Short v. Appalachian OH-9, Inc.
Annotate this CaseJanuary 1998 Term
__________
No. 24898
__________
RICHARD E. SHORT, AS ADMINISTRATOR OF THE ESTATE OF
CHRISTOPHER EDWARD SHORT, RICHARD E. SHORT
AND CATHY L. SHORT, INDIVIDUALLY,
Plaintiffs Below, Appellants
v.
APPALACHIAN OH-9, INC., A CORPORATION,
Defendant Below, Appellee
__________________________________________________________________
Appeal from the Circuit Court of Summers County
Honorable Robert Irons, Judge
Civil Action No. 94-C-61
AFFIRMED
__________________________________________________________________
Submitted: June 3, 1998
Filed: July 15, 1998
Clyde A. Smith, Jr.,
Esq. James
W. Gabehart, Esq.
Lynch, Mann, Smith &
Mann Arden
J. Cogar, Esq.
Beckley, West
Virginia
Campbell, Woods, Bagley,
Attorney for
Appellants
Emerson, McNeer & Herndon
Charleston,
West Virginia
Attorneys
for Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE McCUSKEY, deeming himself disqualified, did not
participate in the decision in this case.
JUDGE ARTHUR M. RECHT, sitting by special assignment.
SYLLABUS BY THE COURT
1. "If the
moving party makes a properly supported motion for summary judgment and can show by
affirmative evidence that there is no genuine issue of a material fact, the burden of
production shifts to the nonmoving party who must either (1) rehabilitate the evidence
attacked by the moving party, (2) produce additional evidence showing the existence of a
genuine issue for trial, or (3) submit an affidavit explaining why further discovery is
necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure."
Syllabus point 3, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329
(1995).
2. Emergency
medical services, regulated pursuant to the West Virginia Emergency Medical Services Act,
W.Va. Code, 16-4C-1 [1996], et seq., are also subject to the provisions of the West
Virginia Medical Professional Liability Act, W.Va. Code, 55-7B-1 [1986], et seq.
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." Syllabus point 5, Overton v. Fields, 145 W. Va. 797, 117 S.E.2d 598 (1960).
4. In a malpractice
case, the plaintiff must not only prove negligence but must also show that such negligence
was the proximate cause of the injury.
5. In a
negligence action brought against an emergency medical service provider seeking damages
with respect to the death of an infant, the circuit court has the discretion to determine
whether the plaintiff is required to obtain an expert witness concerning both the standard
of care applicable to the emergency medical service provider and whether the alleged
breach of that standard of care proximately caused the death of the infant; moreover,
pursuant to Rule 702 of the West Virginia Rules of Evidence, the circuit court has the
discretion to determine whether the expert so obtained by the plaintiff is sufficiently
qualified to state opinions upon those matters before the jury.
Workman, Justice:
This action is before this Court upon
an appeal from the final order of the Circuit Court of Summers County, West Virginia,
entered on March 28, 1997. The appellants, Richard E. Short and Cathy L. Short, are the
parents of Christopher Edward Short, an infant. The appellee, Appalachian OH-9, Inc., is a
West Virginia corporation providing emergency medical services in the Summers County area.
This action concerns Christopher's death in October 1993 and whether his death was caused
by the appellee. Pursuant to the final order, the circuit court denied the appellants'
motion to reconsider a summary judgment granted in favor of the appellee. The circuit
court determined that summary judgment was proper because the appellants failed to obtain
a physician who, as an expert witness, could link Christopher's death to the actions of
the appellee.
This Court has before it the petition
for appeal, all matters of record and the briefs and argument of counsel. For the reasons
stated below, this Court is of the opinion that the circuit court correctly concluded that
the duties and responsibilities of the appellee, currently regulated by the West Virginia
Emergency Medical Services Act, W.Va. Code, 16- 4C-1 [1996], et seq., are also subject to
the provisions of the West Virginia Medical Professional Liability Act, W.Va. Code,
55-7B-1 [1986], et seq. Moreover, this Court is of the opinion that, under the
circumstances of this action, the granting of a summary judgment for failure to obtain a
physician as an expert witness was "protected by the parameters of sound
discretion." Parker v. Knowlton Construction Company, 158 W.Va. 314, 329, 210 S.E.2d 918, 927 (1975).
