*1 principles Democratic demand Court listen. McGRAW, Robert S. Plaintiff Below, Appellant, holding The Court’s in this case leaves right keep extremely arms in an and bear vague contradictory Considering state. HOSPITAL, Corpora ST. JOSEPH’S uncertainty now and confusion confront- tion, Tarney, M.D., and Thomas J. owners, ing gun I am reminded of a fellow I Below, Appellees. Defendants happier I once knew when times lived in Virginia. southern West His name was Jim No. 23540. Virginians, Tom. Like most true West Jim Supreme Appeals Court of really spent Tom loved the outdoors and Virginia. West every possible minute the woods and however, Unfortunately, mountains. Jim Submitted Jan. absolutely Tom was terrified of snakes. He Decided Feb. was so afraid of snakes that all the time he Dissenting Opinion Maynard of Justice spent outdoors was marred the constant 16, 1997. July he fear would be bitten snake. Jim absolutely Tom continued to be obsessed fear, day
with this unreasonable until one friend, doctor,
when his who was also his
gave him a bottle of rattlesnake anti-venom.
Suddenly, problem was solved. Jim Tom
placed pocket the bottle of anti-venom in the vest, hunting began enjoy
of his na- fullest,
ture to its secure in the knowledge bitten, if help he were ever immediate
was at hand. however, day,
One Jim Tom’s worst fears
were stepped realized when he on a rotten
log huge and was bitten rattlesnake. panic suddenly
Sheer him gave seized but relief,
way soothing when Jim Tom re-
membered the bottle of anti-venom in his calmly very carefully
vest. He removed
the bottle slowly of anti-venom and sat down printed read the directions for use on the
package. sinking But it was with a heart poor
and a sense doom that old Jim Tom
realized that the directions had been written Virginia Supreme Ap- the West Court
peals! *3 Jacobs, Parkersburg,
William L. Appel- lant. Wakefield,
Jeffrey R. Sensabaugh, M. Don Bonasso, Flaherty, Sensabaugh & Charles- ton, for Appellees.
DAVIS, Justice: appeal McGraw, This is an Robert S. below, plaintiff summary judgment from a County order the Circuit Court Wood complaint his dismissing against the defen- below, Joseph’s Hospital.1 dant St. ap- On peal plaintiff argues that the circuit court in granting summary judg- committed error ment on that medical required to show the defen- dant violated the of care in treatment him.
I. FACTUAL BACKGROUND straightforward, The facts ease are though points critical in dispute. some remain 10,1991 May plaintiff On walked into the emergency defendant’s room complaining of breath. shortness of After several hours of waiting personnel, seen to be plaintiff hospital. was admitted into the On May morning four female personnel attempted plaintiff assist back into The during bed.2 testified deposition his that he informed the four There was second defendant in the Dr. 2. The does not record indicate whether the worn- Tamay. Thomas J. The record indicates that the en were nurses nurse's aides. Tamay dismissed Dr. from the prior summary judgment proceeding, pur W.V.R.Civ.P., 41(a)(1)(ii). suant to Rule put they any as to violation of the he did not believe could women that weighed Hospitalf.]” appeal too much.3 because he of care This fol- him bed im- plaintiffs memory happened of what lowed. reverse. mediately making that after statement that all he could re-
minimal. He testified II. fall- he a sensation of member is that “had OF REVIEW STANDARD During early morning hours of ing.”4 syllabus point 1 of We stated on the May 12 the was discovered Peavy, Painter v. W.Va. indicated in floor near his bed. entry circuit court’s “[a] deposition that he fell out of bed.5 The summary judgment is reviewed novo.” de that on the after- plaintiff further testified pt. 1, Syl. Bank See also Jones Wesbanco four female nurses and noon Parkersburg, 194 dropped attempting him nurse’s aides while *4 (1995); 1, Chambers, pt. “they Syl. Hanlon 195 place him in bed.6 He stated that to (1995). 99, 4, put get up Syl. get pt. to me and W.Va. had to men me — Law, 705, they dropped 461 put me[.]” me bed after had Jividen v. 194 W.Va. S.E.2d (1995). We, therefore, eventually discharged apply from the was 451 same 28,1991. as a the on June circuit court. Williams Coil, 52, Inc., 194 Precision 459 May 6, 1993 filed the in- On the syllabus point 2 S.E.2d of against the stant action defendant. the Williams Court stated: complaint charged drop- if, Summary judgment appropriate is ping permitting or him to on two occa- presented, totality from the of the evidence alleged It also that he sustained sions. the record could not lead a rational trier of in, injuries “a neck and other about fractured party, nonmoving fact find for the such arms, to parts upon his knees and other of and nonmoving party as where the has failed to body” a result both After his as of incidents. showing make a sufficient on essential discovery in the the defendant moved that the element of ease it has burden summary judgment “premised upon for prove. produce expert of testimo- failure McGraw
