Gilman v. Choi

McHUGH, Justice:

In this certified question case this Court is asked essentially to decide the validity of a recent statute on expert testimony in a medical malpractice action, specifically, W. Va. Code, 55-7B-7 [1986], in light of the West Virginia Rules of Evidence. The Circuit Court of Mason County upheld the validity of the statute, and we, too, believe the statute is valid, but for a reason not assigned by the circuit court.

I

One of the two plaintiffs, Gladys Gilman, sustained a hip fracture and dislocation as the result of a recreational vehicle accident in October, 1986.1 Soon after the accident, Mrs. Gilman was seen in the Pleasant Valley Hospital emergency room by defendant Thomas J. Moskalewicz, M.D., an emergency room physician working in that hospital’s emergency department. Dr. Moska-lewicz ascertained that Mrs. Gilman had suffered a fracture of the left hip. He contacted defendant Dr. Young Choi, a general surgeon, and Mrs. Gilman was admitted to the hospital.

The plaintiffs have alleged in their medical malpractice action that Dr. Moskalew-icz, an emergency room physician, Dr. Bak-shy Chhibber, an internist/family practitioner and the plaintiffs’ family physician, as well as Dr. Choi, a general surgeon, and Pleasant Valley Hospital were each negligent in their treatment and care of Mrs. Gilman, thereby necessitating a total hip replacement and causing her to endure permanent pain and suffering.

The plaintiffs have designated Dr. Thomas G. Galli, a board certified orthopedic surgeon who practices the specialty of orthopedics, as an alleged expert witness against all of the defendants. Two of the defendant doctors, Dr. Chhibber and Dr. Moskalewicz, filed motions in limine asserting that Dr. Galli, as an orthopedic surgeon, is not qualified to testify as an expert witness as to the standard of care of an internist/family practitioner or of an emergency room physician.

The trial court (the Circuit Court of Mason County) ruled that Dr. Galli was not qualified to testify against Dr. Chhibber and Dr. Moskalewicz under condition precedent (e) set forth in W.Va.Code, 55-7B-7 [1986].2 The trial court also ruled that *179W. Va. Code, 55-7B-7 [1986] was not in conflict with Rule 702 of the West Virginia Rules of Evidence.3 At the request of the plaintiffs, and pursuant to Rule 13 of the West Virginia Rules of Appellate Procedure and the provisions of W. Va. Code, 58-5-2 [1967], the trial court certified the following question to this Court, which question was answered in the negative by the trial court:

Is West Virginia Code § 55-7B-7 (Cum.Supp.1988), requiring that an expert in a medical malpractice case be qualified in the ‘same or substantially similar’ medical field as a physician defendant against whom he/she intends to testify, in conflict with Rule 702 of the West Virginia Rules of Evidence which provides that an individual may testify as an expert if he/she is ‘qualified’ because of ‘knowledge, skill, experience, training or education’ to assist the trier of fact and, if so, does any such conflict invalidate the statute or otherwise render it inapplicable?

II

W.Va.Code, 55-7B-7 [1986], see supra note 2, authorizes a trial court to require “the testimony of one or more knowledgeable, competent expert witnesses” to establish the applicable standard of care in a medical malpractice action and a defendant’s failure to meet that standard, if at issue, (emphasis added) That same statute also sets forth five specific foundational prerequisites for admissibility of such testimony. The only one of these foundational requirements at issue here mandates that “(e) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider.”

The terms of this statute indicate that the legislature’s paramount concern was with the competency of the proffered expert testimony. Under Rule 601 of the West Virginia Rules of Evidence, “[e]very person is competent to be a witness except as otherwise provided for by statute or these rules.” (emphasis added) Accordingly, this Court, by virtue of Rule 601 of the West Virginia Rules of Evidence, has elected to defer to the legislature when it enacts statutes on the competency of witnesses. For example, this Court, in the recent case of Cross v. State Farm Mutual Automobile Insurance Co., 182 W.Va. 320, 387 S.E.2d 556 (1989), concluded that a particular statute on the competency of witnesses, namely, the Dead Man’s Statute, W. Va. Code, 57-3-1 [1937], is still valid under Rule 601. Id. 182 W.Va. at 324, 387 S.E.2d at 560.

In view of the foregoing we hold that W. Va. Code, 55-7B-7 [1986], being concerned primarily with the competency of expert testimony in a medical malpractice action, is valid under Rule 601 of the West Virginia Rules of Evidence.

