Laurie Garrigan McKowen
Masters & Taylor, L.C.
Charleston, West Virginia
Attorney for the Appellees
Harold D. Brewster, Jr.
Brewster, Morhous & Cameron
Bluefield, West Virginia
Attorney for the Appellants
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "The execution of a general release in favor of the
original tort-feasor or dismissal with prejudice of a civil action
against such tort-feasor is prima facie evidence of the intention
of the injured party to accept the same as full satisfaction of all
damages which naturally flow from the original injury, in the
absence of language or circumstances in the release or dismissal
indicating a contrary intention of the parties; but whether such
release or dismissal is a bar to further action for malpractice
against the treating physician or hospital providing care is a
question of fact to be answered from the intention of the parties."
Syllabus point 5, Thornton v. Charleston Area Medical Center, 158
W.Va. 504, 213 S.E.2d 102 (1975).
2. "To determine the intention of the parties with
reference to release of successive tort-feasors, the injured party
is entitled to introduce parol evidence to explain the terms of a
contract of release in favor of, or the circumstances attendant to
a dismissal with prejudice of a civil action against, the original
tort-feasor." Syllabus point 6, Thornton v. Charleston Area
Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).
3. "It is generally recognized that there can be only one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double
satisfaction for a single injury. A plaintiff may not recover
damages twice for the same injury simply because he has two legal
theories." Syllabus point 7, Harless v. First National Bank of
Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).
4. "Where there is a single indivisible loss arising
from the actions of multiple parties who have contributed to the
loss, the fact that different theories of liability have been
asserted against them does not foreclose their right of
contribution inter se or prevent them from obtaining a verdict
credit for settlements made with the plaintiff by one or more of
those jointly responsible." Syllabus point 8, Board of Education
of McDowell Co. v. Zando, Martin & Milstead, Inc., 182 W.Va. 597,
390 S.E.2d 796 (1990).
5. "As the law regards the negligence of the one who
caused the original injury as the proximate cause of the aggravated
injuries occurring by reason of the negligence of the treating
physician or hospital, the original tort-feasor is liable for all
damages, including the successive damages inflicted by the
physician or hospital." Syllabus point 3, Thornton v. Charleston
Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).
6. A setoff or verdict credit is appropriate in cases in which any tortfeasors, whether they be characterized as joint or
successive and independent, are "jointly responsible" for a single
7. "At common law, an injured party may have only one
full recovery, and complete satisfaction from any tort-feasor is
satisfaction of the total damages suffered." Syllabus point 1,
Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213
S.E.2d 102 (1975).
The appellants, defendants below, are Bluefield
Orthopedics, P.C., and Yogesh Chand, M.D., who appeal from the
lower court's refusal to grant their post-trial motion and offset
an adverse $53,000 medical malpractice verdict against the $72,000
settlement paid by the driver of the vehicle who caused the initial
injuries in this case.
On May 19, 1984, Lisa Pennington was injured in an
automobile accident while riding in a car driven by Kevin Keyes.
On May 20, 1984, an emergency room physician diagnosed several
possible injuries and recommended that Lisa take her x-rays and see
Dr. R. R. Raub, an orthopedic surgeon. Lisa saw Dr. Raub on May
21, 1984, and Dr. James Thomas and Dr. Edward Litz, an orthopedist,
on May 22, 1984. Dr. Litz's records indicate that Lisa's only
problem at the time was a fractured right clavicle. Lisa went to
Dr. Yogesh Chand on May 30, 1984, for treatment of the fracture.
Dr. Chand performed a closed reduction of the clavicle fracture on May 31, 1984, and Lisa was placed in a cast. On June 5, Dr. Chand performed an open reduction and pinning of the clavicle because fragments had become displaced. On July 9, it was determined that osteomyelitis had developed in the clavicle at the site of the open reduction. Lisa was hospitalized for thirty days so that she could receive antibiotics and six cleansing procedures
could be performed on the operative site to clear up the
The Penningtons asserted a claim against the driver,
Kevin Keyes, and negotiated a $72,000 settlement. The Circuit
Court of Mercer County approved the settlement in a summary
proceeding. A petition and order stated that the settlement was
. . . any and all claims and demands which said Lisa Denise Pennington, an infant, has or may hereafter have against Kevin Keyes for and on account of any injury sustained by the said Lisa Denise Pennington including a fractured right clavicle, which was treated by an open reduction, external fixation, using a Steinmann pin, complicated by osteomyelitis, while a passenger in an automobile driven by Kevin Keyes . . . . (Emphasis added.)
