Davis

CHARLESTON - The state Supreme Court on Monday gave a plaintiff's medical expert a second chance to make a first impression, while a dissenting Chief Justice Robin Davis says the decision made bad law.

Still, the rest of her colleagues remanded the case of Maranda Fout-Iser and husband Jeremy Iser, who say the actions of the late Dr. Russell Rhee cost them their unborn daughter. Rhee, himself, died in an automobile accident after the alleged malpractice, and his estate is being sued.

The case was dismissed in its trial court because the plaintiffs' medical expert, Dr. Jeffrey Dicke, could not say with certainty that Rhee's actions contributed to the 1999 death of Alexia, who died as a result of a placental abruption when her mother Maranda was eight months pregnant. After receiving the testimony of Marla Niland, a witness who was previously unable to be located, Dicke changed his opinion.

"Hard cases make bad law, and the instant case is no exception to this adage," wrote Davis, the lone dissenter. "Simply stated, the facts of this case are horrific.

"The conduct of the physicians who treated Mrs. Fout-Iser and her unborn child was inexcusable, unprofessional, and unquestionably contributed to the death of the Isers' child. Nevertheless, even when a defendant's conduct is egregious beyond words, a plaintiff is not excused from adhering to the requirements of the West Virginia Rules of Civil Procedure when prosecuting a claim."

On July 30, 1999, Maranda went to the emergency room at Potomac Valley Hospital in Keyser, complaining of abdominal pain, fever, chills, shortness of breath, vomiting, blurred vision, inability to urinate and diarrhea. Niland, an X-Ray technician, took eight ultrasound images, which were sent to Rhee's home. Rhee was the on-call radiologist at the time.

A few minutes later, he called Niland and shouted profanities because of the poor quality of the images, Niland said, adding that she needed Niland because she was inexperienced in the area.

According to the opinion written by Justice Elliott Maynard, Niland testified that her phone conversation with Rhee went: "Look, I need help here. I've never... I've not seen this before, and I need help," and he said, I said we don't do that many OB ultrasounds, and I've not seen this before, and he told me that it was my job to know what to do."

"Ms. Niland then said that Dr. Rhee told her that he 'didn't have time to come to Keyser to do a (expletive deleted) ultrasound.' She also said that Dr. Rhee told her to contact Vanessa Miller, a certified ultrasound technician, to help her in obtaining adequate images. Ms. Miller, who was not on call on that day, was unable to come to the hospital," Maynard wrote.

After many more ultrasounds, Rhee eventually had Fout-Iser transferred Grant Memorial Hospital, where she had a C-section. The baby was already dead, however.

During the course of his first deposition, Dicke was unable to state that Rhee breached the standard of care. The defendants moved for summary judgment and were granted it, since the testimony of a medical expert is required in a malpractice case, according to a 2003 law.

After hearing Niland's deposition, though, Dicke changed his mind

"Dr. Rhee, in his capacity as a radiologist, was responsible for providing an interpretation of the images. Per Ms. Niland's testimony, Dr. Rhee was not satisfied with the quality of the images he was receiving," Dicke said. "Since he is the one that's responsible for rendering that interpretation, I would consider it his responsibility to provide some additional either guidance or direction by himself or somebody else that would allow him to be comfortable rendering an interpretation of the patient and the images that he received."

Also, the defendants argued there was no causation, with which the trial court agreed despite the testimony of Dr. Richard McLaughlin. He says Rhee caused a delay when that time could have been used for an emergency C-section.

"Having reviewed the record in this case, we believe that genuine issues of material fact exist with regard to whether Dr. Rhee violated the applicable standard of care and whether that violation of the standard of care was the cause of injury," Maynard wrote.

Davis, meanwhile, says McLaughlin actually admitted that he could only testify to the actions of two other doctors named in the suit -- not Rhee.

"In rendering their decision in this case, the majority of the Court completely ignores the failure of the Isers' counsel to designate Dr. McLaughlin as an expert to testify as to standard of care and causation with respect to Dr. Rhee," Davis wrote. "Rather than recognizing the Isers' failure to comply with the West Virginia Rules of Civil Procedure, the majority instead compounds this error by specifically finding that 'the appellants' expert witness, Dr. Richard D. McLaughlin... offered testimony with regard to causation.'

"I wish to make it abundantly clear that I appreciate the very tragic facts of this case, and I emphatically do not condone the utter lack of professionalism inherent therein.

"Be that as it may, I am nevertheless bound to follow the law of this State, and in accordance therewith I believe that the Isers failed to follow the West Virginia Rules of Civil Procedure by not amending their expert witness disclosure and that the circuit court properly determined that the Isers had not sustained their burden of proof in this case as to Dr. Rhee. Because the majority apparently condones this disregard for the West Virginia Rules of Civil Procedure, I respectfully dissent."