Foster v. Sakhai

559 S.E.2d 53, 210 W. Va. 716, 2001 W. Va. LEXIS 184
CourtWest Virginia Supreme Court
DecidedDecember 12, 2001
Docket29339
StatusPublished
Cited by31 cases

This text of 559 S.E.2d 53 (Foster v. Sakhai) 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
Foster v. Sakhai, 559 S.E.2d 53, 210 W. Va. 716, 2001 W. Va. LEXIS 184 (W. Va. 2001).

Opinions

MCGRAW, Chief Justice.

Appellant Helen Foster (sometimes also referred to as “plaintiff’ in the course of this opinion) and her late husband filed a medical malpractice suit against appellee Dr. Hossein Sakhai for personal injuries the Fosters alleged as a result of brain surgery performed by Dr. Sakhai upon Mr. Foster. Mr. Foster died before the case could come to trial, but at the trial, the jury awarded Mrs. Foster and the estate of Mr. Foster $800,000. The trial judge granted a new trial to Dr. Sakhai because of alleged confusion in the jury charge and because of certain statements made by plaintiffs counsel during closing argument. Because we find any alleged error below to have been harmless error, we reverse and remand for the reinstatement of the jury’s verdict.

I.

BACKGROUND

Hoy Dale Foster lived in Mason County, West Virginia with his wife Helen Foster. In 1995, Mr. Foster had recently retired from his job in a local aluminum plant when he began to experience some unusual problems with his vision. On December 20, 1995, Mi\ Foster visited his doctor, a Dr. Brubaker, who ordered an MRI of Mr. Foster. Both Dr. Brubaker and another doctor, a neurologist named Dr. Levert, reviewed the MRI of Mb'. Foster. According to Mrs. Foster, the MRI showed that Mr. Foster had a single brain tumor located in the base of his brain, the cerebellum.

Dr. Levert referred Mr. Foster to another doctor, the defendant below and appellee in this action, Dr. Hossein Sakhai, a neurosurgeon practicing in Huntington, West Virginia. Less than a month later, on January 9, 1996, Dr. Sakhai performed brain surgery on Mr. Foster in an effort to remove the tumor. The pathology report from St. Mary’s Hospital in Huntington, where Dr. Sakhai performed the surgery, revealed that the tissue removed was not a cancerous tumor. According to Mrs. Foster, the report also indicated that the material had been removed not from the base of Mr. Foster’s brain, but rather from one of the hemisphere’s of his brain, which together are known as the cerebrum. Although the terms sound similar, the cerebellum, or base of the brain, the alleged location of the tumor shown on the MRI, is an entirely different area then the cerebrum, also called the brain’s hemispheres, the area from which Dr. Sakhai allegedly removed the brain tissue.1

Immediately after the operation, all thought it to have been successful. However, Mr. Foster began to experience new symptoms. He complained of new and different vision problems, and claimed that he could no longer tell time, play the guitar, or recognize various familiar objects. After seeking a second opinion, Mr. Foster underwent a second operation on May 22, 1996, at Ohio State Medical Center. During that operation, another doctor removed a so-called metastatic renal cell tumor from Mr. Foster’s brain. Because the tumor was metastatic, or one that would spread, Mr. Foster had to undergo radiation therapy.

As a result of the second surgery and the subsequent radiation treatment, Mr. Foster developed a number of complications and suffered various complaints, including continuing vision problems and difficulty reading and walking. On January 9, 1998, two years after the first operation, Mr. and Mrs. Foster filed the underlying medical malpractice action. Unfortunately, Mr. Foster’s cancer treatments proved unavailing, and he died about two months later, on March 7, 1998, [722]*722some twenty-six months after the operation performed by Dr. Sakhai.

The trial in the case began on July 17, 2000. Summarizing and somewhat simplifying the arguments of the parties, Mi's. Foster argued that Dr. Sakhai had operated on the wrong part of her husband’s brain, removed healthy tissue, and thus required Mr. Foster to undergo a second operation that, absent Dr. Sakhai’s mistake, should not have been necessary. As a result, she argued, Mr. Foster suffered various complications and problems that significantly reduced his ability to enjoy his final days. Dr. Sakhai argued, in essence, that he did not violate any standard of care in his operation on Mr. Foster, and that the problems Mr. Foster suffered, though unfortunate, resulted from the second operation in Ohio, or from uncontrollable, post-operative complications from the first surgery.

After four days of trial, the jury returned a verdict of $800,000 in favor of Mrs. Foster, granting $250,000 for pain in suffering, $200,000 for mental anguish, emotional distress and fright, and $350,000 for loss of enjoyment of life. The circuit court entered the judgment order on July 28, 2000, but allowed the parties to submit post trial motions. On September 29, 2000, the lower court granted Dr. Sakhai a new trial, overturning the jury’s verdict. The order stated that the circuit court granted the new trial for two reasons.

The Court finds that the comments by plaintiffs counsel during closing argument regarding the non-economic cap in medical malpractice cases, standing alone, warrants a new trial. The Court further finds the Jury Charge was at variance and confusing and, standing alone, warrants a new trial. Therefore, the Court GRANTS Defendant’s Motion and ORDERS a new trial on liability and damages.

After entry of this order, Mrs. Foster appealed to this Court.

II.

STANDARD OF REVIEW

We have previously described the standard of review we apply to a ease such as this:

We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). However we have also explained that:

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 courts 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). Accord, Stillwell v. The City of Wheeling, 210 W. Va. 599, 604, 558 S.E.2d 598, 603 (2001); Syl. pt. 1, Andrews v. Reynolds Mem’l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

Although the standard when considering a court’s granting of a new trial is abuse of discretion, we have cautioned that this discretion is not without limit: “Ordinarily, when a circuit court is afforded discretion in making a decision, this Court accords great deference to the lower court’s determination. However, when we find that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed.” Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or in other words: “We grant trial court judges wide latitude in conducting the business of their courts. However, this authority does not go unchecked, and a judge may not abuse the discretion granted him or her under our law.” Lipscomb v. Tucker County Com’n., 206 W.Va.

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Bluebook (online)
559 S.E.2d 53, 210 W. Va. 716, 2001 W. Va. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-sakhai-wva-2001.