The settlement was payable in two installments, and from these
proceeds, $10,482 was authorized to be paid to Fred Pennington as
compensation for expenses incurred for Lisa's treatment which were
not covered by his insurance. With regard to Kevin Keyes, the
order stated that the $72,000 payment was:
. . . in settlement and satisfaction of any and all claims and demands which said Lisa Denise Pennington ever had, now has or may hereafter have, for or on account of any and all injuries sustained by her, arising out of said accident, and for or on account of all damages therefore, and in consideration of the release of the said Kevin Keyes, from any and all claims and demands for said injuries, be, and the same is, hereby approved . . . .
Following the settlement with Keyes, the Penningtons
filed suit against Dr. Chand and Bluefield Orthopedics, alleging
negligent medical treatment. The defendants denied any negligence,
and the case went to trial.
The plaintiffs filed a motion in limine prior to trial,
requesting that the court preclude any reference to the Keyes
settlement during trial. The trial court granted this motion. The
defendants state that they agreed to defer the issue of an offset
credit from the Keyes settlement until after judgment, except for
$3,465, which represented expenses already paid to Fred Pennington
that the plaintiffs planned to introduce at trial as expenses they
could also recover against the defendant.
It is important to point out that the defendants do not
argue that the Penningtons were barred from proceeding against them
because of the prior release of Keyes. For this reason, the
defendants claim that they did not see the point in raising the
issue of release in their pleadings. However, the defendants
maintain that they did raise the issue of being allowed a setoff
against the prior $72,000 settlement in the event of an adverse
The jury returned a $50,000 verdict for Lisa Pennington and awarded $3,000 to her parents. The defendants then moved the court to permit the earlier $72,000 settlement to offset the
$53,000 judgment against them. The motion was denied by an order
dated May 17, 1991, from which the defendants appeal.
The defendants now argue that because Kevin Keyes was the
original tortfeasor, he is liable for all injuries and damages
incurred by Lisa Pennington, including any aggravation of the
original injuries resulting from Dr. Chand's allegedly negligent
medical treatment. Further, the defendants also contend that the
plaintiffs' damage claim against Keyes included the same damages
which they later asserted against Dr. Chand, and that the
tortfeasors' liability in this case is joint and not capable of
It is our determination that Keyes and Chand were not
joint tortfeasors, but instead were successive and independent
tortfeasors, defined by this Court as those whose negligence "did
not 'in point of time and place concur,' which is [the] test for
joint or concurrent negligence." Sansom v. Physicians Associates,
Inc., 182 W.Va. 113, 386 S.E.2d 480 (1989). Any alleged negligence
by the driver, Kevin Keyes, clearly "did not 'in point of time and
place concur'" with the allegedly negligent medical treatment which
the plaintiff subsequently received from Dr. Chand.
Having ascertained that Keyes and Chand were successive and independent tortfeasors, we now consider what effect, if any, the plaintiffs' release of Kevin Keyes "from any and all claims and
demands for said injuries" had on the plaintiff's subsequent suit
against Dr. Chand. In Thornton v. Charleston Area Medical Center,
158 W.Va. 504, 213 S.E.2d 102 (1975), this Court adopted the modern
rule which provides that the release of an original tortfeasor may
not necessarily bar further recovery against a successive and
independent tortfeasor who is negligent in the treatment of the
injury caused by the original tortfeasor.See footnote 1 "Beyond question, an
injured party has a separate cause of action against a successive
and independent tort-feasor who negligently renders medical or
hospital care in the treatment of injuries suffered at the hands of
another." Id. at 108. We found that it was "patently illogical to
conclusively presume, in the absence of particular language
indicative of such an intention, that a release of the original
tort-feasor bars recovery from the subsequent tort-feasor." Id.
