Kiser v. Caudill

557 S.E.2d 245, 210 W. Va. 191
CourtWest Virginia Supreme Court
DecidedJuly 9, 2001
Docket28402
StatusPublished
Cited by12 cases

This text of 557 S.E.2d 245 (Kiser v. Caudill) 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
Kiser v. Caudill, 557 S.E.2d 245, 210 W. Va. 191 (W. Va. 2001).

Opinions

PER CURIAM.

This case is before this Court upon appeal of a final order of the Circuit Court of Kana-wha County entered on October 20,1999. In that order, the circuit court granted judgment as a matter of law in favor of the appellee and defendant below, Carrel Mayo Caudill, M.D. (hereinafter “appellee”), in this medical malpractice action filed by the appellant and plaintiff below, Lora D. Kiser (hereinafter “appellant”). In this appeal, the ap[194]*194pellant contends that the circuit court erred by ruling that her only medical expert at trial, Charles Brill, M.D., a neurologist, was not qualified to render testimony on the standard of care required of a neurosurgeon. The appellant also contends that the circuit court erred by excluding James Barnes, M.D., as an expert witness prior to trial as a sanction for failure to comply with the expert disclosure deadline in the court’s scheduling order.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order of the circuit court is affirmed, in part, reversed, in part, and this case is remanded for further proceedings.

I.

The appellant was born with various congenital spinal abnormalities on August 12, 1973, at Raleigh General Hospital in Beckley, West Virginia. Due to her spinal problems, the appellant was referred to the appellee, a practicing neurosurgeon in Charleston, West Virginia. The appellee performed an exploratory laminectomy on the appellant when she was three months old to determine the nature of her problems.

According to the appellant, the appellee told her parents that she had a tethered spinal cord, but did not explain the significance of this condition or recommend further surgery or testing. As the appellant grew older, her condition became worse. She was unable to walk without assistance at two years of age, and by • age six, she lacked significant control of some bodily functions. Finally, at age ten, the appellant underwent a surgical procedure to release her tethered spinal cord at a hospital in Kentucky. The appellant eventually regained control of her bodily functions, but she is a paraplegic and is permanently confined to a wheel chair.

On December 2, 1992, the appellant and her parents filed this medical malpractice action against the appellee.1 The appellant alleged, inter alia, that the appellee failed to perform the proper and necessary surgical procedure, failed to diagnose her condition during the exploratory operative procedure, and failed to advise of the proper postoperative treatment. After several years of discovery, trial was scheduled to begin on August 4,1997.

During a pre-trial hearing on July 28, 1997, the circuit court ruled that Dr. Barnes, one of the appellant’s expert witnesses, would not be permitted to testify because he was untimely disclosed as an expert witness pursuant to the court’s scheduling order. A few days later, a continuance was granted, and the case was not actually brought to trial until July 26, 1999. Shortly after the trial began, the circuit court ruled that the appellant’s other expert witness, Dr. Charles Brill, a neurologist, was not qualified to render an opinion as to the applicable standard of care required of a neurosurgeon. As a result of the appellant’s failure to present any evidence with regard to the applicable standard of care, the appellee moved for judgement as a matter of law. The circuit court granted the motion finding that the appellant had failed to sustain a prima facie case of medical negligence. This appeal followed.

II.

[I] We begin our analysis of the issues in this case by first setting forth the standard of review for the granting of a motion for judgment as a matter of law. Pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure, a defendant may move for judgment as a matter of law “[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue[.]” In Syllabus Point 3 of Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996), this Court held that:

The appellate standard of review for the granting of a motion for [judgment as a matter of law]2 pursuant to Rule 50 of the [195]*195West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of [judgment as a matter of law] when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court’s ruling granting [judgment as a matter of law] will be reversed.

In this case, the circuit court granted the appellee’s motion for judgment as a matter of law after determining that the appellant had failed to present evidence with regard to the applicable standard of care and whether the appellee deviated from that standard. Such evidence is required in a medical malpractice action by W.Va.Code § 55-7B-3 (1986) which provides, in pertinent part:

The following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care:
(a) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances[.]

The appellant contends that she was unable to present a prima facie case of medical negligence because of the circuit court’s rulings limiting the testimony of Dr. Brill and prohibiting the testimony of Dr. Barnes. Accordingly, we must now examine those rulings.

The circuit court ruled that Dr. Brill, a pediatric neurologist, was not qualified to testify as to the standard of care in this case because he acknowledged that he was not an expert in neurosurgery. In Syllabus Point 5 of Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994) this Court once again set forth the standard used when reviewing a trial court’s decision to qualify an expert:

“ ‘ “ ‘Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.’ Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].” Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974).’ Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 (1990).” Syl. pt. 3, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

In Syllabus Point 6 of Mayhom,,

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Bluebook (online)
557 S.E.2d 245, 210 W. Va. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiser-v-caudill-wva-2001.