WEST VIRGINIA RECORD

CHARLESTON — Plaintiffs lawyers should be sure to hire experts whose testimony will enhance their client's case, not detract from it, the state Supreme Court has ruled.

That’s what happened when Thomas E. Samples appealed when the Circuit Court of Harrison County denied his motion for a new trial. Samples had originally filed suit against Dr. Cecil Holbert and the West Virginia University Board of Governors after his mother died at United Health Center Oct. 14, 2009.

Patricia Samples, 73, died the day after she reported to the UHC emergency room in Clarksburg with a history of nausea and vomiting.

Patricia Samples was examined by an ER physician who was both an agent and employee of WVUBOG. He found that while Patricia had vomited while in the ER, her abdomen was soft and without rebound tendencies. He also reviewed the patient’s x-rays, which revealed no evidence of a small bowel obstruction.

He diagnosed Patricia as having intractable vomiting and related dehydration and treated her with IV fluids. Soon thereafter, the ER physician conferred with Dr. Holbert, who admitted Patricia into the hospital and ordered her transferred to a room.

The nurse assigned to Patricia's overnight care updated Dr. Holbert by telephone around 1:30 a.m. on Oct. 14. The assessment was that the patient was improving with the administration of the anti-nausea medications.

At trial, that same nurse testified Patricia's condition was stable until nearly 7 a.m., when she collapsed as she was being assisted to the bathroom. A Code Blue was called, the patient was resuscitated and was transferred to the Critical Care Unit.

Dr. Holbert was contacted and immediately reported to the hospital. After examining Patricia, he noted her abdomen was distended with no bowel sounds. After body fluids were extracted from her, Dr. Holbert requested a surgery consult. However, Patricia coded again and resuscitation attempts failed.

After Dr. Holbert contacted the petitioner with news of his mother’s death, staff at UHC asked the Samples family if they wanted an autopsy performed on the deceased. They declined. Dr. Holbert completed Patricia's death certificate, listing cardiogenic shock as the immediate cause of death due to or as a result of blood loss anemia.

At trial, the petitioner alleged medical malpractice in the diagnoses and subsequent treatment of his mother’s ailments. However, even his experts disagreed with one another at trial as to Patricia's cause of death. Following a 90-minute deliberation, the jury returned a verdict for the defense. The circuit court subsequently denied the petitioner’s motion for new trial, which he appealed to the state’s highest court.

The standard of review for a new trial in West Virginia is the abuse of discretion test. Meanwhile, the standard of review of a circuit court’s underlying factual findings is a clearly erroneous standard, while questions of law are subject to de novo review, wrote the Supreme Court.

The petitioner raised four assignments of errors. Among them, he alleged the circuit court erred in admitting Patricia's death certificate into evidence despite the lack of an autopsy. He further argued the circuit court erred by failing to give an adverse inference jury instruction to the jury regarding the cause of death.

Although when a person who seems in good health dies suddenly, West Virginia Code states if the patient was attended to by a physician, the doctor has the duty to notify to notify the county medical examiner or coroner of the suspicious circumstances. In denying the petitioner’s allegation, the Supreme Court ruled the petitioner had not met his burden of proof.

In fact, said the court, even the petitioner’s own experts disagreed as to Patricia's cause of death. Moreover, the court noted it was the Samples family that declined the autopsy.

Furthermore, the court ruled that West Virginia law does not prohibit an equivocal death certificate from being admitted into evidence. In fact, West Virginia requires the admission of a death certificate while elevating it to the level of prima facie evidence as to a decedent’s cause of death.

Therefore, the Supreme Court affirmed the lower court’s ruling denying Patricia a new trial.