ny demonstrating deviated Further, syllabus point 3 of we Williams any from the of care and that devia- held: injury damage tion or to McGraw.” caused party properly a moving If the makes summary judgment By supported the circuit motion for order entered June by and affirmative evidence that granted the motion for can show defendant’s fact, genuine of a material summary judgment is no issue on there production non- Virginia requires law that a violation burden shifts “West (1) by moving party who must either rehabili- of the standard health care moving expert testimony,” tate the evidence attacked provider proven by but (2) produce produce expert party, additional evidence “is unable to prog- weight 6.This incident was recorded in nurse's 3. The record is not clear as exact appears plaintiff. weighed "Attempt- It that he some- ress the defendant as follows: *5 testimony expert mandatory in medical was al., Bluefield, et 148 369 W.Va. [135 § pursuant this case 55-7B-7 W.Va.Code (1964)].” 1, 262 Syllabus S.E.2d Point (1986), provides part:7 in relevant City rel. State ex Board Trustees 210, Bluefield, 153 applicable W.Va. The standard of care and a (1969).’ 3, standard, Syl. pt. Virginia Central defendant’s failure to said West meet Refuse, issue, Inc. v. if be in Public Service Com’n at shall established medical Virginia, 416, liability West 190 W.Va. 438 professional by plaintiff S.E.2d cases (1993).” by 596 knowledge- of one or more able, competent expert witnesses if re- language Our examination of the relevant quired by the court. § W.Va.Code 55-7B-7 instructs that it us is granting summary In judg- ambiguity legislature without and that ease, not, defendant, in argued ment this the circuit court did not has mandat- expert testimony cite the above statute. The circuit court held ed that in used medical “ our required professional liability law “a violation of the eases. the lan- Where provider8 guage plain unambiguous, care health care aof statute is and 55-7B-2(c) provides: § full text W.Va.Code following § The 55-7B-7 8. W.Va.Code sets out the provider: applicable The definition health care of care and a defen- standard, issue, failure said dant's to meet if at provider’ person, part- 'Health care means a professional shall be established medical nership, corporation, facilily or institution li- liability plaintiff by testimony cases in, by, or censed certified this state or another knowledgeable, competent expert or one more state, provide professional health care or required witnesses if the court. Such ex- services, including, care health but not limited may only pert testimony be admitted in evi- to, physician, therefor, osteopathic physician, hospital, foundation, dence if is first laid dentist, nurse, (a) registered practical or licensed establishing opinion actually The that: is witness; (b) expert opinion optometrist, podiatrist, chiropractor, physical held can officer, proba- therapist, psychologist, be testified to with reasonable medical or or an em- (c) bility; expert profes- possesses such witness ployee agent acting or thereof in the course coupled knowledge expertise sional and officer’s, with scope employee's of such or knowledge applicable of the standard of agent’s employment. expert opinion testimony to which his her or The has invited this Court to deter- addressed; (d) expert such maintains a current provider, mine whether health care as defined practice license to medicine in one the states above, maids, housekeepers jani- includes States; (e) expert of engaged United such issue, tors. We decline to address this as the qualified or or the same substan- maids, housekeep- record indicates that nowhere tially similar medical field defendant janitors ers actors this case. provider. health care
119
cases,
liability
mony
professional
application of
rules
no basis for
there is
construction;
ap-
decision,
must
statutory
but courts
will
the trial court’s
“we
not reverse
according
legislative
ply
us,
the statute
...