We further explained the effect of our conclusion in syllabus point
5, wherein we reiterated that:
. . . [T]he execution of a general release in favor of the original tort-feasor or dismissal with prejudice of a civil action against such tort-feasor is prima facie evidence of the intention of the injured party to accept the same as full satisfaction of all damages which naturally flow from the original injury, in the absence of language or circumstances in
the release or dismissal indicating a contrary
intention of the parties; but whether such
release or dismissal is a bar to further
action for malpractice against the treating
physician or hospital providing care is a
question of fact to be answered from the
intention of the parties.
"To determine the intention of the parties with reference to
release of successive tort-feasors, the injured party is entitled
to introduce parol evidence to explain the terms of a contract of
release in favor of, or the circumstances attendant to a dismissal
with prejudice of a civil action against, the original tort-feasor." Id. at syl. pt. 6.
In this case, there is no evidence whatsoever to suggest
that the plaintiffs intended for their release of Keyes to also
serve as a release of Dr. Chand. In fact, this clearly was not
their intent, because after reaching the settlement with the
driver, the plaintiffs immediately filed suit against Dr. Chand,
alleging malpractice. This conclusion is also supported by the
defendants' own admission that they did not believe that the
plaintiffs were barred as a matter of law from proceeding against
them because of the plaintiffs' release of the driver. In their
brief to this Court, the defendants:
. . . acknowledge that separate causes of action may be asserted against the automobile operator and the subsequent treating physician. There was no allegation of release of liability in the pleadings nor was that issue raised prior to trial and it is not an issue in this case. If the defendants had felt that as a matter of law the release of the automobile operator was also a release of any claim against them, then defendants would
have raised that issue. Defendants did not
believe the original release was broad enough
to cover them.
Instead of arguing that the plaintiffs were barred from
proceeding against them because of the release, the defendants now
ask this Court to offset the $53,000 malpractice judgment against
the $72,000 settlement that the plaintiffs reached with Keyes.
Therefore, the sole issue for our determination is whether this
type of verdict credit is proper in this case.
"It is generally recognized that there can only be one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury. A plaintiff may not recover damages twice for the same injury simply because he has two legal theories." Harless, 289 S.E.2d at syl. pt. 7. In Board of Education of McDowell Co. v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796, 803 (1990), this Court recognized that the practice of allowing offsets is "premised on the principle that a plaintiff is entitled to one, but only one, complete satisfaction for his injury." We explained further that "we have developed, independently of any assertion of contribution, a practice of allowing the defendant against whom a verdict is rendered to reduce the damages to reflect any partial settlement the plaintiff has obtained from a joint tortfeasor." Id. The facts of Zando presented joint tortfeasors, but as we explained in that case,
setoffs are not necessarily limited to situations in which joint
tortfeasors have caused injury or loss.
In Zando, a school board sued an architectural/
engineering firm, Zando, Martin & Milstead (ZMM), for negligence
and breach of contract. ZMM filed a third party complaint against
two subcontractors. The school board eventually settled with both
subcontractors for a total of $630,000. A jury awarded the school
board $1,000,000 in compensatory damages, and ZMM sought to have
the $630,000 settlements deducted from the verdict. The trial
court refused and entered judgment against ZMM for the full
$1,000,000. Id. at 801.
We reversed, noting that "[o]ur definition of the right
of contribution . . . makes no distinction among theories of
recovery, but focuses on the common liability of the defendants for
plaintiff's injuries." Id. at 807 (emphasis added). We concluded
that when the plaintiff's injuries arise from the combined actions
of the defendants, the defendants are "jointly liable to the
plaintiff and may seek inchoate contribution among themselves
regardless of the theories of recovery asserted against them
individually." Id. At syllabus point 8 of Zando, we explained
Where there is a single indivisible loss arising from the actions of multiple parties who have contributed to the loss, the fact that different theories of liability have been asserted against them does not foreclose their right of contribution inter se or prevent them
from obtaining a verdict credit for
settlements made with the plaintiff by one or
more of those jointly responsible.
