Glаdys GILMAN and Bruce Gilman v. Young I. CHOI, M.D., Pleasant Valley Hospital, Inc., a Corporation, Bakshy Chhibber, M.D., and Thomas J. Moskalewicz, M.D.
No. 19635
Supreme Court of Appeals of West Virginia
Dec. 19, 1990
406 S.E.2d 200
Opinion of Chief Justice Neely Concurring in Part and Dissenting in Part Jan. 25, 1991.
Michael Farrell, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for Pleasant Valley Hosp.
Don R. Sensabaugh, Jr., Edward C. Martin, Kay, Casto, Chaney, Love & Wise, Charleston, for Thomas J. Moskalewicz.
Sprague W. Hazard, Steptoe & Johnson, Charleston, for Young I. Choi.
Stephen D. Annand, Donald L. Stennett, Shuman, Annand & Poe, Charleston, for Dr. Bakshy Chhibber, M.D.
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,
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 emergеncy room physician working in that hospital‘s emergency department. Dr. Moskalewicz 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. Moskalewicz, an emergency room physician, Dr. Bakshy 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 оf 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
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 withRule 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
The terms of this statute indicate that the legislature‘s paramount concern was with the competency of the proffered expert testimony. Under
In view of the foregoing we hold that
It is, therefore, not necessary to decide whether
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).
Although the question of abuse of discretion is not before us, we note that whether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court, and its ruling on that point ordinarily will not be disturbed unless it clearly appears that its discretion has been abused. Syl. pt. 12, Board of Education v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990), and 182 W.Va. at 612, 390 S.E.2d at 811 (citing cases).
In this regard it would be an abuse of discretion for a trial court to require the proffered expert witness to be board certified in the same medical specialty as a particular defendant health care provider.
While we do not decide in this case whether
Third, a medical witness may acquire sufficient knowledge to qualify as an expert through practical experience, recent formal training and study or a combination of these factors. This point is made in Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887 (1975):
Recognizing the complexity of knowledge required in the various medical specialties, more than a casual familiarity with the specialty of the defendant physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him [or her] to give an expert opinion as to the conformity of the defendant‘s conduct to those particular standаrds, and not to the standards of the witness’ particular specialty if it differs from that of the defendant. It is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.
Id. at 618, 356 A.2d at 892. See also Steinbach v. Barfield, 428 So.2d 915, 920-21 (La.Ct.App.) (when alleged acts of negligence raise issues peculiar to a particular medical specialty, then only those qualified in that specialty may offer evidence of applicable standards), cert. denied, 435 So.2d 431 (1983).
Accordingly, under
As a result of the efforts of state medical societies, several states recently have adopted statutes governing expert testimony in medical malpractice actions. 3 C. Kramer, Medical Malpractice para. 29.02, at 29-7 (1990). Litigation of these statutes in those states which also have their equivalent to
On remand the trial court should apply the foregoing principles in exercising sound discretion in its ruling as to whether the plaintiff‘s proffеred medical expert in this case is qualified to testify as to the particular standards of care at issue.
Having addressed the certified question, this case is remanded to the Circuit Court of Mason County for further proceedings consistent with this opinion.
Certified question answered; case remanded.
NEELY, Chief Justice, dissenting in part and concurring in part:
The majority has done a splendid job of dodging the question presented to this Court, which is whether
I
Just to clear up any misunderstanding, the statute in question does conflict with
For clause (e) to have any meaning, it must require something in addition to what the preceding clauses require. Recognizing this fact, and given that the purpose of the Medical Professional Liability Act, of which
It is easy to imagine a situation where the statute and the rule conflict. For example, under the statute, if a specialist is alleged to have breached a standard of care applicable to all physicians, another physician may still not testify to the breach of that standard of care, unless he is “engaged or qualified in the same or similar medical field.” Thus, under the statute, if a neurosurgeon fails to wash his hands before operating, an internist with no claim to expertise in the field of neurosurgery could not testify that the neurosurgeon breached the standard of care applicable to all physicians. Under
In Reager v. Anderson, 179 W.Va. 691, 371 S.E.2d 619 n. 4 (1988), the plaintiff alleged medical malpractice which required the amputation of his left leg. On the issue of damages, he was allowed to present two experts that the defendants claimed were not competent to testify. The experts, a mechanical engineer specializing in bio-mechanics, and a prosthetist, testified about the possible cost of a myoelectrically controlled artificial leg which the engineer was developing, but which was not yet on the market and was not generally accepted in the field of prosthetics. On appeal, we did not decide whether it was error to admit the challenged expert testimony, but stated that if there was error, it was harmless, and further noted that
In Syllabus Point 7 State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), this Court held that a psychologist may state an opinion about whether a child alleged to be the victim of sexual abuse fits the profile of a sexually abused child, and may offer an opinion about whether the child in question has been sexually abused. The dissent noted that there was no effort by the State to demonstrate the reliability of the “child sexual abuse profile“, and noted that the profile was far from universally accepted among experts. Id. 183 W.Va. at 667, 398 S.E.2d at 149-150 (Miller, J., dissenting). Of course, as we said in Reager, supra,
To the extent that courts have been more careful with the admission of expert testimony in medical malpractice cases, the higher “standard of care” does not come from
Precisely because of the liberality with which many courts treat expert testimony in medical malpractice cases, physicians, hospitals, and insurance companies worked hard to get the legislature to impose by statute a stricter standard than that of
The statute will cause courts uniformly to scrutinize medical malpractice experts more closely than they have done in the past under
... balance the rights of individuals to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers who can themselves obtain the protection of reasonably priced and extensive liability coverage.
