Mayhorn v. Logan Medical Foundation
454 S.E.2d 87
W. Va.
1994
Check Treatment

*1 past adoption of our decisions or our of a duty confidentiality physicians. regarding MAYHORN, as

Roberta Executrix Mayhorn, of Homer Estate Below, Appellant,

Plaintiff FOUNDATION,

LOGAN MEDICAL a cor-

poration, Hospital; dba General Gosien, M.D.,

and Dr. Jim Defendants

Below, Appellees.

No. 21933. Appeals Court of Virginia.

West Sept.

Submitted 1994. Dec.

Decided 1994.

Dissenting Opinion Neely of Justice

Dec. *3 Zamow, Logan, appellant.

Thomas A. for Partain, George Logan, appellee L. for Logan Medical Foundation. Adkins, Mundy, Mundy L. &

William Gosien, Huntington, for Dr. Jim M.D.

McHUGH, Justice: appellant, Mayhorn, Roberta filed a malpractice wrongful medical death action W.Va.Code, 55-7-5 [1931] 55-7B-1, seq. against appellees, Logan et Foundation, Medical General d/b/a (hereinafter Hospital hospital”) “the and Jim Gosien, appellant appeal M.D. The filed this Logan County after Circuit Court of granted appellees’ motion directed ground appellant’s verdict M.D., Bendersky, Gordon relied on a certain fact not in evidence rendering judge his found was during later shown to be incorrect the testi- mony DeLara, of C.F. M.D. For reasons below, stated we reverse the circuit court. I appellant’s This action after arose hus- band, old, sixty-eight years who was went to emergency approximately room at 11:55 19, 1990, p.m. complaints on June with sharp plains between his shoulder blades May- which traveled his left Mr. down arm. complained belching, horn but denied being having short of breath excessive perspiration. physician, Dr. Go-

