664 S.E.2d 146
This is an appeal by Brenda L. Stanley, appellant/plaintiff below, from an adverse jury verdict in a medical malpractice action that was tried before a jury in the Circuit Court of Logan County. The case was brought against Dr. Suthipan Chevathanarat, appellee/defendant below (hereinafter Dr. Chevy), on the theory that Dr. Chevy failed to obtain informed consent from Ms. Stanley prior to performing surgery on her. In this appeal, Ms. Stanley assigns error to the trial court's denial of her pre-verdict motion for judgment as a matter of law on the single issue of breach of the standard of care. After a careful review of the briefs, record and consideration of the oral arguments by the parties, we affirm.
in reviewing a motion for judgment as a matter of law, a court should (1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.
Cleckley, et al., Litigation Handbook § 50(a)(1), at 73 (Cum. Supp. 2007) (footnote omitted). With these standards in view, we turn to the issue presented on appeal.
Syl. pt. 2, Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982). In this appeal, we are asked to address only the third element under Cross, i.e., informing a patient of alternative methods of treatment.
Ms. Stanley contends that it is crystallized in the record that Dr. Chevy did not discuss or offer HRT as an alternative method of treatment. (See footnote 5) To support this argument, Ms. Stanley contends that Dr. Chevy himself admitted that he did not offer HRT to her. As a consequence of Ms. Stanley's interpretation of the evidence, she contends that she was entitled to judgment as a matter of law on the issue of negligence, and that the jury should have been allowed to consider only the issues of causation and damages. If the evidence was as crystal clear as Ms. Stanley contends, we would agree with her. However, for the reasons that follow, we cannot subscribe to Ms. Stanley's view of the evidence.
During the trial of this case, Ms. Stanley gave the following testimony regarding whether Dr. Chevy had informed her of alternative methods of treatment:
Q. If you look at the [informed consent] form, Ms. Stanley, the four corners of the form, it appears to me, and you tell me if you agree, that's [sic] there [sic] two alternatives, the abdominal total hysterectomy or a total hysterectomy done by vaginal route rather than opening up your abdomen. Correct?
A. That's what it says I guess.
Q. And other than those two things there, did he discuss anything else with you about possible alternatives?
A. He only talked to me about total abdominal hysterectomy.
Ms. Stanley contends in her brief that Dr. Chevy testified that he did not inform her that HRT was an alternative to surgery. However, in our review of the record we do not find Dr. Chevy provided such testimony. (See footnote 6) The following exchange is the relevant testimony by Dr. Chevy on the issue of alternative treatment:
Q. Now we've talked somewhat about the consent form, Doctor. I want
to ask you about this. I think you can see this. I want to just ask you to go
through this. I know Mr. White had asked you some questions about this, and
instead of belaboring the point, let me ask you directly. Did you discuss this
consent form and its contents with Ms. Stanley?
Q. And was that on June 19, 1998?
Q. Now is it fair to say that you don't have a detailed recollection of everything you discussed?
A. No, definitely not. It's been seven years.
Q. You've been performing surgery since 1974. Correct?
Q. And when you meet with your patients, do you discuss each of these points in the consent form?
. . . .
Q. In this form you discussed the fact that you could take, you can go through the vagina to do the surgery. Right?
Q. And below that, you indicated that you further discussed the risks involved in not undergoing the treatment, including not to have the surgery. Correct?
Q. If Ms. Stanley did not have the surgery, if she elected not to have total abdominal hysterectomy, what would her continued course of treatment be?
A. She can either quit taking hormone or continue taking hormone and take the bleeding again.
Q. And you indicate here that the risk is continued bleeding. Correct?
. . . .
Q. Dr. Chevy, when you obtain informed consent from your patients, is it your habit and routine practice to go through this informed consent sheet with all your patients?
Q. Do you believe you did that with Mrs. Stanley?
A. Yes, I do.
Dr. Chevy contends on appeal that the above testimony provides an express statement that he informed Ms. Stanley that HRT was an alternative to surgery. We do not believe that this testimony provides such an express statement. However, it could be reasonably inferred from the questions and answers that Dr. Chevy informed Ms. Stanley that HRT was an alternative to surgery.
