Delilah Stephens, M.D. v. Charles Rakes, etc. , 235 W. Va. 555 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
_______________ FILED
June 16, 2015
released at 3:00 p.m.
No. 13-1079 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
DELILAH STEPHENS, M.D.,
Defendant Below, Petitioner
v.
CHARLES RAKES, PERSONAL REPRESENTATIVE
OF THE ESTATE OF GARY RAKES,
Plaintiff Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Mercer County
The Honorable Omar J. Aboulhosn, Judge
Civil Action No. 11-C-76
AFFIRMED
____________________________________________________________
Submitted: February 25, 2015
Filed: June 16, 2015
Thomas P. Mannion, Esq. Alex J. Shook, Esq.
Andrew D. Byrd, Esq. Andrew G. Meek, Esq.
Mannion & Gray Co., L.P.A. Hamstead, Williams & Shook, PLLC
Charleston, West Virginia Morgantown, West Virginia
Counsel for the Petitioner Counsel for the Respondent
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “A motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Casualty & Surety Co. v.
Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).
3. “A party who moves for summary judgment has the burden of showing that
there is not genuine issue of fact and any doubt as to the existence of such issue is
resolved against the movant for such judgment.” Syl. Pt. 6, Aetna Casualty & Surety Co.
v. Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).
4. “The appellate standard of review for an order granting or denying a
renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the
West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v. Tyler,
224 W. Va. 1, 680 S.E.2d 16 (2009).
5. “When this Court reviews a trial court’s order granting or denying a
renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West
Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the
i
facts to determine how it would have ruled on the evidence presented. Instead, its task is
to determine whether the evidence was such that a reasonable trier of fact might have
reached the decision below. Thus, when considering a ruling on a renewed motion for
judgment as a matter of law after trial, the evidence must be viewed in the light most
favorable to the nonmoving party.” Syl. Pt. 2, Fredeking v. Tyler, 224 W. Va. 1, 680
S.E.2d 16 (2009).
6. “In determining whether there is sufficient evidence to support a jury verdict
the court should: (1) consider the evidence most favorable to the prevailing party; (2)
assume that all conflicts in the evidence were resolved by the jury in favor of the
prevailing party; (3) assume as proved all facts which the prevailing party's evidence
tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences
which reasonably may be drawn from the facts proved.” Syl. Pt. 5, Orr v. Crowder, 173
W.Va. 335, 315 S.E.2d 593 (1983).
7. “In actions of tort, where gross fraud, malice, oppression, or wanton,
willful, or reckless conduct or criminal indifference to civil obligations affecting the
rights of others appear, or where legislative enactment authorizes it, the jury may assess
exemplary, punitive, or vindictive damages; these terms being synonymous.” Syl. Pt. 4,
Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895).
8. “‘Once a trial judge rules on a motion in limine, that ruling becomes the
law of the case unless modified by a subsequent ruling of the court. A trial court is vested
ii
with the exclusive authority to determine when and to what extent an in limine order is to
be modified.’ Syl. Pt. 4, Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 459
S.E.2d 374 (1995).” Syl. Pt. 2, Adams v. Consol. Rail Corp., 214 W.Va. 711, 591 S.E.2d
269 (2003).
9. “Great latitude is allowed counsel in argument of cases, but counsel must
keep within the evidence, not make statements calculated to inflame, prejudice or mislead
the jury, nor permit or encourage witnesses to make remarks which would have a
tendency to inflame, prejudice or mislead the jury.” Syl. Pt. 2, State v. Kennedy, 162
W.Va. 244, 249 S.E.2d 188 (1978).
10. “‘This court will not consider errors predicated upon the abuse of counsel
of the privilege of argument, unless it appears that the complaining party asked for and
was refused an instruction to the jury to disregard the improper remarks, and duly
excepted to such refusal.’ McCullough v. Clark, 88 W. Va. 22, 106 S.E. 61, pt. 6, syl.”
Syl. Pt. 1, Black v. Peerless Elite Laundry Co., 113 W.Va. 828, 169 S.E. 447 (1933).
11. “An instruction which does not correctly state the law is erroneous and
should be refused.” Syl. Pt. 2, State v. Collins, 154 W. Va. 771, 180 S.E.2d 54 (1971).
12. “Even if a requested instruction is a correct statement of the law, refusal to
grant such instruction is not error when the jury was fully instructed on all principles that
applied to the case and the refusal of the instruction in no way impeded the offering
side’s closing argument or foreclosed the jury’s passing on the offering side’s basic
iii
theory of the case as developed through the evidence.” Syl. Pt. 2, Shia v. Chvasta, 180 W.
Va. 510, 377 S.E.2d 644 (1988).
iv
Benjamin, Justice:
The instant action is before the Court upon the appeal of Petitioner Delilah
Stephens, M.D., from a September 9, 2013, order of the Circuit Court of Mercer County
that denied her motion for judgment as a matter of law, or in the alternative, motion for a
new trial, following an adverse jury verdict. Dr. Stephens also appeals orders denying
her motions for summary judgment on the amended complaint of Respondent, Charles
Rakes (hereinafter “Mr. Rakes”), as personal representative of the Estate of Gary Rakes
(hereinafter “the decedent”). Upon review of the parties’ arguments, the record before us
on appeal, and applicable legal precedent, we affirm the circuit court’s orders.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This medical malpractice action arises from medical treatment received by
decedent Gary Rakes at the Bluefield Regional Medical Center (“BRMC”) between
September 3, 2010, and September 5, 2010. The decedent, who was then sixty-five years
old, suffered from several chronic health problems including obstructive sleep apnea,
COPD1, and chronic hypercapnia, a condition which caused him to retain excess carbon
dioxide (CO2) in his blood and to become confused and agitated.
1
COPD is an abbreviated term for chronic obstructive pulmonary disease, a condition
which blocks airflow making it difficult to breathe. The medical records reflect that the
decedent, a coal miner, had occupational pneumoconiosis and a prior history of smoking.
He also had a history of congestive heart failure and type 2 diabetes mellitus.
1
According to medical records from October of 2008 and March and June of
2010, the decedent was previously admitted to BRMC with acute respiratory distress
caused by excess CO2 retention that caused decreased mental and respiratory function.
During his admission in June of 2010, Dr. Stephens was listed as the decedent’s attending
physician. During the course of that hospital stay, a pulmonologist was consulted to
manage the decedent’s lung issues, multiple arterial blood gas (“ABG”) levels were
obtained to monitor his CO2 levels, and he received a bi-level positive airway pressure
(“BiPAP”) treatment and breathing treatments such as bronchodilators to help him expel
excess CO2 from his lungs. The decedent was successfully treated and released. The
decedent was given a BiPAP portable ventilator to use at home to treat the condition and
help expel CO2 from his blood.
Subsequently, during the early morning hours of September 3, 2010, the
decedent presented to BRMC with an exacerbation of the same chronic lung problems for
which he had been treated during his June 2010 visit. Dr. Stephens was again listed as
attending physician. The Admission History and Physical of September 3, 2010, noted
that his allergies included Seroquel, Ativan, and Aldactone.2 However, the decedent was
2
Seroquel is an anti-psychotic sedative. During a previous hospitalization, the
decedent became excessively sedated when he was given 50 mg of Seroquel, and was
therefore determined to have an adverse reaction to the medication. Sedation was
hazardous to his lung function and mental function, so Seroquel was appropriately
classified as an “allergy” or adverse drug reaction.
2
given two different anti-psychotic sedatives during his admission because of his
confusion and altered mental state.3 He was first given 5 mg of Haldol on September 3,
2010, which was ordered by Dr. Jorieth Jose, the admitting intern. Dr. Stephens
consulted with Dr. Jose regarding the administration of this medication. According to the
record, the Haldol did not appear to effectively sedate the decedent. Approximately two
hours later, Dr. Toni Muncy, the chief resident, ordered that the decedent be given 100
mg of Seroquel, even though his admitting records noted the prior adverse reaction to this
drug. Shortly after the administration of Seroquel, the decedent became more
disoriented, agitated, and combative. The record reflects that he refused to wear his
oxygen mask and stay in his room. The decedent was then placed flat on his back in soft
wrist restraints. He subsequently became “quite sedated,” resting quietly. The medical
records indicate that Dr. Stephens signed off on Dr. Muncy’s order for the administration
of Seroquel and took no further action.4
3
The death summary notes that the decedent was reportedly having episodes of acute
delirium with hallucinations.
