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Short v. Appalachian OH-9, Inc.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1998 Term
No. 24898
RICHARD E. SHORT, AS ADMINISTRATOR OF THE ESTATE OF
CHRISTOPHER EDWARD SHORT, RICHARD E. SHORT
AND CATHY L. SHORT, INDIVIDUALLY,
Plaintiffs Below, Appellants

v.
APPALACHIAN OH -9, INC., A CORPORATION,
Defendant Below, Appellee

Appeal from the Circuit Court of Summers County
Honorable Robert Irons, Judge
Civil Action No. 94-C-61

AFFIRMED

Submitted: June 3, 1998
Filed: July 15, 1998

Clyde A. Smith, Jr., Esq.  James W. Gabehart, Esq. Lynch, Mann, Smith & Mann                Arden J. Cogar, Esq. Beckley, West Virginia                     Campbell, Woods, Bagley, Attorney for Appellants                     Emerson, McNeer & Herndon
                                Charleston, West Virginia
                                Attorneys for Appellee

JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE McCUSKEY, deeming himself disqualified, did not
participate in the decision in this case.
JUDGE ARTHUR M. RECHT, sitting by special assignment.

SYLLABUS BY THE COURT
1. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syllabus point 3, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
2. Emergency medical services, regulated pursuant to the West Virginia Emergency Medical Services Act, W.Va. Code, 16-4C-1 [1996], et seq., are also subject to the provisions of the West Virginia Medical Professional Liability Act, W.Va. Code, 55-7B-1 [1986], et seq.
3.
"Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Syllabus point 5, Overton v. Fields, 145 W. Va. 797, 117 S.E.2d 598 (1960).

4.
In a malpractice case, the plaintiff must not only prove negligence but must also show that such negligence was the proximate cause of the injury.

5.
In a negligence action brought against an emergency medical service provider seeking damages with respect to the death of an infant, the circuit court has the discretion to determine whether the plaintiff is required to obtain an expert witness concerning both the standard of care applicable to the emergency medical service provider and whether the alleged breach of that standard of care proximately caused the death of the infant; moreover, pursuant to Rule 702 of the West Virginia Rules of Evidence, the circuit court has the discretion to determine whether the expert so obtained by the plaintiff is sufficiently qualified to state opinions upon those matters before the jury.