Balancing the interests of various groups is the basic function of a legislature.
... the purpose of this enactment is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth above. In so doing, the legislature has determined that reforms in the common law and statutory rights of our citizens to compensation for injury and death, in the regulation of rate making and other practices by the liability insurance industry, and in the authority of medical licensing boards to effectively regulate and discipline the health care providers under such board must be enacted together as necessary and mutual ingredients of the
appropriate legislative response. [Emphasis added].
II
Certainly the Legislature can change the common law.3 Under Edward I, a large body of important statutory law was enacted which profoundly affected the growth of the common law. In the process, the various institutions through which law was made took on definite form, and terms such as “statute” and “ordinance” were given definite meanings. As Maitland relates, “the king in parliament can make statutes; the king in council can make ordinances....” 4
In 1285, the Statute of Westminster II, 13 E. 1, Stat. 1, Cap 24 [1285], relaxed the Provisions of Oxford5 passed in 1258 that had curtailed the authority of the Lord Chаncellor to issue new writs to bring new types of disputes before the royal courts. Until the Provisions of Oxford in 1258, litigants could apply to the Lord Chancellor for a writ authorizing a royal court to decide a particular dispute, and the decision to grant a new writ was what we would call today the creation of a new cause of action. This process was arrested by the Provisions of Oxford, but the Provisions of Oxford‘s efforts to limit the lawmaking capacity of courts proved impractical, so the Statute of Westminster II authorized the chancellor to issue new writs in consimili casus (similar situations). It was under this authority, then, that writs for “trespass” were converted into writs for “trespass on the case” (in other words, trespass in a similar case) and the modern law of negligence was born. Thus, as the ebb and flow of judicial lawmaking power (i.e. ebbtide under the Provisions of Oxford to flowtide under the Statute of Westminster II) amply demonstrate, legislatures havе had authority from ancient times to restrict or permit the growth of the unenacted, judge-made common law.
West Virginia has affirmatively adopted a system of common law with legislative supremacy.
Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective date of this article and are not repugnant thereto, shall be and
continue the law of this State until altered or repealed by the legislature.6
The common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the Legislature of this state.7
In Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962), a wife sued for loss of consortium of her husband, a cause of action which did not exist at common law, and had not been provided by statute. The Court looked at cases from other states, but then made one crucial observation:
Apparently these states do not have the same constitutional and statutory provisions as West Virginia, and are not committed by their constitution and statutory law to follow the common law unless it is changed, altered or repealed by the legislature, as is West Virginia. [Citations omitted].
Id., 147 W.Va. at 336, 127 S.E.2d at 607. After examining the common law and giving the constitutional and statutory authority binding this State thereto, we succinctly stated:
It is clear, from the constitutional provisions and the statute pertaining thereto, that the legislature has the power to change the common law, and inasmuch as it has not done so in connection with the question involved in this case, the common law relating thereto remains the law of this State. [Citations omitted].
Id., 147 W.Va. at 338, 127 S.E.2d at 608-9. The Court went too far in Seagraves when it indicated that only the Legislature can change the common law. See our discussion in Morningstar v. Black & Decker, 162 W.Va. 857, 253 S.E.2d 666 (1979). However, what is apparent from all our cases, both those before Morningstar and after, is the indisputable fact that the legislature has the power to change the common law of this State.
