Andrews v. Reynolds Memorial Hosp.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 23858
___________
GINA K. ANDREWS, ADMINISTRATRIX OF THE
ESTATE OF JUSTIN KYLE ANDREWS,
GINA K. ANDREWS, INDIVIDUALLY, AND
JEFFREY ANDREWS, INDIVIDUALLY,
Plaintiffs Below, Appellants
v.
REYNOLDS MEMORIAL HOSPITAL, INC.,
A CORPORATION; AND R. W. SPORE, M.D.,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Marshall
County
Honorable Callie Tsapis, Judge
Civil Action No. 92-C-328
REVERSED AND REMANDED
___________________________________________________
Submitted: September 9, 1997
Filed: December 5, 1997
Linda M. Bordas
James B. Stoneking
Bordas, Bordas & Jividen
Wheeling, West Virginia
Attorneys for the Appellants
James F. Companion
John Porco
Patrick S. Casey
Schrader, Byrd, Companion & Gurley
Wheeling, West Virginia
Attorneys for the Appellees
JUSTICE McHUGH delivered the Opinion of the
Court.
JUSTICE MAYNARD dissents and reserves the right
to file a dissenting opinion.
JUSTICE STARCHER concurs and reserves the right
to file a concurring opinion.
SYLLABUS BY THE COURT
1.
"Although the ruling of a trial court in granting or denying
a motion for a new trial is entitled to great respect and weight,
the trial court's ruling will be reversed on appeal when it is
clear that the trial court has acted under some misapprehension
of the law or the evidence." Syl. pt. 4, Sanders v.
Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976).
2. A jury award
for the lost future earnings of an infant, in a negligence action
alleging that the infant's death resulted from medical
malpractice committed with regard to the mother's labor and
delivery of the child, will not be set aside by this Court as
speculative: (1) where the award of lost future earnings is
within the range of estimated future earnings, based upon various
life scenarios, reduced to present value, established by the
expert testimony of an economist at trial and (2) where the
economic and medical evidence of the plaintiff at trial indicates
that the infant in question, though born prematurely, would
statistically have had an average life expectancy and an average
work life expectancy, but for the alleged medical malpractice.
3. "Rules
402 and 403 of the West Virginia Rules of Evidence [1985] direct
the trial judge to admit relevant evidence, but to exclude
evidence whose probative value is substantially outweighed by the
danger of unfair prejudice to the defendant." Syl. pt. 4,
Gable v. The Kroger Company, 186 W. Va. 62, 410 S.E.2d 701
(1991).
4. "Parties
moving for separate trials of issues pursuant to West Virginia
Rule of Civil Procedure 42(c), or the court if acting sua sponte,
must provide sufficient justification to establish for review
that informed discretion could have determined that the
bifurcation would promote the recognized goals of judicial
economy, convenience of the parties, and the avoidance of
prejudice, the overriding concern being the provision of a fair
and impartial trial to all litigants." Syl. pt. 6, Bennett
v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988).
McHugh, Justice:
This action concerns allegations of
medical malpractice and is before this Court upon an appeal from
the final order of the Circuit Court of Marshall County, West
Virginia, entered on August 26, 1995. The appellants are Gina K.
Andrews and her husband, Jeffrey Andrews. The appellees are
Reynolds Memorial Hospital, Inc., and R. W. Spore, an emergency
room physician. According to the appellants, the appellees
negligently failed to diagnose and treat Gina K. Andrews' preterm
labor, which negligence resulted in the death of the appellants'
infant son, Justin Kyle Andrews. In addition, the appellants
alleged that Reynolds Memorial Hospital acted negligently in
hiring Dr. Spore and in retaining him upon the hospital staff. As
reflected in the final order, following the entry of judgment for
the appellants in the amount of $2,762,017, upon a jury verdict,
the circuit court granted the motion of the appellees for a new
trial. The appellants contend that the granting of a new trial
constituted an abuse of discretion.
This Court has before it the petition for
appeal, all matters of record and the briefs and argument of
counsel. The circuit court granted a new trial because it
concluded: (1) that the jury engaged in speculation in including
in its verdict an amount for lost future earnings of Justin Kyle
Andrews; (2) that the circuit court should not have excluded the
evidence of the appellees that Gina K. Andrews underwent a prior
elective abortion, which evidence, according to the appellees,
predisposed her to problems concerning her pregnancy with Justin
Kyle Andrews; and (3) that the circuit court should have granted
the
appellees' motion to bifurcate, for separate
trial, the issue of whether Reynolds Memorial Hospital acted
negligently in hiring and in retaining Dr. Spore. Upon review,
however, and for the reasons stated below, this Court is of the
opinion that none of those grounds warranted the granting of a
new trial. Consequently, we reverse the final order and remand
this action to the circuit court for reinstatement of the
$2,762,017 judgment.
I
At 2:18 a.m. on July 6, 1990, Gina K.