Workman, Justice:
        This action is before this Court upon an appeal from the final order of the Circuit Court of Summers County, West Virginia, entered on March 28, 1997. The appellants, Richard E. Short and Cathy L. Short, are the parents of Christopher Edward Short, an infant. The appellee, Appalachian OH -9, Inc., is a West Virginia corporation providing emergency medical services in the Summers County area. This action concerns Christopher's death in October 1993 and whether his death was caused by the appellee. Pursuant to the final order, the circuit court denied the appellants' motion to reconsider a summary judgment granted in favor of the appellee. The circuit court determined that summary judgment was proper because the appellants failed to obtain a physician who, as an expert witness, could link Christopher's death to the actions of the appellee.
        This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court is of the opinion that the circuit court correctly concluded that the duties and responsibilities of the appellee, currently regulated by the West Virginia Emergency Medical Services Act, W.Va. Code, 16- 4C-1 [1996], et seq., are also subject to the provisions of the West Virginia Medical Professional Liability Act, W.Va. Code, 55-7B-1 [1986], et seq. Moreover, this Court is of the opinion that, under the circumstances of this action, the granting of a summary judgment for failure to obtain a physician as an expert witness was "protected by the parameters of sound discretion." Parker v. Knowlton Construction Company, 158 W.Va. 314, 329, 210 S.E.2d 918, 927 (1975).
I.
        At approximately 10:30 a.m. on October 11, 1993, Christopher Edward Short, an infant, was fed by his mother, Cathy L. Short, and put down for a nap. Ms. Short then left the house to run some errands, leaving the infant in the care of his grandmother, Peggy Greer. At 1:00 p.m., Ms. Greer tried to awaken Christopher but found him unresponsive. Ms. Greer immediately telephoned for an ambulance to take the infant to Summers County Hospital and began administering CPR. Soon after, Christopher's grandfather, Ira Greer, arrived at the house and took over CPR.
        At 1:15 p.m., Christopher's father, Richard E. Short, arrived and also administered CPR to Christopher. In fact, both Mr. Short and Mr. Greer had been trained in CPR. Upon learning that the ambulance, operated by the appellee, was having difficulty locating the house, Mr. Short turned the CPR back to Mr. Greer and left to find the ambulance and direct it to the premises. Shortly thereafter, Mr. Short returned with the ambulance. The ambulance personnel, employed by the appellee, included a mobile intensive care paramedic and an emergency medical technician.
        According to the appellants, the ambulance personnel, upon arrival, examined Christopher, and determined that further attempts to resuscitate him were not warranted. Thereupon, the ambulance personnel transported Christopher to the Summers County Hospital Emergency Room, where, at 2:20 p.m., Christopher was pronounced dead on arrival by Dr. Ciriaco A. Mendoza.See footnote 1 1 According to Dr. Mendoza, Christopher had been dead for two to three hours. A subsequent autopsy determined that Christopher died from SIDS (sudden infant death syndrome). The appellants, however, contend that Christopher could have been resuscitated, but for the actions of the appellee.
        In October 1994, the appellants instituted this action in the circuit court. The complaint alleged that the appellee was negligent (1) in not arriving at the scene in a timely fashion, (2) in not continuing resuscitation efforts until the infant was received at the hospital and (3) in failing to obtain authorization from a physician prior to terminating resuscitation efforts at the scene. Thereafter, on January 3, 1996, the circuit court entered a scheduling order, which, inter alia, required the appellants to disclose any expert witnesses intended to be called at trial. In response, the appellants disclosed Dr. Marc E. Kross, a physician, and Carolyn Beth Spurlock, a neonatal intensive care nurse, both of whom would have testified, according to the appellants, that CPR should not have been terminated at the scene by the appellee.
        Dr. Kross, however, later refused to participate in the litigation. Consequently, by order entered on July 18, 1996, the circuit court continued the upcoming trial and allowed the appellants additional time to obtain a physician to testify. As a result, the appellants again disclosed Carolyn Beth Spurlock, and, in addition, Frank Mann and Wilma Jarrell. Although neither Mann nor Jarrell were physicians, both had knowledge and experience in emergency medical services.See footnote 2 2
        In November 1996, the appellee filed a motion for summary judgment, alleging that the appellants had "no qualified expert medical testimony to establish that any alleged negligence was the proximate cause" of Christopher's death.See footnote 3 3 Although the appellants submitted a memorandum of law in reply, no affidavits or other evidentiary-related documents were ever filed in response to the motion. Following a hearing, the circuit court concluded that the appellants had "failed to meet [their] burden in responding to the motion for summary judgment." Accordingly, the circuit court entered judgment for the appellee. In so ruling, however, the circuit court indicated that it would entertain a motion to reconsider the entry of summary judgment, in the event the appellants were to "identify a proper expert witness" in the action.
