Orphanos v. Rodgers

903 S.E.2d 623

John R. ORPHANOS, M.D., Defendant Below, Petitioner,

v.Michael RODGERS, Plaintiff Below, Respondent.

No. 23-ICA-58

West Virginia Intermediate Court of Appeals.

Submitted: January 9, 2024

Filed: June 13, 2024

Appeal from the Circuit Court of Kanawha County, Honorable Tera Salango, Judge, No. 19-C-561

Thomas J. Hurney, Esq., Blair E. Wessels, Esq., Jackson Kelly PLLC, Charleston. West Virginia, Richard D. Jones, Esq., J. Dustin Dillard, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, Counsel for Petitioner John W. Barrett, Esq., P. Gregory Haddad, Esq., Kerrie W. Boyle, Esq., Sharon F. Iskra, Esq., Bailey Glasser, LLP, Charleston, West Virginia, Counsel for Respondent

Stephen M. Fowler, Esq., Geoffrey Cullop, Esq., Pullin, Fowler, Flanagan, Brown & Poe PLLC, Charleston, West Virginia, Counsel for Board of Risk and Insurance Management of the State of West Virginia, Amicus Curae

Chelsea V. Brown, Esq., Bowles Rice LLP, Morgantown, West Virginia, Counsel for Amici Curiae, West Virginia University Board of Governors, West Virginia, Health Care Association, American Medical Association, and West Virginia State Medical Association

Ancil G. Ramey, Esq., Steptoe & Johnson PLLC, Huntington, West Virginia, Christine S. Vaglienti, Esq., West Virginia University Health System Legal Services, Morgantown, West Virginia, Counsel for Amici Curiae, West Virginia Health System, Inc. d/b/a West Virginia University Health System

SCARR, CHIEF JUDGE:

Petitioner, John R. Orphanos, M.D., appeals the Circuit Court of Kanawha County’s September 12, 2022, judgment order following a jury trial, and January 20, 2023, order denying his renewed motion for judgment as a matter of law on the issue of recklessness and a separate motion for new trial. This case involves a medical malpractice lawsuit filed by Michael Rodgers against Dr. Orphanos in relation to spinal surgery performed after Mr. Rodgers was injured in a motorcycle accident in 2017. This appeal arises out of a medical malpractice jury trial, in which the jury returned a verdict for Mr. Rodgers with a final, reduced award of $9,862,384.58.¹

Upon extensive review of the briefs, the appendix record, arguments presented by counsel, and the applicable legal authority, this Court affirms the January 20, 2023, order denying Dr. Orphanos’ renewed judgment as a matter of law. However, we reverse and remand in part the January 19, 2023, denial of Dr. Orphanos’ motion for a new trial, and reverse in part the September 12, 2022, judgment order, for a new trial solely on damages consistent with this opinion.²

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2017, Michael Rodgers, then 49 years old, was injured in a motorcycle crash. He was life-flighted to CAMC General in Charleston, a Level 1 Trauma Center. In the emergency department, physicians performed a chest computed tomography ("CT") scan which revealed a T5 Chance fracture (a transverse fracture through a vertebral body and neural arch). Mr. Rodgers was admitted to the Surgical Trauma Intensive Care Unit for further treatment and Dr. Orphanos, a neurosurgeon, was contacted for a neurosurgical consultation.

A nurse practitioner from Dr. Orphanos’ practice first saw Mr. Rodgers at 11:30 a.m. on June 5, 2017. That nurse practitioner performed an initial assessment, placed him on spinal precautions, and ordered a thoracic lumbar sacral orthosis brace to be worn for a period of 6-8 weeks. Dr. Orphanos saw Mr. Rodgers later that afternoon and recommended a spinal surgical procedure as an alternative to the conservative treatment approach of the back brace. Mr. Rodgers agreed to the surgery and Dr. Orphanos performed a fusion of levels T2 through T6 the next day, on June 6, 2017, which involved placing orthopedic screws into the vertebrae to stabilize the fracture.

Postoperatively, Mr. Rodgers had no motor function or sensation below his nipple line.³ A repeat thoracic CT scan showed trace bilateral pleural effusions surrounding the pedicle screws within the T2 and T3 levels, skipping T4, with screws in T5 and T6. The CT scan did not show anything that explained the paralysis, such as spinal cord compression, misalignment of the orthopedic screws, or evidence of a forming epidural hematoma. Dr. Orphanos recommended that Mr. Rodgers be returned to surgery for a T5 laminectomy. During that second surgery, Dr. Orphanos found no evidence of compression or other interference with the spinal cord.

