Mary M. Kelly and Leo Kelly, Appellants, v. Edwin Chillag and Holden Hospital, Inc., a Corporation, Appellees, 381 F.2d 344 (4th Cir. 1967)

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US Court of Appeals for the Fourth Circuit - 381 F.2d 344 (4th Cir. 1967) Argued June 21, 1967. Decided July 26, 1967

Rudolph L. Di Trapano, Charleston, W. Va. (Thomas P. Maroney, and Di Trapano & Mitchell, on brief), for appellants.

Wilson Anderson, Charleston, W. Va. (Carl F. Stucky, Jr., and Steptoe & Johnson, Charleston, W. Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit judges.


The plaintiff has appealed from a judgment entered in her favor in her action for malpractice against a surgeon. Her principal complaint is the withdrawal from the jury of the question of punitive damages.

However censurable the physician's lack of candor after the event, it cannot convert his act of simple negligence into one of such recklessness or wilfulness as to furnish a foundation for punitive damages.

Otherwise, we also find the court's submission of the case to the jury fair and in conformity with the governing law of West Virginia.