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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2004 Term __________ No. 31667 __________

FILED November 15, 2004
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

DON R. STEWART AND ADELAIDE STEWART,
HUSBAND AND WIFE,
Plaintiffs Below, Appellants
v. DR. JEFFREY GEORGE, ST. MARY'S HOSPITAL,
ALSO KNOWN AS ST. MARY'S HOSPITAL OF HUNTINGTON, INC.,
A WEST VIRGINIA CORPORATION,
Defendants Below, Appellees
__________________________________________________ Appeal from the Circuit Court of Cabell County The Honorable David M. Pancake, Judge Civil Action No. 00-C-0193 REVERSED AND REMANDED __________________________________________________ Submitted: September 29, 2004 Filed: November 15, 2004 Phillip M. Stowers Stowers & Associates Charleston, West Virginia Attorney for the Appellants Jeff C. Woods Jackson Kelly PLLC Charleston, West Virginia Attorney for the Appellee, Dr. Jeffrey George

D. C. Offutt, Jr. Stephen S. Burchett Sonja C. Vital Robert M. Sellards Offutt, Fisher & Nord Huntington, West Virginia Attorneys for the Appellee, St. Mary's Hospital

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT

1. "`A circuit court's entry of summary judgment is reviewed de novo.' Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." Syl. Pt. 1, Mountain Lodge Ass'n v. Crum & Forster Indem. Co., 210 W. Va. 536, 558 S.E.2d 336 (2001).

2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

3. "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, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

4. "`Proximate cause' must be understood to be that cause which in actual sequence, unbroken by any independent cause, produced the wrong complained of, without

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which the wrong would not have occurred." Syl. Pt. 3, Webb v. Sessler, 135 W. Va. 341, 63
S.E.2d 65 (1950).

5. "`The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.' Syllabus Point.5, Hartley v. Crede, 140 W. Va. 133, 82 S.E.2d 672 (1954), overruled on other grounds, State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983)." Syl. Pt. 1, Mays v. Chang, 213 W. Va. 220, 579
S.E.2d 561 (2003)

6. "`A party in a tort action is not required to prove that the negligence of one sought to be charged with an injury was the sole proximate cause of an injury. Divita v. Atlantic Trucking Co., 129 W. Va. 267, 40 S.E.2d 324 (1946), is overruled to the extent it states a contrary rule.' Syllabus Point 2, Everly v. Columbia Gas of West Virginia, Inc., 171 W. Va. 534, 301 S.E.2d 165 (1982)." Syl. Pt. 2, Mays v. Chang, 213 W. Va. 220, 579 S.E.2d
561 (2003)

7. "`Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.' Syllabus Point 5, Hatten v. Mason Realty

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Co., 148 W. Va. 380, 135 S.E.2d 236 (1964)." Syl. Pt. 3, Mays v. Chang, 213 W. Va. 220,

579 S.E.2d 561 (2003).


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Per Curiam:

This is an appeal by Donald and Adelaide Stewart (hereinafter "Appellants")
from a February 4, 2003, order of the Circuit Court of Cabell County granting summary judgment to Dr. Jeffrey George and St. Mary's Hospital (hereinafter "Appellees"). In the underlying medical malpractice action, the Appellants contend that the Appellees failed to properly diagnose and treat Appellant Donald Stewart and that such negligence proximately caused damages to the Appellants. The lower court granted summary judgment to the Appellees based upon the alleged absence of expert witness opinion that any deviation from the standard of care actually caused the medical problems suffered by Appellant Mr. Stewart. On appeal, the Appellants contend that genuine issues of material fact exist precluding summary judgment. Upon thorough review of the briefs, record, arguments of counsel, and applicable precedent, we reverse the summary judgment granted by the lower court and remand for further proceedings.

I. Factual and Procedural History On March 6, 1998, Appellant Donald Stewart underwent heart bypass surgery at St. Mary's Hospital. The surgery1 was performed by Appellee Dr. Jeffrey George. The

Prior to surgery, it was determined that Mr. Stewart suffered from an occluded artery and that cardiac bypass surgery should be performed to restore proper blood flow and improve cardiac function. 1

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parties agree that the surgery itself was uneventful and that no negligence occurred during the performance of the surgery. However, subsequent to the surgery, Mr. Stewart suffered a substantial infection and required additional treatment. Mr. Stewart was ultimately transferred to Johns Hopkins Hospital in Baltimore, Maryland, where his condition was properly diagnosed and mitral valve repair surgery was also performed. The Appellants filed a medical malpractice action on March 17, 2000, asserting that the Appellees' failure to diagnose and properly treat Mr. Stewarts' hyperglycemia,2 a condition which rendered him susceptible to infection, caused the development of the post-operative infection and required further extensive medical treatment.

On February 4, 2003, the lower court granted summary judgment to the Appellees, finding no genuine issue of material fact regarding causation. The lower court reviewed the deposition testimony of the Appellants' expert witness, Dr. Thomas O'Grady, and concluded that the testimony of Dr. O'Grady did not establish that any failure to properly treat or diagnose Mr. Stewart's condition actually caused the infection3 or other damages.

Hyperglycemia is the condition that occurs when blood glucose levels rise and remain elevated.

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According to Dr. O'Grady, Mr. Stewart suffered "a deep sternal infection which required incision, drainage, debridement, and ultimately myocutaneous flaps in order to cover the defect." During hospitalization, Mr. Stewart experienced congestive heart failure and required dialysis due to acute renal failure. He also required a mechanically assisted ventilation machine and a tracheotomy. 2

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Finding that the necessary link between the alleged injury and any deviation from the standard of care was absent, the lower court granted summary judgment to the Appellees.

II. Standard of Review The standard of review for summary judgment granted by the lower court has been established as follows in syllabus point one of Mountain Lodge Association v. Crum & Forster Indemnity Co., 210 W. Va. 536, 558 S.E.2d 336 (2001): "`A circuit court's entry of summary judgment is reviewed de novo.' Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." In syllabus point three of Aetna Casualty & Surety Co. v. Federal Insurance Company of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963), this Court explained: "A motion for summary judgment should be granted only when it is clear that

there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Further, in syllabus point two of Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995), this Court stated: "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." As required of the lower court, this Court must also "draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion." Painter, 192 W. Va. at 192, 451 S.E.2d at 758.

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III. Discussion West Virginia Code

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