sien, (EKG) electrocardiogram ordered an work-up and other cardiac alleg- tests which edly approxi- revealed no abnormalities. At mately a.m., 20, 1990, 1:10 June Dr. Go- discharged Mayhorn diagnos- sien Mr. after ing non-cardiogenic pain him with which was possibly indigestion. gave Dr. Gosien Mr. (Maalox Mayhorn a “GI cocktail” and Donna- tol) symptoms. approximately to treat his At day, home, 8:55 a.m. on the same while in his Mayhorn Mr. suffered a cardiac arrest and ambulance, sent, II hospital was approximately he died at 10:15 a.m. where appellant issue involves raised testimony of admissibility of the a medi- DeLara, pathologist who Dr. Carlos cal who on the cause doctor bases performed appellee hospital, for the worked pathology report which has death to the heart which was limited judge admitted into evidence. The trial been appellant’s request. lungs ruled that medical doctor’s “This following: elder- DeLara concluded Virginia not admissible to West ly suddenly male ar- white died cardiac 70Bsince the author of the Rules Evidence rhythmias brought about severe arterio- pathology report disagreed findings with coronary *4 sclerosis of the arteries. No evi- expert report. the medical made from that myocardial of not- dence recent infarction is 1 dispute on Dr. centers whether DeLara’s ed.” autopsy report on noted recent ischemia and 5, 1991, August appellant On filed a there other on which Dr. whether are factors against appellees. wrongful death action Bendersky his other based than appellant At trial the used Gordon Bender- finding of recent ischemia. M.D., internist, sky, a board certified as her expert Mayhom’s witness on Mr. cause of outset, At the out that this death and the standard of care which Dr. Court has stated Belcher v. Norfolk used. The trial Gosien should have court Co., 848, 853, Ry. 87 Western Bendersky testify Dr. as allowed (1955), S.E.2d overruled other Mayhorn’s Mr. Dr. cause of death before Co., grounds, Bradley Appalachian Power Bendersky though DeLara testified even Dr. (1979), report. Dr. Dr. relied on DeLara’s in favor when a verdict is directed of the Bendersky also relied on the defendants, then the evidence introduced past report and a EKG and test results along plaintiffs be as taken true performed by Mayhorn’s treating physi- Mr. are with all facts which favorable to the Dr. forming cian in his plaintiff may be inferred from body. Dr. did not examine the analyzing the is evidence. pre- testified that cause of death was “[t]he us, interpret in the sues case before we will arrhythmia myocar- ventable caused light the facts most favorable to dial ischemia.” appellant. we are mindful that admissibility testimony by of “[t]he DeLara that in his he testified is a within the sound discre witness matter Mayhom had did mention that Mr. evidence court, tion of the trial and the court’s ischemia; however, not of it was recent it is decision will not be reversed unless Furthermore, Dr. DeLara testi- wrong.” pt. Syl. Helmick v. Poto he the cause of fied that could state Co., mac Edison degree a reasonable of medical death with denied, (1991), 908, 112 cert. 502 U.S. only certainty. he He stated that could 301, 116 L.Ed.2d 244. S.Ct. guess to the cause of make an educated as death. of Supreme Court the United States explained judge a trial ana- how should appellee’s mo- granted the The trial court lyze admissibility expert’s opinion: hearing Dr. tion for a directed verdict after judge assessing a Throughout, proffer testimony that was no evi- DeLara’s there Rule scientific under ischemia. It from this dence of recent applica- other should be mindful of ruling appellant appeals. also muscle) interruption Although completely heart result of footnote no means supply the area. The Sloane-Dorland discussed in the blood describes the medical conditions us, Medical-Legal Dictionary attempt explain 374 and 471 Annotated it does case general (1987). myocardial by the A ischemia is caused some the medical condi- terms what supply gross deficiency of blood to the heart muscle A infarction is cell tions are. coronary (which myocardium is the due to constriction or obstruction middle death in composed artery. layer Id. at 390. heart wall which thick provides ble rules. ley, Virgi- Rule 703 Handbook on Evidence West opinions 7-3(B) (3rd 1994). based on otherwise inadmissible Lawyers, nia ed. See hearsay only are be admitted if the facts Advisory Committee Notes of Fed. type reasonably or data are ‘of a relied R.Evid. 703. upon by experts particular field interpreted have Courts Rule 703 to forming opinions upon or inferences experts rely reports allow subject.’ Rule 706 allows the court at its though observations of others even procure discretion to the assistance of an might basing mean the choosing. Finally, of its own Rule al., hearsay. 3 Jack B. Weinstein et permits the exclusion of relevant evi- § 703[01] Weinstein’s Evidence at 703-11 probative dence ‘if substantially its value is purpose of Rule 703 is to enable outweighed by danger preju- of unfair experts give opinions in a manner consis dice, issues,, misleading confusion of the they tent with how make decisions without jury. having go through time-consuming Pharmaceuticals, Daubert v. Merrell Dow process introducing the mass of informa —Inc., -, -, U.S. 113 S.Ct. expert’s opin tion that forms the basis of an *5 2797-98, 126 L.Ed.2d all, ion. expert’s opinion, After it is “[t]he analyzing issue, when the first we underlying rather than the unadmitted hear first determine whether Dr. say, primary constitutes [which] the evi relied on facts type and data which are “of a dence, jury only which the [and] can evaluate reasonably upon by experts relied in the expert’s on the basis of the credentials and particular forming opinions field in or infer- credibility the usual Cleckley, factors.” su upon subject” pursuant ences to W.Va. 7-3(B)(2) pra Second,