4
Although the record is clear that Dr. Stephens did not personally order the Seroquel for
the decedent, the medical records indicate that Dr. Stephens subsequently signed off on
Dr. Muncy’s order for its administration. As discussed further below, Mr. Rakes alleges
that Dr. Stephens’ signature on Dr. Muncy’s order demonstrates that she was aware that
Seroquel had been administered to the decedent. Mr. Rakes contends that although Dr.
Stephens was aware of the decedent’s previous adverse reaction to the drug, she took no
countermeasures once she became aware that Seroquel had been administered to the
decedent.
3
On September 4, 2010, a neurological consult by Dr. Khalid Razzaq was
ordered due to the decedent’s altered mental status.5 Dr. Razzaq ordered that the
decedent be administered 25 mg of Seroquel that afternoon. The decedent remained
sedated most of the day and night of September 4, 2010, and never fully awakened.6 He
also remained in wrist restraints lying flat on his back during this time. Although the
decedent’s initial ABG’s revealed that he had excessively high CO2 levels in his blood,
no follow-up ABG studies were ordered to continue to monitor his CO2 levels once he
was admitted. The record further reflects that a pulmonologist was not consulted at any
point during the decedent’s admission. Additionally, although the decedent required a
BiPAP when he slept, the record reveals that a BiPAP was not ordered until 10:00 pm on
September 4, 2010, despite the fact that he was heavily sedated during the course of his
hospital stay. During the early morning hours of September 5, 2010, the decedent
developed tachyarrhythmia, QRS widening, bradycardia, and asystole. He died at 7:00
am.
On the death certificate, Dr. Stephens wrote that the decedent died as a
result of “Acute on Chronic Hypercapnic Respiratory Failure due to or as a consequence
5
The plan of care agreed upon by Dr. Jose, Dr. Stephens, and Dr. Greenstein, the senior
attending resident, was to consult neurology, obtain a urine drug screen, and a serum
ammonia level. Dr. Greenstein ordered a CT scan of the decedent’s head as well.
6
The death summary indicates that the decedent was arousable only to tactile stimuli, and
had to be awakened to be given the dose of Seroquel ordered by Dr. Razzaq.
4
of Adverse Drug Reaction to Seroquel.” Dr. Stephens wrote in the Death Summary that
the decedent had not been using a BiPAP at the hospital because the proper settings were
unknown, and that the decedent was sedated most of the night and most of the day on
September 4, 2010.
Following the decedent’s death, his family filed the instant medical
malpractice action alleging that Dr. Stephens, Dr. Razzaq, Dr. Muncy and other
employees of Health Services of the Virginias Inc. deviated from the standard of care by
prescribing and administering excessive doses of Haldol and Seroquel to the decedent,
ignoring documented allergies, contraindications, and black box label warnings, and by
willfully and recklessly failing to take any measure to investigate or rectify the reasons
for his prolonged state of unconsciousness, proximately causing his death. As discussed
in further detail below, Mr. Rakes alleged that Dr. Stephens became aware that the
decedent had been given Seroquel by Dr. Toni Muncy and Dr. Khalid Razzaq, but failed
to take any countermeasures. Mr. Rakes also alleged that Dr. Stephens ordered, or was at
least aware that, the decedent was administered Haldol, a drug that was contraindicated
given his condition, by Dr. Jorieth Jose, the admitting intern.
In his deposition testimony, Mr. Rakes’ expert witness, Dr. Kenneth
Scissors7, opined that the decedent’s proximate cause of death was ventilator failure
7
Dr. Scissors is an experienced practicing hospitalist and internist.
5
resulting from the “excessive administration of the sedatives Haldol and Seroquel in the
setting of underlying chronic lung disease.” Dr. Scissors opined that Dr. Stephens
deviated from the standard of care that she herself helped to establish for the decedent at
BRMC given his prior admissions there; that Dr. Stephens should have ordered breathing
treatments for the decedent’s respiratory problems when he was admitted on September
3, 2010; that Dr. Stephens failed to timely order adequate CPAP or BiPAP treatment on
September 3, 2010, and during the day of September 4, 2010; that Dr. Stephens failed to
provide appropriate BiPAP settings for when the order was actually made on the night of
September 4, 2010; that Dr. Stephens failed to follow the decedent’s ventilator status
with repeat ABG’s after the initial test indicated acute and chronic CO2 retention with
acute and chronic respiratory acidosis; that Dr. Stephens ordered 5mg of Haldol, a very
high dose, for the decedent in the setting of known acute and chronic CO2 retention
without providing ventilator support and ABG monitoring; that Dr. Stephens permitted
the decedent to remain heavily sedated in an obtunded state even after she examined him
on September 4, 2010; that Dr. Stephens failed to consult with a pulmonary specialist to
address the decedent’s severe acute and chronic pulmonary disorders and provide
appropriate ventilator support and monitoring measures; and therefore, Dr. Stephens
acted recklessly. According to Dr. Scissors, the decedent’s prolonged sedated state
caused by Seroquel and Haldol, the failure to repeat the ABG test to monitor his CO2
levels, the failure to obtain a pulmonologist consult, and the failure to timely administer
appropriate BiPAP caused the decedent’s death.
6
Mr. Rakes’ expert pulmonologist, Dr. Jeffrey Schwartz, testified that the
decedent should have been on BiPAP when he was admitted; that Dr. Stephens could
have checked prior records to determine the appropriate BiPAP settings for the decedent;
that a pulmonologist could have helped to determine the appropriate BiPAP settings if
one had been consulted; and that Dr. Stephens’ deviation from the standard of care
caused the decedent’s death.
Following discovery, Dr. Stephens filed two motions for summary
judgment: one regarding proximate causation and one regarding punitive damages. In
her first motion for summary judgment, Dr. Stephens argued that her actions did not
proximately cause the decedent’s death. To the extent that the circuit court did not grant
Dr. Stephens’ motion for summary judgment on the entire amended complaint, she filed a
subsequent motion for summary judgment on Mr. Rakes’ punitive damages claim.
Subsequent to the close of discovery, the parties filed numerous motions in limine. Dr.
Stephens filed a motion in limine to preclude any testimony that she ordered and
administered Seroquel to the decedent and that the order and administration of Haldol
alone was the cause of the decedent’s death. On the first day of trial, the circuit court
entered an order denying Dr. Stephens’ motions for summary judgment and granting Dr.
Stephens’ motion in limine precluding any testimony that she ordered and administered
Seroquel to the decedent and that the order and administration of Haldol alone was the
cause of the decedent’s death.
7
Following a three day jury trial, the jury awarded Mr. Rakes $500,000.00 in
non-economic damages, and $500,000.00 in punitive damages. A judgment order in the
amount of $810,000.00 was entered, which encompassed an off-set for all pre-verdict
settlements from the jury’s non-economic damage award.8 Dr. Stephens timely filed a
renewed motion for judgment as a matter of law, or in the alternative, motion for new
trial alleging that there was insufficient evidence to support the jury’s verdict against her
and to support the punitive damages award, and that numerous prejudicial errors occurred
during the trial. The substance of the arguments contained in Dr. Stephens’ post-trial
motions is discussed in greater detail below. Following a post-trial motions hearing, the
circuit court entered an order on September 9, 2013, denying Dr. Stephens’ renewed
motion for judgment as a matter of law, or in the alternative, motion for a new trial,
finding that there was enough evidence to justify the jury’s verdict as well as the award
for punitive damages, and that no prejudicial error had occurred.
On appeal, Dr. Stephens asserts the following assignments of error seeking
reversal: 1) the circuit court erred in denying Dr. Stephens’ motions for summary
judgment on Mr. Rakes’ amended complaint regarding proximate causation and punitive
damages; and 2) for various reasons outlined below, the circuit court erred in denying Dr.