On June 20, 2017, Mr. Rodgers was transferred to a subacute rehabilitation center for further care and was discharged home on July 20, 2017. Mr. Rodgers’ paraplegia persisted and was ultimately determined to be permanent. According to Dr. Orphanos’ experts, the paralysis was caused by a spinal cord infarct, that occurred during the surgery, which was neither predictable nor preventable. One of Mr. Rodgers’ treating neurologists, Joby Joseph, M.D., apparently told Mr. Rodgers’ mother that he believed the paralysis was caused by a spinal cord infarct. Another of Dr. Orphanos’ experts, Dennis Whaley, M.D., opined that the paraplegia was caused by a vascular injury sustained at the time of the motorcycle accident itself.

Mr. Rodgers filed a complaint against Dr. Orphanos on May 30, 2019, alleging three breaches of the standard of care: (1) prior to the first surgery, Dr. Orphanos should have ordered a magnetic resonance imaging ("MRI") of the thoracic spine instead of relying solely on the CT; (2) during the surgery, Dr. Orphanos should have used intraoperative neurophysiological monitoring ("IONM") to monitor the spinal cord while placing the surgical screws; and (3) after learning about the paralysis after the first surgery, Dr. Orphanos should have ordered a CT myelogram to locate and repair the cord injury before it became irreversible. Mr. Rodgers further claimed that Dr. Orphanos’ treatment amounted to gross negligence and recklessness and sought punitive damages.⁴

During discovery, on July 9, 2020, Mr. Rodgers was diagnosed with a right-sided, middle cerebral artery embolic stroke, which left him with left-sided hemiparesis (weakness or paralysis on one side of the body). He did not amend his complaint to allege that Dr. Orphanos’ 2017 care caused or contributed to his July 2020 stroke.

On January 25, 2021, Mr. Rodgers filed a motion for partial summary judgment, arguing that the Trauma Cap of the Medical Professional Liability Act ("MPLA"), West Virginia Code § 55-7B-9c, did not apply because two statutory exceptions were implicated: (1) the surgery did not qualify as an "emergency" under West Virginia Code § 55-7B-9c(h)(1); and (2) Dr. Orphanos’ treatment and conduct were "reckless" under West Virginia Code § 55-7B-9c(h)(1). The circuit court denied the motion, concluding that the jury would determine whether the surgery was an emergency and whether Dr. Orphanos acted recklessly.

On January 5, 2022, about two months before the March 14, 2022, trial date, Mr. Rodgers served a second amended expert witness disclosure that included a new life care plan and economic report effectively claiming a connection between Mr. Rodgers’ 2020 stroke and Dr. Orphanos’ 2017 care. Dr. Orphanos moved to exclude these reports because they were untimely produced, and no expert was identified to causally link the 2017 care to the 2020 stroke. In a separate motion, Dr. Orphanos moved to continue the trial date, arguing that Mr. Rodgers added a new claim to the case without providing an opportunity to conduct discovery. During a hearing on the motions, Mr. Rodgers’ counsel offered to provide Dr. Orphanos "great latitude" in responding to the new disclosures. On February 24, 2022, the circuit court denied both of Dr. Orphanos’ motions.

On March 7, 2022, Dr. Orphanos served his second supplemental expert disclosure, including rebuttal opinions to Mr. Rodgers’ new expert opinions. Despite the earlier assurance of "great latitude," Mr. Rodgers moved to strike the experts, arguing that the supplemental disclosure was untimely and prejudicial. During the circuit court’s March 14, 2022, pre-trial hearing, held the day before jury selection, the circuit court granted in part and denied in part Mr. Rodgers’ motion to strike. The court precluded Dr. Orphanos from offering expert testimony from Dr. Gehrig discussing the effect the 2020 stroke had on Mr. Rodgers’ life expectancy.

Also heard at the pre-trial hearing were Dr. Orphanos’ two motions regarding Mr. Rodgers’ claim that Dr. Orphanos acted with a "reckless disregard of a risk of harm to the patient" under West Virginia Code § 55-7B-9c(h)(1), his motion for partial summary judgment on claims other than medical negligence, and his motion in limine to preclude Mr. Rodgers from asserting or arguing that he was "reckless." In both motions, Dr. Orphanos argued that none of Mr. Rodgers’ experts opined that he was "reckless," and that he had disclosed experts who testified that his treatment met the standard of care. As such, Dr. Orphanos contended that there was no expert evidence that his care amounted to anything beyond simple negligence, thus Mr. Rodgers should have been barred from arguing "recklessness" at trial. The circuit court denied both motions, holding that the determination of whether Dr. Orphanos was reckless would be based on the totality of the evidence presented at trial and not on any one expert’s opinion.

Dr. Orphanos also presented three other motions in limine at the pretrial hearing: (1) his motion in limine to exclude medical expenses not supported by expert testimony, relating to the testimony of Nurse Taniguchi; (2) his motion in limine to exclude the testimony of Mr. Rodgers’ expert, David Feinberg, M.D., regarding the applicable standard of care; and (3) his motion in limine to exclude evidence or testimony regarding miscounting of vertebral bodies during surgery. The circuit court denied all three motions at the pretrial conference.

The seven-day trial began on March 15,...