R.Evid. 703. we must determine W.Va.R.Evid. 702 states: expert’s testimony whether that is admissible third, to W.Va.R.Evid. and Testimony by Experts. scientific, If testimony must determine whether the technical, specialized knowledge or other prejudicial more than relevant will assist the trier of fact to understand will, therefore, W.Va.R.Evid. 403. begin We the evidence or to determine a fact in our analysis applica- discussion an with of the issue, expert by a witness ble rules of evidence. skill, knowledge, experience, training, or may testify education in thereto the form simply outlines the opinion of an or otherwise. may factual basis which an use to opinion: form his provides W.Va.R.Evid. 702 the test for deter Testimony Opinion of mining Bases Ex- expert’s testimony whether an is ad perts. particular or in pointedly, syllabus facts data missible. More in upon Buracker, opin- case bases an v.Wilt 443 S.E.2d — may perceived by (1993), denied, ion or inference U.S. -, be those cert. (1994), or made known to him at or before the S.Ct. 128 L.Ed.2d 867 hearing. type reasonably If of a relied Court held: upon by experts particular in the field in analyzing admissibility In forming opinions upon or inferences testimony under Rule 702 of the West subject, the facts or data need not be Evidence, Virginia Rules of the trial admissible in evidence. inquiry court’s initial must consider wheth- Specifically, testimony Rule 703 allows an er the is based on an assertion “(1) opinion personal base his on observa- or inference derived from the scientific tions; data, Moreover, facts or methodology. admissible evi- dence, presented and to the at or must be relevant to a fact at issue. Fur- trial; and information otherwise ther assessment should then be made evidence, type regard inadmissible if this of infor- expert testimony’s reliability to the reasonably upon by mation experts by considering relied underlying its scientific 2 Franklin methodology reasoning. witness’ field.” D. Cleck- This includes (a) Bendersky based his argue that Dr. whether the scientific an assessment fact in evidence: recent theory its can be and have on a not conclusion (b) argues tested; Conversely, appellant that Dr. the scientific the- been whether cause ory subjected peer review and has been based (c) Dr. publication; the scientific theo- factors found in De- whether death several ry’s solely rate of error potential actual and not Dr. DeLara’s Lara’s (d) known; theo- the scientific finding whether of ischemia. ry accepted within the scienti- generally reading record indicates that A close of the community. fic Bendersky, Dr. appellant is correct. conclusion, arriving In at reviewing report, Dr. noted DeLara’s upon Daubert, supra, upon which the relied following findings made of the United States report are consistent with that, determining whether clear arm; pain pain within in the left ischemia: expert’s opinion a reliable foundation and blade; arteriosclerosis of the shoulder severe expert’s opinion is relevant whether seventy percent coronary arteries with court, the trial the issue before the lumen; narrowing narrowing of the solely judge’s princi ... must be “focus artery; ischemic infarction circumflex ples methodology, on the conclusions muscles; death cardiac ar- papillary at -, they generate.” Id. S.Ct. Clearly, Bendersky relied on rhythmias. 2797, 125 L.Ed.2d at 484.2 finding Dr. DeLara’s of ischemia more than arriving at his papillary muscles when light foregoing analysis, we now

