Donna Hamilton v. Jaiyoung Ryu, M.D. ( 2017 )


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  •                               STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Donna Hamilton,
    Plaintiff Below, Petitioner                                                         FILED
    October 20, 2017
    vs) No. 16-0856 (Monongalia County 14-C-691)                                       RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Jaiyoung Ryu, M.D.,
    Defendant Below, Respondent
    MEMORANDUM DECISION
    Petitioner Donna Hamilton (“petitioner”), by counsel Stephen P. New, Amanda Taylor,
    Mark R. Staun, and David B. Lunsford, appeals the Circuit Court of Monongalia County’s order
    denying her motion for a new trial following a defense verdict in the trial of her medical
    malpractice action. Respondent Jaiyoung Ryu, M.D. (“Dr. Ryu”), by counsel William E.
    Galeota, Rodney L. Bean, and Crystal Bombard-Cutright, filed a response.
    This Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the briefs, and the record
    presented, the Court finds no substantial question of law and no prejudicial error. For these
    reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
    of the Rules of Appellate Procedure.
    Factual and Procedural Background
    In this appeal, petitioner challenges multiple evidentiary rulings made by the circuit court
    in the trial of her medical malpractice suit against Dr. Ryu.1 In her suit, petitioner alleged that she
    experienced permanent ulnar nerve injury in her left arm following a total elbow arthroplasty
    (total elbow replacement) performed by Dr. Ryu. At the conclusion of six days of trial, the jury
    returned a verdict finding that petitioner failed to prove that Dr. Ryu breached the standard of
    care in his treatment of petitioner’s elbow. The circuit court denied petitioner’s motion for a new
    trial, and this appeal followed.
    The evidence at trial revealed that petitioner injured her elbow in September of 2011
    when she fell while working as a cook in a school kitchen. She reported to the Appalachian
    1
    In addition to Dr. Ryu, petitioner originally named West Virginia University Board of
    Governors and the West Virginia Medical Corporation d/b/a University Health Associates as
    defendants. Against these defendants, she alleged claims of vicarious liability, negligence, gross
    negligence, negligent retention, negligent supervision, and loss of consortium. Prior to trial,
    petitioner voluntarily dismissed all of her claims with the exception of the negligence claim
    against Dr. Ryu.
    1
    Regional Hospital emergency room, which referred her to Dr. Nathan Doctry, an orthopedic
    surgeon in Beckley, West Virginia. After her visit with Dr. Doctry, petitioner sought treatment
    from a second orthopedist. However, she returned to Dr. Doctry in October of 2011.2 Dr. Doctry
    ordered a CT scan of petitioner’s left arm and discussed with petitioner the possibility of
    performing either a radial head replacement or radial head excision on petitioner’s elbow. Dr.
    Doctry then referred petitioner to Dr. Ryu at the West Virginia University Orthopedic Clinic.
    Petitioner presented to Dr. Ryu for evaluation in December of 2011. Petitioner reported
    to Dr. Ryu that she lacked motion in her left upper extremity, experienced pain in the elbow
    when lifting, and that she was unable to perform any task at face level. Dr. Ryu performed a
    physical examination of petitioner and reviewed her prior x-rays and CT scan. The imaging
    showed a posterior subluxation of the radial head, coronoid fracture, capitellum fracture,
    moderate arthritis at the ulnotrochlear joint, and post-traumatic deformity at the radial capitellum
    joint. Based on his evaluation, Dr. Ryu recommended a total elbow arthroplasty, and petitioner
    agreed.3
    Petitioner returned to Dr. Ryu’s office in January of 2012 for a history and physical to
    ensure that she was medically fit to undergo surgery. Physician Assistant Jon Kline saw
    petitioner during this visit. Mr. Kline obtained petitioner’s signature on the informed consent
    form, which listed possible risks of surgery to include “infection, pain, stiffness, damage to
    nerve, artery, vein or soft tissue.” The informed consent form also stated that petitioner
    “acknowleg[ed] that residents, fellows, physician assistants and/or other nonphysician health
    care professionals, under the supervision and direction of the above-named physician, may
    perform portions of this procedure.”
    Petitioner underwent the total elbow arthroplasty on February 12, 2012, after which she
    experienced numbness in her arm and hand. The surgery was performed by Dr. Ryu and a
    medical resident. Post-operative testing showed damage to the sensory portion of the ulnar nerve.