Andrews and her husband, Jeffrey, reported to the emergency room
at Reynolds Memorial Hospital. At that time, Gina was
approximately six months pregnant and complained of vomiting,
diarrhea, vaginal discharge and abdominal pain. Dr. R. W. Spore,
the physician on duty in the emergency room, examined Gina and
spoke with her obstetrician, Dr. Richard A. Simon, by telephone.See footnote 1 1 Concluding
that Gina was suffering from vaginitis (an inflammation of the
vagina), Dr. Spore prescribed an antibiotic and instructed Gina
to follow up with Dr. Simon or return to the emergency room, if
necessary. Gina was discharged from Reynolds Memorial Hospital at
4:35 a.m.
At home, Gina's symptoms continued with increasing pain, and, at approximately 6:45 a.m. on July 6, 1990, she and her husband returned to the emergency room. During this second appearance at the emergency room, Gina was not seen by Dr. Spore, whose shift ended at 7:00 a.m. Rather, Gina was taken to the obstetrics unit of the hospital for monitoring. As Gina indicated at trial, however, the baby began emerging before the arrival of a physician at her room. At 7:50 a.m., Justin Kyle Andrews was born, with Dr. John J. Templeton, the emergency room physician then on duty, arriving to complete the delivery process.See footnote 2 2
As
a result of complications, which included serious respiratory
problems, Justin Kyle Andrews was transferred from Reynolds
Memorial Hospital to West Virginia University Hospital in
Morgantown, West Virginia. Justin, however, died at West Virginia
University Hospital on July 7, 1990. The Report of Death
completed by the attending physician indicated
"cardiorespiratory failure, secondary to prematurity."
In July 1992, the
appellants instituted this action. As stated above, the complaint
alleged that Reynolds Memorial Hospital and Dr. R. W. Spore
negligently failed to diagnose and treat Gina K. Andrews' preterm
labor and that such negligence resulted in the death of the
appellants' infant son, Justin Kyle Andrews. In addition, the
complaint alleged that Reynolds Memorial Hospital acted
negligently in hiring Dr. Spore and in retaining him upon the
hospital staff.
Following a
number of pretrial proceedings and the completion of discovery,
the action went to trial in August 1994. At the beginning of the
trial, following the selection of the jury and prior to the
commencement of opening statements, the appellees pursued, for
the first time, the possibility of bifurcating the allegations of
the negligent hiring and retention of Dr. Spore from the
remaining issues at trial concerning the death of Justin Kyle
Andrews. The circuit court denied the appellees' motion to
bifurcate, however, as untimely.See footnote 3 3
During
the trial, Dr. John F. Burke, an economist called as a witness by
the appellants, testified with respect to the lost future
earnings of Justin Kyle Andrews. In particular, based upon
statistical factors, including an average life expectancy, an
average work-life expectancy and, in addition, the educational
background of Justin's parents,See footnote 4 4 Dr. Burke estimated
Justin's lost future earnings with regard to three life
scenarios, reduced to present value. As set forth by Dr. Burke,
the lost future earnings were: (1) $1,607,268 to $1,795,397 based
upon a four year college education; (2) $1,193,042 to $1,401,624
based upon a college education of one to three years; and (3)
$875,342 to $1,041,000 based upon a high school education. The
testimony of Dr. Burke was admitted to the jury over the
objection of the appellees that the testimony was speculative.
Nevertheless, the
evidence of the parties at trial primarily concerned the question
of whether Dr. Spore's actions on July 6, 1990, deviated from the
proper standard of care. The evidence of the appellants indicated
that, based upon the symptoms presented by Gina K. Andrews that
evening, and knowing that she was pregnant, Dr. Spore should have
diagnosed preterm labor and (1) should have attempted to slow the
labor process through medications, in order to increase Justin's
chances of survival, or (2) should have transferred Gina from the
emergency room to more specialized care. In that regard, the
evidence of the appellants indicated that Gina had experienced an
"uneventful" pregnancy
up to the point of the preterm labor and that
there was nothing to suggest any medical problems concerning the
baby.See footnote 5 5
On the other
hand, the evidence of the appellees at trial indicated that, when
Gina K. Andrews first arrived at the emergency room on July 6,
1990, she was suffering from chorioamnionitis (an infection in
the lining of the uterus), which ultimately resulted in Gina's
preterm labor and in the death of Justin Kyle Andrews. According
to the evidence of the appellees, chorioamnionitis rendered the
preterm labor and death
unpreventable.See footnote 6 6 In response,
however, the appellants elicited testimony to the effect that
Gina K. Andrews did not have chorioamnionitis.See footnote 7 7
Finally, with
regard to the allegations of the negligent hiring and retention
of Dr. Spore, the evidence of the appellants consisted of: (1) a
1989 agreed order between Dr. Spore and the Board of Medical
Examiners of the State of Tennessee, placing Dr. Spore's license
to practice medicine in that State upon probationary status,
because Dr. Spore had written a large volume of prescriptions
"not for a legitimate medical purpose and not in the course
of professional practice," (2) testimony to the effect that
Reynolds Memorial Hospital knew about the agreed order prior to
hiring Dr. Spore but failed to investigate the circumstances
thereof; and (3) testimony indicating that various complaints had
been made to Reynolds Memorial Hospital that Dr. Spore was
"unresponsive" to the needs of patients and staff
members of that hospital.See
footnote 8 8 In response, the appellees submitted
evidence to the effect that Dr. Spore had
complied with all of the terms of the Tennessee order and had not
since engaged in the unwarranted writing of prescriptions.
