Robert V. Berthold, Jr.
Tony L. O'Dell
Robin K. Welch
Charleston, West Virginia
Counsel for Appellee
Charles F. Johns
Steptoe & Johnson
Charleston, West Virginia
Counsel for Appellant
This Opinion was delivered PER CURIAM.
1. "In the absence of a particularized showing on the part of the remaining parties to a suit that one or more of them will suffer prejudice if the trial court fails to advise the jury of the dismissal of one or more parties to the suit, or that another party has taken an unfair advantage of the dismissal in its presentation and argument of the case, there is no duty on the trial court to so instruct the jury regarding the dismissal of a party from the suit." Syl. Pt. 2, Grillis v. Monongahela Power Co., 176 W. Va. 662, 346 S.E.2d 812 (1986).
2. "In the absence of a written stipulation by the parties,
the better rule is to leave the question of the manner of handling
the offset occasioned by the settlement by a joint tortfeasor, as
well as the manner of informing the jury that such party has been
dismissed from the lawsuit, to the sound discretion of the trial
court." Syl. Pt. 2, Groves v. Compton, 167 W. Va. 873, 280 S.E.2d
3. "'"Whether a witness is qualified to state an opinion is
a matter which rests within the discretion of the trial court and
its ruling on that point will not ordinarily be disturbed unless it
clearly appears that its discretion has been abused." Point 5,
syllabus, Overton v. Fields, 145 W. Va. 797, [117 S.E.2d 598
(1960)].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W. Va.
582, 203 S.E.2d 145 (1974)." Syl. Pt. 12, Board of Educ. v. Zando,
Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990).
4. "'"Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong." Point 2, Syllabus, French v. Sinkford, 132 W. Va. 66[,] [54 S.E.2d 38] .' Syllabus Point 6, Earl T. Browder, Inc. v. County Court, 145 W. Va. 696, 116 S.E.2d 867 (1960)." Syl. Pt. 2, Rhodes v. National Homes Corp., 163 W. Va. 669, 263 S.E.2d 84 (1979).
This is an appeal by Dr. Henry Breland from a final judgment
of the Circuit Court of Kanawha County denying Appellant Dr.
Breland's motion to set aside a jury verdict and motion for
judgment notwithstanding the verdict.See footnote 1 Subsequent to a jury trial,
a $343,135.80 jury verdict was returned against the Appellant. The
Appellant contends that the lower court committed various errors
which justify reversal of the judgment against him. We disagree
with the Appellant's contentions and affirm the decision of the
Circuit Court of Kanawha County.
On November 23, 1987, Appellee Alvie R. Fortney arrived at the
emergency room of Herbert J. Thomas Memorial Hospital explaining
that he thought he had lodged a piece of chicken meat in his
esophagus while eating dinner. Appellant Dr. Henry Breland
examined the Appellee at the emergency room and ordered a barium
swallow test, a procedure designed to identify foreign objects
lodged in the upper gastrointestinal tract. The test is conducted
by instructing a patient to drink a radiopaque liquid while x-rays
are being taken. The presence of the liquid then delineates any
irregularities of the gastrointestinal system. Dr. Breland ordered
the test to determine whether the piece of chicken was still lodged
in the Appellee's esophagus. At the time Dr. Breland ordered the
test, the Appellee was not demonstrating any signs of breathing
difficulty which could have indicated a perforation of his
The Appellee was taken to the radiology department of Thomas
Memorial for the performance of the test. As the Appellee's expert
agreed, it was not the responsibility of Dr. Breland to actually
perform the test. As the Appellee attempted to drink the barium,
his esophagus filled quickly, and the barium began coming back out
of his mouth. The radiological technician instructed the Appellee
to continue drinking the barium, and the Appellee then began to gag
on the solution. All witnesses at trial agreed that the retching
and gagging in the radiology department caused a perforation in the
When the Appellee returned to the emergency room and Dr.
Breland, he was in extreme pain, and Dr. Breland became concerned
about the possibility of a heart attack. Dr. Breland therefore
ordered an EKG which was returned with a normal reading. Dr.
Breland also contacted a consultant, gastroenterologist Dr. Timothy
Harper. The barium swallow test had indicated the presence of a
foreign object lodged where the esophagus joins the stomach and had
also shown evidence of a perforation in the Appellee's esophagus.