8
Dr. Muncy, Dr. Razzaq, and Health Services of the Virginias, Inc. settled with Mr.
Rakes prior to trial.
8
Stephens’ renewed motion for judgment as a matter of law, or in the alternative, motion
for new trial.
II.
STANDARD OF REVIEW
The circuit court denied Dr. Stephens’ motions for summary judgment with
regard to liability and punitive damages. “A circuit court’s entry of summary judgment is
reviewed de novo.” Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
Additionally, “[a] motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Casualty & Surety Co. v.
Federal Ins. Co. Of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963). Furthermore, “[a]
party who moves for summary judgment has the burden of showing that there is not
genuine issue of fact and any doubt as to the existence of such issue is resolved against
the movant for such judgment.” Id. at Syl. Pt. 6.
Additionally, the circuit court denied Dr. Stephens’ renewed motion for
judgment as a matter of law and motion for new trial. “The appellate standard of review
for an order granting or denying a renewed motion for a judgment as a matter of law after
trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de
novo.” Syl. Pt. 1, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009). This Court has
also stated that when it
9
reviews a trial court’s order granting or denying a renewed
motion for judgment as a matter of law after trial under Rule
50(b) of the West Virginia Rules of Civil Procedure [1998], it
is not the task of this Court to review the facts to determine
how it would have ruled on the evidence presented. Instead,
its task is to determine whether the evidence was such that a
reasonable trier of fact might have reached the decision
below. Thus, when considering a ruling on a renewed motion
for judgment as a matter of law after trial, the evidence must
be viewed in the light most favorable to the nonmoving party.
Id. at Syl. Pt. 2.
Finally, this Court has stated “[w]e review the rulings of the circuit court
concerning a new trial and its conclusions as to the existence of reversible error under an
abuse of discretion standard, and we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are subject to a de novo review.”
Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 104, 459 S.E.2d 374, 381
(1995).
III.
ANALYSIS
A. Motion for Summary Judgment Regarding Proximate Causation
In her first assignment of error, Dr. Stephens alleges that the circuit court
erred in denying her motion for summary judgment because there were no genuine issues
of material fact as to whether her actions proximately caused the decedent’s death. Dr.
Stephens alleges that although Mr. Rakes’ expert, Dr. Scissors, opined that the proximate
cause of death was a result of the excessive administration of the sedatives Haldol and
10
Seroquel in the setting of the decedent’s underlying chronic lung disease, Dr. Stephens
did not order Seroquel for the decedent. Rather, it was ordered by Dr. Toni Muncy (100
mg), who did not consult with Dr. Stephens beforehand. Another physician, Dr. Razzaq,
also ordered Seroquel (25 mg) but, like Dr. Muncy, failed to consult with Dr. Stephens
before doing so.
Dr. Stephens asserts that in his deposition, Dr. Scissors testified that he
preferred Haldol over Seroquel because it is simpler and more straightforward to use; that
he does not believe Haldol had a sedative effect on the decedent, and therefore, it would
not have had a clinically significant impact on the decedent’s respiratory function; and
that Haldol was out of the decedent’s system at the time of death. Dr. Stephens also
asserts that although Dr. Scissors opined that she deviated from the standard of care by
not ordering adequate or timely CPAP or BiPAP, Dr. Schwartz, Mr. Rakes’ expert
pulmonologist, opined that if appropriate BiPAP therapy had been administered at 9:00
pm or 10:00 pm on September 4, 2010, as Dr. Stephens ordered, the decedent would have
survived.9
9
As discussed further below, the parties dispute whether Dr. Stephens’ BiPAP order was
appropriate, because Mr. Rakes’ experts contend that the correct settings were not
ordered. Mr. Rakes takes issue with Dr. Stephens’ characterization of Dr. Schwartz’s
testimony in this regard.
11
In response, Mr. Rakes contends that there were genuine issues of fact
regarding the proximate cause of the decedent’s death and that the matter was properly
tried before a jury. Mr. Rakes asserts that as the attending hospitalist in charge of the
decedent’s medical care, Dr. Stephens deviated from the standard of care in the following
respects: 1) she failed to order follow-up ABG test after CO2 levels were revealed to be
at dangerous levels upon presentment to emergency department and admission to BRMC;
2) after the decedent’s admission, she failed to order BiPAP to help with ventilatory
assistance until the following night and the BiPAP setting was incorrect when ordered; 3)
she failed to follow up after BiPAP was finally ordered to see if it was carried out; 4) she
failed to take any countermeasures after learning the decedent was given Seroquel, a drug
to which he was known to be allergic; 5) she failed to consult with the decedent’s
pulmonologist even though during the decedent’s previous admissions to BRMC, the
pulmonologist helped to provide him with proper ventilator assistance; 6) she failed to
consult with the decedent’s pulmonologist when she did not know the decedent’s BiPAP
settings; and 7) she failed to treat the decedent for his chronic pulmonary disease, which
was the reason he was admitted to the hospital in the first place.
Mr. Rakes contends that Dr. Stephens mischaracterizes Dr. Schwartz’s
testimony by stating that if the decedent had received the BiPAP that Dr. Stephens
ordered, then he would have survived. In response to the question regarding when
BiPAP therapy would have been too late to save the decedent, Dr. Schwartz testified:
12
Well, bizarrely, it was ordered for the night of the 4th. It was
ordered QHS, which is evening. But he did not die until the
following morning. And I do believe that 9:00 or 10:00 pm,
if he would have gotten appropriate BiPAP therapy, he may
have well survived.
....
Q. I don’t think you said that it was too late, I think you
testified that if the BiPAP order would have been followed,
that—to a reasonable degree of medical certainty, that in
likelihood he would have survived.
A. If it was ordered differently. I don’t like the way it was
set up in terms of the orders. I’m critical of that, as I’ve said.
. . . he needed measurements of his carbon dioxide level as
time went on. So there was a BiPAP order to start that night.
There was no measures [sic] or orders for arterial blood gases
to monitor his carbon dioxide. All the time he’s sedated and
sleepy and hard to arose [sic] and has worsened mental status,
they don’t check his carbon dioxide level. So had BiPAP
been used correctly, even on the evening of the 4th, he likely
would have survived, but that order—and in the context of
all the other orders that were not there, was too little too
late.
(Emphasis added).
Dr. Schwartz further opined that, as the admitting doctor, Dr. Stephens
should have ordered BiPAP as part of the decedent’s admitting orders and further, that
Dr. Schwartz “would have used different settings than what he was set on, which I think
were incorrect. So his pressure settings I was in disagreement with, and obviously the
timing as I already addressed.” Dr. Schwartz also opined that
[h]e should have had the therapy when he got admitted 24
hours a day, with monitoring of his carbon dioxide level. His
carbon dioxide level was extremely elevated. That was the
likely cause of his abnormal mental status when he came in.
And the treatment of that was straightforward, which is to use
BiPAP at the time of his hospitalization for acute
decompensation.
13
When asked about additional criticisms of Dr. Stephens, Dr. Schwartz said:
So he got sedated when he shouldn’t. He didn’t get a bedside
sitter to control his agitation if that was deemed necessary.
He didn’t get BiPAP when he needed it. He didn’t get carbon
dioxide levels measured and followed up. He didn’t get a
pulmonary consult. He didn’t get any treatment for his
COPD once he left the emergency room. He didn’t get any of
the care that he received on previous hospitalizations for
respiratory failure. So this was as bad a care as I’ve ever seen
in my 30 years in a three-day hospitalization.
In her reply, Dr. Stephens argues that Mr. Rakes’ attempt to place liability
on Dr. Stephens by virtue of her status as the attending physician/hospitalist is based
upon the “captain of the ship” doctrine, which was rejected by this Court in Thomas v.
Raleigh General Hospital, 178 W.Va. 138, 358 S.E.2d 222 (1987).10 Dr. Stephens asserts
that it is undisputed that she did not order Seroquel and that it was Dr. Muncy who gave
the order to Nurse Laura Potter for 100 mg to be administered to the decedent. Dr.