Furthermore, the appellees stated that Dr. Spore had treated
thousands of patients at Reynolds Memorial Hospital without
complaints having been made against him.
At the conclusion
of the trial, the jury returned a verdict for the appellants in
the amount of $2,762,017. As the verdict form indicates, that
amount consisted of: (1) $12,017 for medical and funeral
expenses; (2) $1,750,000 for lost future earnings of Justin Kyle
Andrews; and (3) $1,000,000 for sorrow and loss of companionship.
The jury found Dr. Spore 95% negligent and Reynolds Memorial
Hospital 5% negligent. The verdict was reduced to judgment by
order entered on August 19, 1994.
As reflected in
the final order of August 26, 1995, however, the circuit court
granted the appellees' motion for a new trial. As stated above,
the circuit court granted the motion because it concluded: (1)
that the jury engaged in speculation in including in its verdict
an amount for lost future earnings; (2) that the circuit court
should not have excluded the evidence of the appellees that Gina
K. Andrews underwent a prior elective abortion, see n. 6, supra;
and (3) that the circuit court should have granted the appellees'
motion to bifurcate, for separate trial, the issue of whether
Reynolds Memorial Hospital
acted negligently in hiring and in retaining
Dr. Spore. The appellants, nevertheless, ask this Court to
reinstate the $2,762,017 judgment.
II
Pursuant to Rule
59(a) of the West Virginia Rules of Civil Procedure, a new trial
may be granted "in an action in which there has been a trial
by jury, for any of the reasons for which new trials have
heretofore been granted in actions at law." See generally
Lugar & Silverstein, West Virginia Rules of Civil Procedure,
p. 447-50 (Michie 1960); Vol. 11, Wright, Miller & Kane,
Federal Practice and Procedure, p. 37-223 (West Pub. 1995).
In Tennant v.
Marion Health Care Foundation, 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995), this Court stated that "we review a circuit
court's ruling on a motion for a new trial under an abuse of
discretion standard." That statement in Tennant is
derivative of syllabus point 3 of In re State Public Building
Asbestos Litigation, 193 W. Va. 119, 454 S.E.2d 413 (1994),
cert. denied, 515 U.S. 1160 (1995), which holds:
A
motion for a new trial is governed by a different standard than a
motion for a directed verdict. When a trial judge vacates a jury
verdict and awards a new trial pursuant to Rule 59 of the West
Virginia Rules of Civil Procedure, the trial judge has the
authority to weigh the evidence and consider the credibility of
the witnesses. If the trial judge finds the verdict is against
the clear weight of the evidence, is based on false evidence or
will result in a miscarriage of justice, the trial judge may set
aside the verdict, even if supported by substantial evidence, and
grant a new trial. A trial judge's
decision to award a new trial is not subject to
appellate review unless the trial judge abuses his or her
discretion.
See also syl. pt. 1, Witt v. Sleeth, 198 W. Va.
398, 481 S.E.2d 189 (1996); syl. pt. 1, Toothman v. Brescoach,
195 W. Va. 409, 465 S.E.2d 866 (1995); Coleman v. Sopher, 194 W.
Va. 90, 96, 459 S.E.2d 367, 373 (1995); Maynard v. Adkins, 193 W.
Va. 456, 459, 457 S.E.2d 133, 136 (1995).
In language
comparable to the above holding in Asbestos Litigation, this
Court observed in syllabus point 4 of Young v. Duffield, 152 W.
Va. 283, 162 S.E.2d 285 (1968), overruled on other grounds in
Tennant, supra, that "[a]n appellate court is more disposed
to affirm the action of a trial court in setting aside a verdict
and granting a new trial than when such action results in a final
judgment denying a new trial." Nevertheless, as this Court
acknowledged in Maynard, supra, "consistent with Asbestos
Litigation, on the other hand, is the general principle that the
judgment of a trial court in awarding a new trial should be
reversed . . . if a consideration of the evidence shows that the
case was a proper one for jury determination." 193 W. Va. at
459, 457 S.E.2d at 136. Accordingly, we also note syllabus point
4 of Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976), which holds: "Although the ruling of a
trial court in granting or denying a motion for a new trial is
entitled to great respect and weight, the trial court's ruling
will be reversed on appeal when it is clear that the trial court
has acted
under some misapprehension of the law or the
evidence." See also syl. pt. 2, Witt, supra; Cline v. Joy
Mfg. Co., 172 W. Va. 769, 774, 310 S.E.2d 835, 840-41 (1983).