unless the
trial
the case before
Syllabus,
expressed therein.’
plainly
intent
Mayh
clearly abused its discretion.”
Director,
Compensation
149
Dunlap v. State
orn,
48,
at 93.
193W.Va. at
448)
(140
pt.
Syl.
[1965].”
S.E.2d
W.Va.
ruling in
circuit court’s
the instant
City Wheeling, 153 W.Va.
Kucera v.
testimony,
presents two
the issue of
S.E .2d
(1)
that must be addressed:
was
matters
§
hold that W.Va.Code
55-7B-7
case;
necessary in
expert testimony
We
provides that circuit courts have discretion
expert?
the plaintiff
did
in fact have an
require expert testimony
profes
in medical
in our
We are aided
sional
cases.9
general principles
some
note
provides
§ 55-7B-7
holding that W.Va.Code
prior
developed
have
in this
cases
area.
discretionary authority
experts,
use of
Farley
syllabus point 1 of
stated that
In
Neary.
“
by our
decision
general
rule that
in medical
‘[i]t
Neary
brought a medical
liabili
pro
negligence
or want of
hospital,
ty
against the defendant
due
action
proved only by
skill
fessional
can
operation. The
to an infection from a back
Gale,
pt.
Syl.
Roberts v.
witnesses.’
summary
granted
circuit court
that case
(1964).”
166, 139S.E.2d 272
W.Va.
defendant,
judgment to
basis
produce expert
not
testi
could
Adongay,
Totten
mony
operation
negligently per
(1985),
638, 337
stated
Court
appeal the
contended
formed. On
“
may
‘cases
arise where there is such
required
not
be
dispense
skill
want of
as to
testi
loquitur ap
ipsa
cause
doctrine of res
”
Syl.,
mony.’ Quoting,
part,
Buskirk v.
Although
plied
we cited W.Va.
to the case.
Bucklew,
(1934);
Totten what B. expert knowledge” exception to “common testimony. Expert Requirement Of Medical Testimony Necessary In Expert § Was determining
In that W.Va.Code 55-7B-7 position The defendant takes discretionary expert testi- This Case? provides for use of knowledgeable, testimony of one or more Although us ‘the the issue was not before in Gilman 179, 177, 200, Choi, ap- expert 202 competent v. witnesses' to establish Logan part, Mayhorn malprac- v. Medi overruled in plicable in a medical Foundation, 42, cal 193 to meet that and a failure tice action defendant’s (1994), passing we did that W.Va.Code state in standard, added.) (Emphasis at issue.” if require 55-7B-7 trial “authorizes 120 (Me.1985) (where exception10 knowledge patient common fell out of chair here, “liability expert applicable testimony required
not
because
not
on issue of
premised upon complex
management
hospital’s negligence
allowing patient
to sit
Biggs
chair);
County
v. Cumberland
professional management.”
Hos
involving
issues
Inc.,
pital System,
addressing
547,
69 N.C.App.
have reviewed
317
(1984) (where
majority
patient
fall incidents and found that a
of S.E.2d 421
is known to
do not
jurisdictions
require expert
testimony
be weakened
left
condition and is
alone
Mercy
falls,
in such cases. See Cockerton v.
shower,
Hos
testimony
where she
on
Center,
(Iowa
pital
Medical
490
856
required);
N.W.2d
aides
standards
nurse’s
not
Louis,
Hospital
v.
