James C. West, Jr.
West & Jones
Clarksburg, West Virginia
Attorney for the Appellees
Herbert G. Underwood
Matthew J. Mullaney
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
1. "'"A jury is better able to judge of the
circumstances of a case, the weight of the testimony, and the
peculiar hardships and aggravations attendant upon an injury, and
its verdict for damages for personal injury, which is not so
excessive as to indicate, as a matter of law, passion, prejudice,
partiality, mistake, or lack of due consideration, will not be set
aside by this Court on that ground." Syllabus, Williams v. Penn
Line Service, Inc., 147 W.Va. 195, 126 S.E.2d 384 (1962).'
Syllabus point 14, Abdulla v. Pittsburgh and Weirton Bus Co., W.Va.
[213 S.E.2d 810] (1975)." Syllabus point 19, Long v. City of
Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975).
2. "'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 weight of the evidence or without sufficient evidence to
support it.' Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469,
102 S.E.2d 894." Syllabus point 2, Walker v. Monongahela Power
Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).
3. "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 3, Walker v. Monongahela Power
Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).
This case involves an appeal by J. C. Frich, Jr., M.D.,
the defendant below, from the January 30, 1991, order of the
Circuit Court of Monongalia County in which the trial court set
aside a jury verdict in favor of the defendant and granted the
plaintiffs a new trial on the ground that the jury verdict was
"contrary to all credible evidence in the case." For the reasons
stated below, we agree with the petitioner and order that the
January 30, 1991, order of the Circuit Court of Monongalia County
be reversed and the jury verdict reinstated.
The plaintiff below, Mrs. Christine McNeely, was
diagnosed as having breast cancer. Rather than having a modified
radical mastectomy, Mrs. McNeely chose to have a lumpectomy and an
excision of lymph nodes at a Pennsylvania hospital. Surgery was
performed on November 5, 1986. In order to destroy any other
tumors that might exist, Mrs. McNeely was referred for radiation
therapy. For convenience, she elected to receive the treatment at
the West Virginia University Health Sciences Center in Morgantown.
Dr. Frich, a radiation oncologist, began her treatment on January
9, 1987. The radiation therapy was to occur over twenty-five
consecutive working days, with each treatment consisting of one
hundred rads of radiation being delivered to the tumor site from
one angle and another one hundred rads being delivered from another
angle. Prior to the commencement of radiation treatment, Dr. Frich
discussed potential reactions to radiation with Mrs. McNeely. He
also expressly counseled her that she should consider again a
modified mastectomy rather than radiation. However, Mrs. McNeely
chose to continue with radiation, noting in her journal, which she
kept showing the daily history of her treatment, that "Dr. Frich
warned me of the complications that are possible. Lung damage
could be up to 10%, heart damage rare, severe burn in a small
percent, but most likely a very bad sunburn. Skin may feel
leathery after treatments. The rads will total 5,000, done in 25
treatments. Either have the treatments or the breast could be
removed. I went for the treatments."
The treatments proceeded as expected until midway through
the course, when her breast became pink and tender, which she
reported to Dr. Frich. Dr. Frich apparently assured Mrs. McNeely
that the redness and tenderness was typical. Thereafter, on either
the last day of treatment or the next to last day of treatment, a
crack developed on the underside of the breast at the chest wall,
approximately one inch long and approximately one-fourth inch wide.
Despite this crack, the treatment continued that day, and Dr. Frich
ordered a prescription for acid mantle cream for the condition.
Mrs. McNeely noted that Dr. Frich had not even examined the crack
when prescribing the medication.
Over the next several days, the crack grew, and upon
reporting this to Dr. Frich, Mrs. McNeely underwent examination.
When it became clear that the acid mantle cream was not working,
Dr. Frich changed the medication to gentian violet. At that time,
Mrs. McNeely claims that the crack was approximately one and one-half inches up the breast and across the bottom. Treatment with
gentian violet continued for approximately nine months, after which
time she asked Dr. Frich for a referral to another physician. On
November 19, 1987, Dr. Frich suggested that Mrs. McNeely be
examined by a doctor whom he knew at the Allegheny General Hospital
in Pittsburgh, who would use a hyperbaric oxygen treatment. Mrs.
McNeely chose not to undergo the hyperbaric oxygen treatment and
rather was seen by I. W. Goldfarb, M.D., a physician at the West
Penn Burn Center. Dr. Goldfarb examined her on November 25, 1987,
and again approximately one week later. Dr. Goldfarb prescribed
silvadene cream and instructed her to use gauze bandages instead of
telfa so the wound could breathe. Dr. Goldfarb was not called by
the plaintiffs to testify at trial.
Mrs. McNeely claims that it was not until this point that
the wound started to heal. The breast was essentially healed by
February, 1988, although it did break open once later. However,
she contends that she was left with a left breast which was smaller
in size by at least half than when she started treatment with Dr.
Frich, and was massively scarred.
Shortly thereafter, Mrs. McNeely filed suit, contending
that Dr. Frich was negligent in the technique utilized in
administering the radiation therapy and, further, was negligent in
the treatment which he rendered to the burn after it occurred.
The case went to trial on November 19, 20, and 21, 1990.
At trial, the plaintiff presented their expert witness, Dr. Ray A.
Harron, a semi-retired radiation oncologist. Dr. Harron had
operated his own radiology clinic in Bridgeport, West Virginia, for
many years. In essence, Dr. Harron pointed to three areas in which
he believed Dr. Frich deviated from the standard of care:
1. Dr. Frich's failure to use a bolus or a wedge during the radiation treatment to absorb excess radiation and to avoid damage in other non-necessary areas;
2. The failure of Dr. Frich to rethink his
treatment regimen and stop the radiation
when midway through the treatment, the
skin condition was what it should be at
the end of the treatment; and
3. When it became apparent that there was a
serious burn developing, burn treatment
should have been pursued more vigorously.