III
In this action,
as stated above, the circuit court admitted the testimony of Dr.
Burke, over the objection of the appellees, estimating Justin
Kyle Andrews' lost future earnings, based upon three life
scenarios, reduced to present value. The scenarios provided that
Justin would have had an average life expectancy, an average
work-life expectancy and either (1) four years of college, (2)
one to three years of college or (3) at a minimum, a high school
education. The educational background of Justin's parents was
also considered. See n. 4, supra. The $1,750,000 awarded by the
jury for lost future earnings was within the range of the
estimated future earnings set forth by Dr. Burke (based upon a
four year college education). Following the trial, however, the
circuit court concluded that the award of lost future earnings
was speculative and granted a new trial. As the circuit court
determined: "[T]he child in the instant case died within a
day after his premature birth, and there was no medical
evaluation as to life expectancy or potential physical or mental
capacity to produce an economic benefit to his dependents."
Contending that
the circuit court ruled correctly, the appellees cite
Panagopoulous v. Martin, 295 F. Supp. 220 (S.D. W. Va. 1969). In
Panagopoulous, a viable fetus was stillborn as the result of a
motor vehicle accident, and the district court held that under
West Virginia law an action could be maintained to recover
damages for
the child's death. However, the district court
indicated that such damages should be limited to damages for
"sorrow, distress and bereavement" and should not
include economic loss, because of the "impossibility of
knowing or being able to ascertain the child's potential
capacity, physical and mental, to produce an economic benefit
[.]" 295 F. Supp. at 227. According to the appellees, the
reasoning of the district court in Panagopoulous supports the
conclusion of the circuit court, in this action, that the award
of lost future earnings was speculative.
We note in
passing, however, that an analysis of the Panagopoulous opinion
does not indicate that such economic damages are never
recoverable. As the Panagopoulous opinion states: "[A]s a
predicate for an award for loss of economic benefits for the
wrongful death of an unborn child, the plaintiff must first
produce evidence from which the jury could rationalize and
determine with reasonable accuracy the probable quantum of such
potential loss." 295 F. Supp. at 227 (emphasis added). In
that regard, we further note that the Panagopoulous opinion made
no reference to various "life scenarios" concerning the
child, such as those described by Dr. Burke in this action.
The appellants,
on the other hand, contend that the circuit court committed error
in concluding that the award for lost future earnings was
speculative. Relying upon this Court's decision in Robinson v.
Charleston Area Medical Center, 186 W. Va. 720, 414 S.E.2d 877
(1991), the appellants assert that the range of such earnings, as
related to Justin Kyle Andrews, was proven with "reasonable
certainty" and that, therefore, the jury
award of $1,750,000 for lost future earnings
should not have been disturbed. See Jordan v. Bero, 158 W. Va.
28, 56, 210 S.E.2d 618, 636-37 (1974) (A child who has never been
gainfully employed may recover damages for impairment of his
future earning capacity, if "proved to a reasonable degree
of certainty.")
The right to
maintain an action for wrongful death in this State is provided
by W. Va. Code, 55-7-5 [1931].See footnote 9 9 See Dairyland
Insurance Company v. Westfall, ___ W. Va. ___, ___ n. 1, 484 S.E.2d 217, 219 n. 1 (1997). Moreover, W. Va. Code, 55-7- 6(c)(1)
[1989], concerning damages in wrongful death actions, states that
"[t]he verdict of the jury shall include, but may not be
limited to, . . . compensation for reasonably expected loss of .
. . income of the decedent [.]"
Though not
specifically considering a jury award for lost future earnings,
this Court, in Baldwin v. Butcher, 155 W. Va. 431, 184 S.E.2d 428
(1971), stated, generally, that under this State's wrongful death
statute (sections 5 and 6, article 7, chapter 55, of The West
Virginia Code):
an
action may be maintained by the personal representative of a
viable unborn child for the wrongful death of such child caused
by injuries sustained by it while in the womb of its mother
resulting from the negligence of the defendant and, upon
sufficient proof, such damages as may be recoverable under the
statute may be awarded in such action.
155 W. Va. at 446-47, 184 W. Va. at 436
(emphasis added).
In Robinson,
supra, cited by the appellants, an infant suffered permanent and
total brain damage as the result of alleged medical malpractice
with regard to the mother's labor and the delivery of the child.