It is, therefore, not necessary to decide whether W.Va.Code, 55-7B-7 [1986] conflicts with Rule 702 of the West Virginia Rules of Evidence, which is concerned primarily with the relevancy of expert testimony. See syl. pts. 1-2, State v. McCoy, 179 W.Va. 223, 366 S.E.2d 731 (1988). “In *180a certified case this Court will not consider certified questions not necessary to a decision of the case.” Syl. pt. 6, West Virginia Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957). Accord, State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5 (1990); syl. pt. 5, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990); syl. pt. 7, Shell v. Metropolitan Life Insurance Co., 181 W.Va. 16, 380 S.E.2d 183 (1989).

Moreover, upon receiving certified questions from circuit courts of this state, we retain some flexibility in determining how and to what extent those questions will be answered. Belcher v. Goins, 184 W.Va. 395, 398 n. 2, 400 S.E.2d 830, 833 n. 2 (1990); State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5 (1990); Deeds v. Lindsey, 179 W.Va. 674, 676 n. 2, 371 S.E.2d 602, 604 n. 2 (1988); City of Fairmont v. Retail, Wholesale & Department Store Union, 166 W.Va. 1, 3-4, 283 S.E.2d 589, 590 (1980). Cf. Maynard v. Board of Education, 178 W.Va. 53, 60, 357 S.E.2d 246, 253 (1987) (this Court addressed issue of laches, which was related to certified question on statute of limitations).

Although the question of abuse of discretion is not before us, we note that whether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court, and its ruling on that point ordinarily will not be disturbed unless it clearly appears that its discretion has been abused. Syl. pt. 12, Board of Education v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990), and 182 W.Va. at 612, 390 S.E.2d at 811 (citing cases).

In this regard it would be an abuse of discretion for a trial court to require the proffered expert witness to be board certified in the same medical specialty as a particular defendant health care provider. W.Va.Code, 55-7B-7 [1986] does not impose such a requirement by the use, in condition precedent (e), of the words “qualified in the same or substantially similar medical field[.]” If the legislature had intended such a board certification requirement, it could have provided explicitly therefor, as, for example, the legislature of Florida did in enacting Fla.Stat.Ann. § 766.102 (West 1988).4

Rule 702 of the West Virginia Rules of Evidence, see supra note 3, also does not require the proffered expert witness to be board certified in the same medical specialty as a defendant health care provider. See, e.g., Darling v. Reid, 534 So.2d 255, 257 (Ala.1988) (lack of board certification goes to weight, not to admissibility); Pearson v. Parsons, 114 Idaho 334, 336-37, 757 P.2d 197, 199-200 (1988) (in part, discussing a state evidentiary statute on medical malpractice expert testimony which was nearly identical to W. Va. Code, 55-7B-7 (1986)); Glover v. Ballhagen, 232 Mont. 427, 756 P.2d 1166 (1988) (involving Mont.R.Evid. *181702, which is identical to W.Va.R.Evid. 702).

While we do not decide in this case whether W. Va. Code, 55-7B-7 [1986] is more restrictive than Rule 702 of the West Virginia Rules of Evidence, there are certain common-law principles which are applicable under either that statute or that evidentiary rule. First, a medical expert, otherwise qualified, is not barred from testifying merely because he or she is not engaged in practice as a specialist in the field about which his or her testimony is offered; on the other hand, it is clear that a medical expert may not testify about any medical subject without limitation. Swanson v. Chatterton, 281 Minn. 129, 139, 160 N.W.2d 662, 669 (1968). Second, a plaintiff in a medical malpractice action must prove that the defendant specialist failed to meet the standard of care required of physicians in the same specialty practiced by the defendant; and to qualify a witness as an expert on that standard of care, the party offering the witness must establish that the witness has more than a casual familiarity with the standard of care and treatment commonly practiced by physicians engaged in the defendant’s specialty. Greene v. Thomas, 662 P.2d 491, 493 (Colo. Ct.App.1982) (amended Colo.R.Evid. 702, identical to W.Va.R.Evid. 702, was effective, as amended, July 1,1981), cert. denied (Colo. May 2, 1983).

Third, a medical witness may acquire sufficient knowledge to qualify as an expert through practical experience, recent formal training and study or a combination of these factors. This point is made in Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887 (1975):

Recognizing the complexity of knowledge required in the various medical specialties, more than a casual familiarity with the specialty of the defendant physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him [or her] to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards, and not to the standards of the witness’ particular specialty if it differs from that of the defendant. It is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.