Robbins
Jewish
App.1992)(where patient
x-ray
fell while in
St.
663
testimony
required
(Mo.App.1983)(expert
room
not
on S.W.2d 341
v.
Walker
Southeast
hospital’s negligence);
required
not
where bed rails not raised and
Center,
(Ala.
Medical
out);
Washington
Alabama
damaged patient
545
769
brain
So.2d
fell
Martin,
1989)(where
Hospital
Center v.
contrary
rail left
bed
down
454 A.2d 306
fell,
patient
no
(D.C.App.1982)(mere
patient
doctor’s order and
fact that
falls in
care);
testimony required
normally require expert
not
will
tes
Hospital,
Community
Edelin Westlake
timony
hospital’s
Newhall v.
negligence);
157
Inc.,
Hospital,
N.E.2d Central Vermont
Ill.Dec.
510
Ill.App.3d
109
133 Vt.
(1987)(expert
required
patient
(1975)(expert testimony
958
not
349
890
where
A.2d
not re
hospital,
leaving
quired
falls while
as matter
in
where
respond
nurse failed to
to se
duty
escort);
provide
patient
administrative
patient’s
got
volved
dated
call and
out of bed
Hospital,
Rewis v.
fell);
Hospital,
Grand Strand General
McEachern v. Glenview
Inc.,
(1986)(hospital’s
(Tex.Civ.App.1974)(ex-
S.C.
We find The circuit court with the direction to mean that the suasive and consistent Dr. Henthorn’s syllabus care in this law in this area. We noted met standard of defendant exp Center, Therefore, plaintiff had no Hospital point 3 of case. Utter United Inc., the circuit not convinced that We are ert.11 finding is correct. Dr. Henthom was who court’s owes one ‘“[a] *8 was, fact, concerning following findings said incident filled out The circuit court made the R.N., Marshall, the as reflected in regarding Deborah Dr. Henthom: Culp, St. Linda Vice President of Affidavits of only expert on the stan- 1. That Plaintiffs Marshall, R.N., Joseph’s Hospital and Deborah Henthom, care, Raymond Dr. dard of Bruce Hospital support Joseph's St. filed in deposition taken on November testified in Summary Judgment. Parkersburg’s for Motion 21, 1994, report that if an incident was filled report Dr. the reflects that 3. That incident hospital's personnel indicating that out physician, Reddy, was notified of Plaintiff’s physician concerning the inci- notified morning. the incident that (early morning May May dent of therefore is unable 4. That the Plaintiff 12, 1991), sitting patient was found when the testimony any produce expert violation of room, hospital would the floor of his on Hospital the standard care in its care and have met the standard .of employees concerning the agents, servants of the treatment Plaintiff. Plaintiff, That, Robert S. care and treatment of at Dr. Henthorn unbeknownst testimony, report McGraw. of his an incident the time questioned length regarding two upon at issues testimony elusion based Dr. Henthorn’s 12:(1) plaintiffs May on involving Did the regarding the limited issue of the timeliness defendant violate standard of care when diagnosing injuries plaintiff may have sus- bed?; plaintiff fell out of Did the tained the fall from his bed.12 defendant violate the standard of care in not
timely injuries may diagnosing IV. have out falling sustained of bed? CONCLUSION regard
With
to whether the defendant vio-
surrounding
The facts
the plaintiffs fall
lated the standard of care when the
May
from his bed on
bed,
being dropped
questioned
out
Dr.
fell
Henthorn was
May 21,
susceptible
are
to a reasonable
in detail. The record is clear that Dr. Hent-
determined,
standard
care that can be
regarding
hospital’s
horn
testified
stan-
expert, by
However,
without an
safety
jury.
dard of care as the same relates to the
55-7B-7,
consistent with
patients.