The primary issue, in Robinson, concerned the constitutionality
of W. Va. Code, 55-7B-8 [1986], which provided that the maximum
amount recoverable as damages for noneconomic loss in such
actions, i.e. loss associated with pain, suffering, mental
anguish and grief, "shall not exceed one million
dollars." This Court, in Robinson, upheld the
constitutionality of W. Va. Code, 55-7B-8 [1986]. In so holding,
this Court noted, however, that the jury's verdict included an
award of $750,000 for lost future earnings concerning the infant.
In holding that the award should not be disturbed, this Court, in
Robinson, stated:
With
respect to the loss of future earnings, a Mr. Selby, a certified
public accountant, estimated this type of economic damages to be
incurred by Mark A. Robinson, II, over a normal life expectancy
for a male child of his age. Mr. Selby's estimation of lost
future earnings was based upon three 'average life' scenarios,
reduced to present value: $152,809 for a minimum-wage worker;
$458,128 for a high school graduate; and $785,613 for a college
graduate. The $750,000 awarded by the jury for this type of
economic damage was within this range supported by the evidence.
186 W. Va. at 732, 414 S.E.2d at 889.
A review of
relevant authorities in other states has afforded this Court
little guidance upon the question of the propriety of an award of
lost future earnings with regard to a deceased infant. In fact,
the few notable case decisions examined by this Court vary in
their respective conclusions and are unique to specific
circumstances. See, e.g., Turfway Park Racing Association v.
Griffin, 834 S.W.2d 667 (Ky. 1992) (parents of deceased child
entitled to new trial on issue of damages for child's destroyed
power to earn money); DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987) (damages for lost income of stillborn child not
recoverable); Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990)
(statistical averages were too remote from child's personal
situation to permit intelligent estimate of loss of earning
capacity); Balmer v. Dilley, 81 Wash. 2d 367, 502 P.2d 456 (1972)
(recovery of damages allowed for loss of future earnings during
normal life expectancy of deceased minor). See generally M. L.
Cross, Annotation, Measure and Elements of Damages for Personal
Injury Resulting in Death of Infant, 14 A.L.R. 2d 485 (1950).
Here, as observed
above, the district court, in Panagopoulous, did not preclude an
award for lost future earnings in actions such as this one, so
long as the plaintiff produces evidence of "the probable
quantum of such potential loss." That principle is
consistent with the admonition found in Jordan, supra, that
damages for the impairment of a child's future earning capacity
must be "proved to a reasonable degree of
certainty." Moreover, the principle thus
expressed in Panagopoulous is consistent with W. Va. Code,
55-7-6(c)(1) [1989], which provides that recovery may be had for
the "reasonably expected loss of . . . income of the
decedent [.]"
In any event, the
district court, in Panagopoulous, a case decided in 1969, did not
have the benefit of the 1991 decision of this Court in Robinson.
Clearly, the evidence of Dr. Burke in this action paralleled that
of the certified public accountant in Robinson, which evidence
this Court found sufficient, in Robinson, to sustain an award of
lost future earnings. Here, moreover, additional factors are
present. In this action, the record indicates that the
educational background of the parents of Justin Kyle Andrews was
taken into consideration by Dr. Burke in estimating the three
life scenarios. See n. 4, supra. It is uncertain whether such a
factor was considered in Robinson. More important, however, this
Court has before it more information than in Robinson concerning
the medical status of the child prior to the alleged malpractice.
In this action, the evidence at trial was in conflict as to
whether Gina K. Andrews suffered from chorioamnionitis when she
first arrived at the emergency room on July 6, 1990. From the
standpoint of the appellants, however, she did not have
chorioamnionitis. Furthermore, her pregnancy had been
"uneventful" up to that point, and Justin appeared to
be a "well formed" baby at the time of his birth.
Moreover, according to the experts of the appellants, the
survival rate for babies such as Justin, born at approximately
six months to twenty-eight weeks gestation, was in excess of 75%.
See n. 5, supra.
Consequently,
a review of the circumstances and holding of Robinson, supra,
warrant, a fortiorari, a conclusion in this action that the
question of lost future earnings was a proper matter for jury
consideration. Accordingly, this Court holds that a jury award
for the lost future earnings of an infant, in a negligence action
alleging that the infant's death resulted from medical
malpractice committed with regard to the mother's labor and
delivery of the child, will not be set aside by this Court as
speculative: (1) where the award of lost future earnings is
within the range of estimated future earnings, based upon various
life scenarios, reduced to present value, established by the
expert testimony of an economist at trial and (2) where the
economic and medical evidence of the plaintiff at trial indicates
that the infant in question, though born prematurely, would
statistically have had an average life expectancy and an average
work life expectancy, but for the alleged medical malpractice.
Here, the
evidence described above provided a sufficient foundation for the
award of lost future earnings, and the $1,750,000 amount returned
by the jury was within the range of earnings set forth by Dr.
Burke. Consequently, the circuit court committed error in
concluding that the award was speculative and in granting a new
trial.
IV
The circuit court
also granted the appellees' motion for a new trial because it
determined that the evidence of the appellees, that Gina K.