Dr. Harper then attempted to remove the chicken through an endoscopic procedure. During that procedure, a long flexible scope
is inserted into the patient's throat in order to view any objects
lodged in the esophagus. Dr. Harper suctioned out the barium in
the appellee's esophagus but was unable to remove the chicken with
forceps inserted down the scope.
Dr. Edmundo Figueroa, a cardiothoracic surgeon, was then
consulted. Dr. Figueroa performed surgery, but no perforation in
the esophagus was found. The physicians concluded that the
perforation had resealed itself after allowing the contents of the
esophagus to escape into other areas of the body.
During the Appellee's six-week hospitalization in the
intensive care unit, he was treated by Dr. Figueroa and Dr.
Gabriele Al-Hajj. Because the Appellant was not involved in the
care of the Appellee during the remainder of this hospitalization,
the specifics of that period need not be addressed.
In December 1988, the Appellee initiated a civil action
alleging medical malpractice. During the course of discovery, the
Appellee identified Dr. John Wilson and Dr. William Campbell as
expert witnesses who would testify that the Defendants failed to
meet the standard of care required by their fields of medicine.
Prior to trial, the hospital settled with the Appellee for $47,000,
and the Appellee therefore elected not to call Dr. Campbell, the
expert who would have testified as to the hospital's actions.
During trial, Dr. Breland's counsel attempted to establish Thomas Memorial's negligence, based upon the difficulties encountered during the performance of the barium swallow test in the radiology department. Dr. Breland now contends, however, that the lower court impermissibly limited argument regarding Thomas Memorial's negligence and failed to inform the jury of Thomas Memorial's settlement with the Appellee.
Dr. Breland also asserts that the lower court erred in
permitting Dr. John Wilson to testify as an expert regarding the
appropriate standard of care in the field of emergency medicine.
Dr. Wilson, a general surgeon, was the only witness called at trial
who testified that Dr. Breland breached the standard of care in his
treatment of the Appellee.See footnote 2 Dr. Breland moved, pursuant to West
Virginia Code § 55-7B-7 (1986), to prohibit Dr. Wilson from
testifying regarding the appropriate standard of care for an
emergency physician since Dr. Wilson had not worked in an emergency
room other than to perform surgeries when requested by emergency
medical physicians. Despite the contentions of Dr. Breland, the
lower court allowed Dr. Wilson to testify regarding the standard of
care for emergency medical physicians.
Dr. Breland also contends that the lower court erred in
failing to grant him a directed verdict or a judgment
notwithstanding the verdict when the Appellee failed to establish
that any negligence of Dr. Breland caused the Appellee's injuries.
Dr. Breland argues that even the Appellee's expert testified that
had the test been properly administered, it was possible that the
Appellee would not have suffered any injury.
The Appellant contends that the lower court impermissibly
limited evidence regarding Thomas Memorial's negligence and the
role such negligence might have played in the Appellee's injuries.
The Appellant asserts that based upon testimony regarding the fact
that the Appellee's perforation occurred while in the radiology
department, counsel for the Appellant sought to argue that Thomas
Memorial was solely responsible for the Appellee's injuries. The
Appellee, however, alleges that Dr. Breland's defensive trial
strategy included an attempt to present a scenario in which no
particular Defendant was at fault for the incident. This classic
defense, as the Appellee characterizes it, was based on the
contention that no health care provider, including Thomas Memorial,
had deviated from the normal standard of care. Furthermore, the
Appellee contends that the lower court did allow evidence of Thomas
Memorial's fault to be introduced. For example, evidence of Thomas
Memorial's fault in the radiology department was introduced through
cross-examination of Dr. Wilson. Dr. Wilson explained that it was
the administration of the barium swallow test in the radiology
department which caused the perforation in the Appellee's
esophagus.See footnote 3 The deposition of Dr. Campbell was also read into
evidence, indicating that Dr. Campbell was critical of Thomas
Memorial's administration of the barium. Additionally, counsel for
Dr. Breland discussed Thomas Memorial's role in his opening
statement and questioned the Appellee himself during cross-examination regarding his experience in the radiology department.See footnote 4
Prior to opening statements, the lower court explained the
following to the parties:
Don't get into this thing about pointing the
finger at Thomas because they're not in this
case. They're not in the case. And the only
way I'm going to let them in the case is just
by telling the jury that they were in the case
and they settled. And the jury can make any
inference they want from the evidence that
comes in, but I don't want you all arguing
Yet at no time did the lower court prevent Dr. Breland's counsel from making a specific argument or statement regarding Thomas Memorial's negligence. Nor did Dr. Breland's counsel make any objection at trial to any ruling or statement of the lower court which could have been interpreted as limiting the evidence to be presented regarding Thomas Memorial's negligence. The lower court specifically informed counsel for Dr. Breland, immediately preceding closing arguments, that he would be permitted during closing to
get into the facts upon which Thomas'
negligence was based, based on the testimony.