In appellees the record indicates opinion.3 us. The turn to the case before *6 says pain left It The arm. Supreme the States held in A. Yes. 2. The Court of United blade, Daubert, pain but the within the shoulder here supra, Rules Evidence that the Federal patient says blades. between the shoulder acceptance" supersede "general test estab- the findings consistent with States, Those are the two Frye v. 293 F. 1013 lished in United myocardial ischemia. acute (D.C.Cir.1923) governed when the which scienti- thing page. Q. the second Is Same on forming technique by his fic used the findings page any second that on the there Daubert, opinion In the Su- was admissible. by a caused would be consistent with death preme United outlined a the States myocardial ischemia? is to approach which the trial court flexible coronary says This the arter- A. Yes. both analyze expert's opinion has a reli- whether the with nar- ies show severe arteriosclerosis some expert's opinion whether the able foundation and rowing approximately seventy lumen of the to the the trial court. is relevant to issue before (70) including percent, it it the and describes Supreme States noted The Court of the United vessels a total of these three. other blood for determining whether the trial court is that when says pronounced on the left anterior So it more expert's the a reliable foundation for there is artery descending branch. Circumflex opinion, whether the the trial court assess por- narrowing. yellowed The shows some reasoning methodology underlying is scienti- or myocardial consistent with tions are applied. fically properly The valid ischemia. gen- emphasized States that Court of the United any findings page Q. 3 that Is there cross-examination, erally presenting contrary ev- death be with a cause of or would consistent proof instructing the idence and burden by myocardial ischemia? death caused (if challenge it the evidence is based the means to finding here the ischemic A. Yes. The upon by principles) the relied valid papillary Ischemic muscles. infarction of complete opinion forming than exclu- his rather papillary present in the muscles infarctions are sion. ligaments connecting or and several tubercula myocardial death from them. That indicates excerpt following is an from trial 3. addition, repeat infor- In there’s the as to how he which Dr. testified coronary arteries show se- mation about the opinion: formed his narrowing and a marked vere arteriosclerosis bench, will, you step Q. sir. seventy-five percent. down to approximately If edification, yesterday you Mainly jury’s Q. for What was lumen? page opening guess the first I what would be is the other name for discussed A. Lumen would, Doctor, page you the blood pipeline. if look at first It’s the hole that in the normally of— of through, you but is nar- report [sic] I’ll hand flow pathology show anything on the first case. there rowed in this marker here. Is guess anything highlight Q. on I the com- report you that Is there page that can that findings page be consistent with the ment that would consistent with indicate would finding by ischemia? a death by myocardial ischemia? caused death solely report. opinion pathology that Dr. further relied on the his on the results, emergency report room upon and test also relied Mayhorn’s past performed by EKG Mr. report past and test as a results as well treating physician. Thus, forming opinion. EKG when judge clearly wrong was he found when logic argue It defies that a medical Bendersky’s testimony to be inadmissi report, expert’s reliance on an emer ble. results, gency room test well past performed Mayhorn’s by as a EKG Mr. Ill treating physician, are a medical not data appellee, Logan Medical reasonably upon rely when de would Foundation, er cross-assignment raises a termining the cause of death issue Medical ror. The raised Furthermore, W.Va.R.Evid. Bendersky, pur is whether Dr. Foundation methodology employed basic Dr. Bender- W.Va.Code, [1986], is suant to 55-7B-7 suffi valid, sky scientifically inap would be it ciently “engaged qualified in the same or testimony pursuant propriate exclude his substantially similar medical field” as Dr. being to W.Va.R.Evid. 702 as irrelevant sci qualified Gosien be in a as an knowledge entific which not assist the would malpractice medical action. We have jury. the fact Dr. Bender- outlined standard used sky’s conclusion differed from that of the reviewing a trial court’s decision to pathology report author does not ren expert: qualify an Bendersky’s testimony der Dr. inadmissible ““Whether a witness is pursuant to As W.Va.R.Evid. 702. we stated state an is a matter rests previously, solely focus must on the be within discretion of the methodology and not trial court ruling ordinarily its on that jury responsible as it is the will not who is clearly appears be disturbed unless it determining weight given to the be Furthermore, its discretion has been abused.’ Point expert’s Fields, syllabus, Overton Bendersky’s because Dr. Syllabus necessary determining [117 Point ].” wheth *7 4, Co., 582, occurred, v. Nello malpractice Hall Teer 157 pro er medical “its W.Va. (1974).’ 12, Syllabus Point substantially outweighed by value is bative Zando, danger Board Education prejudice[.]” of unfair v. Martin & the of Milstead, 597, 182 W.Va. 390 796 S.E.2d Accordingly, we hold that to (1990). expert’s opinion 702 an W.Va.R.Evid. is ad 3, Wilt, Syl. Therefore, pt. supra. we will methodology if employed the basic missible decision, the trial in reverse court’s the by expert arriving in at his is us, appellee case before unless the can show scientifically technically properly or valid that the trial court abused its discre- jury, applied. judge, not the tion. given weight determines the to be focuses its attention opinion. Therefore, expert’s in the case be W.Va.Code, language following in found 55- us, proper testifying it was fore for the ex [1986], states, part: 7B-7 which in relevant pert report base his of expert, though applicable another even author standard of care and a standard, came to a different conclusion defendant’s failure to meet said issue, testifying expert, than since the basic if shall be established in medical methodology employed by testifying professional liability plaintiff ex cases pert scientifically properly ap knowledge- valid and of one or more Furthermore, able, plied. expert competent did not expert base if witnesses re- Yes, death, causing A. repeat there is. The in the com- statement ischemia and the state- ments, elderly suddenly white male died ment of nary severe arteriosclerosis of the coro- arrhythmias. arrhythmias supports cardiac Cardiac are arteries. That the cause of way myocardial the characteristic acute death as