Andrews underwent a prior elective abortion "a few years
before the birth at issue," should not have been excluded.
Initially, the circuit court was of the opinion
that the probative value of that evidence was outweighed by the
danger of unfair prejudice. Following the trial, however, the
circuit court indicated that the evidence should have been
admitted in order to allow the appellees to refute the testimony
of Dr. Wecht, an expert in pathology called as a witness by the
appellants, that Gina K. Andrews did not have chorioamnionitis.
According to the appellees, the prior abortion predisposed Gina
to chorioamnionitis, which infection she, in fact, had, and which
resulted in problems concerning her pregnancy with Justin Kyle
Andrews. See n. 6, supra.
According to Rule
402 of the West Virginia Rules of Evidence, generally, all
relevant evidence is admissible at trial. However, as Rule 403
states: "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." In
particular, as this Court observed in syllabus point 4 of Gable
v. The Kroger Company, 186 W. Va. 62, 410 S.E.2d 701 (1991):
"Rules 402 and 403 of the West Virginia Rules of Evidence
[1985] direct the trial judge to admit relevant evidence, but to
exclude evidence whose probative value is substantially
outweighed by the danger of unfair prejudice to the
defendant." See also syl. pt. 10, State v. George W. H., 190
W. Va. 558, 439 S.E.2d 423 (1993); syl. pt. 1, State v.
Dorisio, 189 W. Va. 788, 434
S.E.2d 707 (1993); syl. pt. 4, State ex rel.
Tinsman v. Hott, 188 W. Va. 349, 424 S.E.2d 584 (1992).
Here, Dr. Kurt
Benirschke, a pathologist called as a witness by the appellees,
testified extensively during the trial about the nature of
chorioamnionitis and stated that Gina K. Andrews had
chorioamnionitis when she went to the emergency room on July 6,
1990. He further described the various problems affecting an
unborn baby, such as Justin Kyle Andrews, where a pregnant mother
suffers from that infection. The testimony of Dr. Benirschke was
in contrast to the testimony of Dr. Wecht, as indicated above,
who stated that Gina had no evidence "of a clinically
demonstrable, clinically manifested chorioamnionitis." See
n. 7, supra.
Accordingly, the
question of whether Gina K. Andrews had chorioamnionitis was a
proper matter for jury consideration. Significantly, however, the
evidence of record indicates that, rather than directly causing
chorioamnionitis, the elective abortion, which took place some
years before the pregnancy with Justin Kyle Andrews, may only
have "predisposed" Gina to that infection. Therefore,
upon a review of all of the circumstances herein, this Court is
of the opinion that the circuit court acted correctly in
initially excluding the evidence of the abortion upon the grounds
of prejudicial impact. Indeed, the circuit court was equivocal in
granting a new trial with regard to the abortion evidence, as
reflected in the following comment the circuit court made in its
final ruling: "When
this case is retried the presiding judge may
again weigh the above factors and make his or her own decision
regarding this evidentiary issue."
Finally, the
circuit court granted a new trial because it concluded that it
should have granted the appellees' motion to bifurcate, for
separate trial, the issue of whether Reynolds Memorial Hospital
acted negligently in hiring and in retaining Dr. Spore.See footnote 10 10 In
particular, the circuit court concluded that the appellants'
evidence upon the negligent hiring and retention issue, i.e., the
1989 agreed order of the Tennessee Board of Medical Examiners
concerning the improper writing of prescriptions by Dr. Spore and
the testimony of various witnesses that Dr. Spore had been
unresponsive to the needs of patients and staff members of
Reynolds Memorial Hospital, was prejudicial to the jury's
consideration of whether Dr. Spore and Reynolds Memorial Hospital
negligently failed to diagnose and treat Gina K. Andrews' preterm
labor on July 6, 1990.
Rule 42(c) of the West Virginia Rules of
Civil Procedure allows a circuit court to order the separate
trial of issues upon a motion to bifurcate,See footnote 11 11 and, as this
Court has
previously stated, the granting of separate
trials pursuant to that Rule rests, generally, within the
discretion of the trial court. See State ex rel. Cavender v.
McCarty, 198 W. Va. 226, 230, 479 S.E.2d 887, 891 (1996); State
ex rel. State Farm Fire & Casualty v. Madden, 192 W. Va. 155,
160, 451 S.E.2d 721, 726 (1994); syl. pt. 3, Berry v. Nationwide
Mutual Fire Insurance Co., 181 W. Va. 168, 381 S.E.2d 367 (1989);
Bennett v. Warner, 179 W. Va. 742, 748, 372 S.E.2d 920, 926
(1988). Indicating, however, that a circuit court's authority
under Rule 42(c) "is not unlimited" and that
bifurcation should be granted only when "clearly
necessary," 179 W. Va. at 748, 372 S.E.2d at 926, this
Court, in Bennett, supra, held in syllabus point 6:
Parties
moving for separate trials of issues pursuant to West Virginia
Rule of Civil Procedure 42(c), or the court if acting sua sponte,
must provide sufficient justification to establish for review
that informed discretion could have determined that the
bifurcation would promote the recognized goals of judicial
economy, convenience of the parties, and the avoidance of
prejudice, the overriding concern being the provision of a fair
and impartial trial to all litigants.