I think you developed it well during the first
part of the case primarily, and I'm not going
to shortchange you to the extent that your
clients weren't responsible or negligent for
certain things that happened to this guy.
Based upon our review of the record, we believe that all defendants were provided ample opportunity to explain the negligence of Thomas Memorial Hospital. Counsel for Dr. Breland appears to have refrained from emphatic argument of Thomas Memorial's negligence and did not offer an expert witness to testify regarding Thomas Memorial's deviation from the standard of care. We do not believe that the presentation of Dr. Breland's case was impeded by any action or limitation of the lower court regarding the scope of argument as to Thomas Memorial's negligence. Furthermore, we are not convinced that the lower court's initial admonishment regarding refraining from "pointing the finger" at
Thomas Memorial, when viewed in conjunction with the evidence
permitted to be introduced as to Thomas Memorial was perceived by
the Appellant as an appreciable limitation on the presentation of
his defense. Otherwise, an objection (or at least a request for
clarification) would have been made, and the Appellant would not
have proceeded to elicit such evidence and make such argument.
Dr. Breland also contends that the lower court erred by
refusing to inform the jury of the hospital's settlement with the
Appellee. We have consistently held that the question of whether
to inform a jury of a settlement is clearly within the discretion
of the trial court. Grillis v. Monongahela Power Co., 176 W. Va.
662, 346 S.E.2d 812 (1986). In syllabus point 2 of Grillis, we
explained the following:
In the absence of a particularized
showing on the part of the remaining parties
to a suit that one or more of them will suffer
prejudice if the trial court fails to advise
the jury of the dismissal of one or more
parties to the suit, or that another party has
taken an unfair advantage of the dismissal in
its presentation and argument of the case,
there is no duty on the trial court to so
instruct the jury regarding the dismissal of a
party from the suit.
Id. at ___, 346 S.E.2d at 813-14.
Furthermore, in Groves v. Compton, 167 W. Va. 873, 880, 289 S.E.2d
708, 712 (1981), we concluded:
In regard to informing the jury as to the dismissal of the party who has settled, we do not believe that any fixed rule can be set except to state that neither counsel should be permitted to take unfair advantage of the settlement and dismissal in presenting and arguing their case.
We also stated the following in syllabus point 2 of Groves:
In the absence of a written stipulation
by the parties, the better rule is to leave
the question of the manner of handling the
offset occasioned by the settlement by a joint
tortfeasor, as well as the manner of informing
the jury that such party has been dismissed
from the lawsuit, to the sound discretion of
the trial court.
Id. at 873, 280 S.E.2d at 709.
The lower court decided not to inform the jury of the fact
that Thomas Memorial had previously entered into a settlement with
the Appellee. This decision, in our view, is well within the
discretion we have previously provided to ruling courts. We
explained the following in Groves:
There are two basic methods available for
utilizing the offsetting settlement figure.
The jury may be informed of the settlement
figure before it retires to deliberate and
instructed that if it finds a verdict for the
plaintiff, it should deduct from the verdict
the settlement amount. The other approach is
to refrain from disclosing the settlement
amount to the jury and upon their return of a
verdict awarding damages the trial court
deducts the settlement figure from the award
before entering the judgment.
Id. at 880, 280 S.E.2d at 712.
The lower court in the present case simply chose the second option.
Full monetary credit was given to Dr. Breland for the amount of
Thomas Memorial's settlement. We do not believe that the lower
court abused its discretion in this regard.
Dr. Breland further asserts that the lower court erred in
permitting Dr. Wilson to testify as an expert witness due to his
lack of experience in emergency room procedure. In Gilman v. Choi,
185 W. Va. 177, 406 S.E.2d 200 (1990), we addressed the
relationship between West Virginia Rule of Evidence 702, regarding
expert testimony generally, and West Virginia Code § 55-7B-7,
regarding competency of expert witnesses in a medical malpractice
"'Whether a witness is qualified to state an
opinion is a matter which rests within the
discretion of the trial court and its ruling
on that point will not ordinarily be disturbed
unless it clearly appears that its discretion
has been abused.' Point 5, syllabus, Overton
v. Fields, 145 W. Va. 797, [117 S.E.2d 598
(1960)]." Syllabus Point 4, Hall v. Nello
Teer Co., 157 W. Va. 582, 203 S.E.2d 145
(1974). Syl. Pt. 12, Board of Educ. v. Zando,
Martin & Milstead, Inc., 182 W. Va. 597, 390
S.E.2d 796 (1990).