III
Our Rules of Evidence were adopted on 18 December 1984, to be effective 1 February 1985, about a decade after the promulgation of the Federal Rules of Evidence. The Federal Rules of Evidence are merely a judicial codification of common law principles, and remain part and parcel of the common law. Wright and Graham tell us:
A comprehensive history of the law of evidence in federal courts has yet to be written and, fortunately, a detailed knowledge of the prior caselaw is no longer essential. The new Federal Rules of Evidence are not a product of previous statutes and decisions; instead the drafters chose to build upon earlier efforts оf the states to rationalize and codify the common law rules.8
Likewise, our own Rules of Evidence constitute an attempt to codify the common law of evidence. In Reager v. Anderson, 179 W.Va. 691, 371 S.E.2d 619 n. 4 (1988), we noted that
The Rules of Evidence establish a foundation for further development of evidence law. Lawyers may look to evidence cases decided before the adoption of the Rules of Evidence, but generally such research is not required. This saves time, money, and confusion. But from the starting point of the Rules of Evidence, the law of evidence can be changed, either by the courts or by the Legislature.9
The Legislature has supplemented this Court‘s Rules of Evidence with our hearty approval. In State v. Stacy, 179 W.Va. 686, 371 S.E.2d 614 (1988), this Court noted that the “West Virginia Rules of Evidence are supplemented in sexual abuse cases by
IV
In most areas of the law, the Court and the Legislature share power. The Legislature may enact a general law, and the Court then determines how that law applies to specific circumstances. However, there are certain areas where power is not shared. At one extreme, the Legislature has exclusive control over what goes into the State budget (except for the judicial budget).10 At the other extreme, this Court alone may prescribe qualifications for admission to the bar of this State. Pushinsky v. Bd. of Law Examiners, 164 W.Va. 736, 266 S.E.2d 444 (1980). The law of evidence lies between the two extremes, governed jointly by this Court and by the Legislature, with the Legislature able to preempt us by enacting statutes.
Appellant argues that because the Rules of Evidence are procedural rules promulgated by this Court, they are constitutionally superior to any сonflicting statutes, and appellant relies on several of our opinions holding certain procedural and administrative rules to supercede conflicting statutes. Some of the cases cited contain broad wording to the effect that procedural rules promulgated by this Court supercede conflicting statutes by virtue of two sections of the Judicial Article of this State‘s Constitution. To the extent that the cases say that all rules promulgated under this court‘s rulemaking powers supercede conflicting statutes, the cases are wrong.
The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, pro
cess, рractice and procedure, which shall have the force and effect of law.11
Under its inherent rule-making power, which is hereby declared, the supreme court of appeals shall, from time to time, prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a code of regulations and standards of conduct and performances for justices, judges and magistrates, along with sanctions аnd penalties for any violation thereof.... When rules herein authorized are prescribed, adopted and promulgated, they shall supersede all laws and parts of laws in conflict therewith, and such laws shall be and become of no further force or effect to the extent of such conflict. [emphasis added].
If the drafters and ratifiers of the Judicial Reorganization Amendment had wanted the Court‘s power in the area of procedural law to exclude the legislature from any involvement, the language underlined above would have been included in
We have been somewhat sloppy in our application of
In Syl. Pt. 2 of Stern Bros., Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977) we stated:
Under Article VIII, Section 8 of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), the administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supercede any law that is in conflict with them. [emphasis added].
This syllabus point went too far. In Stern Bros, the administrative rule in question controlled the procedure for selecting a temporary judge upon the disqualification of a circuit judge, a matter addressed by
The Court addressed another situation involving the appointment of a special judge in State ex rel. Crabtree v. Hash, 180 W.Va. 425, 376 S.E.2d 631 (1988), and
From the sloppy lumping together of
V
If the line of cases discussed immediately above is to be left undisturbed, at least for the moment, I would urge that the cases be read as standing for the proposition that purely administrative and procedural rules supercede conflicting statutes. The
Perhaps the relationship between new Court rules and ancient tradition can be illuminated by looking at an analogous situation that arose under the
“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.... By common law, [the Framers of the Amendment] meant ... not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.... In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights.” Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-447, 7 L.Ed. 732 (1830) (emphasis in original).
415 U.S. at 193, 94 S.Ct. at 1007-08.13 The right to jury trial has even bеen held to attach to actions enforcing statutory rights, “if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” Id., at 194, 94 S.Ct. at 1008. Thus courts have used a modified historical test to untie the knotty issue of the right to jury trial after the merger of law and equity under court-made rules.