I.
At approximately 10:30 a.m. on October
11, 1993, Christopher Edward Short, an infant, was fed by his mother, Cathy L. Short, and
put down for a nap. Ms. Short then left the house to run some errands, leaving the infant
in the care of his grandmother, Peggy Greer. At 1:00 p.m., Ms. Greer tried to awaken
Christopher but found him unresponsive. Ms. Greer immediately telephoned for an ambulance
to take the infant to Summers County Hospital and began administering CPR. Soon after,
Christopher's grandfather, Ira Greer, arrived at the house and took over CPR.
At 1:15 p.m., Christopher's father,
Richard E. Short, arrived and also administered CPR to Christopher. In fact, both Mr.
Short and Mr. Greer had been trained in CPR. Upon learning that the ambulance, operated by
the appellee, was having difficulty locating the house, Mr. Short turned the CPR back to
Mr. Greer and left to find the ambulance and direct it to the premises. Shortly
thereafter, Mr. Short returned with the ambulance. The ambulance personnel, employed by
the appellee, included a mobile intensive care paramedic and an emergency medical
technician.
According to the appellants, the
ambulance personnel, upon arrival, examined Christopher, and determined that further
attempts to resuscitate him were not warranted. Thereupon, the ambulance personnel
transported Christopher to the Summers County Hospital Emergency Room, where, at 2:20
p.m., Christopher was pronounced dead on arrival by Dr. Ciriaco A. Mendoza.See footnote 1 1 According to Dr.
Mendoza, Christopher had been dead for two to three hours. A subsequent autopsy determined
that Christopher died from SIDS (sudden infant death syndrome). The appellants, however,
contend that Christopher could have been resuscitated, but for the actions of the
appellee.
In October 1994, the appellants
instituted this action in the circuit court. The complaint alleged that the appellee was
negligent (1) in not arriving at the scene in a timely fashion, (2) in not continuing
resuscitation efforts until the infant was received at the hospital and (3) in failing to
obtain authorization from a physician prior to terminating resuscitation efforts at the
scene. Thereafter, on January 3, 1996, the circuit court entered a scheduling order,
which, inter alia, required the appellants to disclose any expert witnesses intended to be
called at trial. In response, the appellants disclosed Dr. Marc E. Kross, a physician, and
Carolyn Beth Spurlock, a neonatal intensive care nurse, both of whom would have testified,
according to the appellants, that CPR should not have been terminated at the scene by the
appellee.
Dr. Kross, however, later refused to
participate in the litigation. Consequently, by order entered on July 18, 1996, the
circuit court continued the upcoming trial and allowed the appellants additional time to
obtain a physician to testify. As a result, the appellants again disclosed Carolyn Beth
Spurlock, and, in addition, Frank Mann and Wilma Jarrell. Although neither Mann nor
Jarrell were physicians, both had knowledge and experience in emergency medical services.See footnote 2 2
In November 1996, the appellee filed a
motion for summary judgment, alleging that the appellants had "no qualified expert
medical testimony to establish that any alleged negligence was the proximate cause"
of Christopher's death.See footnote 3 3 Although
the appellants submitted a memorandum of law in reply, no affidavits or other
evidentiary-related documents were ever filed in response to the motion. Following a
hearing, the circuit court concluded that the appellants had "failed to meet [their]
burden in responding to the motion for summary judgment." Accordingly, the circuit
court entered judgment for the appellee. In so ruling, however, the circuit court
indicated that it would entertain a motion to reconsider the entry of summary judgment, in
the event the appellants were to "identify a proper expert witness" in the
action.