Muncy was not a part of Dr. Stephens’ team and did not consult with her before ordering
Seroquel. Likewise, Dr. Stephens contends that Dr. Razzaq ordered Nurse Larry Rose to
give the decedent 25 mg of Seroquel the following day, and that Dr. Razzaq did not
consult with her before ordering the Seroquel. She argues that under West Virginia law,
10
In Thomas, this Court rejected the “captain of the ship” concept that liability should be
imposed by virtue of the surgeon’s status and without any showing of actual control by
the surgeon, explaining that there are situations where surgeons do not always have the
right to control all personnel within the operating room. Id. at 141, 358 S.E.2d at 225.
14
she cannot be held liable for the conduct of other medical professionals over whom she
had no control.
Additionally, Dr. Stephens contends that Mr. Rakes’ assertion that she
proximately caused the decedent’s death by failing to order “appropriate” BiPAP therapy
is an improper representation of Dr. Schwartz’s testimony. Dr. Stephens contends that
Dr. Schwartz testified that even though she did not order the correct BiPAP settings,
BiPAP adjustments and carbon dioxide measurements would have been a follow-up step
after the administration of the BiPAP.
Upon review of all the expert reports and testimony presented, we conclude
that there was a genuine issue of fact regarding the proximate cause of the decedent’s
death necessitating a denial of summary judgment. “A plaintiff’s burden of proof is to
show that a Petitioner’s breach of a particular duty of care was a proximate cause of the
plaintiff’s injury, not the sole proximate cause.” Mays v. Chang, 213 W.Va. 220, 224,
579 S.E.2d 561, 565 (2003). As we stated in syllabus point 2 of Everly v. Columbia Gas
of West Virginia, Inc., 171 W.Va. 534, 301 S.E.2d 165 (1982), “[a] party in a tort action
is not required to prove that the negligence of one sought to be charged with an injury
was the sole proximate cause of an injury.”
Although Dr. Stephens argues that her actions were not the sole proximate
cause of the decedent’s death because she did not personally order the Seroquel and did
15
not fail to administer BiPAP on the night of September 4, 2010, we find that there was
testimony, as discussed in detail above, creating a genuine issue of material fact that she
deviated from the standard of care in several respects, proximately causing the decedent’s
death. The criticisms offered by Mr. Rakes’ experts do not seek to hold Dr. Stephens
liable as “captain of the ship” for the actions of other doctors or nurses. Rather, these are
criticisms of Dr. Stephens’ own deviations from the standard of care expected of an
attending hospitalist treating a patient in the decedent’s situation.
Furthermore, although Dr. Stephens attempts to mischaracterize Dr.
Schwartz’s testimony by arguing that he opined that “if BiPAP was administrated at 9:00
pm or 10:00 pm on September 4, 2010, as ordered by Dr. Stephens, the decedent would
have survived,” or that “BiPAP adjustments and carbon dioxide measurements would
have been a follow-up step after the administration of the BiPAP,” the record is
abundantly clear that Dr. Schwartz was critical of Dr. Stephens’ care in this regard.
(Emphasis added). Again, when asked about this issue, Dr. Schwartz unequivocally
stated,
Q. I don’t think you said that it was too late, I think you
testified that if the BiPAP order would have been followed,
that—to a reasonable degree of medical certainty, that in
likelihood he would have survived.
A. If it was ordered differently. I don’t like the way it was
set up in terms of the orders. I’m critical of that, as I’ve
said. . . . he needed measurements of his carbon dioxide level
as time went on. So there was a BiPAP order to start that
night. There was no measures [sic] or orders for arterial
blood gases to monitor his carbon dioxide. All the time he’s
16
sedated and sleepy and hard to arose [sic] and has worsened
mental status, they don’t check his carbon dioxide level. So
had BiPAP been used correctly, even on the evening of the
4th, he likely would have survived, but that order—and in
the context of all the other orders that were not there, was
too little too late.
(Emphasis added). Based upon all of the foregoing, we conclude that the circuit court’s
order denying Dr. Stephens’ motion for summary judgment on the issue of proximate
causation should be affirmed.
B. Motion for Summary Judgment Regarding Punitive Damages
Second, Dr. Stephens asserts that the circuit court erred in denying her
motion for summary judgment regarding Mr. Rakes’ claim for punitive damages. Dr.
Stephens argues that an award of punitive damages requires proof of “gross fraud,
malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to
civil obligations affecting the rights of others.” Workman v. UA Theatre Circuit, Inc., 84
F. Supp. 2d 790, 793 (S.D.W.Va. 2000) (citing Alkire v. First Nat. Bank of Parsons, 197
W.Va. 122, 129, 475 S.E.2d 122, 129 (1996)). Furthermore, “[a] wrongful act, done
under a bona fide claim of right, and without malice in any form, constitutes no basis for
such damages.” Jarvis v. Modern Woodmen of Am., 185 W.Va. 305, 311, 406 S.E.2d 736,
742 (1991) (citations omitted).
Mr. Rakes alleged in his amended complaint that Dr. Stephens and the
other named defendants willfully and recklessly ignored documented allergies,
17
contraindications, and black box warnings; willfully and recklessly provided excessive
doses of Haldol and Seroquel; and willfully and recklessly failed to take any measure to
investigate or rectify the reasons for the decedent’s prolonged state of unconsciousness as
to evince a conscious disregard for the decedent’s rights. Dr. Stephens asserts that the
evidence did not support these allegations because it is undisputed that she noted on the
decedent’s medical records his allergy to Seroquel, a fact she did not ignore. Rather, it
was Drs. Razzaq and Muncy who ordered Seroquel, not Dr. Stephens. Dr. Stephens also
contends that she ordered BiPAP therapy the night before the decedent died but her order
was not followed. She maintains that Mr. Rakes’ own expert testified that had Dr.
Stephens’ order been followed, the decedent would have survived. Thus, she asserts that
there was no issue of material fact regarding punitive damages because Mr. Rakes failed
to show more than a slight, at best, deviation from the applicable standard of care on the
part of Dr. Stephens. She contends that this was a case of simple negligence damages and
punitive damages are not available under such a theory. She contends that summary
judgment should have been granted on the punitive damages claim.
In response, Mr. Rakes avers that summary judgment was properly denied
on this issue because there were genuine issues of material fact that Dr. Stephens acted
recklessly in her care of the decedent. Mr. Rakes contends that in West Virginia, proving
a defendant’s actions were reckless is sufficient for an award of punitive damages.
Workman v. UA Theatre Circuit, Inc., 84 F. Supp. 2d 790. He additionally maintains that
“the punitive damages definition of malice has grown to include not only mean spirited
18
conduct, but also extremely negligent conduct that is likely to cause serious harm.” TXO
Prod. Corp. v. Alliance Res. Corp., 187 W.Va. 457, 474, 419 S.E.2d 870, 887 (1992).
Furthermore, wanton negligence is a “[r]eckless indifference to the consequences of an
act or omission, where the party acting or failing to act is conscious of his conduct and,
without any actual intent to injure, is aware, from his knowledge of existing
circumstances and conditions, that his conduct will inevitably or probably result in injury
to another.” Stone v. Rudolph, 127 W.Va. 335, 345, 32 S.E.2d 742, 748 (1944).
In response to Dr. Stephens’ motion for summary judgment, Mr. Rakes
provided evidence that Dr. Stephens’ care of the decedent was “dangerous and, at the
very least, reckless.” In addition to setting forth various criticisms of Dr. Stephens’
actions, or inactions, regarding the decedent’s medical care (which were discussed more
thoroughly above), Dr. Schwartz’s testimony sufficiently established Dr. Stephens’
wanton negligence and reckless conduct:
So he got sedated when he shouldn’t. He didn’t get a bedside
sitter to control his agitation if that was deemed necessary.
He didn’t get BiPAP when he needed it. He didn’t get carbon
dioxide levels measured and followed up. He didn’t get a
pulmonary consult. He didn’t get any treatment for his
COPD once he left the emergency room. He didn’t get any of
the care that he received on previous hospitalizations for
respiratory failure. So this was as bad a care as I’ve ever seen
in my 30 years in a three-day hospitalization.
