Daniel v. Charleston Area Medical Center, Inc.

544 S.E.2d 905, 209 W. Va. 203, 2001 W. Va. LEXIS 19
CourtWest Virginia Supreme Court
DecidedMarch 8, 2001
Docket28463
StatusPublished
Cited by10 cases

This text of 544 S.E.2d 905 (Daniel v. Charleston Area Medical Center, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel v. Charleston Area Medical Center, Inc., 544 S.E.2d 905, 209 W. Va. 203, 2001 W. Va. LEXIS 19 (W. Va. 2001).

Opinions

ALBRIGHT, Justice:

Appellant Edward M. Daniel appeals from the April 5, 2000, decision of the Circuit Court of Kanawha County, granting summary judgment to Appellee Charleston Area Medical Center, Inc. (“CAMC”) in a negligence action through which Appellant alleges injuries resulting from a wheelchair in disrepair. Appellant asserts that the trial court failed to permit him an opportunity required by the provisions of the West Virginia Medical Professional Liability Act (hereinafter referred to as the “Act” or the “Medical Liability Act”), West Virginia Code §§ 55-7B-1 to -11 (1986) (Repl.Vol.2000), to locate and identify an expert witness. We conclude that the circuit court’s grant of summary judgment was premature, given its failure to expressly provide Appellant with a time period for identifying an expert witness subsequent to the court’s determination that an expert witness was required by the facts of the case. Accordingly, we reverse.

I.Factual and Procedural Background

While recovering from heart surgery at CAMC on February 11, 1997, Appellant was placed in a wheelchair for purposes of transporting him from the recovery area of the hospital back to his room. After Appellant was seated in the wheelchair, the back of the reclining chair broke causing him to fall backwards. As a result, Appellant allegedly suffered certain injuries, including emotional distress. Appellant filed a civil action in the circuit court on February 11, 1999, through which he sought to recover damages in connection with the wheelchair incident.

Appellant states in his brief that neither he “nor the defendant retained experts for trial purposes” “[a]s the case was not complex and the damages claimed were not large.” On January 3, 2000, CAMC moved for summary judgment on the grounds that the Act required Appellant to use expert testimony to establish that it had deviated from the standard of care and that this deviation proximately caused Appellant’s injuries. Following oral argument on the issue of summary judgment, the trial court ruled that expert testimony was not required under the facts of this case to establish a deviation from the standard of care with regard to the act of negligence — the wheelchair fall — but that an expert would be necessary to establish that this act of negligence was the proximate cause of Appellant’s physical and emotional injuries. Based on Appellant’s admission that he had “failed to secure an expert to demonstrate proximate cause within the time frame allotted by the Court’s scheduling Order” combined with its determination that an expert was necessary, the trial court granted summary judgment to CAMC. Appellant seeks a reversal of this grant of summary judgment. ■

II.Standard of Review

As with all summary judgment rulings, our review is de novo. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (holding that “[a] circuit court’s entry of summary judgment is reviewed de novo”). In syllabus point two of Painter we recognized further:

“ 'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Painter v. Peavy, 192 W.Va. at 190, 451 S.E.2d at 756. We review this case with these principles in mind.

III.Discussion

Appellant argues that the trial court abused its discretion in not failing to adhere [205]*205to the time allowances contained in the Medical Liability Act for designation of expert witnesses. Acknowledging that “neither the plaintiff nor the defendant in this case precisely followed the procedure established by Section 6 of the Act,”1 Appellant maintains that “the intent of this Section is to ensure that the party having the burden of proof shall be advised, in advance of trial, whether expert testimony will be required.” Since Appellant “had proceeded in the good faith belief that expert testimony was unnecessary” until the trial court’s summary judgment ruling, he suggests that it would be patently unfair not to permit him additional time to obtain the necessary expert witness.

The Medical Liability Act, in a section dealing with pretrial procedures, addresses the issue of expert witnesses, stating that:

(a) In each medical professional liability action against a health care provider, not less than nine nor more than twelve months following the filing of answer by all defendants, a mandatory status conference shall be held at which, in addition to any matters otherwise required, the parties shall:
(1) Inform the court as to the status of the action, particularly as to the identification of contested facts and issues and the progress of discovery and the period of time for, and nature of, anticipated discovery; and
(2) On behalf of the 'plaintiff, certify to the court that either an expert witness has or will be retained to testify on behalf of the plaintiff as to the applicable standard of care or that under the alleged facts of the action, no expert witness will be required. If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness and the action shall not 'be scheduled for trial, unless the defendant agrees otherwise, until such period has concluded. It shall be the duty of the defendant to schedule such conference udth the court upon proper notice to the plaintiff.

W.Va.Code § 55-7B-6(a)(l), (2) (emphasis supplied).

Opposing the suggestion that the intent of the Medical Liability Act requires additional time for the naming of Appellant’s expert, CAMC argues that Appellant had sufficient time prior to the summary judgment ruling to retain and disclose an expert. Moreover, CAMC stresses that Appellant has failed to comply with the time constraints specifically set forth in the circuit court’s scheduling order with regard to the naming of expert witnesses. Based on the fact that Appellant failed to locate and hire an expert witness, despite being subject to the mandates of the scheduling order, CAMC contends that Appellant is not entitled to the additional time which it now seeks for expert retention purposes. In CAMC’s opinion, the procedures of the Act with regard to expert retention are self-evident and do not hinge upon the order of a trial court. Since Appellant had an obligation from day one to retain an expert for proof of standard of care, CAMC reasons that no additional time should now be allotted Appellant.

In syllabus point eight of McGraw v. St. Joseph’s Hospital, 200 W.Va. 114, 488 S.E.2d 389

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Bluebook (online)
544 S.E.2d 905, 209 W. Va. 203, 2001 W. Va. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-v-charleston-area-medical-center-inc-wva-2001.