specifically
of its
W.Va.Code
vio-
Dr. Henthorn
stated,
incident,
lation
respect
care shall be
May
with
established
responsibilities
“Hospitals
have
tes-
their
.to
rails,
patients,
timony
of an
vigilance,
required by
witness
side
whatever the
if
may
upon
record,
opined
case
court. Based
be.” Dr. Henthorn
current
“anytime
judge required
the trial
injures
an
for
themself in the
both
incidents,
hospital
though no
falling
proffered
out
evidence was
either
of bed or some-
thing
hospital
complex
regard
management
of that
...
revealed
is at
issues
Moreover,
involving
fault.”
either
Dr. Henthorn
incident. We believe evi-
testified
of complex
dence
prevented
management
that the
have
could
Mr.
issues was
necessary
issues,
injuries by making
justify
both
order to
McGraw’s
sure the side
requiring expert testimony by
plaintiff.
rails
up.
were
of Dr. Henthorn
Notwithstanding
indicates
the lack of evidence of
opined
that he
complex
that the
care in
management
issues in this
respect
May
produced
Henthorn,
inci-
an
in Dr.
dent,
pulling up
was that of
clearly
the side rails on who
testified that defendant violated
plaintiffs
opined
bed. Dr. Henthorn
standard of care it owed to
as a
this standard.
plaintiff’s
violated
result of
May 12 fall. Dr. Hent-
however,
court,
circuit
erroneously found
horn has determined a standard of care for
opined
that Dr.
May
Henthorn
that the defendant
opined
incident and
met the
standard of care
this case. The
Therefore,
defendant violated that standard.
circuit
unsupported
court reached this
cléarly
con-
the circuit
wrong
court was
in ruling
three,
a.m.,
regarding
12. Dr. Henthom’s
May
issue
at
three,
regarding
[12]th—
diagnosis
of timeliness of
was as
a.m.,
[12]lh, 1991, incident,
follows:
Q.
opinion
youDo
have an
you?
as whether or
not the nurses violated the
No,
standard of care or
A.
not.
I’m
any
personnel
the other
other re-
was,
Q.
you
And it
then
would have no—
three, a.m.,
spect
finding
other than the
him at
opinion
personnel
would have the
that the
at
on the floor?
Joseph’s Hospital
St.
followed the standard of
n my opinion
A. It’s
that the nurses should
incident,
regard
care with
to that
wouldn’t
report.
have
out
filled
an incident
you?
long
A: As
as it included in that that the
Q.
you
Why
say
do
that?
supervision
physician
nurse
also made the
report
A. I feel that if an incident
would
aware of it.
have been filled out that it would have been
Q. Okay.
assuming
report
But
re-
more'—that
if it
been
had
known that Mr.
physician
flects
was made aware and
injury,
McGraw had then when he devel-
*9
report
there was an incident
filled out concern-
oped neurological symptoms
that
informa-
1991,
[12]th,
ing
May
that
incident when the
floor,
tion would have been able to be used to come
patient
sitting
up
was
on the
it would be
timely diagnosis.
with a more
your opinion
met the standard
[Yjou’re
then,
Q.
you,
...
not aware
are
of care?
was,
fact,
report
that an incident
in
filled out
A. Yes.
However,
Supreme
Court.
an
on the Wisconsin
plaintiff did not have
that
majority failed to focus on the words of
care,
May
to
respect
of
the standard
exception
incident,
knowledge
common
ex-
May 21
As to the
12 incident.
in
ception is
It is clear that
stated
Totten.
pretrial hearing that
may find
a
court
at
trial
only
are
two
in which the
there
situations
inci-
necessary on this
knowledge exception applies. These
proffer
common
dent,
satisfacto-
should
“where lack of care or want of
situations are
incident involved com-
that this
ry evidence
gross,
apparent,
or the
skill is so
so as
plex management issues.
noncomplex
alleged breach relates to
matters
Therefore,
circuit court
that
hold
within the
diagnosis
and treatment
under-
summary judg-
in granting defendant
erred
jurors by
resort
to common
standing
lay
plaintiff had no
on
that
ment
knowledge
experience!)]” Syllabus Point
expert to show the defendant violat-
medical
Totten,
I
supra.
believe that neither situ-
case is re-
of care. This
ed
Instead,
in
case.
ex-
present
ation was
this
by
a
remanded for determination
versed and
necessary
pert testimony
to demon-
was
here
opinion.
this
trial
consistent with
part
failure on the
strate
there
a
Joseph’s
properly
Hospital
St.
observe
and Remanded.