Furthermore, Dr. Scissors testified at trial that allowing a patient such as the decedent to
remain sedated, placed in wrist restraints, and laid flat on his back with no ventilatory
support was more than dangerous; this was “reckless.”
19
Upon review of all of the evidence presented at trial, we conclude that there
was sufficient testimony presented for a jury to be convinced that willful, wanton and
reckless conduct occurred warranting punitive damages under TXO Prod. Corp. v.
Alliance Res. Corp., 187 W.Va. at 474, 419 S.E.2d at 887. Accordingly, we conclude
that the circuit court did not err in denying Dr. Stephens’ motion for summary judgment
on Mr. Rakes’ punitive damages claim.
C. Renewed Motion for Judgment as a Matter of Law
At the close of both parties’ case-in-chief, Dr. Stephens moved for
judgment as a matter of law under Rule 50(a) of the West Virginia Rules of Civil
Procedure on the issues of liability and punitive damages. Dr. Stephens argued that Mr.
Rakes failed to establish proximate causation because the evidence at trial pointed to
intervening/superseding causation, and that the evidence presented failed to sustain a
claim for punitive damages. Both motions were denied by the circuit court. Following
trial, Dr. Stephens filed a renewed motion for judgment as a matter of law, or in the
alternative motion for a new trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure. On September 9, 2013, the circuit court entered an order denying Dr.
Stephens’ motion.
Proximate Cause
In its order denying Dr. Stephens’ motion for judgment as a matter of law
or in the alternative, motion for new trial, the circuit court found that there was enough
20
evidence of proximate causation to justify the jury’s verdict. The circuit court found that
Mr. Rakes proved by a preponderance of the evidence that Dr. Stephens breached her
duty of care to the decedent, and as a result of that breach, proximately caused the
decedent’s demise.
Dr. Stephens appeals the circuit court’s order denying her motion for
judgment as a matter of law asserting essentially the same arguments that she makes in
appealing the circuit court’s denial of summary judgment. She asserts that the facts
elicited at trial break the causal connection to Mr. Rakes’ alleged theory on proximate
causation. Ultimately, Dr. Stephens argues that the evidence established that the
proximate cause of Gary Rakes’ death was out of her control.
This Court has held that
[w]hen this Court reviews a trial court’s order granting or
denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of
Civil Procedure [1998], it is not the task of this Court to
review the facts to determine how it would have ruled on the
evidence presented. Instead, its task is to determine whether
the evidence was such that a reasonable trier of fact might
have reached the decision below. Thus, when considering a
ruling on a renewed motion for judgment as a matter of law
after trial, the evidence must be viewed in the light most
favorable to the nonmoving party.
Syl. Pt. 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009). We have also stated
that
[i]n determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the
21
evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in
favor of the prevailing party; (3) assume as proved all facts
which the prevailing party's evidence tends to prove; and (4)
give to the prevailing party the benefit of all favorable
inferences which reasonably may be drawn from the facts
proved.
Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).
We conclude that pursuant to the Medical Professional Liability Act
(“MPLA”), W. Va. Code § 55-7B-1, et seq., Mr. Rakes provided the necessary elements
required in proving that the decedent’s death resulted from the failure of Dr. Stephens to
follow the accepted standard of care. Specifically, by presenting the extensive expert
testimony discussed above, Mr. Rakes proved that Dr. Stephens failed to exercise that
degree of care, skill and learning required or expected of a reasonable, prudent health
care provider in the profession or class to which she belonged acting in the same or
similar circumstances, and that such failure was a proximate cause of the injury or death.
See W. Va. Code § 55-7B-3(a) (2003).
Dr. Stephens mischaracterizes Dr. Schwartz’s actual testimony by stating
that “Dr. Schwartz testified that had Dr. Stephens’ order for BiPAP therapy been carried
out, the decedent would have survived.” Dr. Stephens argues that because the nurses
failed to carry out Dr. Stephens’ BiPAP order on the night before he died, she is absolved
of any causation due to the “intervening cause.” However, our review of the transcript
causes us to conclude otherwise. Dr. Schwartz specifically testified that had Dr.
22
Stephens’ orders been carried out, they would not have saved the decedent because Dr.
Stephens did not order appropriate BiPAP therapy settings considering the decedent’s
critical condition on the night of September 4, 2010.
Both of Mr. Rakes’ expert witnesses testified that Dr. Stephens provided
such poor care of the decedent by the course of treatment that she chose, that he would
have died regardless of whether the BiPAP Dr. Stephens ordered, at incorrect settings,
would have been applied a few short hours before his death. Additionally, contrary to her
trial testimony, Dr. Stephens noted in the Death Summary that the BiPAP was never
applied because the decedent’s settings were unknown. There was no mention of any
nurse’s failure to apply the BiPAP in the Death Summary notes.11
Furthermore, Mr. Rakes’ experts specifically rebutted Dr. Stephens’ claim
that the nurses’ failure to administer BiPAP therapy was an intervening/superseding
cause because they believed the decedent would have died regardless at that point.
Therefore, because Mr. Rakes presented evidence in the form of expert testimony stating
that Dr. Stephens’ deviations from the appropriate standard of care were a proximate
cause of the decedent’s death, and because all doubts and inferences should be decided in
11
Interestingly, Dr. Stephens noted in the Death Summary that because of the series of
events that occurred leading up to the decedent’s death, the case possibly needed further
review.
23
favor of the non-moving party, we affirm the circuit court’s denial of Dr. Stephens’
renewed motion for judgment as a matter of law on this issue.
Punitive Damages
Dr. Stephens also submits that the evidence at trial failed to satisfy any
claim for punitive damages. Upon reviewing the evidence in the record, we conclude that
the circuit court’s denial of Dr. Stephens’ renewed motion as a matter of law on the issue
of punitive damages should be affirmed because the jury was properly instructed, and Mr.
Rakes presented sufficient evidence that Dr. Stephens’ care of the decedent was
dangerous, and at the very least highly reckless. This Court has held that, “[i]n actions of
tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or
criminal indifference to civil obligations affecting the rights of others appear, or where
legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive
damages; these terms being synonymous.” Syl. Pt. 4, Mayer v. Frobe, 40 W.Va. 246, 22
S.E. 58 (1895).
Through all of the extensive testimony detailing Dr. Stephens’ deviations
from the standard of care that proximately caused the decedent’s death, both of Mr.
Rakes’ experts presented sufficient evidence that Dr. Stephens’ lack of treatment was
dangerous, and even “reckless.” The circuit court properly concluded that a prima facie
showing warranting punitive damages had been made. The court also concluded that the
compensable award was identical to the punitive damages award, which was a reasonable
24
amount for the loss of life. Pursuant to Mayer v. Frobe, we conclude that Mr. Rakes was
entitled to receive a punitive damage award and affirm the circuit court’s ruling on this
issue.
D. Motion for a New Trial
Batson Challenge
During the jury selection and voir dire at trial, Mr. Rakes’ counsel inquired
of the entire jury panel whether any of them had heard of the medical condition COPD.
The circuit court noted that almost everyone on the panel and in the audience raised their
hand. Upon questioning by Mr. Rakes’ counsel, Juror Darago indicated that she was
familiar with COPD because her husband, a coal miner for 30 years, had it, and also had
black lung. She stated that he got along “pretty well.” Juror Kessinger stated that she
knew about COPD from working in the medical field and from hearing about it on
television. Juror Bish stated that her deceased father had COPD and black lung. Juror
Boyer, an African American female, stated that “[she knew] that COPD can come from
smoking so many years[;]” she did not know anyone who had COPD from smoking, but
she had “seen commercials on TV[;]” and that “you could catch emphysema with it.”12
After Juror Boyer was questioned, Juror Vance, a white male, advised Mr. Rakes’
counsel that he had emphysema; that he “was a firefighter in service. My lungs were
burned. And, of course, I smoked, too.”
12
Emphysema is a common type of COPD.