See also State ex rel. Appalachian Power Co. v. Ranson, 190 W. Va. 429, 431 n. 4, 438 S.E.2d 609, 611 n. 4 (1993); syl. pt. 2, Tinsman, supra.
As
stated above, the appellants instituted this action in July 1992,
and the complaint specifically alleged that Reynolds Memorial
Hospital acted negligently in hiring Dr. Spore and in retaining
him upon the hospital staff. Nevertheless, the appellees raised
the possibility of bifurcation for the first time in August 1994,
at trial, following the selection of the jury and prior to the
commencement of opening statements. The initial ruling of the
circuit court was that the motion to bifurcate was untimely, as
raising a matter that "could have been considered early
on." See n. 3, supra.
In West Virginia
Insurance Company v. Lambert, 193 W. Va. 681, 458 S.E.2d 774
(1995), an action went to trial involving the issues of (1)
whether an insured acted negligently in conducting a refuse fire
near the outbuilding of a neighbor and (2) whether the insured's
insurance policy excluded coverage for damage to the outbuilding
caused by the fire. In Lambert, this Court held that the circuit
court acted within its discretion in denying the insurance
company's motion to bifurcate the negligence and coverage issues.
In particular, we observed, in Lambert, that the insurance
company "should not have waited until the morning of trial
to move for bifurcation of the coverage issue." 193 W. Va.
at 685, 458 S.E.2d at 778. Rather, as this Court indicated, in
Lambert, the insurance company should have been "more
diligent" in protecting its interests. 193 W. Va. at 685,
458 S.E.2d at 778.
Here, not only
did the appellees pursue, for the first time, the possibility of
bifurcating the negligent hiring and retention issue at the
beginning of the trial (subsequent
to jury selection), the circuit court, during
the trial, gave limiting instructions to the jury concerning the
negligent hiring and retention evidence. For example, as the
circuit court stated to the jury:
I caution you
that in considering the question of negligence on the part of Dr.
Spore, you cannot consider any of the evidence that has been
presented regarding complaints and medical license proceedings.
That evidence is not relevant at all to the manner of treatment
by Dr. Spore of Gina Andrews on July 6, 1990. That evidence is
relevant only to the issues of negligent hiring and/or retention,
a claim only against the Reynolds Memorial Hospital, not Dr.
Spore.
Accordingly,
this Court is of the opinion that the circuit court acted within
its discretion in its initial refusal to grant the motion of the
appellees to bifurcate the allegations of the negligent hiring
and retention of Dr. Spore from the remaining issues at trial.
Thus, the circuit court committed error in later granting a new
trial upon that basis. See Cavender, 198 W. Va. at 233, 479 S.E.2d at 894 (Cleckley, J., concurring) ("American courts
have always expressed a preference for unitary trials [.]")
Upon all of the
above, therefore, this Court is of the opinion that none of the
grounds discussed above warranted the granting of the appellees'
motion for a new trial. Accordingly, the final order of the
Circuit Court of Marshall County, entered on August 26, 1995, is
reversed, and this action is remanded to that court for
reinstatement of the
$2,762,017 judgment.See footnote 12 12
Reversed and remanded.
Footnote: 1 1 Testimony elicited during the trial was conflicting with regard to the substance of the telephone conversation between Dr. Spore and Dr. Simon. Whereas Dr. Spore testified that he "passed on every bit of information" he could to Dr. Simon concerning Gina's condition, Dr. Simon indicated that, had he been made aware of all of the facts available to Dr. Spore on July 6, 1990, he would have, at least, had Gina monitored for preterm labor.
Footnote:
2 2
As Gina K. Andrews testified at trial:
A.
. . . I kept feeling the baby coming out. My husband wasn't with
me. My doctor wasn't there. I had no idea what to do.
Q.
Okay. And what was the next thing that happened?
A.
A nurse came back in the room with another nurse.
Q.
And what did they do or say?
A.
One of the nurses started screaming I was crowning, and they both
left the room again.
Q.
Okay. So you were there alone again?
A.
Yes.
Q.
And are in -- are you having a lot of really bad pain at that
time?
A.
Yes, I was having a lot of pain.
.
. . .
Q.
And what happened then?
A.
The nurses came back and they told me not to push, and Dr.
Templeton came up and he delivered the rest of my baby.
Footnote: 3 3 Indicating that bifurcation was a matter that "could have been considered early on," the circuit court stated that the appellees' motion to bifurcate was "too late."