Relying on Zando, in Biro v. Fairmont General Hospital,
Inc., 184 W.Va. 458, 400 S.E.2d 893 (1990), this Court reversed a
lower court order which granted the hospital's motion to offset a
jury verdict. In that case, the plaintiff sued the hospital,
alleging malpractice in connection with numbness she experienced in
her legs following a hysterectomy. The plaintiff contended the
numbness was caused by the doctor negligently compressing her
femoral nerve during the operation. While the plaintiff was
recuperating in the hospital, she fell and injured her knee as she
was being assisted to the bathroom by two nurses.
The plaintiff filed suit against Dr. Hamilton, who
performed the hysterectomy, and Fairmont General Hospital. Dr.
Hamilton settled with the plaintiff prior to trial for $30,000.
The settlement was not disclosed to the jury. The jury
subsequently found the hospital 60% negligent and the plaintiff 40%
negligent, resulting in a combined award of $100,000 to the
plaintiff and her husband. The hospital moved to offset the jury
verdict by $30,000, the amount of the settlement reached with Dr.
Hamilton, and the motion was granted.
On appeal, we determined that the issue was whether the plaintiff's action against the hospital for the injury to her right
knee was independent from the femoral nerve damage caused during
the hysterectomy, and thus not susceptible to an offset. We found
that Dr. Hamilton and the hospital were not joint tortfeasors and
that the plaintiff's knee injury and the alleged femoral nerve
injury did not constitute a single, indivisible loss which resulted
from the actions of the hospital and Dr. Hamilton. Instead, we
stated that "[i]t is clear that the malpractice claim is a separate
cause-of-action, and thus divisible, from the negligence on the
part of the hospital." Id. at 896. Because the incidents
constituted two separate causes-of-action, we held that the lower
court erred in offsetting the $30,000 settlement made by Dr.
Hamilton in connection with the femoral nerve injury. Id. at 897.
In the case now before us, we find that the plaintiff, Lisa Pennington, did suffer a single indivisible loss as the result of the actions of multiple parties. Her loss -- a fractured clavicle and the ensuing complications -- resulted from the actions of two successive and independent tortfeasors, the driver, Kevin Keyes, and Dr. Chand. As the original tortfeasor, Keyes is considered to be "the proximate cause of the aggravated injuries occurring by reason of the negligence of the treating physician or hospital," and "liable for all damages, including the successive damages inflicted by the physician or hospital." Thornton, 213 S.E.2d at syl. pt. 2. All parties agree that the plaintiff was free to pursue a separate cause of action for malpractice against Dr. Chand after settling with and then releasing the original
tortfeasor. However, now that she has obtained a verdict against
the doctor, we find that a setoff, or verdict credit, is
appropriate in this case because the successive and independent
tortfeasors were "jointly responsible" for a single indivisible
injury. "Where such joint obligation for damages is found, a
credit is allowed for any settlement prior to verdict . . . ."
Zando, 390 S.E.2d at 807. Our conclusion is consistent with the
common law principle recognized in Thornton, that "an injured party
may have only one full recovery, and complete satisfaction from any
tort-feasor is satisfaction of the total damages suffered." 213
S.E.2d at syl. pt. 1 (emphasis added).
For the foregoing reasons, we reverse the judgment of the
Circuit Court of Mercer County which refused to grant the
appellant's motion for a verdict credit, and remand for entry of an
order consistent with this opinion.
Footnote: 1For discussion of a related issue, see Rine v. Irisari (No. 20459, June 11, 1992), in which this Court held that "[a] negligent physician is liable for the aggravation of injuries resulting from foreseeable subsequent negligent medical treatment, where that subsequent medical treatment is undertaken to mitigate the harm caused by the physician's own negligence." See generally, P.G. Guthrie, Annotation, Release of One Responsible for Injury as Affecting Liability of Physician or Surgeon for Negligent Treatment of Injury, 39 A.L.R.2d 260 (1955).