We have not examined any version of this instruction in 20 years and have never directly considered the “exercise of judgment” instruction at issue in these cases. While we noted the seeming acceptance of the “error in judgment principle” in 1986, Watson, 107 Wash.2d at 165, 727 P.2d 669, we have not had an opportunity to consider cases since then that show a trend toward rejecting it. See, e.g., Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320, 331 (2000) (reversing West Virginia precedent and collecting cases from other states to show that “courts increasingly are veering away from the use of these instructions based on the potential for jury confusion”). The instruction at issue in Pleasants included the term “honest error,” and many of the cases cited in the opinion rejected instructions with the type of “good faith” language this court has criticized.
We have not examined any version of this instruction in 20 years and have never directly considered the "exercise of judgment" instruction at issue in these cases. While we noted the seeming acceptance of the "error in judgment principle" in 1986, Watson, 107 Wn.2d at 165, we have not had an opportunity to consider cases since then that show a trend toward rejecting it. See, e.g., Pleasants v. Alliance Corp., 209 W. Va. 39, 543 S.E.2d 320, 331 (2000) (reversing West Virginia precedent and collecting cases from other states to show that "courts increasingly are veering away from the use of these instructions based on the potential for jury confusion"). The instruction at issue in Pleasants included the term "honest error," and many of the cases cited in the opinion rejected instructions with the type of "good faith" language this court has criticized.
On the other hand, it is no defense for a health care provider to say that he exercised his best judgment, if that judgment breached the standard of care. In the recent case of Pleasants v. Alliance Corporation, ___ W. Va. ___, 543 S.E.2d 320 (2000), we disapproved of the "error in judgment" instruction and held in Syllabus Point 5: The "mistake of judgment" jury instruction, which this Court first approved in Dye v. Corbin, 59 W. Va. 266, 53 S.E. 147 (1906), wrongly injects subjectivity into an objective standard of care, is argumentative and misleading, and should no longer be used to instruct the jury concerning the relevant standard of care in a medical malpractice action.
The significance of this distinction is manifest: good faith is a defense to a charge under § 841(a)(1), but not to a claim of medical malpractice. See Hurwitz, 459 F.3d at 480 ("good faith generally is relevant in a § 841 case against a registered physician"); Pleasants v. Alliance Corp., 209 W.Va. 39, 49 n. 27, 543 S.E.2d 320 (2000) (collecting cases rejecting use of subjective good faith jury instructions in medical malpractice actions). The inclusion of a good faith instruction is therefore a plainspoken method of explaining to the jury a critical difference between the two standards.
[¶ 28.] However, according to the court, the mistake in judgment instruction was improper, because the West Virginia Supreme Court had already disapproved of the use of "error in judgment." Id. at 690 (citing Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320, 331 (W.Va. 2000)). Such language, the court held, "wrongly injects subjectivity into an objective standard of care, [and] is argumentative and misleading[.]"
State v. West, 157 W. Va. 209, 200 S.E.2d 859, 866 (1973)." Davis v. Wang, 184 W. Va. 222, 226, 400 S.E.2d 230, 234 (1990) overruled on other grounds by Pleasants v. Alliance Corp., 209 W. Va. 39, 543 S.E.2d 320 (2000). In
Likewise, we have said that “[o]rdering a recess or temporary adjournment is within the sound discretion of the trial court.” Dupuy v. Allara, 193 W.Va. 557, 564, 457 S.E.2d 494, 501 (1995)overruled on other grounds by Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000). We find no abuse of discretion in the circuit court's decision to deny the plaintiff's request for a mid-trial recess.
n the plaintiff to prove such negligence or want of skill and that it results in injury to the plaintiff."); Syl. pt. 2, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964) ("It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses."); Syl. pt. 2, White v. Moore, 134 W. Va. 806, 62 S.E.2d 122 (1950) ("In an action for damages against a physician, for negligence and want of professional skill in the making of an examination, or in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in injury to the plaintiff."); Syl. pt. 2, Dye v. Corbin, 59 W. Va. 266, 53 S.E. 147 (1906) ("In an action for damages against a physician, for negligence and want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in injury to the plaintiff."), overruled on other grounds by Pleasants v. Alliance Corp., 209 W. Va. 39, 543 S.E.2d 320 (2000). Requiring plaintiffs in medical malpractice cases to bear the burden of proof is derived from our more general negligence jurisprudence placing the burden of proof on plaintiffs to prove their claims of negligence.
This Court has previously observed that, "It is a fact of life that in many rural jurisdictions in this State, a limited number of physicians may practice within any given community." Dupuy v. Allara, 193 W. Va. 557, 562, 457 S.E.2d 494, 499 (1995), overruled on other grounds, Pleasants v. Alliance Corp., 209 W. Va. 39, 543 S.E.2d 320 (2000). As a result, "[w]hen one of these doctors is a party or a witness in a medical malpractice action, it is unlikely the court can seat a panel of jurors with absolutely no contacts with the doctor."
See Syl. pt. 4, Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967) ("In an action for damages against a physician for negligence or want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff."). See also Pleasants v. Alliance Corp., 209 W.Va. 39, 50, 543 S.E.2d 320, 331 (2000) ("West Virginia Code § 55-7B-3 . . . [merely] define[s] the necessary elements for proving a medical malpractice cause of action."). Further, we find nothing in the language of W. Va. Code § 55-7B-3, or anywhere else in the Act, which shows a legislative intent to prohibit the proximate cause inference allowed by Pygman.