The defendant testified on his own behalf and also
presented the testimony of Sheila Hodgson, M.D., a radiation
oncologist in active practice at Ohio State University. Without
going into great detail, Dr. Hodgson's testimony rebutted that of
Dr. Harron, stating that a bolus was not necessarily to be used
when treating a breast cancer patient with high energy radiation.
She also testified that the color of the breast halfway through the
treatment was as expected and seen frequently. Dr. Hodgson stated
that the reddening of Mrs. McNeely's breast during the twenty-five
days of therapy was appropriate and consistent with the maximum
therapeutic results and did not mandate reassessment halfway
through the treatment.
Finally, there was testimony by both sides regarding the
treatment of the crack wound under the breast. However, the
plaintiffs below failed to call Dr. Goldfarb, the burn specialist
physician who treated Mrs. McNeely's wound after Dr. Frich.
Moreover, Dr. Harron never claimed that the silvadene treatment
constituted the standard of care treatment for such a wound, and
Dr. Hodgson then testified that the aggressive treatment suggested
by Dr. Harron would have been counterproductive. She concluded
that Dr. Frich's treatment of the wound was "compatible with
reasonable standards of care."
In December, 1989, the jury returned a verdict for the
defendant, Dr. Frich, and against the McNeelys. On January 30,
1990, the circuit court judge ruled that the jury verdict be set
aside and a new trial granted because the verdict "was contrary to
all credible evidence in the case." The defendant appealed that
ruling to this Court.
An essential element of our judicial system is the right
of a party, in most cases, to request a jury of his or her peers to
render a verdict based upon the evidence and testimony presented.
Because of the jury's unique ability to see the evidence and judge
the demeanor of the witnesses on an impartial basis, a jury verdict
is accorded great deference. It is the province of the jury to
weigh the testimony and to resolve questions of fact when the
"'A jury is better able to judge of the circumstances of a case, the weight of the testimony, and the peculiar hardships and aggravations attendant upon an injury, and its verdict for damages for personal injury, which is not so excessive as to indicate, as a matter of law, passion, prejudice, partiality, mistake, or lack of due consideration, will not be set aside by this Court on that ground.' Syllabus, Williams v. Penn Line Service, Inc., 147 W.Va. 195, 126 S.E.2d 384 (1962)." Syllabus point 14, Abdulla v. Pittsburgh and Weirton Bus Co., W.Va. [213 S.E.2d 810] (1975).
Syl. pt. 19, Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832
The appellee's contention that the judge in this case was
better able to reach the correct decision because of the
conflicting testimony is meritless. A jury's verdict is accorded
great deference when it involves the jury weighing conflicting
"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 weight of the evidence or without sufficient evidence to support it." Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.
Syl. pt. 2, Walker v. Monongahela Power Company, 147 W.Va. 825, 131
S.E.2d 736 (1973). While we recognize that a trial court judge is
not merely "a referee," the judge can only set aside a jury verdict
and award a new trial when it is "plainly wrong even if it is
supported by some of the evidence . . . ." Syllabus, Cook v.
Harris, 159 W.Va. 641, 225 S.E.2d 676 (1976). In reviewing this
jury verdict, all reasonable and legitimate inferences must be
considered in favor of the defendant, Dr. Frich:
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.
Walker, 131 S.E.2d at syl. pt. 3.
Recently, we discussed a similar situation which involved
a suit brought by the plaintiff alleging a failure to diagnose
breast cancer and whether it increased her risk of harm. In
Livengood v. Kerr, 182 W.Va. 681, 391 S.E.2d 371 (1990), the jury
returned with a verdict in favor of the defendant physician, and
the trial court set aside that verdict. This Court reversed the
trial court and reinstated the jury verdict:
Recognizing that conflicting medical testimony was presented to the jury, we believe that the issues of whether the appellants deviated from the standard of care and whether their failure to diagnose Mrs. Livengood's breast cancer increased her risk of harm were for the jury to decide. We stated in syllabus point 2 of French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38 (1948): "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." See also syl. pt. 3, Pinnacle Mining Co. of Northern W.Va. v. Duncan Aircraft Sales of Florida, Inc., ___ W.Va. ___, 387 S.E.2d 542 (1989); syl. pt. 2, Dustin v. Miller, ___ W.Va. ___, 375 S.E.2d 818 (1988); syl. pt. 2, Rhodes v. National Homes Corp., 163 W.Va. 669, 263 S.E.2d 84 (1979).
Id. at 375-76.
Like our opinion in Livengood, the evidence below does
not show that the jury was plainly wrong. While conflicting
evidence was presented by both parties, such is the case in most
trials. Both experts presented by the parties were credible
witnesses and were vigorously cross-examined by the opposing party.
After reviewing all reasonable and legitimate inferences in the
defendant's favor, we cannot conclude, as the trial court did, that
the jury verdict for the defendant was "contrary to all credible
evidence in this case." By affirming the trial judge's order
setting aside the verdict in this case, we would be permitting the
judge to intrude upon the exclusive province of the jury to weigh
and decide questions of fact. We refuse to permit this intrusion
where the facts do not warrant such an action. Thus, the question
of whether the defendant violated the standard of care was properly
left to the jury for decision.
Therefore, we reverse the January 30, 1991, order of the
Circuit Court of Monongalia County and reinstate the jury verdict
acquitting Dr. Frich of responsibility for Mrs. McNeely's injuries.