Gilman v. Choi

406 S.E.2d 200, 185 W. Va. 177
CourtWest Virginia Supreme Court
DecidedJanuary 25, 1991
Docket19635
StatusPublished
Cited by43 cases

This text of 406 S.E.2d 200 (Gilman v. Choi) 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
Gilman v. Choi, 406 S.E.2d 200, 185 W. Va. 177 (W. Va. 1991).

Opinions

McHUGH, Justice:

In this certified question case this Court is asked essentially to decide the validity of a recent statute on expert testimony in a medical malpractice action, specifically, W. Va. Code, 55-7B-7 [1986], in light of the West Virginia Rules of Evidence. The Circuit Court of Mason County upheld the validity of the statute, and we, too, believe the statute is valid, but for a reason not assigned by the circuit court.

I

One of the two plaintiffs, Gladys Gilman, sustained a hip fracture and dislocation as the result of a recreational vehicle accident in October, 1986.1 Soon after the accident, Mrs. Gilman was seen in the Pleasant Valley Hospital emergency room by defendant Thomas J. Moskalewicz, M.D., an emergency room physician working in that hospital’s emergency department. Dr. Moska-lewicz ascertained that Mrs. Gilman had suffered a fracture of the left hip. He contacted defendant Dr. Young Choi, a general surgeon, and Mrs. Gilman was admitted to the hospital.

The plaintiffs have alleged in their medical malpractice action that Dr. Moskalew-icz, an emergency room physician, Dr. Bak-shy Chhibber, an internist/family practitioner and the plaintiffs’ family physician, as well as Dr. Choi, a general surgeon, and Pleasant Valley Hospital were each negligent in their treatment and care of Mrs. Gilman, thereby necessitating a total hip replacement and causing her to endure permanent pain and suffering.

The plaintiffs have designated Dr. Thomas G. Galli, a board certified orthopedic surgeon who practices the specialty of orthopedics, as an alleged expert witness against all of the defendants. Two of the defendant doctors, Dr. Chhibber and Dr. Moskalewicz, filed motions in limine asserting that Dr. Galli, as an orthopedic surgeon, is not qualified to testify as an expert witness as to the standard of care of an internist/family practitioner or of an emergency room physician.

The trial court (the Circuit Court of Mason County) ruled that Dr. Galli was not qualified to testify against Dr. Chhibber and Dr. Moskalewicz under condition precedent (e) set forth in W.Va.Code, 55-7B-7 [1986].2 The trial court also ruled that [179]*179W. Va. Code, 55-7B-7 [1986] was not in conflict with Rule 702 of the West Virginia Rules of Evidence.3 At the request of the plaintiffs, and pursuant to Rule 13 of the West Virginia Rules of Appellate Procedure and the provisions of W. Va. Code, 58-5-2 [1967], the trial court certified the following question to this Court, which question was answered in the negative by the trial court:

Is West Virginia Code § 55-7B-7 (Cum.Supp.1988), requiring that an expert in a medical malpractice case be qualified in the ‘same or substantially similar’ medical field as a physician defendant against whom he/she intends to testify, in conflict with Rule 702 of the West Virginia Rules of Evidence which provides that an individual may testify as an expert if he/she is ‘qualified’ because of ‘knowledge, skill, experience, training or education’ to assist the trier of fact and, if so, does any such conflict invalidate the statute or otherwise render it inapplicable?

II

W.Va.Code, 55-7B-7 [1986], see supra note 2, authorizes a trial court to require “the testimony of one or more knowledgeable, competent expert witnesses” to establish the applicable standard of care in a medical malpractice action and a defendant’s failure to meet that standard, if at issue, (emphasis added) That same statute also sets forth five specific foundational prerequisites for admissibility of such testimony. The only one of these foundational requirements at issue here mandates that “(e) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider.”

The terms of this statute indicate that the legislature’s paramount concern was with the competency of the proffered expert testimony. Under Rule 601 of the West Virginia Rules of Evidence, “[e]very person is competent to be a witness except as otherwise provided for by statute or these rules.” (emphasis added) Accordingly, this Court, by virtue of Rule 601 of the West Virginia Rules of Evidence, has elected to defer to the legislature when it enacts statutes on the competency of witnesses. For example, this Court, in the recent case of Cross v. State Farm Mutual Automobile Insurance Co., 182 W.Va. 320, 387 S.E.2d 556 (1989), concluded that a particular statute on the competency of witnesses, namely, the Dead Man’s Statute, W. Va. Code, 57-3-1 [1937], is still valid under Rule 601. Id. 182 W.Va. at 324, 387 S.E.2d at 560.