25
Thereafter, Mr. Rakes’ counsel struck Juror Boyer, the only African
American on the jury panel. Dr. Stephens objected and instituted a Batson challenge.13
The following discussion occurred:
[MR. MANNION]: Your Honor, the plaintiff
has moved to strike Juror No. 10, Tracy Boyer. I will note
that it’s the only African-American on this jury panel to be
stricken. We have an African American defendant. There’s no
basis. Her answers in voir dire were absolutely unbiased, and
I’m raising a Batson challenge.
[THE COURT]: Mr. Shook?
[MR. SHOOK]: I have complete discretion to
use my discretionary strikes as I see fit, if I don’t think she’s
going to be a good juror. It didn’t have anything to do with
her race or - I hate to raise that point.
[THE COURT]: Under Batson you have to
have a nondiscriminatory reason to strike her.
[MR. SHOOK]: I didn’t like her answers.
[MR. MANNION]: It’s not sufficient to say you
don’t like her answers.
[MR. SHOOK]: We need to go on the record if
we’re going to make a record on that. I don’t understand what
the objection is.
[THE COURT]: The objection is pretty clear,
Mr. Shook. She is the only African-American that’s on the
13
Under Batson v. Kentucky, after the objecting party raises its case of discrimination, the
striking party must offer a neutral explanation for making the strike. 476 U.S. 79, 97, 106
S. Ct. 1712, 1723 (1986). Finally, the trial court must determine whether the opponent of
the strike has carried his burden of proving purposeful discrimination. Id.
26
jury panel, and you have to have a non-discriminatory reason
to be able to strike her. You have to be able to articulate that.
[MR. SHOOK]: I didn’t think her answers
sounded like she would be a good witness for me.
[...]
She just seemed to have a lack of understanding
of the questions that I asked to her - a good juror for me,
rather. She made references to smoking and causing lung
problems, other issues that I think would make her bad juror
for my client.
[MR. MANNION]: Your Honor, I don’t believe
he’s set forth a nondiscriminatory basis. It’s pretty clear what
he’s trying to do. She’s the only African-American - there
have been plenty of people who talked about different
conditions that folks have had, and she didn’t say anything
that would give any reason where she would not be a fair
juror [...]
Following a brief recess, the circuit court asked Dr. Stephens’ counsel to
state his objection again to make the record clear. Dr. Stephens’ counsel reiterated his
objection, stating,
There was nothing that Ms. Boyer said in any
way, shape, or form that would give rise for her being
unbiased, or anything of that nature.
I also do not believe that counsel has given a
nondiscriminatory reason—he talks about her answers on
smoking. She said she saw a commercial on TV on COPD.
That’s all she said about it. And I hardly think seeing a
commercial is a nondiscriminatory reason to get rid of
somebody.
[MR. SHOOK]: My recollection of her
answers were that she drew a strong connection between
smoking and these respiratory issues.
27
There’s going to be an issue throughout this
trial, and it’s mixed in the records, as to whether my client
was a smoker or not, which places again a negligence or
comparative fault on the part of my client. That was the
reason for striking this [juror].
[MR. MANNION]: [N]o one has argued that
[the decedent]. . . in any way obtained emphysema or COPD
from his smoking. That’s not what we’re saying. And the
records said he hadn’t smoked for a while. I don’t know how
long that was. We’re not raising smoking as an issue, and
I’ve already said were not raising any comparative—
The circuit court overruled Dr. Stephens’ objection and allowed Juror
Boyer to be stricken.
On appeal, Dr. Stephens argues that Mr. Rakes failed to satisfy Batson,
which requires three elements to be proven: (1) there must be a prima facie case of
improper discrimination; (2) if a prima facie case is shown, the striking party must offer a
neutral explanation for making the strike; and (3) if a neutral explanation is given, the
trial court must determine whether the party opposing the strike has proved purposeful
discrimination. See Syl. Pt. 3, Batson, 476 U.S. 79, 106 S. Ct. 1712. Dr. Stephens argues
that Mr. Rakes failed to give a neutral explanation for striking the only African American
on the jury panel. Initially, Mr. Rakes’ counsel simply stated, “I didn’t like her answer.”
He then put a non-discriminatory reason for the strike on the record: “She just seemed to
have a lack of understanding of the questions that I asked to her[;]” “[s]he made
references to smoking and causing lung problems “she seemed to have a lack of
28
understanding of the questions[;]” “she drew a strong connection between smoking and
these respiratory issues[;]” and “[t]here’s going to be an issue throughout this trial . . . as
to whether my client was a smoker or not, which places again a negligence or
comparative fault on the part of my client.”
Dr. Stephens argues that the reasons stated were not valid because there
was no evidence suggesting Juror Boyer lacked an understanding of the questions asked
of her, nor did she draw a strong connection between smoking and respiratory issues.
She simply stated that COPD can come from smoking and that you can “catch”
emphysema. She learned this from television commercials, not personal experience. Dr.
Stephens also asserts that another white juror, Juror Vance, directly linked smoking to
emphysema, a common type of COPD. He revealed that he was a smoker and had
emphysema. Juror Vance was not stricken from the jury panel. Finally, Dr. Stephens
argues that smoking and/or comparative fault were not being raised as an issue at trial, so
this reason for striking Juror Boyer was invalid.
Mr. Rakes responds that the explanation for striking Juror Boyer was
sufficient under Batson. At trial, there were many medical records stating the decedent
was a life-long smoker who had recently quit. There could have been juror bias against
smokers who may cause their own poor health conditions. Striking Juror Boyer was
consistent with the circuit court’s in limine ruling, which precluded Dr. Stephens from
29
informing the jury that the decedent was non-compliant with his BiPAP machine prior to
his admission to BRMC, or that he was comparatively negligent for his own death.
Mr. Rakes further contends that in asking the jury panel about their
knowledge of COPD, only Juror Boyer displayed a direct connection between smoking
and COPD. In contrast, Juror Darago said her husband had COPD and black lung from
working in the mines, and Juror Vance stated he has emphysema because his lungs were
burnt as a firefighter and he smoked. Juror Boyer’s answer was concerning because the
decedent’s medical records stated that he was a life-long smoker and that he quit several
years before his death. Thus, Mr. Rakes preferred that this fact not be mentioned at trial
to prevent bias against the decedent for causing/contributing to his own lung problems by
smoking.
Although we do not agree with Mr. Rakes’ assertion that Juror Boyer was
the only member of the panel to display a strong connection between smoking and
COPD, we are not convinced that the circuit court’s decision allowing her to be
peremptorily struck was improper. The circuit court was able to evaluate the demeanor
of Juror Boyer first-hand. There may have indeed been a legitimate issue with the way
Juror Boyer conveyed her opinions that made Mr. Rakes believe, for reasons not
involving race, that she would not have been a good juror for his case. In particular, the
way she spoke about “catching” emphysema, along with demeanor or body language
only those at trial could observe, may have been a legitimate reason to cause Mr. Rakes’
30
counsel to believe that she would not be a good juror.14 Furthermore, there are many
medical records that were used at trial that state that the decedent was a life-long smoker
who had recently quit. Mr. Rakes’ counsel did not want the issue raised at any time
during trial because of juror bias against smokers who may cause their own poor health
conditions. This was a discretionary ruling by the circuit court, and we see no error in its
ruling meriting reversal. This Court gives substantial deference to the trial court’s ruling.
Parham v. Horace Mann Ins. Co., 200 W. Va. 609, 615, 490 S.E.2d 696, 702 (1997).
Therefore, because the circuit court’s ruling is given substantial deference, and because
Mr. Rakes gave a credible, non-discriminatory reason for striking Ms. Boyer as a juror,
the circuit court properly denied Dr. Stephens’ motion for a new trial.