        The appellants subsequently filed a motion to reconsider. Rather than naming a physician, however, the motion asserted that nurse Spurlock was qualified to testify upon the issue of whether Christopher could have been resuscitated, but for the actions of the appellee. Following a hearing, the circuit court denied the motion to reconsider pursuant to the final order of March 28, 1997.
II.
        Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is proper where the record demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See generally, Lugar & Silverstein, West Virginia Rules of Civil Procedure, p. 426-42 (Michie 1960).
        Our standards of review concerning summary judgments are well settled. As this Court observed in syllabus point 2 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995):
         Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 2, Burdette v. Columbia Gas Transmission Corporation, 198 W.Va. 356, 480 S.E.2d 565 (1996); syl. pt. 2, Pinson v. Canaan Valley Resorts, Inc., 196 W.Va. 436, 473 S.E.2d 151 (1996); syl. pt. 2, Cavender v. Fouty, 195 W.Va. 94, 464 S.E.2d 736 (1995); Neary v. Charleston Area Medical Center, 194 W.Va. 329, 333, 460 S.E.2d 464, 468 (1995). More specifically, in syllabus point 3 of Williams, supra, this Court held:
         If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.
Syl. pt. 3, McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997); syl. pt. 3, Farm Family Mutual Insurance Company v. Bobo, 199 W.Va. 598, 486 S.E.2d 582 (1997); syl. pt. 4, Evans v. Mutual Mining, 199 W.Va. 526, 485 S.E.2d 695 (1997). Moreover, we note that, upon appeal, the entry of a summary judgment is reviewed by this Court de novo. Syl. pt. 1, Koffler v. City of Huntington, 196 W.Va. 202, 469 S.E.2d 645 (1996); syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
III.
        As the parties indicate, the appellee is an "emergency medical service provider" within the meaning of the West Virginia Emergency Medical Services Act. W.Va. Code, 16- 4C-1 [1996], et seq. As stated in W.Va. Code, 16-4C-2 [1996], the purpose of the Act is to ensure "the provision of adequate emergency medical services within this state for the protection of the public health, safety and welfare [.]" In order to further that purpose, entities such as the appellee are required to obtain a license from the State of West Virginia prior to providing emergency medical services to the public. See, W.Va. Code, 16-4C-6a [1996].
        The West Virginia Emergency Medical Services Act is administered by (1) a statewide office of emergency medical services, (2) a Commissioner and (3) an emergency medical services advisory council. W.Va. Code, 16-4C-4 [1996]; W.Va. Code, 16-4C-5 [1997]. It is noteworthy that the emergency medical services advisory council is made up, in part, of a member of the West Virginia hospital association and a member of the West Virginia chapter of the American college of emergency physicians. See, W.Va. Code, 16- 4C-5 [1997]. Pursuant to the West Virginia Emergency Medical Services Act, the definition of the term "emergency medical services" includes "responding to the medical needs of an individual to prevent the loss of life or aggravation of illness or injury." W.Va. Code, 16-4C- 3(d) [1996].
        In granting summary judgment, however, the circuit court concluded that the appellee was also subject to the provisions of the West Virginia Medical Professional Liability Act, W.Va. Code, 55-7B-1 [1986], et seq. Pursuant to that Act, certain reforms were made in the common law and statutory law of this State in order to ensure "the best medical care and facilities available" for West Virginia citizens. W.Va. Code, 55-7B-1 [1986]. According to the West Virginia Medical Professional Liability Act, "health care" means "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement." W.Va. Code, 55-7B-2(a) [1986]. Moreover, the Act defines "health care provider" as follows:
         [A] person, partnership, corporation, facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, or psychologist, or an officer, employee or agent thereof acting in the course and scope of such officer's, employee's or agent's employment.W.Va. Code, 55-7B-2(c) [1986]. (emphasis added)
        The appellants contend that the circuit court committed error in concluding that the appellee is covered by the West Virginia Medical Professional Liability Act, which Act includes the requirements of W.Va. Code, 55-7B-7 [1986], set forth below, concerning the expert witnesses of plaintiffs in medical professional liability cases. Rather, the appellants assert that the appellee is subject to the West Virginia Emergency Medical Services Act, which includes no such requirements. Moreover, according to the appellants, inasmuch as the definition of "health care provider" in W.Va. Code, 55-7B-2(c) [1986], of the Medical Professional Liability Act does not expressly refer to emergency medical service providers, such providers are not covered by that Act. The appellee, on the other hand, contends that both Acts apply to its duties and responsibilities and that the circuit court ruled correctly.
        Clearly, a certain commonality exists between the West Virginia Emergency Medical Services Act and the West Virginia Medical Professional Liability Act. Under the former, a state license is required pursuant to W.Va. Code, 16

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