Mayhorn v. Logan Medical Foundation

454 S.E.2d 87, 193 W. Va. 42
CourtWest Virginia Supreme Court
DecidedDecember 12, 1994
Docket21933
StatusPublished
Cited by95 cases

This text of 454 S.E.2d 87 (Mayhorn v. Logan Medical Foundation) 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
Mayhorn v. Logan Medical Foundation, 454 S.E.2d 87, 193 W. Va. 42 (W. Va. 1994).

Opinions

McHUGH, Justice:

The appellant, Roberta Mayhorn, filed a medical malpractice wrongful death action pursuant to W.Va.Code, 55-7-5 [1931] and 55-7B-1, et seq. against the appellees, Logan Medical Foundation, d/b/a Logan General Hospital (hereinafter “the hospital”) and Jim Gosien, M.D. The appellant filed this appeal after the Circuit Court of Logan County granted the appellees’ motion for a directed verdict on the ground that the appellant’s expert, Gordon Bendersky, M.D., relied on a certain fact not in evidence when rendering his opinion which the trial judge found was later shown to be incorrect during the testimony of C.F. DeLara, M.D. For reasons stated below, we reverse the circuit court.

I

This action arose after the appellant’s husband, who was sixty-eight years old, went to the emergency room at approximately 11:55 p.m. on June 19, 1990, with complaints of sharp plains between his shoulder blades which traveled down his left arm. Mr. May-horn also complained of belching, but denied being short of breath or having excessive perspiration.

The emergency room physician, Dr. Go-sien, ordered an electrocardiogram (EKG) and other cardiac work-up tests which allegedly revealed no abnormalities. At approximately 1:10 a.m., on June 20, 1990, Dr. Go-sien discharged Mr. Mayhorn after diagnosing him with non-cardiogenic pain which was possibly indigestion. Dr. Gosien gave Mr. Mayhorn a “GI cocktail” (Maalox and Donna-tol) to treat his symptoms. At approximately 8:55 a.m. on the same day, while in his home, Mr. Mayhorn suffered a cardiac arrest and [45]*45was sent, by ambulance, to the hospital where he died at approximately 10:15 a.m.

Dr. Carlos DeLara, a pathologist who worked for the appellee hospital, performed an autopsy which was limited to the heart and lungs at the appellant’s request. Dr. DeLara concluded the following: “This elderly white male died suddenly of cardiac ar-rhythmias brought about by severe arteriosclerosis of the coronary arteries. No evidence of recent myocardial infarction is noted.” 1

On August 5, 1991, the appellant filed a wrongful death action against the appellees. At trial the appellant used Gordon Bender-sky, M.D., a board certified internist, as her expert witness on Mr. Mayhom’s cause of death and on the standard of care which Dr. Gosien should have used. The trial court allowed Dr. Bendersky to testify as to the cause of Mr. Mayhorn’s death before Dr. DeLara testified even though Dr. Bendersky relied on Dr. DeLara’s autopsy report. Dr. Bendersky also relied on the emergency room report and test results and a past EKG performed by Mr. Mayhorn’s treating physician in forming his opinion. Dr. Bendersky did not examine the body. Dr. Bendersky testified that “[t]he cause of death was preventable arrhythmia caused by acute myocardial ischemia.”

Dr. DeLara testified that in his report he did mention that Mr. Mayhom had evidence of ischemia; however, it was not recent ischemia. Furthermore, Dr. DeLara testified that he could not state the cause of death with a reasonable degree of medical certainty. He stated that he could only make an educated guess as to the cause of death.

The trial court granted the appellee’s motion for a directed verdict after hearing Dr. DeLara’s testimony that there was no evidence of any recent ischemia. It is from this ruling that the appellant appeals.

II

The issue raised by the appellant involves the admissibility of the testimony of a medical doctor who bases his opinion on the cause of death on a pathology report which has been admitted into evidence. The trial judge ruled that the medical doctor’s testimony was not admissible pursuant to West Virginia Rules of Evidence 70B since the author of the pathology report disagreed with the findings the medical expert made from that report. The dispute centers on whether Dr. DeLara’s autopsy report noted recent ischemia and on whether there are other factors on which Dr. Bendersky based his opinion other than a finding of recent ischemia.

At the outset, we point out that this Court has stated in Belcher v. Norfolk and Western Ry. Co., 140 W.Va. 848, 853, 87 S.E.2d 616, 620 (1955), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), that when a verdict is directed in favor of the defendants, then the evidence introduced by the plaintiffs must be taken as true along with all facts which are favorable to the plaintiff which may be inferred from the evidence. Therefore, when analyzing the issues in the case before us, we will interpret the facts in the light most favorable to the appellant. Additionally, we are mindful that “[t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court’s decision will not be reversed unless it is clearly wrong.” Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244. (1991)

The Supreme Court of the United States has explained how a trial judge should analyze the admissibility of an expert’s opinion:

Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applica[46]*46ble rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are ‘of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’ Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,, or misleading the jury.

Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, -, 113 S.Ct. 2786, 2797-98, 126 L.Ed.2d 469, 484 (1993). Therefore, when analyzing the first issue, we must first determine whether Dr. Bendersky relied on facts and data which are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject” pursuant to W.Va. R.Evid. 703. Second, we must determine whether that expert’s testimony is admissible pursuant to W.Va.R.Evid. 702, and third, we must determine whether the testimony was more prejudicial than relevant pursuant to W.Va.R.Evid. 403. We will, therefore, begin our discussion with an analysis of the applicable rules of evidence.

W.Va.R.Evid. 703 simply outlines the factual basis which an expert may use to form his opinion:

Bases of Opinion Testimony by Experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
454 S.E.2d 87, 193 W. Va. 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayhorn-v-logan-medical-foundation-wva-1994.