The proper test for determining whether a subject governed by our court rules can also be governed by the legislature is likewise partially historical. Thus, if the subject over which the legislature seeks to exercise jurisdiction was traditionally a subject covered by common law, a statute likely will be superior to a court rule. However,
In this last regard, it should be remembered that more than any other court-promulgated rules, the rules of evidence significantly address substantive rights. The old dichotomy between procedural rules and substantive rules is usually more illusory than it is illuminating, and this is certainly the case in the area of evidence. For example, perfectly legitimate contracts can be made unenforceable by the provisions of the statutes of frauds—
In the case before us, the Legislature was obviously concerned with what it perceived as abuses in medical malpractice cases. Committees of the Legislature undoubtedly discussed alternative ways of achieving the goal of adjusting the balance between plaintiffs and defendants and chose to avail themselves of “procedural” mechanisms for achieving a different balance rather than “substantive” mechanisms. As the statutes of fraud, the Dead Man‘s Statute, the rape shield law, and the statutes governing the testimony of child victims in sexual assault and abuse cases amply demonstrate, the Legislature often repairs to evidentiary rules to achieve substantive results. And, no one can argue that the Legislature is not entitled to rearrange such substantive results. It would, then, be counter-productive to foreclose the use of tools such as modifications of the law of evidence traditionally thought to be available to legislatures.
For the reasons stated above, I would reverse the trial court‘s answer to the certified question in the negative, and hold that
June 11, 1991
BROTHERTON, J., joins in opinion of NEELY, C.J.
Notes
The applicable standard of care and a defendant‘s failurе to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Such expert testimony may only be admitted in evidence if the foundation, therefor, is first laid establishing that: (a) The opinion is actually held by the expert witness; (b) the opinion can be testified to with reasonable medical probability; (c) such expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (d) such expert maintains a current license to practice medicine in one of the states of the United States; and (e) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider. (emphasis added)
For example, in Brown v. Sims, 538 So.2d 901 (Fla.App.1989), corrected 14 F.L.W. 1047, decided in a jurisdiction that has adopted the Uniform Rules of Evidence, the court allowed a neurosurgeon to testify that a gynecologist “departed from accepted medical practice by neglecting to obtain a written opinion from a competent physician clearing the patient for surgery and that this departure was a cause of the plaintiff‘s stroke.” 538 So.2d at 903-4.In Morlan v. Harrington, 658 F.Supp. 24 (D.N.D.1986), the court stated:
The general rule is that an expert in a field that recognizes specialties need not be a specialist in order to testify as an expert witness. Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir.1975). The testimony of a doctor
In Posada v. Kilpatrick, 547 A.2d 163 (D.C. App.1988), the court held that a trial court did not abuse its discretion when it refused to strike, for lack of proper credentials, a general surgeon‘s testimony on the standard of care for oncology, therapeutic radiology, and vascular surgery. The court noted that “[a]ppellants concede that, in this jurisdiction, a licensed physician is permitted to give expert testimony on the standard of care in a medical specialty even if it is not in the particular area of his or her expertise.” Id., at 167 n. 2. The court then cited a 1966 case for that proposition. Although this case wаs decided in the District of Columbia, which has not adopted the Uniform Rules of Evidence,
Common law is in the first place unenacted law; thus it is distinguished from statutes and ordinances. In the second place, it is common to the whole land; thus it is distinguished from local customs. In the third place, it is the law of the temporal courts; thus it is distinguished from ecclesiastical law, the law of the Courts Christian, courts which throughout the Middle Ages take cognisance of many matters which we should consider temporal matters—in particular marriages and testaments. Common law is in theory traditional law—that which has always been law and still is law, in so far as it has not been overridden by statute or ordinance. [emphasis added].
Maitland, at 22-23.
(2) ...
(b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself [or herself] out as a specialist, a ‘similar health care provider’ is one who:
1. Is trained and experienced in the same specialty; and
2. Is certified by the appropriate American board in the same specialty.
(emphasis added)
Under the same Florida statute, in subsection (2)(c)(2), even if the proffered expert witness is not a “similar health care provider,” compared with the defendant, he or she may still testify as to the prevailing professional standard of care if the witness to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim.
This approach is consistent with the words “qualified in the same or substantially similar medical field,” which are used in W.Va.Code, 55-7B-7 [1986].
Id., at 20.Maitland describes how the enactment of a large body of statutes under Edward I affected the growth of the common law:
The vigorous legislation of the time has an important consequence in checking the growth of unenacted law. Henceforward, the common law grows much more slowly than under Henry III. Its growth is hampered at every turn by statute—changes in the law are not to be made withоut the consent of parliament. Law continues to grow, but it can grow but slowly; the judges are forced to have recourse to fictions and evasions because the highroad of judge-made law has been barred.
Id., at 21.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.