Footnote: 4 4 As the petition for appeal filed in this Court stated, Gina K. Andrews was a licensed practical nurse with a one-year associate degree, and Jeffrey Andrews was the manager of a restaurant with three years of college studies.
Footnote:
5 5
During the trial, Dr. Simon, Gina K. Andrews' obstetrician,
testified:
Q.
Now, I'd like to talk a little bit about the pregnancy that Gina
had with Justin Kyle Andrews. Okay? Her son. Did she have a
fairly uneventful course prior to July 1990?
A.
Yes, she did.
Q.
Now, she's indicated that she's had some minimal morning sickness
due to the pregnancy. Would that be consistent with what you
remember?
A.
Yes.
Q.
Anything else that she had that was significant?
A.
Not that I recall.
Moreover, Dr. Templeton, the emergency room physician who completed the delivery process, indicated that, although the birth of Justin Kyle Andrews was by breach delivery, Justin was "well formed" considering his prematurity. In addition, the appellants called other medical experts as witnesses who stated that the survival rate for babies such as Justin, born at approximately six months to 28 weeks gestation, was in excess of 75%.
Footnote: 6 6 It should be noted that the appellees sought the admission of evidence showing that Gina K. Andrews underwent a prior elective abortion "a few years before the birth at issue." According to the appellees, the abortion predisposed Gina to chorioamnionitis, which, in turn, resulted in problems concerning her pregnancy with Justin Kyle Andrews. The circuit court, however, excluded all references to the abortion on the ground that its probative value was outweighed by the danger of unfair prejudice. See W. Va. R. Civ. P. 403.
Footnote: 7 7 Dr. Cyril H. Wecht, an expert in pathology called as a witness by the appellants, testified that there was no evidence concerning Gina K. Andrews "of a clinically demonstrable, clinically manifested chorioamnionitis."
Footnote: 8 8 Edith White, for example, an emergency medical technician, indicated that Dr. Spore would not communicate with emergency medical personnel about patients
brought into the emergency room by ambulance.
Footnote:
9 9
As W. Va. Code, 55-7-5 [1931], provides in part:
Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured[.]
Footnote: 10 10 This Court has previously indicated that a cause of action may be maintained for negligent hiring and retention. Syl. pt. 1, King v. Lens Creek Limited Partnership, 199 W. Va. 136, 483 S.E.2d 265 (1996); syl. pt. 8, Thomson v. McGinnis, 195 W. Va. 465, 465 S.E.2d 922 (1995); Roberts v. Stevens Clinic Hospital, 176 W. Va. 492, 498, 345 S.E.2d 791, 797 (1986).
Footnote:
11
11 As W. Va. R. Civ. P. 42(c) states:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to
expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims, or issues, always preserving inviolate the right of trial by jury as declared by Article III, Section 13 of the West Virginia Constitution or as given by a statute of this State.
Footnote:
12
12 It should be noted that the appellees
assert before this Court that the circuit court should have
directed a verdict for Reynolds Memorial Hospital upon the
negligent hiring and retention issue because the appellants, at
trial, did not produce expert testimony upon that issue as
required by W. Va. Code, 55-7B-7 [1986], of the West Virginia
Medical Professional Liability Act, W. Va. Code, 55-7B-1 [1986],
et seq.
The
requirement of expert testimony under that statute, however, is
not mandatory in all cases. As W. Va. Code, 55-7B-7 [1986],
provides, in part: "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." (emphasis
added). See syl. pt. 8, McGraw v. St. Joseph's Hospital, 200 W.
Va. 114, 488 S.E.2d 389 (1997) ("A trial court is vested
with discretion under W. Va. Code, 55-7B-7 (1986) to require
expert testimony in medical professional liability cases, and
absent an abuse of that discretion, a trial court's decision will
not be disturbed on appeal.").
Here, the lack of
expert testimony notwithstanding, a significant portion of the
appellants' claim of negligent hiring and retention consisted of
evidence submitted at trial of (1) an agreed order between Dr.
Spore and the Tennessee Board of Medical Examiners placing Dr.
Spore's license to practice medicine in that State upon
probationary status and (2) testimony to the effect that Reynolds
Memorial Hospital knew about the agreed order prior to hiring Dr.
Spore but failed to investigate the circumstances thereof. See,
T. J. Hurney, Jr., Hospital Liability in West Virginia, 95 W. Va.
L. Rev. 943 (1993) (collecting cases) ("Hospitals have been
held liable when the failure to properly scrutinize a physician's
application results in unreasonable risk of harm to its
patients."). Upon review, this Court concludes that, under
the circumstances of this action, the evidence of the appellants
upon the negligent hiring and retention issue was sufficient for
the jury's consideration. Thus, the appellees' assertion
concerning a directed verdict is without merit. See also Roberts,
176 W. Va. at 498, 345 S.E.2d at 797.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.