In view of the foregoing we hold that W. Va. Code, 55-7B-7 [1986], being concerned primarily with the competency of expert testimony in a medical malpractice action, is valid under Rule 601 of the West Virginia Rules of Evidence.

It is, therefore, not necessary to decide whether W.Va.Code, 55-7B-7 [1986] conflicts with Rule 702 of the West Virginia Rules of Evidence, which is concerned primarily with the relevancy of expert testimony. See syl. pts. 1-2, State v. McCoy, 179 W.Va. 223, 366 S.E.2d 731 (1988). “In [180]*180a certified case this Court will not consider certified questions not necessary to a decision of the case.” Syl. pt. 6, West Virginia Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957). Accord, State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5 (1990); syl. pt. 5, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990); syl. pt. 7, Shell v. Metropolitan Life Insurance Co., 181 W.Va. 16, 380 S.E.2d 183 (1989).

Moreover, upon receiving certified questions from circuit courts of this state, we retain some flexibility in determining how and to what extent those questions will be answered. Belcher v. Goins, 184 W.Va. 395, 398 n. 2, 400 S.E.2d 830, 833 n. 2 (1990); State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5 (1990); Deeds v. Lindsey, 179 W.Va. 674, 676 n. 2, 371 S.E.2d 602, 604 n. 2 (1988); City of Fairmont v. Retail, Wholesale & Department Store Union, 166 W.Va. 1, 3-4, 283 S.E.2d 589, 590 (1980). Cf. Maynard v. Board of Education, 178 W.Va. 53, 60, 357 S.E.2d 246, 253 (1987) (this Court addressed issue of laches, which was related to certified question on statute of limitations).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

SER Margaret L. Workman v. Mitch Carmichael, as President of the Senate
819 S.E.2d 251 (West Virginia Supreme Court, 2018)
William Douglas Witten v. Joshua Butcher
794 S.E.2d 587 (West Virginia Supreme Court, 2016)
State Farm Fire & Casualty v. Robin Skinner Prinz
743 S.E.2d 907 (West Virginia Supreme Court, 2013)
Walker v. Sharma
655 S.E.2d 775 (West Virginia Supreme Court, 2007)
Louk v. Cormier
622 S.E.2d 788 (West Virginia Supreme Court, 2005)
Stern v. Chemtall Inc.
617 S.E.2d 876 (West Virginia Supreme Court, 2005)
State v. Dennis
607 S.E.2d 437 (West Virginia Supreme Court, 2004)
Blackburn v. Workers' Compensation Division
575 S.E.2d 597 (West Virginia Supreme Court, 2002)
Foster v. Sakhai
559 S.E.2d 53 (West Virginia Supreme Court, 2001)
Estate of Verba Ex Rel. Nolan v. Ghaphery
552 S.E.2d 406 (West Virginia Supreme Court, 2001)
Kiser v. Caudill
557 S.E.2d 245 (West Virginia Supreme Court, 2001)
Watson v. Inco Alloys International, Inc.
545 S.E.2d 294 (West Virginia Supreme Court, 2001)
Taylor v. Cabell Huntington Hospital, Inc.
538 S.E.2d 719 (West Virginia Supreme Court, 2000)
State Ex Rel. Canterbury v. Paul
520 S.E.2d 662 (West Virginia Supreme Court, 1999)
State v. Guthrie
518 S.E.2d 83 (West Virginia Supreme Court, 1999)
Dolen v. St. Mary's Hospital of Huntington, Inc.
506 S.E.2d 624 (West Virginia Supreme Court, 1998)
McGraw v. St. Joseph's Hospital
488 S.E.2d 389 (West Virginia Supreme Court, 1997)
Broders v. Heise
924 S.W.2d 148 (Texas Supreme Court, 1996)
Meadows v. Meadows
468 S.E.2d 309 (West Virginia Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
406 S.E.2d 200, 185 W. Va. 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilman-v-choi-wva-1991.