Violation of In Limine Ruling
Prior to trial, the circuit court granted Dr. Stephens’ motion in limine to
preclude any testimony that she ordered and administered Seroquel to the decedent and
that the order and administration of Haldol alone was the cause of his death. During his
opening statement, Mr. Rakes’ counsel stated to the jury the following:
Now, I looked into the physician order form, drug
sensitivities, right at the top—this is a form that the doctors
make orders with—has a list of Seroquel at 20:09 on
14
We also observe that although Juror Vance, the former fire-fighter, also displayed a
connection between smoking and COPD, he advised Mr. Rakes’ counsel that he, like the
decedent, had personally smoked. Thus, it appears that Juror Boyer would have been the
only juror to display the connection between smoking and COPD who did not personally
smoke.
31
September 3, 2010, drug sensitivities: Ativan, Seroquel.
20:09 he was given Haldol, 5 milligrams, a very heavy
sedative. I’ll note again, nowhere through any of these
orders will you see where he was actually given any
respiratory treatment, any treatment for the main problem that
he was at the hospital, his elevated CO2 readings, 23:35 on
9/03 of 2010, Seroquel, 100 milligrams, one dose. Dr.
Delilah Stephens signed beside that order.
Dr. Stephens immediately objected, arguing that counsel violated the in
limine ruling by “clearly implying” that Dr. Stephens ordered the Seroquel. The circuit
court warned counsel not to “push the envelope” or to “play games” in the courtroom.
Thereafter, Mr. Rakes’ counsel continued his opening statement as follows:
And then it goes on to say that this medication was ordered
via a telephone order from a Dr. Toni Muncy, read back by
Laura Potter. Dr. Stephens signed off on this order the
following day, according to her testimony.
She denies ordering the Seroquel for this patient; however,
she clearly knew about it at 10 am the next morning, as we’ll
see in the medical records.
Dr. Muncy—Dr. Stephens denies ordering it. Let’s be clear
on that. Dr. Muncy denies ordering that Seroquel medication.
The nurse that’s noted in the record as having administered
the Seroquel, the nurse denies administering the Seroquel.
The nurse has noted in the record, points to Laura Potter, says
Laura Potter administered that Seroquel. Laura Potter denies
administering the Seroquel.
So nobody takes credit for ordering the Seroquel, everybody
denies administering it. This is Dr. Stephens’ show. She’s
the captain of the ship.
32
Dr. Stephens objected again, arguing that by saying that “she denies
ordering it,” Mr. Rakes was implying that Dr. Stephens ordered Seroquel. Dr. Stephens
further argued,
There is no evidence ever in this case that she ordered
Seroquel.
And he said he was going to get up there and make that clear
when we came up here the last time, and it wasn’t. Instead,
what he did was confuse the issue and make it sound like she
did order it.
....
[THE COURT]: There’s a big difference, Mr. Shook,
between she didn’t do it and she denies doing it; big
difference.
The circuit court reiterated that he didn’t appreciate the “pushing of this
envelope.” Dr. Stephens’ counsel moved for a mistrial and requested a limiting
instruction. Both requests were denied.
Dr. Stephens asserts that Mr. Rakes’ counsel’s statements directly violated
the in limine ruling and were not harmless error. As noted, part of Mr. Rakes’ theory on
causation was that the decedent died of ventilator failure as a result of excessive
administration of the sedatives Haldol and Seroquel in the setting of his underlying
chronic lung disease. Dr. Stephens contends that Mr. Rakes’ counsel’s statements went
directly to Mr. Rakes’ theory of causation and they violated the in limine ruling. Dr.
Stephens maintains that the circuit court’s denial of her motion for new trial and her
request for a limiting instruction was reversible error.
33
In his response, Mr. Rakes asserts that counsel did not violate the in limine
order because he never said that Dr. Stephens ordered Seroquel. Mr. Rakes states that
every doctor or nurse involved in the case denies that they ordered Seroquel on the night
of September 3, 2010. Moreover, none of the doctors or nurses admits to even
administering Seroquel to the decedent on that night. Mr. Rakes’ counsel made it clear in
opening statements, closing argument, and throughout the examination of witnesses that
Dr. Stephens denied giving him the Seroquel. Likewise, Dr. Stephens’ counsel also made
it clear in his opening that Dr. Stephens did not give him the Seroquel. Mr. Rakes
contends that no one, at any time during the trial, said that Dr. Stephens ordered the
Seroquel. Mr. Rakes asserts that Dr. Stephens did, however, know that the decedent had
been given Seroquel, and she chose not to take any countermeasures. Thus, although Dr.
Stephens argues in her brief that Mr. Rakes’ counsel said she ordered Seroquel, Mr.
Rakes contends that the transcript proves otherwise. Mr. Rakes maintains that there was
ample time for Dr. Stephens’ counsel to make it clear that she did not order the Seroquel
after opening statements, even if the message was “implied” in Mr. Rakes’ opening
statement.
Pursuant to Rule 103(c) of the West Virginia Rules of Evidence,
[i]n jury cases, proceedings shall be conducted, to the extent
practicable, so as to prevent inadmissible evidence from being
suggested to the jury by any means, such as making
statements or offers of proof or asking questions in the
hearing of the jury. Where practicable, these matters should
be determined upon a pretrial motion in limine.
34
In West Virginia, once a trial judge rules on a motion in limine, “that ruling becomes the
law of the case unless modified by a subsequent ruling of the court. A trial court is vested
with the exclusive authority to determine when and to what extent an in limine order is be
modified.” Syl. Pt. 2, Adams v. Consol. Rail Corp., 214 W.Va. 711, 591 S.E.2d 269
(2003)(quoting Syl. Pt. 4, Tennant v. Marion Health Care Foundation, 194 W.Va. 97,
459 S.E.2d 374 (1995)).
A party’s failure to follow a trial judge’s in limine ruling is not always
reversible error. It is subject to a harmless error analysis. See Ilosky v. Michelin Tire
Corp, 172 W.Va. 435, 449, 307 S.E.2d 603, 618 (1983) (finding that violation of the trial
court’s in limine ruling was harmless error as it did not go to causation). Rule 61 of the
West Virginia Rules of Civil Procedure states:
No error in either the admission or the exclusion of evidence
and no error or defect in any ruling or order or in anything
done or omitted by the court or by any of the parties is ground
for granting a new trial or for setting aside a verdict or for
vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage
of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.
W.V.R.C.P. 61. The appropriate test for harmless error is whether a court can say “with
fair assurance, after stripping the erroneous evidence from the whole, that the remaining
evidence was independently sufficient to support the verdict and that the judgment was
not substantially swayed by the error.” McDougal v. McCammon, 193 W. Va. 229, 239,
35
455 S.E.2d 788, 798 (1995) (citing State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55
(1979)). Mr. Rakes’ counsel never stated that Dr. Stephens ordered Seroquel. The circuit
court therefore did not err. Furthermore, even if there were “implications” that Dr.
Stephens believes were intended, we believe the circuit court was in the best position to
determine this. Moreover, even if present, we believe any “implication” was harmless
and that the circuit court properly denied Dr. Stephens’ motion for a new trial.
Inflammatory Comments
In her motion for a new trial, Dr. Stephens claimed that Mr. Rakes’ counsel
used certain phrases during opening and closing statements that were calculated to
inflame, prejudice or mislead the jury and exceeded the scope of permissible arguments
allowed under West Virginia law. First, during his opening statement, Mr. Rakes’ counsel
referred to Dr. Stephens as the “captain of the ship.”15 At the close of Mr. Rakes’ case­
in-chief, Dr. Stephens’ counsel brought the fact that the doctrine was abolished to the
circuit court’s attention and requested that a limiting instruction be given to the jury. The
instruction was given by the circuit court. Dr. Stephens now submits that this instruction
was too late in that the jury had already been subjected to the prejudicial statements for
half of the trial.
15
See footnote 10, supra.
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Mr. Rakes responds that the context behind using the “captain of the ship”
phrase was that Dr. Stephens was the attending physician, and responsible for the course
of treatment she chose for the decedent. He contends that counsel made limited use of
this phrase solely for the purpose of describing Dr. Stephens’ role as attending physician
during opening statements. Thus, Mr. Rakes argues that he was merely using the phrase
as description of the facts, not as his theory of liability in the case.