49 Appeals Virginia Supreme quired by expert the court. testimo- Court West Such only if ny may power promulgate be admitted in evidence have rules for all “shall foundation, therefor, criminal, proceedings, is first laid establish- cases and civil and for (e) writs, ing expert engaged relating ... such or that: is all of the courts State qualified substantially warrants, simi- process practice procedure, the same law.”) lar medical field as the defendant health shall have the force and effect of which 1, Warner, provider. care syllabus point Bennett v. 179 (“Under (1988) 742, 372 W.Va. S.E.2d Choi, 177, This Court Gilman 185 W.Va. [VIII], of our article section three Constitu- discussed the above tion, Appeals Court of shall statutory provision. In Gilman this Court Therefore, tions of an concern the 55-7B-7 stated that case; however, this Court declined to ad- legislature legislature [1986] the Court competency which outlines the could enact statutes which could enact a medical to W.Va.R.Evid. Gilman concluded of witnesses.4 malpractice W.Va.Code, qualifica- 601, have the the courts of the State practice, force and effect of authority supra Rules of Evidence recently § 7-2(A)(l), power determining procedure, held that promulgate law.”) at 30. remain the which “[t]he related to See admissibility rules for all of West shall have the paramount Cleckley, process, Virginia dress whether W.VaCode, 55-7B-7 [1986] is evidence in circuit courts. These rules con- stitute more than a mere refinement of com- 702, more than restrictive W.Va.R.Evid. rules, evidentiary they mon are a com- law governs qualified which when an is Syl. pt. of them.” prehensive reformulation opinion. state an Derr, 165, State v. 451 S.E.2d Today reasoning of we revisit the (1994). Co., Colony See also Teter v. Old the Gilman decision. There is a difference 711, 724, 441 S.E.2d witness, competency between the of a which governed by is W.Va.R.Evid. and the Accordingly, we hold that Rule 702 qualifications governed of an is which Virginia is the of the West Rules Evidence Cleckley, supra 7- W.Va.R.Evid. 702. authority determining paramount wheth 2(A)(1) Furthermore, W.Va.R.Evid. give qualified er or not legisla 601 should not be used allow to the extent that Gil qualified. ture to outline when an Choi, S.E.2d 200 man v. Instead, applicable provision is Id. legislature may by indicates that the provides: determine when an statute Testimony by Experts. If Rule 702. opinion, to state an it is overruled. With scientific, technical, specialized or other mind, analyze the issue we will now knowledge assist the trier of fact to will *8 us under W.Va.R.Evid. understand the evidence or to determine a issue, 702, qualified an analyzed fact in a witness as Rule The case Gilman skill, by knowledge, experience, expert expert provided guidance on a medical when may testify thereto training, testify malpractice or education qualified to in a case: is or otherwise. First, expert, quali- a medical otherwise form of added). fied, merely testifying from does is not barred (emphasis W.Va.R.Evid 702 engaged prac- in legislature may because he or she is not provide that the outline not quali- specialist a in the field about which found to be tice as a witness should be when offered; testimony complete his or her expert. This fied as an Court hand, that a medical expert’s qualifica- other it is clear authority to determine an subject may testify about medical rule-mak- not pursuant to its constitutional tions Const, Second, VIII, ... or- [in without limitation- ing authority. art. See W.Va. (which expert on states, qualify a witness as an part, der] in relevant "Every person or these rules.” com- vided for statute 601 states: 4. W.Va.R.Evid. pro- except petent as otherwise to be a witness care, recognized party ditionally, that offering this Court that standard (a esophagus perforated the witness establish witness due to medical issue that familiarity food) a with the has more than casual specialized knowl- impacted involved commonly of care and treatment had, just standard not edge mere practiced by physicians engaged in the de- procedures. knowledge emergency room specialty.... fendant’s Id. Third, may acquire a medical witness us, Dr. knowledge qualify Similarly, as an ex- in the case before sufficient through practical experience, Bendersky, in pert recent who is board certified internal training study medicine, professor cardiology or a combination formal is a at Hah factors. of these University School. There nemann Medical fore, Bendersky possesses specific knowl Dr. Gilman, 181, at 406 S.E.2d at 204 185 W.Va. in (citations edge about the medical condition issue original emphasis in omitted text). case before us. Dr. Bend Lastly, in we out Gilman that ersky approximately testified that from stated “it be an abuse of would in require until 1966 he worked full-time the emer for a trial court to discretion Bendersky proffered expert gency also' witness to be board certified room. Dr. testified specialty particular although longer medical as a same he no works full-time that 180, provider.” room, health care Id. at emergency defendant he continues to see emergency room patients when he is cardiology in to them for called examine applied This discussion Gil- Court problems. regarding Rule 702 man of the W.Va.R.Evid. 588, Al-Hajj, Fortney v. appellee challenged The truth (1992). Fortney, In a case factu- S.E.2d 264 however, Bendersky’s testimony; Dr. the tri us, ally the case similar to appellee’s al court was aware of the concerns found that who was board Moreover, it made if the when its decision. medicine, emergency certified room was challenge veracity appellee had wanted to qualified testify standard of care to the Bendersky’s Dr. it have credentials could emergency physician. room This Court through done so cross-examination. Accord