The appellants subsequently filed a
motion to reconsider. Rather than naming a physician, however, the motion asserted that
nurse Spurlock was qualified to testify upon the issue of whether Christopher could have
been resuscitated, but for the actions of the appellee. Following a hearing, the circuit
court denied the motion to reconsider pursuant to the final order of March 28, 1997.
II.
Pursuant to Rule 56 of the West
Virginia Rules of Civil Procedure, summary judgment is proper where the record
demonstrates "that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." See generally, Lugar
& Silverstein, West Virginia Rules of Civil Procedure, p. 426-42 (Michie 1960).
Our standards of review concerning
summary judgments are well settled. As this Court observed in syllabus point 2 of Williams
v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995):
Summary judgment is appropriate if, from
the totality of the evidence presented, the record could not lead a rational trier of fact
to find for the nonmoving party, such as where the nonmoving party has failed to make a
sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 2, Burdette v. Columbia Gas Transmission Corporation, 198 W.Va. 356, 480 S.E.2d 565 (1996); syl. pt. 2, Pinson v. Canaan Valley Resorts, Inc., 196 W.Va. 436, 473 S.E.2d 151 (1996); syl. pt. 2, Cavender v. Fouty, 195 W.Va. 94, 464 S.E.2d 736 (1995);
Neary v. Charleston Area Medical Center, 194 W.Va. 329, 333, 460 S.E.2d 464, 468 (1995).
More specifically, in syllabus point 3 of Williams, supra, this Court held:
If the moving party makes a properly
supported motion for summary judgment and can show by affirmative evidence that there is
no genuine issue of a material fact, the burden of production shifts to the nonmoving
party who must either (1) rehabilitate the evidence attacked by the moving party, (2)
produce additional evidence showing the existence of a genuine issue for trial, or (3)
submit an affidavit explaining why further discovery is necessary as provided in Rule
56(f) of the West Virginia Rules of Civil Procedure.
Syl. pt. 3, McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997); syl.
pt. 3, Farm Family Mutual Insurance Company v. Bobo, 199 W.Va. 598, 486 S.E.2d 582 (1997);
syl. pt. 4, Evans v. Mutual Mining, 199 W.Va. 526, 485 S.E.2d 695 (1997). Moreover, we
note that, upon appeal, the entry of a summary judgment is reviewed by this Court de novo.
Syl. pt. 1, Koffler v. City of Huntington, 196 W.Va. 202, 469 S.E.2d 645 (1996); syl. pt.
1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
III.
As the parties indicate, the appellee
is an "emergency medical service provider" within the meaning of the West
Virginia Emergency Medical Services Act. W.Va. Code, 16- 4C-1 [1996], et seq. As stated in
W.Va. Code, 16-4C-2 [1996], the purpose of the Act is to ensure "the provision of
adequate emergency medical services within this state for the protection of the public
health, safety and welfare [.]" In order to further that purpose, entities such as
the appellee are required to obtain a license from the State of West Virginia prior to
providing emergency medical services to the public. See, W.Va. Code, 16-4C-6a [1996].
The West Virginia Emergency Medical
Services Act is administered by (1) a statewide office of emergency medical services, (2)
a Commissioner and (3) an emergency medical services advisory council. W.Va. Code, 16-4C-4
[1996]; W.Va. Code, 16-4C-5 [1997]. It is noteworthy that the emergency medical services
advisory council is made up, in part, of a member of the West Virginia hospital
association and a member of the West Virginia chapter of the American college of emergency
physicians. See, W.Va. Code, 16- 4C-5 [1997]. Pursuant to the West Virginia Emergency
Medical Services Act, the definition of the term "emergency medical services"
includes "responding to the medical needs of an individual to prevent the loss of
life or aggravation of illness or injury." W.Va. Code, 16-4C- 3(d) [1996].
In granting summary judgment, however,
the circuit court concluded that the appellee was also subject to the provisions of the
West Virginia Medical Professional Liability Act, W.Va. Code, 55-7B-1 [1986], et seq.
