Justices dispense some teaching during arguments at WVU

MORGANTOWN – In an ideal teaching moment for West Virginia University law students, the Supreme Court of Appeals wrestled with a case of a belligerent doctor and a dead baby.

In oral arguments at the university's College of Law on March 13, Bob Fitzsimmons of Wheeling asked the Justices to order a trial in Mineral County in a suit against the late Russell Rhee.

Fitzsimmons sought to overturn Circuit Judge Andrew Frye, who granted summary judgment in Rhee's favor.

The decision of the Justices won't affect Rhee. He died in an accident prior to the filing of the suit.

About 300 persons filled the law school auditorium for the argument. Each year the Justices conduct a session at the law school.

Fitzsimmons, representing the estate of Alexia Sheree Fout-Iser, said the judge wrongly denied testimony of two experts.

He said one expert would have testified on the cause of death and the other would have testified on the proper standard of medical care.

He said the mother arrived at Potomac Valley Hospital, in Keyser, at 4:30 p.m., and the emergency room doctor ordered an ultrasound image.

He said Marla Nyland reviewed the image and called Rhee at home.

"This was one of the most ill patients she had ever seen," Fitzsimmons said.

He said Nyland begged Rhee to come to the hospital. He said Rhee refused, grew belligerent and used the f-word.

"That is the defendant for which summary judgment was granted," Fitzsimmons said.

Chief Justice Robin Davis asked if Dr. Dickey was his expert on the standard of care. Fitzsimmons said he was.

Davis asked if Dickey was deposed twice. Fitzsimmons said he was.

He said Nyland was being trained. He said it was her first ultrasound.

For the defense, Thomas Hurney Jr. of Charleston said the hospital had no obstetrical services.

"She needed a C-section," Hurney said. "She could not get a C-section at Potomac Valley Hospital."

He said if Rhee had come, it would have taken him half an hour.

"There is no testimony that that would have made a difference in the outcome of this case," Hurney told the Justices.

Justice Spike Maynard asked why Dickey's testimony wasn't good enough to get the case to a jury.

Hurney said Rhee told Nyland to call a more experienced ultrasound reader who lived two miles away.

He said the emergency room doctor had already decided to transfer the mother to Grant Memorial Hospital, in Petersburg.

Justice Joseph Albright told Hurney the gist of his argument was that a judge should sort through the facts and not a jury.

"If a jury hears what your doctor did, they are going to incinerate him," Maynard said.

Hurney said Justices should not judge a community hospital against other hospitals.

"You are making the argument for the other side," Maynard said.

Hurney said his expert on standard of care testified that they should never have done the ultrasound. He said the expert testified that they should have stabilized her and transferred her as quickly as possible.

He said Dickey testified that if Rhee told Nyland to call the other ultrasound reader, he met the standard of care.

Davis said Dickey was deposed twice but only one transcript appeared in the record.

She said, "I can't even go to the record to see who says what in the other deposition."

Hurney said, "I ask to supplement the record."

Maynard said the Court has allowed cases to go to juries without experts.

"This is an area where you don't really need an expert," he said.

Hurney asked Justices to imagine getting the call Rhee got.

"I never talked to my client because he died," he said.

Maynard said, "The guy gets in his car and tries to save the baby. That's what you hope for."

Hurney said there was no surgeon and no obstetrical services.

He said, "Even if he had left at six it wouldn't have made a difference."

When Fitzsimmons rose for rebuttal, Albright said, "We are here on a teaching mission."

He said, "We don't require the filing of every deposition, and we resist supplementing the record."

Fitzsimmons said, "That is a teaching point mostly for me."

He said, "If they weren't doing any obstetrical work, why was somebody training her to do obstetrical ultrasounds?"