in arriving at that noted that decision ingly, do that surgeon not find trial court general a board certified qualifying years of as a abused its discretion experience with fifteen chair- department. expert.5 man of an Ad- Dr. as an appellee cross-assignment appellee cross-assignment 5. The of error concludes his by asking plaintiff proved specifically require contends that the never what the error this Court to recognized applicable identify standard of was that Dr. care Gosien source professional several cases standards breached. cites in medical which he CAMC, cluding were Thornton claims breached. following that S.E.2d 316 Thornton uses the We note if an language: physician "if an then the be out-of-state testifies should testify. throughout a 'standard is uniform "Should the witness fail [that] about allowed later describe, and, country; adequately the standard, that he is familiar with define or the relevant care, opposing is admissible in mal standard of counsel is free to ” practice explore testimony. Id. at at 325- case.’ 305 S.E.2d weakness in the (footnote citing syl. pt. may omitted of fact choose to 26 ley (1967) Hund trier then discount the Martinez, *9 7-2(A)(l), testimony.” Cleckley, supra § 151 158 S.E.2d 159 v. W.Va. However, virtually locality we in which abandon we from a since conclude review rule). adequately the record that issue was not this consider, presented to the it to treatise trial court for also cites to a entitled cross-assignment Law several decline further address Health Care which lists sources Catlett, syl. professional pt. See v. determine a standard. The of error. 161 which Shackleford (1978) ("‘In (1) developed by sources are: standards accredit- S.E.2d (2) (3) jurisdiction, ing agencies; statutory provisions; appellate of its exercise (4) groups; nonjurisdictional questions prescriptions professional of various will not decide regulations; own rules and were not considered and decided the court an institution’s expert views; practices appeal Syllabus which the has been taken.' the actual from MacDonald, Hitt, [, Mowery care institutions. Michael G. Point v. health al., (1994). (1971)”). 334] Law 11.02[3][a] et Health Care IV judg- December

We reverse the Court of

ment order of the Circuit

County this case to the trial and remand consistent proceedings

court for with

Reversed and remanded.

BROTHERTON, C.J., participate. did Justice,

MILLER, sitting by Retired

temporary assignment.

NEELY, C.J., Acting dissents. Justice,

NEELY, Acting dissenting. Chief 1994)

(Filed Dec. holding Syllabus

I dissent to the Point my dissent in

for reasons set forth Gilman 182, 406

v. S.E.2d at 205 Choi Virginia, Plaintiff

STATE of West

Below, Appellee, HONAKER,

Helen Defendant Jean

Below, Appellant.

No. Appeals

Supreme Court Virginia.

West 20, 1994. Sept.

Submitted 15, 1994.

Decided Dec.