Pursuant to that Act, certain reforms were made in the common law and statutory law of
this State in order to ensure "the best medical care and facilities available"
for West Virginia citizens. W.Va. Code, 55-7B-1 [1986]. According to the West Virginia
Medical Professional Liability Act, "health care" means "any act or
treatment performed or furnished, or which should have been performed or furnished, by any
health care provider for, to or on behalf of a patient during the patient's medical care,
treatment or confinement." W.Va. Code, 55-7B-2(a) [1986]. Moreover, the Act defines
"health care provider" as follows:
[A] person, partnership, corporation,
facility or institution licensed by, or certified in, this state or another state, to
provide health care or professional health care services, including, but not limited to, a
physician, osteopathic physician, hospital, dentist, registered or licensed practical
nurse, optometrist, podiatrist, chiropractor, physical therapist, or psychologist, or an
officer, employee or agent thereof acting in the course and scope of such officer's,
employee's or agent's employment.W.Va. Code, 55-7B-2(c) [1986]. (emphasis added)
The appellants contend that the circuit
court committed error in concluding that the appellee is covered by the West Virginia
Medical Professional Liability Act, which Act includes the requirements of W.Va. Code,
55-7B-7 [1986], set forth below, concerning the expert witnesses of plaintiffs in medical
professional liability cases. Rather, the appellants assert that the appellee is subject
to the West Virginia Emergency Medical Services Act, which includes no such requirements.
Moreover, according to the appellants, inasmuch as the definition of "health care
provider" in W.Va. Code, 55-7B-2(c) [1986], of the Medical Professional Liability Act
does not expressly refer to emergency medical service providers, such providers are not
covered by that Act. The appellee, on the other hand, contends that both Acts apply to its
duties and responsibilities and that the circuit court ruled correctly.
Clearly, a certain commonality exists
between the West Virginia Emergency Medical Services Act and the West Virginia Medical
Professional Liability Act. Under the former, a state license is required pursuant to
W.Va. Code, 16-4C-6a [1996], prior to providing emergency medical services to the public.
Similarly, a "health care provider" under the West Virginia Medical Professional
Liability Act is one who is "licensed by, or certified in, this state." W.Va.
Code, 55-7B-2(c) [1986]. Moreover, that statute, W.Va. Code, 55-7B-2(c) [1986], in
defining "health care provider," contains the admonition "but not limited
to" in reference to those included in the definition. Thus, the definition of
"health care provider" is subject to the inclusion of emergency medical service
personnel.See footnote 4 4
In addition, as set forth above, the
definition of "health care" in W.Va. Code, 55-7B-2(a) [1986], of the West
Virginia Medical Professional Liability Act includes language to the effect that
"health care" means "any act or treatment" performed or furnished upon
behalf of a patient. Certainly, that language is consistent with the language of W.Va.
Code, 16-4C-3(d) [1996], of the West Virginia Emergency Medical Services Act which
suggests that "emergency medical services" includes "responding to the
medical needs of an individual to prevent the loss of life or aggravation of illness or
injury." As the brief filed herein by the appellee states: "Paramedics and EMT's
clearly provide health care in emergency situations." Finally, the fact that, under
the West Virginia Emergency Medical Services Act, the emergency medical services advisory
council is made up, in part, of a member of the West Virginia hospital association and a
member of the West Virginia chapter of the American college of emergency physicians
further evidences a unified effort, implied in both Acts, to benefit West Virginia
citizens.
Accordingly, this Court holds that emergency medical services, regulated pursuant to the West Virginia Emergency Medical Services Act, W.Va. Code, 16-4C-1 [1996], et seq., are also subject to the provisions of the West Virginia Medical Professional Liability Act, W.Va. Code, 55-7B-1 [1986], et seq. Therefore, the ruling of the circuit court in that regard is affirmed.See footnote 5 5
IV.
