depends upon where you are in your labor. If someone is completely dilated and the head is low down and right there, it's sometimes faster to do a vaginal delivery than a C-section.
. . .
But again, if you are expecting me to assume that she's complete [fully dilated], you're also saying if it's going to be quickly, you're assuming that [the baby is] well down, which means it's already rotated, otherwise it wouldn't be well down, and if all of those happen in that situation, and I check her and, you know, she's 3/4 - plus 3/4 no, I would have no problem with that. But that I don't think is what happened. It's going to be left to them [referring to the jury].

         As explained above in the expert's testimony, Mr. Smith's "timing" argument assumes that Mrs. Smith was incomplete (not fully dilated) when Dr. Clark attempted a vaginal delivery. However, Respondents put forth their own expert witnesses and testimony from Dr. Clark herself to prove that Mrs. Smith was complete at the time vaginal delivery was attempted. In fact, the circuit court found that Respondents put forth the following evidence to support their theory that Mrs. Smith was fully dilated and ready for a vaginal childbirth: (1) experts testified that that process of dilation is progressive and exponential; (2) experts testified that placental abruptions cause faster dilation; (3) Dr. Clark knew the position of the infant's head; (4) Dr. Clark was able to place forceps through the cervix which would have been difficult if the cervix was not fully dilated; and (5) Dr. Clark, an obstetrician and gynecologist with forty years of experience, testified that Mrs. Smith was fully dilated. In addition to the substantial evidence put forth to support the giving of the instruction, the circuit court also found that "the jury instructions as a whole were 'accurate and fair to both parties.'" We agree.

         Because we find that the jury instructions were fair and accurate to all parties, we must disagree with Mr. Smith's contention that the "multiple methods of treatment" instruction misled the jury and caused them to find in Dr. Clark's favor simply because she chose a vaginal delivery (which is an accepted and recognized method of delivering children). It was undisputed that Mrs. Smith had suffered a placental abruption that compromised the infant; however, the difficulty of Mrs. Smith's labor does not change the fact that sufficient evidence was put forth to show that she was fully dilated, and that Dr. Clark had a choice between delivery methods. Here, we find that ample evidence-offered by all parties at trial-warranted the "multiple methods of treatment" instruction. As the circuit court noted in its Order: "The evidence submitted by Plaintiff [Mr. ...


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