Dr. Stephens also asserts that during closing argument, Mr. Rakes’ counsel
inappropriately argued to the jury that Dr. Stephens hired the “best lawyers in the
country” to protect “their money.” Mr. Rakes’ counsel informed the jury that the decision
the jury makes affects the community and that the jury can impliedly not let the
community down. Dr. Stephens objected and moved for a mistrial, arguing that the use
of the phrase implied that there was insurance money available. Likewise, Dr. Stephens’
counsel argued that it was improper for Mr. Rakes’ counsel to request the jury to send a
message to the community so that this type of case would not happen again. The circuit
court overruled the objection and denied Dr. Stephens’ motion.
This Court has stated that “great latitude is allowed counsel in argument of
cases, but counsel must keep within the evidence, not make statements calculated to
inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make
remarks which would have a tendency to inflame, prejudice or mislead the jury.” Syl. Pt.
2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978). In syllabus point one of
37
Black v. Peerless Elite Laundry Co., 113 W.Va. 828, 169 S.E. 447 (1933), we explained
that “[t]his court will not consider errors predicated upon the abuse of counsel of the
privilege of argument, unless it appears that the complaining party asked for and was
refused an instruction to the jury to disregard the improper remarks, and duly excepted to
such refusal.” (quoting Syl. Pt. 6, McCullough v. Clark, 88 W. Va. 22, 106 S.E. 61
(1921)).
We find no error in the circuit court’s rulings. Mr. Rakes’ “captain of the
ship” comment could be construed not to convey that Dr. Stephens was vicariously liable
for the actions of nursing staff or other doctors, but rather that she was responsible for the
course of treatment she recklessly set into action; in other words, what was in her control.
Regardless, a curative instruction was given by the circuit court that explained to the jury
very clearly that Dr. Stephens could not be held liable for the actions of any of the other
doctors or staff, and to disregard the use of that terminology. We think this instruction
was sufficient to cure any error that could have occurred. Accordingly, we conclude that
the comments did not amount to reversible error pursuant Rule 61 of the West Virginia
Rules of Civil Procedure.
In making the determination of whether the verdict was influenced by trial
error, the trial court must ascertain whether it has grave doubt about the likely effect of an
error on the jury’s verdict. The error is deemed harmful only if the reviewing court has
grave doubt. Lacy v. CSX Transp. Inc., 205 W. Va. 630, 644, 520 S.E.2d 418, 432 (1999).
38
Although comments made during a closing argument may be prejudicial, they will be
treated as harmless error when the jury has been adequately instructed. See Foster v.
Sakhai, 210 W. Va. 716, 729, 559 S.E.2d 53, 66 (2001). Considering the evidence in
light most favorable to Mr. Rakes, the circuit court properly denied Dr. Stephens’ motion
for a new trial.
Do Not Resuscitate Order
Dr. Stephens lastly asserts that the circuit court’s refusal of her “Do Not
Resuscitate” jury instruction was error. Prior to trial, the circuit court ruled that the
decedent’s “Do Not Resuscitate” (DNR) medical orders would be admissible at trial. Dr.
Stephens offered the following proposed jury instruction during trial:
Ladies and gentlemen, in West Virginia, every person shall be
presumed to consent to the administration of cardiopulmonary
resuscitation in the event of cardiac or respiratory arrest
unless a do-not-resuscitate order has been issued for that
individual. It is well established under the law in West
Virginia, that all health care providers shall comply and
respect a do-not-resuscitate order when completed by a
physician. Under the law in West Virginia, a health care
provider can be subject to criminal prosecution or civil
liability for providing cardiopulmonary resuscitation to a
person when a do not resuscitate order has been issued for
that person. W.Va. Code § 16-30C-1, et seq.
The circuit court refused the instruction over Dr. Stephens’ objection. In its
order denying Dr. Stephens’ renewed motion for judgment as a matter of law, or in the
alternative motion for a new trial, the circuit court found that the instruction was simply
39
an incorrect statement of the law, which Dr. Stephens acknowledged by offering to
modify it. The circuit court further found that Mr. Rakes agreed that
the DNR order would have precluded any intubation and
resuscitation of the decedent when he finally went into
cardiac arrest early in the morning on September 5, 2010. [Dr.
Stephens] referred to the DNR order in her case in chief.
Nevertheless, there was no reason to submit such an
instruction to the jury when the question of whether to
intubate or resuscitate the decedent was simply not an issue
with regard to [Dr. Stephens’] treatment (or lack thereof
pursuant to [Mr. Rakes’] theory of causation) of the decedent
on September 3, 2010, or on September 4, 2010. Those were
the primary dates on which [Mr. Rakes] focused in its
medical malpractice action. [Dr. Stephens] argued that the
decedent appeared in no acute distress on those dates,
therefore, the DNR instruction had no bearing on the
decedent’s condition at that time. Further, when the decedent
finally died on September 5, 2010, the evidence indicated that
he could not be saved at that point, whether a DNR order was
in place or not. [Dr. Stephens] was not impaired in presenting
[her] own theory of the case regardless.
Dr. Stephens asserts that the proposed jury instruction was an accurate statement of the
law and should have been given, and that the failure to do so impeded Dr. Stephens’
theory of the case (i.e., proving no proximate causation) as developed through the
evidence.
In response, Mr. Rakes maintains that the proposed instruction was a
misstatement of the applicable law. He contends that the proposed instruction included a
provision that imposes criminal penalties on a health care provider if they perform CPR
on someone with a DNR order. However, this provision does not exist anywhere in the
40
statute cited by Dr. Stephens in her proposed instruction. Moreover, although the parties
agreed there was a DNR order in place, Mr. Rakes asserts that the proposed instruction is
not relevant to this case. This is because it was Mr. Rakes’ theory that Dr. Stephens’
deviations from the acceptable standard of care and recklessness caused the decedent’s
health to decline to the point where he went into respiratory arrest.
In her reply, Dr. Stephens argues that West Virginia Code § 16-30C-9(b)
states, in part, that
[n]o health care provider . . . shall be subject to criminal
prosecution or civil liability for providing cardiopulmonary
resuscitation to a person for whom a [DNR] order has been
issued, provided that such physician . . . (1) reasonably and in
good faith was unaware of the issuance of DNR order; or (2)
reasonably and in good faith believed that consent to the
[DNR] order had been revoked or canceled.
Dr. Stephens argues that this language makes it apparent that if a physician
knows there is a DNR order and intentionally violates it by providing CPR, she can be
subject to criminal or civil liability. Moreover, Dr. Stephens agreed to remove this
portion of the proposed instruction, but the circuit court refused. She argues that the
proposed instruction was relevant to Dr. Stephens’ defense that she did not proximately
cause the decedent’s death. She contends that she ordered that BiPAP be administered on
the night of September 4, 2010, but the order was not followed. Once the decedent coded,
the DNR order prevented anyone from resuscitating him, which she argues was a break in
causation.
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This Court has held that “[a]n instruction which does not correctly state the
law is erroneous and should be refused.” Syl. Pt. 2, State v. Collins, 154 W. Va. 771, 180
S.E.2d 54 (1971). Likewise, we have stated that
[e]ven if a requested instruction is a correct statement of the
law, refusal to grant such instruction is not error when the
jury was fully instructed on all principles that applied to the
case and the refusal of the instruction in no way impeded the
offering side’s closing argument or foreclosed the jury’s
passing on the offering side’s basic theory of the case as
developed through the evidence.
Syl. Pt. 2, Shia v. Chvasta, 180 W. Va. 510, 377 S.E.2d 644 (1988).
We agree with the circuit court’s ruling that the proposed instruction is not
relevant to this case. It was Mr. Rakes’ theory that Dr. Stephens’ deviations from the
acceptable standard of care and recklessness caused the decedent’s health to decline to
the point where he went into respiratory arrest. The DNR order was not a break in
causation alleviating any of the negligent or reckless actors from liability for proximately
causing the decedent’s death. Accordingly, we affirm the circuit court’s ruling on this
issue.
IV.
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s orders denying Dr.
Stephens’ motions for summary judgment and renewed motion for judgment as a matter
of law, or in the alternative motion for a new trial.
Affirmed.
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