In addition to the conflicting testimony of Ms. Stanley and Dr. Chevy, there was also conflicting expert testimony presented to the jury on the issue of breach of the standard of care. Ms. Stanley's medical expert, Dr. Robert Dein, testified on direct examination as to the standard of care as follows:
Q. Is it your opinion that failing to offer, if indeed there was a failure to offer, continuation of the hormone replacement therapy with the changes you described to the jury, the failure to do that is a breach in the standard of care regarding informed consent?
A. It is, and one point that really hasn't been brought up is that when you make a change hormonally, it often takes a good three months till you really see what the total effect is going to be. I always tell my patients, you know, we're going to do this change. Don't even think about it for the first three months, and then we're going to know if we're on the right track. So when you make a change on May the 1st and make a decision to do a hysterectomy on June the 3rd, once again, informed consent would be telling the patient that an option is simply to keep going, don't change anything, wait till August or September, and see where we are with bleeding.
. . . .
Q. Dr. Dein, let me make sure again that the jury understands. Your criticism and your opinions of a deviation from the accepted care in this case are limited to informed consent and the fact that Dr. Chevy did not offer viable
alternative methods of treatment to Brenda, including manipulation or changing the hormone replacement therapy or stopping it altogether.
The testimony by Dr. Dein made clear that he was of the opinion that Dr. Chevy breached the standard of care. However, on direct examination Dr. Chevy's medical expert, Dr. Charles March, disagreed with Dr. Dein as follows:
Q. Do you agree with Dr. Dein that Dr. Chevy deviated or broke from the standard of care with respect to this issue of hormone replacement therapy?
A. Absolutely not.
. . . .
Q. And Dr. Dein's criticism is that Dr. Chevy, first of all, didn't indicate that continued hormone replacement therapy would be appropriate, but you see on this form that Dr. Chevy has written not to have surgery. Correct?
A. Yes, sir.
Q. She's on hormone replacement therapy and has been on it for five years. Right?
A. Yes, sir.
Q. And it's reasonable for the physician, if the patient doesn't want to have surgery, to continue the hormone replacement therapy. Correct?
A. Yes, sir.
Q. You heard Dr. Dein's testimony regarding what he would have offered in terms of an alternative. Correct?
Q. And I believe it was, and correct me if I'm wrong, Doctor, keeping her on the hormone replacement therapy for another three months.
Q. Is that correct?
Q. What are your opinions regarding that criticism?
A. Medical literature would not support it, although he certainly is correct when he says when you do a fresh start, that's the word, or a fresh juggle of hormone replacement therapy, that let's give it a run for about three months, and he's absolutely right and I was really glad to hear that because that shows good caution. But that is not that three month story which has come out of some wonderful research from Scandinavia that three month story does not apply when it follows immediately a D&C, and specifically the work by Neilson and Rivoe, two folks from Sweden with just some incredibly elegant studies, have shown that that does not apply. So overall, sure, but when you focus on this person, D&C today, went back on some hormones and was still bleeding, it doesn't apply. It's wrong. It's just wrong.
. . . .
Q. Is it your opinion to a reasonable degree of medical certainty that this informed consent form was appropriate?
Q. And is it your opinion likewise to a reasonable degree of medical certainty that Dr. Chevy met the standard of care in all respects with regard to informed consent?
A. Yes, sir. (See footnote 7)
In view of the conflicting testimony by Ms. Stanley and Dr. Chevy, and their respective experts, we believe that the trial court correctly denied Ms. Stanley's pre-verdict motion for judgment as a matter of law on the issue of breach of the standard of care. Our case law is clear in holding that '[i]t is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting[.] Syllabus Point 2, [in part,] Graham v. Crist, 146 W Va. 156,
118 S.E.2d 640 (1961). ' Syl. pt. 2, in part, Faris v. Harry Green Chevrolet, Inc., 212 W.Va. 386, 572 S.E.2d 909 (2002). See also Syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964) (Questions of negligence . . . present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.).