Reversed
prevent
appellant
restrain the
order
Certainly,
falling
from
out
bed.
him
MAYNARD, Justice, dissenting:
procedure
evaluating
patient’s
proper
respectfully
disagree
I
I
because
dissent
susceptibility
falling
the absence
majority’s
that the facts
with the
conclusion
patient’s present
light
restraints and
present-
surrounding
alleged negligence
condition,
degree
history,
medical
medical
susceptible
in this
to a reasonable
ease
ed
medication, etc., is an issue of medical man-
can be
standard of
determined
by expert
established
testimo-
agement
jury
expert.
an
without
jurors
something
lay
This
ny.
is not
understand,
immediately
based on
would
majori-
Syllabus
Point 5 of the
As noted
knowledge
experience.
common
opinion,
general
rule that
ty
“[i]t
negligence
Hospital,
eases
or want
Marquette
General
In Waatti v.
proved only
Inc.,
Mich.App.
skill can be
though the common
expert testi-
Plaintiffs next assert
only “in rare
originally crafted to be used
only
required
issues
mony was not
because
cases,”
Adongay,
Totten
presented.
ordinary negligence were
(1985),
majority
here
They claim that to leave
seizure
proportions.
expands it to ridiculous
hospital bed’s side
unattended with the
obviously negligent as to
is so
rails down
on
appellant apparently relied
While
ordinary
by an
present
cognizable
issues
alleged negligence
three incidents
disagree.
a seizure
layman. We
Whether
complaint,
appears
only
it
bringing
medical attend-
patient requires constant
a fall and which
suggested
incident which
is an issue medical
ance
restraints
appellant’s
ex-
merited consideration
by expert
management
to be established
appellant
of the
pert
finding
was the
testimony.
at
a.m. on
floor
3:00
omitted).
(Citations
Id.,
at
N.W.2d
knowledge ex-
concluding that
common
Schwartz,
incident,
Similarly,
Murphy
majority
ception applies to this
(Tenn.App.1986), a husband and
from oth- S.W.2d
relies
several
alleging,
malpractice suit
filed a medical
jurisdictions
the rationale used
wife
er
emergency
from
the wife fell
part,
jurisdictions
it was articulated
these
*10
hospital physicians
majority opinion,
cot because
failed
ate 12
the
when
room
asked
expert testimony
estimation,
if,
her. No
properly attend to
in
hospital
his
the
met
the
plaintiffs. The
offered
trial court
care,
replied
“yes”.
standard
Dr. Henthorn
granted summary judgment
in favor of the Therefore, I agree with the circuit court that
providers
appellate
health care
court Dr.
opinion
Henthorn testified that it
his
affirmed, noting that:
applicable
that
met
knowledge” exception
There is a “common
of care.
rule,
is,
general
that
the medical
above,
For the reasons stated
I believe
“fly
negligence
floating
is as blatant as a
in
circuit
in granting
that the
court was correct
so
all
a bowl of buttermilk”
that
mankind
summary judgment
Joseph’s
on behalf of St.
things
knows that such
are not done ab-
Hospital.
clearly
This is
a ease
which
negligence_
see little
sent
differ-
needed,
expert
testimony was
but no such
ence matters medical
be-
was,
effect,
provided.
There-
question
applicability
tween the
of the
fore,
appellant
produce
failed to
the evi-
ipsa
plaintiffs proof
at
close of a
res
dence
essential to
case.