    Dr. Ryu opined that petitioner’s ulnar nerve neuropathy was caused by the performance of the
    total arthroplasty and it was a common complication of the surgery. Petitioner’s expert witness,
    Dr. Scott Desman, testified that petitioner should not have undergone a full-elbow replacement
    because it was unnecessary and inappropriate. Dr. Desman testified that, instead, petitioner
    should have undergone a radial head resection or excision because these procedures do not
    expose the ulnar nerve to potential damage.
    On April 6, 2016, the jury returned a verdict finding that petitioner failed to prove by a
    preponderance of the evidence that Dr. Ryu was negligent in his treatment. Petitioner filed a
    2
    Dr. Ryu states that petitioner returned to Dr. Doctry after the second orthopedist
    concluded that her injury did not prevent her from returning to work.
    3
    Dr. Doctry testified at trial that he was not surprised that Dr. Ryu recommended a total
    elbow arthroplasty instead of a radial head replacement or radial head recession; that he trusted
    Dr. Ryu’s judgment and clinical acumen; and that, if he disagreed with Dr. Ryu’s
    recommendation, he would have advised petitioner to seek another opinion. Additionally, Dr.
    Doctry testified that petitioner asked him for his thoughts on Dr. Ryu’s recommendation, and he
    advised her to go through with the procedure.
    2
    motion for a new trial in which she argued, in relevant part, that the circuit court erred by (1)
    permitting Dr. Ryu to testify to expert opinions that had not been disclosed to her; (2) prohibiting
    petitioner from questioning Dr. Ryu about the “special care” that he exercised regarding
    petitioner’s ulnar nerve during the surgery; and (3) permitting Dr. Ryu to elicit undisclosed
    opinions from his expert witness, Dr. David Glaser. Following a hearing, the circuit court denied
    petitioner’s motion for a new trial by order entered on August 10, 2016. This appeal followed.
    Discussion
    On appeal, petitioner raises three assignments of error. First, she argues that the circuit
    court erred in allowing Dr. Ryu to present testimony and argument regarding the ulnar nerve and
    performance of the surgery, while prohibiting her from introducing any evidence or argument
    regarding the same. Second, petitioner argues that the circuit court erred when it permitted Dr.
    Ryu to offer his own undisclosed expert opinions at trial. Third, petitioner argues that the circuit
    court erred in allowing Dr. Ryu’s expert witness, Dr. David Glaser, to offer undisclosed
    opinions. Petitioner contends that these alleged errors entitle her to a new trial.
    Rule 59(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, that
    “[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an
    action in which there has been a trial by jury, for any of the reasons for which new trials have
    heretofore been granted in actions at law[.]” This Court has held as follows:
    When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule
    59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority
    to weigh the evidence and consider the credibility of the witnesses. If the trial
    judge finds the verdict is against the clear weight of the evidence, is based on
    false evidence or will result in a miscarriage of justice, the trial judge may set
    aside the verdict, even if supported by substantial evidence, and grant a new trial.
    A trial judge’s decision to award a new trial is not subject to appellate review
    unless the trial judge abuses his or her discretion. Syl. Pt. 3, In re: State Public
    Bldg. Asbestos Litigation, 
    193 W.Va. 119
    , 
    454 S.E.2d 413
     (1994), cert. denied
    sub nom. W.R. Grace & Co. v. West Virginia, 
    515 U.S. 1160
    , 
    115 S.Ct. 2614
    , 
    132 L.Ed.2d 857
     (1995).
    Syl. Pt. 3, in part, Rodriguez v. Consolidation Coal Co., 
    206 W.Va. 317
    , 
    524 S.E.2d 672
     (1999).
    With respect to the circuit court’s review of the evidence when considering a motion for a new
    trial, this Court has long held that
    [i]n determining whether the verdict of a jury is supported by the evidence, every
    reasonable and legitimate inference, fairly arising from the evidence in favor of
    the party for whom the verdict was returned, must be considered, and those facts,
    which the jury might properly find under the evidence, must be assumed as true.
    Syl. Pt. 3, Walker v. Monongahela Power Co., 
    147 W.Va. 825
    , 
    131 S.E.2d 736
     (1963).
    Additionally, we have held that “[t]he action of a trial court in admitting or excluding evidence
    in the exercise of its discretion will not be disturbed by the appellate court unless it appears that
    3
    such action amounts to an abuse of discretion.” Syl. Pt. 1, Cecil v. D & M Inc., 
    205 W.Va. 162
    ,
    
    517 S.E.2d 27
     (1999) (quoting Syl. Pt. 6, State v. Kopa, 
    173 W.Va. 43
    , 
    311 S.E.2d 412
     (1983)).