Having determined that the West
Virginia Medical Professional Liability Act applies to emergency medical service providers
such as the appellee, this Court must now consider whether the entry of summary judgment
constituted error. As stated above, the circuit court concluded that the appellants failed
to meet their burden in responding to the motion for summary judgment. In particular, the
circuit court, citing the West Virginia Medical Professional Liability Act, determined
that summary judgment was proper because the appellants failed to obtain a physician who,
as an expert witness, could link Christopher's death to the actions of the appellee.
The appellants are of the opinion that
Christopher could have been resuscitated up to the point at which the ambulance personnel,
employed by the appellee, terminated CPR. In that regard, the appellants assert that the
testimony of a physician was not required because the experts of the appellants, i.e., the
neonatal intensive care nurse and the two witnesses knowledgeable and experienced in
emergency medical services, were sufficient to raise a jury question upon the
resuscitation issue, in terms of the appellee's alleged negligence. Thus, the appellants
contend that the summary judgment constituted error.
On the other hand, the appellee is of
the opinion that Christopher died prior to the time the appellee was initially contacted
to come to the scene. In that regard, the appellee contends that, although the appellants'
experts could arguably suggest that the appellee was negligent on October 11, 1993, the
dispositive issue in the action is one of proximate cause, i.e., whether Christopher's
death was brought about by the appellee's discontinuance of resuscitation efforts. That
issue, the appellee asserts, was beyond the expertise of the appellants' witnesses. As
stated in the appellee's brief filed herein: "Christopher Short's cause of death and
time of death, as well as the question of whether Christopher Short could have been
resuscitated, are all issues which require the testimony of a physician [.]" The
appellee, indicating that the decision to require a physician was within the circuit
court's discretion, thus asks this Court to affirm the summary judgment.
Importantly, under the West Virginia
Medical Professional Liability Act, "the standard of care" and "proximate
cause," as elements of proof required in medical professional liability actions, are
treated separately. With regard to establishing the former, W.Va. Code, 55-7B-7 [1986],
states: "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." Noting the language "if required by the court" in
that statute, this Court held as follows in syllabus point 8 of McGraw v. St. Joseph's
Hospital, supra, "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."
Standard of care is also referred to in W.Va. Code, 55-7B-3 [1986], of the West Virginia
Medical Professional Liability Act. That latter statute, however, separates out the
concept of proximate cause. As W.Va. Code, 55-7B-3 [1986], states:
The following are necessary elements of
proof that an injury or death resulted from the failure of a health care provider to
follow the accepted standard of care:
(a) The health care provider failed to
exercise that degree of care, skill and learning required or expected of a reasonable,
prudent health care provider in the profession or class to which the health care provider
belongs acting in the same or similar circumstances; and
(b) Such failure was a proximate cause
of the injury or death.
(emphasis added)
Upon a careful review of the record,
this Court is of the opinion that the appellee is correct in its contention that the
dispositive issue in this action is one of proximate cause. Whereas the expert witnesses
disclosed by the appellants could presumably have testified as to the standard of care
relating to the appellee's providing of emergency medical services on October 11, 1993,
and the appellee's alleged failure to abide by that standard, the required element of
proximate cause was another matter entirely. See, Roberts v. Gale, 149 W.Va. 166, 172, 139 S.E.2d 272, 276 (1964), observing that, in a malpractice case, the plaintiff must not only
prove negligence but must also show that such negligence was the proximate cause of the
injury. Specifically, the link between Christopher's medical status on October 11, 1993,
and the actions of the appellee's ambulance personnel was a matter with respect to which
the circuit court determined, in its discretion, that the expertise of a physician was
needed and with respect to which the circuit court indicated that the witnesses disclosed
by the appellants were unqualified.