In Jividen v.
exception
knowledge
and the common
Law,
705, 712-13,
194 W.Va.
461 S.E.2d
proof requirement
(1995)
458-59
this Court stated:
summary judgment
trial.
It
before
seems
negligence
to us that
inference of
ob-
Peavy,
In Painter v.
application
ipsa
res
tained
(1994),
we
our
clarified
view of
jury
issue
creates
common
summary disposition,
part,
to disabuse
requirement
knowledge exception to the
litigants and circuit courts of the erroneous
summary
judgments
that
notion
West Rule of Civil Procedure
just
about Siamese twins
that both
vein,
56 had ceased to exist.
In that same
all,
require that
it be evident to
that
recently
stated that
“[t]o
extent
taken,
judicial
injury
notice
that
prior
implicitly
cases
have com-
complained
ordinarily
does not
occur
message
municated a
56 is
Rule
not to
negligence.
absent
used,
message, hereby,
is modi-
omitted).
(Citation
Id.,
entitled provid- care available and health
ties and basic service offer an essential
ers policy requires public of this provision encourage and facilitate
state ... service to our citizens
of such duty responsibility of
That it is the rights of our Legislature to balance the adequate and reason-
individual citizens compensation public with the broad
able provision in the of services
interest providers care who can
qualified health protection reason-
themselves obtain liability priced cover- ably and extensive
age; years, the cost insur- That recent dramatically has coverage
ance risen coverage
while the extent nature. diminished, leaving the health has injured
providers and the without the full insurance
benefit coverage[.] (Emphasis added). Legislature’s policy
This Court frustrates it malpractice actions when strains
in medical go they forward after
to allow such actions properly disposed of at the circuit
were by grant summary judgment. Be-
level here, ease I I believe this be the
cause
dissent. S.E.2d 400 Virginia, Plaintiff
STATE of West
Below, Appellee, STONE,
Alan L. Defendant
Below, Appellant.
No. 23565.
Supreme Appeals Court Virginia.
West Jan.
Submitted March
Decided Maynard
Dissenting Opinion Justice 16, 1997.
July notes pounds. 280 to 306 where between [patient] help put ed back in bed. With up personnel [patient] pivot- four staff stood prog- 4. This incident was recorded the nurse's gave ready [patient] ed. in bed out When to sit "4 ... follows: ress notes defendant helped legs to floor staff. Several [patient] difficulty— [with] to feet much lifted pick up attempts staff to off floor and made weak, unsteady [patient] shaky [and] when is did men from several de- not succeed. Pulled placed up [patient] into [bed].” —knees buckled— eight partments, put used staff blanket under and position on this incident is that The defendant’s people pick up [put] to bed.” The plaintiff, "per- personnel drop its did not its position is that its defendant’s on incident difficulty keeping some McGraw sonnel had "person- plaintiff, personnel drop did not feet[J" on his difficulty keeping McGraw nel had some report progress notes 5. The defendant's nurse's feet[.]” finding the floor near his bed. genuine proven by expert testimony[.]” showing the existence issue We ad- (3) trial, explain- meaning quoted pas- submit an affidavit dress the of the above § why discovery necessary sage ing further is from W.Va.Code 55-7B-7. 56(f) provided Virginia in Rule of the West A. Rules of Civil Procedure. principles through legal It the above Virginia Code West 55-7B-7 the merits this case. decide statutory rule of Our traditional con syllabus point struction set out III. Maxey, Keen v. 193 W.Va. (1995) DISCUSSION as follows: “ ‘ pointed Neary v. out Charleston unambig- “When a statute is clear and Center, Inc., Area Medical legislative plain and the uous intent is 334, 460 that “[w]hen interpreted by statute should not be summary judgment principles ap- courts, duty such case it is the ease, plied a medical one of apply the courts not to construe but questions threshold the existence of 1, syllabus, statute. Point ex rel. State opining alleged negli- witnesses v. Board Trustees Police- Fox position gence.” takes Defendant City men’s Pension or Fund Relief