    With these standards in mind, we turn to petitioner’s arguments.
    Petitioner’s first assignment of error is that the circuit court allowed Dr. Ryu to present
    evidence regarding the performance of the surgery, but prohibited her from doing the same.
    During opening statements, Dr. Ryu’s counsel stated that the jury would hear evidence of how
    Dr. Ryu took “special care” not to damage the ulnar nerve, and during his direct examination, Dr.
    Ryu testified to the same. Petitioner complains that the circuit court allowed this testimony to be
    admitted, even though she was not challenging how Dr. Ryu performed the surgery. However,
    petitioner argues that the circuit court prevented her from admitting evidence in the form of the
    surgery schedule which showed that a medical resident was the one who transposed the ulnar
    nerve back into place after the elbow replacement; that Dr. Ryu had left the procedure by this
    point, so he could not have given “special care” to the nerve. Petitioner contends that the circuit
    court permitted Dr. Ryu to “confuse the issue” by focusing on how he took care of the nerve
    when the issue was whether the surgery was necessary.
    Petitioner also complains that the circuit court excluded the video deposition of Dr. Bruce
    Guberman, who had opined that the surgery was the cause of petitioner’s injury. The circuit
    court excluded the deposition because Dr. Guberman was not an orthopedist, and admitted that
    he had never performed an elbow replacement.
    Upon our review, we find no merit in petitioner’s first assignment of error. Initially, the
    record demonstrates that petitioner’s theory of the case at trial was a bit of a moving target. At
    one point, petitioner appears to have alleged that Dr. Ryu was negligent because he was not
    present to supervise the medical resident who participated and/or because the surgery was
    unnecessary. However, at other times, she appeared to concede that there was no negligence in
    the performance of the surgery, and that her claim focused solely on lack of informed consent,
    that is, that she was not properly informed that numbness was a complication of the surgery or a
    that medical resident would participate in the procedure. As Dr. Ryu points out, many of the
    circuit court’s evidentiary rulings favored petitioner and allowed her to advance her differing
    theories of the case, even over Dr. Ryu’s objections.
    Importantly, petitioner did not present expert testimony that Dr. Ryu breached the
    standard of care during the surgery. The record reflects that petitioner attempted to imply to the
    jury that Dr. Ryu breached the standard of care because he was absent when the ulner nerve was
    transposed. Petitioner argues that she wanted to introduce the surgery schedule to challenge Dr.
    Ryu’s assertion that “special care” was taken to protect the nerve. However, there was no expert
    testimony to support a claim that the standard of care was breached at all during the surgery,
    which would include transposition of the nerve. Thus, the circuit court’s ruling to preclude
    petitioner from introducing Dr. Ryu’s surgery schedule was not only entirely within the court’s
    discretion, but also consistent with the West Virginia Medical Professional Liability Act, which
    requires that “a defendant’s failure to meet the standard of care, if at issue, shall be established . .
    . by testimony of one or more knowledgeable, competent expert witnesses.” W.Va. Code § 55­
    7B-7, in relevant part. As Dr. Ryu correctly argues, it was of no consequence whether he or a
    4
    medical resident took “special care” of the nerve during the surgery because the standard of care
    during the surgery was not an issue in the case.
    Additionally, the record shows that the circuit court permitted petitioner great leeway to
    advance her theory that she had not given informed consent to the surgery. Over Dr. Ryu’s
    objection, petitioner questioned Mr. Kline extensively on his visit with petitioner during which
    petitioner signed the informed consent form. The court permitted petitioner to elicit testimony (1)
    that Mr. Kline did not specifically review the portion of the form that addressed medical
    residents performing parts of the surgery, and (2) that, in fact, a medical resident did perform
    part of her surgery. Additionally, even though petitioner testified that she did not recall the
    informed consent process, she testified that she would not have agreed to the surgery had she
    been advised that a medical resident might perform part of it. Contrary to her protestations on
    appeal, the jury heard petitioner’s evidence that she did not consent to the surgery, and rejected
    it. Given that Dr. Ryu is entitled to “every reasonable and legitimate inference” drawn from the
    evidence, we see no basis to disturb the verdict in his favor. See, Syl. Pt. 3, Walker, 
    supra.
    Lastly, as part of her first assignment of error, petitioner challenges the exclusion of Dr.
