Glover v. St. Mary's Hospital of Huntington, Inc.

551 S.E.2d 31, 209 W. Va. 695
CourtWest Virginia Supreme Court
DecidedJune 28, 2001
Docket28738
StatusPublished
Cited by14 cases

This text of 551 S.E.2d 31 (Glover v. St. Mary's Hospital of Huntington, 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
Glover v. St. Mary's Hospital of Huntington, Inc., 551 S.E.2d 31, 209 W. Va. 695 (W. Va. 2001).

Opinions

PER CURIAM:

The appellant, June Glover, appeals the May 24, 2000 order of the Circuit Court of Cabell County, West Virginia, which granted summary judgment to the appellee, St. Mary’s Hospital of Huntington, Inc. (St. Mary’s). The appellant argues that the issue of whether the hospital may be held jointly liable for the medical malpractice of Dr. Si-rous Arya is a question of fact which must be presented to a jury. We find the circuit court's summary judgment order contains insufficient findings of fact regarding whether ostensible agency can be established through the hospital’s .advertising campaign and reverse on that basis.

I.

FACTS

Charles Glover, now deceased, was employed by Appalachian Regional Hospital in South Williamson, Kentucky, for twenty-four years and ultimately attained the title of hospital administrator. His family physician, Dr. Tuan Chau, treated him for approximately twenty-five years. On October 19, 1994, Mr. Glover made an appointment with Dr. Chau because he was experiencing increasingly intense stomach pain.

Mr. Glover was subjected to testing which showed blood in his stool and an abnormally high white blood cell count. After admitting Mr. Glover to Appalachian Regional Hospital, Dr. Chau referred his patient to a gastroen-terologist, Dr. William Cunningham of Huntington Internal Medicine Group, to undergo an endoscopy at St. Mary’s Hospital in Huntington, West Virginia. Dr. Chau made the admission arrangements and June Glover transported her husband to Huntington by car on October 19, 1994. Dr. Cunningham was the attending/admitting physician.

On October 20,1994, Dr. Cunningham performed a colonoscopy on Mr. Glover and discovered a tumor in his colon. The doctor later advised Mr. Glover the tumor was ma[697]*697lignant. Dr. Cunningham told June Glover her husband suffered from a cancerous tumor in his colon and needed surgery. Mr. Glover was still under the effects of sedation at that time. Mr. Glover later gave deposition testimony stating he had no clear recollection of anything that occurred between the time he had this discussion with the doctor and early December 1994 when he awoke from a comatose-like state.

Dr. Cunningham discussed surgeons with June Glover; she stated that she had no preference and told the doctor to choose one who would do a good job. Dr. Cunningham referred Mr. Glover to Dr. Sirous Arya who performed a colon resection. Following surgery, Mr. Glover developed an ischemic colon. A second operation was performed.1 Further complications arose. By October 30, 1994, the consent forms acknowledge that the patient “cannot sign” and the forms signed thereafter bear his wife’s signature. Mr. Glover’s gallbladder became gangrenous and had to be removed. He suffered from kidney failure and was placed on dialysis. He developed breathing problems and was placed on a ventilator.

Charles Glover eventually recovered from these complications and was discharged from the hospital on January 19,1995. His subsequent death on November 15,1998 followed a diagnosis of metastatic cancer.

Charles and June Glover filed a personal injury action against St. Mary’s and Dr. Arya on October 11,1996. The appellees responded and discovery commenced. However, the litigation was stayed due to bankruptcy proceedings which were progressing in Franklin County, Ohio, by Dr. Arya’s insurance carrier, P.I.E. Mutual Insurance Company. Further delay resulted from the recusal of Judge Cummings to whom the case had been transferred from the docket of Judge Ferguson. After Mr. Glover’s death, June Glover, as executrix of the estate of Charles Glover, substituted for Charles Glover. The original complaint was amended to allege an additional cause of action, wrongful death. The amended complaint was filed on February 29, 2000.

On March 22, 2000, St. Mary’s filed a motion for summary judgment, alleging that no expert testimony was offered to demonstrate the care given the decedent by St. Mary’s was negligent. The circuit court agreed, stating that

The plaintiff has no expert witness(es) who will offer opinions critical of the care received by Charles Glover on behalf of St. Mary’s. Plaintiffs sole liability expert witness, Dr. Walter Koltun, has no criticisms of the nursing staff at St. Mary’s. He was given several opportunities in his discovery deposition to offer opinions critical of St. Mary’s and did not. He has testified that he will only be offering testimony, to a reasonable degree of medical probability regarding the care received by Charles Glover from defendant Sirous Ayra, M.D.

The order further states that “[pjlaintiff has failed to produce the requisite expert testimony and failed to establish a prima facie case of direct liability as to St. Mary’s! 1” and that “[tjhere is no basis in law or fact to establish that Sirous Arya, M.D., was the ostensible agent of St. Mary’s Hospital[.]” The court finally determined there was not sufficient evidence for a reasonable jury to find in the appellant’s favor and granted summary judgment in favor of the hospital on May 24, 2000. The appellant appeals from this order.

On appeal, the appellant contends a question of fact exists as to whether St. Mary’s may be held jointly liable for the malpractice of Dr. Arya. She submits this is so because the hospital held itself out as a provider of services required by Mr. Glover and West Virginia recognizes vicarious liability of hospitals for physicians who provide services in their facilities when the hospitals hold themselves out as a provider of these services. Therefore, says the appellant, the court erred in dismissing the liability of the hospital as a matter of law. The hospital submits that no emerging theory of law was presented by the appellant nor does one exist which, [698]*698under the facts of this case, warrants an expansion of ostensible liability. In support of this argument, St. Mary’s offers facts which show that the hospital played no role in the selection or acceptance of Dr. Arya as the decedent’s surgeon.

II.

STANDARD OF REVIEW

“A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Moreover, “‘[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.’ Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997). This means that “[t]he essence of the inquiry the court must make is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Williams v. Precision Coil, Inc., 194 W.Va. 52, 61, 459 S.E.2d 329, 338 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.

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Glover v. St. Mary's Hospital of Huntington, Inc.
551 S.E.2d 31 (West Virginia Supreme Court, 2001)

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Bluebook (online)
551 S.E.2d 31, 209 W. Va. 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glover-v-st-marys-hospital-of-huntington-inc-wva-2001.