Was the trial court correct in concluding that Petitioner failed to establish proximate cause in a medical malpractice case premised on informed consent?
In 2015, Petitioner, Marissa Shaffer, was delivering her first baby. Petitioner alleges that she suffered injury when the needle used for the epidural was inserted too far, puncturing the cover of Petitioner’s spine (i.e., the dura). The consent signed by Petitioner authorized Respondent, Dr. Bragg, to perform all of the anesthesia care. Petitioner sued the hospital, Dr. Bragg, and his anesthesiology group, alleging that they breached the standard of care by permitting a student nurse anesthetist to place the epidural. Petitioner also alleged that the hospital intentionally covered up the student’s role in the placement of the epidural.
The trial court granted summary judgment in Respondent’s favor, finding that there was insufficient evidence that Petitioner’s injury was proximately caused by any alleged deviation of care. Petitioner now appeals.
Petitioner (Shaffer): Petitioner argues that the totality of the evidence, including the opinions of her expert, Dr. Bushman, support probable cause. Petitioner was deprived of the opportunity to decline the student’s participation. If she had declined, then, more likely than not, the injury would not have occurred. This was confirmed by Dr. Bushman’s testimony and by the contents of his certificate of merit, which explained that “experience” is the primary driver of risk for this type of injury.
Respondent (Bragg): It is undisputed that puncturing the dura was not, in and of itself, a violation of the standard of care. Therefore, the sole issue here concerns the relationship between the informed consent and the injury. According to Respondent, Dr. Bushman testified that nothing about the informed consent “process” caused Petitioner’s injury. The trial court correctly concluded from this part of Dr. Bushman’s testimony that Petitioner failed to establish probable case. Furthermore, the court correctly disregarded any opinions expressed by Dr. Bushman in his certificate of merit because, under W.Va. Code 55-7b-6(j), the contents of the certificate are inadmissible “in any court proceeding.”
This case appears on the Rule 20 docket. We can, therefore, expect a new syllabus point addressing proof of probable cause in the context on an implied consent case. It is also likely the court will consider whether a certificate of merit is admissible, for summary judgment purposes, in the case wherein it is filed.