West Virginia Code § 55-7B-7 enumerates specific requirements
regarding expert testimony in a medical malpractice action and
provides as follows:
The applicable standard of care and a defendant's failure to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Such expert testimony may only be admitted in evidence if the foundation, therefor, is first laid establishing that: (a) The opinion is actually held by the expert witness; (b) the opinion can be testified to with reasonable medical probability; (c) such 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; (d) such expert maintains a current license to practice medicine in one of the states in the United States; and (e) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider.
It is primarily with subdivision (e) of West Virginia Code §
55-7B-7 that Dr. Breland takes issue. Thus, we must determine
whether Dr. Wilson was "engaged or qualified in the same or
substantially medical field" as Dr. Breland. In Gilman, we
explained the following:
In this regard it would be an abuse of
discretion for a trial court to require the
proffered expert witness to be board certified
in the same medical specialty as a particular
defendant health care provider. W. Va. Code,
55-7B-7  does not impose such a
requirement. . . . If the legislature had
intended such a board certification
requirement, it could have provided explicitly
therefor, as, for example, the legislature of
Florida did in enacting Fla. Stat. Ann. §
766.102 (West 1988).
Id. at 180, 406 S.E.2d at 203.
In the present case, Dr. Breland did have an internship in
general surgery, but he was not a board certified emergency room
physician. Dr. Wilson was a board certified general surgeon with
over fifteen years of experience as chairman of an emergency room
department, including the review of emergency room standard of care
issues. Dr. Wilson also testified that he had handled several
impacted food cases throughout his career. He had also performed
several surgeries in an emergency room context, although he had
never actually practiced emergency medicine. The Appellee
correctly emphasizes that we are presently confronted with an issue
of standard of care for a physician evaluating and treating an
impacted food case, not simply the general emergency room
physician's standard of care.
We explained the following in Gilman:
[A] medical expert, otherwise qualified, is
not barred from testifying merely because he
or she is not engaged in practice as a
specialist in the field about which his or her
testimony is offered; on the other hand, it is
clear that a medical expert may not testify
about any medical subject without limitation.
Id. at 181, 406 S.E.2d at 204. While Dr. Breland was indeed practicing in the emergency room, it must be acknowledged that the medical subject we are concerned with is not simply the general practice of medicine, but rather the specific issue of treatment of patients with blockages of the nature of that suffered by the Appellee. Consequently, the emphasis must be on whether the proffered expert, Dr. Wilson, had the requisite experience to
testify with regard to that latter issue. While Dr. Wilson only
practiced in an emergency room setting when specifically needed for
surgery, he had handled many impacted food cases during his career.
As Justice Neely noted in his partial dissent and concurrence to Gilman, "[a] physician does not necessarily need to be 'board certified' in a medical field in order to work in that medical field." Id. at 182, 406 S.E.2d at 205 n. 1. A physician's experience may qualify him to testify regarding areas other than his board certified specialty. The fact that a testifying expert physician may not have precisely the same specialty as a physician defendant does not disqualify that testifying physician as an expert regarding the standard of care to be employed by the physician defendant. By emphasizing the fact that Dr. Wilson had not actually practiced emergency medicine, Dr. Breland is hedging the issue slightly. The salient inquiry is to what extent Dr. Wilson is qualified under West Virginia Code § 55-7b-7 to testify as an expert on the issue of Dr. Breland's standard of care in treating a patient suffering an impacted food blockage. Based upon the foregoing, we conclude that Dr. Wilson was qualified to provide expert testimony on the issue of the standard of care of a physician rendering assistance to a patient suffering from an impacted food blockage. Any shortcomings which the Appellant believed existed in Dr. Wilson's credentials could have properly been the subject of cross-examination.