In Mayhorn v. Logan Medical Foundation,
193 W.Va. 42, 454 S.E.2d 87 (1994), a case involving allegations of medical malpractice,
this Court held that Rule 702 of the West Virginia Rules of Evidence "is the
paramount authority for determining whether or not an expert is qualified to give an
opinion." 193 W.Va. at 49, 454 S.E.2d at 94. See also, Modi v. West Virginia Board of
Medicine, 195 W.Va. 230, 240, 465 S.E.2d 230, 240 (1995). Rule 702 states: "If
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise." See, Sheely v. Pinion, 200 W.Va. 472, 478, 490 S.E.2d 291,
297 (1997), stating that the essence of Rule 702 is that of assisting the fact finder's
comprehension through expert testimony. In conjunction with Rule 702 is the principle
expressed in syllabus point 5 of Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598 (1960),
which states: "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." Syl. pt. 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va.
597, 390 S.E.2d 796 (1990); syl. pt. 4, Hall v. Nello Teer Company, 157 W.Va. 582, 203 S.E.2d 145 (1974). See also, syl. pt. 6, Helmick v. Potomac Edison Company, 185 W.Va. 269,
406 S.E.2d 700, cert. denied, 502 U.S. 908 (1991).
In Kent v. Pioneer Valley Hospital, 930 P.2d 904 (Utah App. 1997), cited by the appellee, the plaintiff alleged that the manner in
which she was given an injection of medication resulted in nerve damage. The defendant
hospital moved for summary judgment. In response, the plaintiff submitted the affidavit of
a nurse who indicated that the plaintiff's nerve damage was caused by a deviation from the
standard of care applicable to the hospital's staff. The trial court, in Kent, however,
granted summary judgment, and the Court of Appeals of Utah affirmed. As the Court of
Appeals stated:
It is within the discretion of the trial
court to determine whether a particular witness qualifies as an expert and to rule on the
admissibility of the expert's testimony. * * * Although a nurse may well be trained in the
proper location to administer injections, we are not persuaded that a nurse is qualified
to opine as to nerve damage caused by an allegedly improper injection. * * * We cannot
conclude the trial court abused its discretion in determining that Ms. Schimmer was not
qualified to testify as to the proximate cause of plaintiff's alleged nerve damage.
Accordingly, we conclude plaintiff provided insufficient evidence on causation and thus
failed to establish a prima facie case of negligence. 930 P.2d at 906, 907 (emphasis
added). See also, Flanagan v. Labe, 666 A.2d 333 (Pa. Super. 1995), wherein a summary
judgment granted in favor of a hospital was affirmed because the plaintiff's sole expert
witness, a nurse, was held to be unqualified to state an opinion upon medical causation
and diagnosis in a medical malpractice action, and Pfeffer v. Kerr, 693 S.W.2d 296
(Missouri Ct. of App. 1985), concluding that a trial court in a personal injury action did
not abuse its discretion in excluding the opinion testimony of two emergency medical
technicians who indicated that an abnormally high blood pressure reading signified a
stroke or possible heart attack, where it was not demonstrated that the technicians had
expertise in cardiology or in any particular medical field.
In this action, we are of the opinion
that the circuit court had the discretion to determine, as the appellee asserts, that the
"cause of death and time of death, as well as the question of whether Christopher
Short could have been resuscitated," were issues requiring the testimony of a
physician. Thus, the circuit court acted within its discretion in determining that the
nurse and the two other witnesses disclosed by the appellants were not qualified upon
those matters. Accordingly, we hold that in a negligence action brought against an
emergency medical service provider seeking damages with respect to the death of an infant,
the circuit court has the discretion to determine whether the plaintiff is required to
obtain an expert witness concerning both the standard of care applicable to the emergency
medical service provider and whether the alleged breach of that standard of care
proximately caused the death of the infant; moreover, pursuant to Rule 702 of the West
Virginia Rules of Evidence, the circuit court has the discretion to determine whether the
expert so obtained by the plaintiff is sufficiently qualified to state opinions upon those
matters before the jury.