    Bruce Guberman’s expert causation opinion. During Mr. Guberman’s deposition, he testified,
    over Dr. Ryu’s objection, that the total elbow arthroplasty was the cause of petitioner’s ulnar
    nerve injury. At trial, petitioner relied upon two expert witnesses, Dr. Scott Desman and Dr.
    Bruce Guberman. Dr. Ryu objected to the admission of Dr. Guberman’s causation opinion on the
    grounds that he is board-certified in internal medicine and cardiology, had never performed a
    total elbow arthroplasty, and, therefore, was not qualified to render a causation opinion.
    “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.” Syl. Pt. 5, Mayhorn v. Logan Med. Found., 
    193 W.Va. 42
    ,
    
    454 S.E.2d 87
     (1994) (citations omitted). Given Dr. Guberman’s qualifications in unrelated
    fields, we find no abuse of discretion by the circuit court preventing the jury from hearing his
    causation opinion. Importantly, we find that petitioner suffered no prejudice because the circuit
    court allowed her other expert, Dr. Desman, to offer a causation opinion that petitioner’s ulnar
    nerve injury was caused by the surgery.
    Petitioner’s second assignment of error is that the circuit court allowed Dr. Ryu to offer
    undisclosed expert opinions on two issues: (1) that he exercised “special care” toward the ulnar
    nerve during surgery, and (2) that radial head resection was contraindicated due to instability of
    petitioner’s wrist. Petitioner concedes that she failed to object to the admission of this testimony,
    but asserts that the admission of the evidence constitutes “plain error.” “To trigger application of
    the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial
    rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial
    proceedings.” Syl. Pt. 7, State v. Miller, 
    194 W.Va. 3
    , 
    459 S.E.2d 114
     (1995).
    In the present case, there was no error, let alone plain error. Dr. Ryu was disclosed both
    as a witness on his own behalf and as an expert witness on the issue of whether his care and
    treatment of petitioner caused or contributed to the alleged injuries. Dr. Ryu’s testimony that he
    took “special care” of the ulnar nerve is hardly expert testimony; rather, he merely described how
    the surgery was performed. He was deposed; was questioned as an adverse witness in
    5
    petitioner’s case-in-chief; and was cross-examined by petitioner’s counsel during the defense’s
    case-in-chief. This Court cannot find that the circuit court erred by allowing him to testify
    regarding petitioner’s ulnar nerve or that petitioner was in any way unfairly prejudiced by that
    testimony. Next, the record demonstrates that petitioner was aware well before trial of Dr. Ryu’s
    opinion that a radial resection was contraindicated because he testified to as much in his May of
    2015, deposition. The record simply does not support petitioner’s assertion of plain error; thus,
    petitioner’s second assignment of error is rejected.
    In her final assignment of error, petitioner challenges the admission of the video
    deposition of Dr. David Glaser, Dr. Ryu’s expert witness. The deposition at issue was taken by
    petitioner more than a month before the trial, yet she appears to complain that she was ambushed
    at trial by Dr. Glaser’s previously undisclosed opinions. As Dr. Ryu correctly points out, Dr.
    Glaser’s expert disclosure covered the opinions to which he testified in his deposition; petitioner
    knew exactly what Dr. Glaser’s testimony would be at trial.
    Petitioner also appears to complain that the circuit court allowed the unedited video
    deposition, which included counsels’ objections, to be played for the jury. Petitioner fails to
    explain how this prejudiced her in any way. Nevertheless, the record reveals that, prior to trial,
    defense counsel wrote to petitioner’s counsel and attempted to designate a portion of Dr.
    Glaser’s deposition to be played at trial. However, petitioner’s counsel did not respond. Thus,
    she has waived any objection inasmuch as she now complains that the circuit court allowed the
    entire deposition to be played. See, in part, W.Va. R. Evid. 103(a)(1) (“A party may claim error
    in a ruling to admit . . . evidence only if the error affects a substantial right of the party and . . if
    the ruling admits evidence, a party, on the record . . . (A) timely objects or moves to strike; and
    (B) states the specific ground, unless it was apparent from the context[.]”). Upon our review, we
    reject petitioner’s final assignment of error.
    Conclusion
    For the foregoing reasons, we affirm the Circuit Court of Monongalia County’s “Order
    Denying Plaintiff’s Motion for New Trial,” entered on August 10, 2016.
    Affirmed.
    ISSUED: October 20, 2017
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Robin Jean Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    DISQUALIFIED:
    Justice Elizabeth D. Walker
    6