Id. at 618, 356 A.2d at 892. See also Steinbach v. Barfield, 428 So.2d 915, 920-21 (La.Ct.App.) (when alleged acts of negligence raise issues peculiar to a particular medical specialty, then only those qualified in that specialty may offer evidence of applicable standards), cert. denied, 435 So.2d 431 (1983).

Accordingly, under Rule 702 of the West Virginia Rules of Evidence or under W. Va. Code, 55-7B-7 [1986], a proper assessment of the competency of an expert medical witness, and the relevancy of that witness’ testimony, require the trial court to focus specifically on the act of medical malpractice which is alleged; and, while there are circumstances in which, for example, a generalist may testify as to the standard of caré of a defendant specialist, there are also circumstances in which a generalist or a specialist in another field may not testify as to the standard of care of a defendant specialist. See, e.g., Connelly v. Kortz, 689 P.2d 728, 729-30 (Colo.Ct.App.1984) (internal medicine specialist who had only casual familiarity with standards of care of general surgeons was not qualified to testify against general surgeon as to proper indications for surgery; Colo.R. Evid. 702 cited to support principle that proffered expert witness may attain sufficient qualifications through training, education or experience); Greene v. Thomas, 662 P.2d 491, 493-94 (Colo.Ct.App.1982) (trial court did not abuse its discretion in ruling that plaintiff’s dermatologist was not qualified to testify as to standard of care for plastic surgeons, where dermatologist had only casual familiarity with plastic surgery procedure at issue; amended Colo. R.Evid. 702 in effect at that time), cert. denied (Colo. May 2, 1983); Wielgus v. Lopez, 525 N.E.2d 1272, 1274 (Ind.Ct.App.1988) (trial court did not abuse its discretion in excluding anesthesiologist’s testimo*182ny, where he was not familiar with surgical standard of care); syl. pt. 2, Swanson v. Chatterton, 281 Minn. 129, 160 N.W.2d 662 (1968) (trial court was clearly within its discretion in excluding testimony of plaintiffs medical expert against defendant orthopedic surgeon; although he was chief of medical staff at a large hospital and was a specialist in internal medicine, medical expert had little or no experience with orthopedic surgery procedure at issue and had no familiarity with same except for general learning in medical school fifteen years earlier).

As a result of the efforts of state medical societies, several states recently have adopted statutes governing expert testimony in medical malpractice actions. 3 C. Kramer, Medical Malpractice para. 29.02, at 29-7 (1990). Litigation of these statutes in those states which also have their equivalent to Rule 702 of the West Virginia Rules of Evidence will develop the law in the area of the interplay between such evidentiary statutes and such evidentiary rules.

On remand the trial court should apply the foregoing principles in exercising sound discretion in its ruling as to whether the plaintiffs proffered medical expert in this case is qualified to testify as to the particular standards of care at issue.

Having addressed the certified question, this case is remanded to the Circuit Court of Mason County for further proceedings consistent with this opinion.

Certified question answered; case remanded.

. The other plaintiff, Bruce Gilman, has alleged that the defendants’ negligence has proximately caused an impairment of spousal consortium (the companionship, society, etc., of his wife).

. W.Va.Code, 55-7B-7 [1986] provides:

*179The applicable standard of care and a defendant’s failure to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Such expert testimony may only be admitted in evidence if the foundation, therefor, is first laid establishing that: (a) The opinion is actually held by the expert witness; (b) the opinion can be testified to with reasonable medical probability; (c) such expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (d) such expert maintains a current license to practice medicine in one of the states of the United States; and (e) such expert is engaged, or qualified in the same or substantially similar medical field as the defendant health care provider.

(emphasis added)

. Rule 702 of the West Virginia Rules of Evidence, effective February 1, 1985, states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

. The material portion of Fla.Stat.Ann. § 766.102 (West 1988) is as follows:

(2) ...
(b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself [or herself] out as a specialist, a ‘similar health care provider' is one who:
1. Is trained and experienced in the same specialty; and
2. Is certified by the appropriate American board in the same specialty.

(emphasis added)

Under the same Florida statute, in subsection (2)(c)(2), even if the proffered expert witness is not a "similar health care provider,” compared with the defendant, he or she may still testify as to the prevailing professional standard of care if the witness

to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the S-year period before the incident giving rise to the claim.

This approach is consistent with the words "qualified in the same or substantially similar medical field,” which are used in W.Va.Code, 55-7B-7 [1986].