In thus upholding the summary judgment,
we further note that, although the appellants disclosed the nurse and the two other
witnesses as experts to be called at trial, the appellants filed no affidavits or other
evidentiary-related documents in response to the summary judgment motion. See, syl. pt. 3,
Williams, supra. Moreover, the circuit court had previously continued the trial of the
action in order to allow the appellants additional time to obtain a physician to testify.
Even upon the entry of the summary judgment for the appellee, the circuit court stated
that it would entertain a motion to reconsider, in the event the appellants were to
"identify a proper expert witness" in the action. No such witness was ever
identified by the appellants, and summary judgment was warranted. See, Farley v. Meadows,
185 W.Va. 48, 404 S.E.2d 537 (1991), upholding summary judgment in a medical malpractice
action, where the plaintiff had been given "ample time to retain an expert" but
failed to do so.
Upon all of the above, therefore, this
Court is of the opinion that, under the circumstances of this action, the circuit court
acted properly in granting the appellee's motion for summary judgment. Accordingly, the
final order of the Circuit Court of Summers County, entered on March 28, 1997, is
affirmed.
Affirmed.
Footnote: 1 1 The petition for appeal filed in this Court states: "[O]nce the ambulance personnel arrived at the scene, they immediately terminated CPR, ran some preliminary checks on the infant, concluded that the infant was beyond resuscitation, and took the infant to the Summers County Hospital Emergency Room."
Footnote: 2 2 The record is unclear whether the two witnesses are actually certified EMT's under the Emergency Medical Services Act.
Footnote: 3 3 In the response to the petition for appeal, the appellee states: "[T]he plaintiffs were granted additional time . . . to locate a physician to testify on behalf of plaintiffs. Plaintiffs filed a Disclosure of Experts on July 31, 1996, which again listed Ms. Spurlock,
R.N., and two EMT witnesses. Plaintiffs apparently could find no medical physician to testify in support of their case."
Footnote: 4 4 The definition of "health care provider" set forth in W.Va. Code, 55-7B-2(c) [1986], of the West Virginia Medical Professional Liability Act also includes the "agent" of those physicians, etc., listed in that statute. In that regard, we note the definition of "medical command" found in W.Va. Code, 16-4C-3(m) [1996], of the West Virginia Emergency Medical Services Act, which means "the issuing of orders by a physician from a medical facility to emergency medical service personnel for the purpose of providing appropriate patient care." We, thus, recognize an issue concerning agency in the "medical command" context which would appear to further link the West Virginia Medical Professional Liability Act and the West Virginia Emergency Medical Services Act. The parties, however, have not addressed that issue, no doubt because the record herein reveals no medical command between any physician and the appellee's ambulance personnel while those personnel were at the scene on October 11, 1993. Accordingly, this Court need not definitively or preemptively settle the agency question in this opinion.
Footnote: 5 5
In another Act, i.e., the West Virginia Health Care Provider Medicaid Enhancement Act,
W.Va. Code, 9-4C-1 [1993], et seq., the terms "ambulance service provider" and
"general health care provider" are separately defined. See, W.Va. Code, 9-4C-
1(a) and (b) [1993]; W.Va. Code, 9-4C-4 [1994]; W.Va. Code, 9-4C-7(d) [1993]. Thus, the
appellants assert that emergency medical service providers should not be included within
the definition of "health care provider" under the West Virginia Medical
Professional Liability Act.
Nevertheless, a review of the respective statutes indicates that the definition of "general health care provider" under the Medicaid Enhancement Act does not track the definition of "health care provider" found in the West Virginia Medical Professional Liability Act. Moreover, dentists, also treated separately from other general health care providers under the Medicaid Enhancement Act, W.Va. Code, 9-4C-3 [1994], are expressly included within the definition of "health care provider" under the West Virginia Medical Professional
Liability Act. Thus, nothing in the Medicaid Enhancement Act precludes our determination that emergency medical services are subject to the provisions of the West Virginia Medical Professional Liability Act.
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