Dr. Breland has also asserted that the Appellee failed to
prove causation and that, consequently, Dr. Breland's motion for a
directed verdict or a judgment notwithstanding the verdict should
have been granted. Dr. Breland appears to base this contention
upon the fact that the only actual evidence of causation was
introduced through the Appellee's expert, Dr. Wilson. Dr. Breland
contends that Dr. Wilson's testimony should not have been
permitted, and he asserts that the causation issue addressed by Dr.
Wilson should therefore be accorded no credence.
In evaluating a motion for a directed verdict or judgment
notwithstanding the verdict, we have previously explained that a
court should not grant the motion or disturb a jury verdict where
the evidence is conflicting. In syllabus point 2 of Rhodes v.
National Homes Corp., 163 W. Va. 669, 263 S.E.2d 84 (1979), we
"'Where, in the trial of an action at law
before a jury, the evidence is conflicting, it
is the province of the jury to resolve the
conflict, and its verdict thereon will not be
disturbed unless believed to be plainly
wrong.' Point 2, Syllabus, French v.
Sinkford, 132 W. Va. 66[,] [54 S.E.2d 38]
." Syllabus Point 6, Earl T. Browder,
Inc. v. County Court, 145 W. Va. 696, 116
S.E.2d 867 (1960).
With regard to whether Dr. Breland deviated from the normal standard of care in his treatment of the Appellee, the following dialogue during Dr. Wilson's testimony is relevant:
Q: Dr. Wilson, I guess maybe the best thing to do after all that is I will go back to my question. Do you have an opinion, based upon a reasonable degree of medical probability, through your experience and training, as you indicated, whether or not Dr. Breland deviated from the normal standard of care in his treatment of Mr. Fortney?
A: I have an opinion.
Q: What is your opinion?
A: I believe that he did.
The Appellee, through Dr. Wilson's testimony, presented evidence of Dr. Breland's breach of the standard of care. We have determined that the testimony of Dr. Wilson as an expert was permissible under West Virginia Code § 55-7b-7 and was properly presented to the jury. Moreover, the issue of Dr. Breland's conduct became a contested issue, formed a conflict in the evidence as presented by the opposing parties, and established the basis for resolution by a jury.
Based upon the foregoing, the decision of the Circuit Court of
Kanawha County is affirmed.
Footnote: 1Dr. Gabriel E. Al-Hajj, Dr. Edmundo E. Figueroa, and Dr. Henry Breland were defendants at trial. Dr. Breland is the only Appellant in this matter.
Footnote: 2The Appellee contended that had Dr. Breland not ordered a barium swallow test, no malpractice action would have been brought. The proper procedure, as advanced by the Appellee, would have been a bronchoscopy after a plain chest x-ray to identify any blockage.
Footnote: 3Counsel for Dr. Breland questioned Dr. Wilson regarding Thomas Memorial's standard of care as follows:
Q: That's my question. What caused the
perforation was the retching and
vomiting, as far as you can tell,
back in radiology, wasn't it?
A: That part is true, yes sir.
Q: It wasn't caused out there when Dr.
Breland examined the patient.
A: I understand.
Q: He was fine when he went back there to
radiology; is that correct?
A: That's my understanding right.
Q: Do you believe the standard of care was
breached in administering the barium
swallow itself, not in ordering?
A: I believe giving it, per se, was below
the standard, which I've already stated.
Q: You already stated that?
A: Yes. The order is below the standard; to give it is below the standard, to drown him is below the standard. How meaningful it was, I don't know, but those are certainly bad things to do.
Footnote: 4During his opening, counsel for Dr. Breland, without interruption by the lower court or opposing counsel, stated as follows:
In this case, Dr. Breland sent Mr.
Fortney back there to radiology, and everyone
is going to agree on everything up until that
point. Dr. Breland sent him back there to
have him take a couple sips of barium. Dr.
Breland did not go back with him to do that.
Dr. Breland doesn't administer those tests,
and he'll tell you that. He was out there
caring for patients in the emergency room. He
sent him back to radiology. And then Mr.
Fortney can be the only one that can tell us
about what happened back there in radiology,
and he's going to tell you a horrible story.
People back at Thomas Memorial Hospital back in radiology gave him a sip of barium; kept having him sip more and more and more. He'll tell you that it was coming out of his mouth and going all over his clothes. He'll tell you that he was gagging, and he had a real problem back there in radiology; but remember, Dr. Breland is not giving that test back there. He decided that that's the appropriate test, but he sent him back there to have it done by the radiology staff at Thomas Memorial Hospital, and Mr. Fortney is going to be the one that will tell you about what happened back there.