Hicks v. Ghaphery’s Empirical Analysis

Citation profile

11 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 11 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[ojbviously, the focus of a medical malpractice case is the care and treatment of the patient. In the instance where the patient is deceased, it would be patently unfair to exclude evidence of a patient’s complaints regarding their symptoms and ailments and their decisions as to what type of treatment they wished to undergo. In some cases, a patient’s subjective description of their ailments may be the sole basis for a physician’s diagnosis and treatment. Barring any party’s testimony in these circumstances is against “the policy of law to make available all relevant evidence in the quest for truth.” Meadows, 196 W.Va. at 63 , 468 S.E.2d at 316 . Moreover, “[jjustice ordinarily will not prevail where only a part of the available evidence affords the only support for the judgment rendered.” Id. We are confident that a jury which has been presented with all the available evidence is capable of sorting out said evidence, making relevant findings, and returning a proper verdict. Although the Legislature has modified certain aspects of the common law relating to wrongful death and personal injury through the MPLA, it has never addressed the applicability of the Dead Man’s Statute in medical malpractice eases. In Meadows , we pointed out that “the West Virginia Supreme Court possesses paramount authority to adopt rules of evidence for trial courts in this State.” 196 W.Va. at 59 , 468 S.E.2d at 312 . In that regard, Article VIII, Section 3 of the West Virginia Constitution provides”

   1 later decision quote this exact passage
   e.g. State Farm Fire & Casualty v. Robin Skinner Prinz

2. “this case does not involve a chosen course of treatment. 6 To the contrary, the issue is the physician’s decision to not perform a certain procedure, i.e., insertion of a vena cava filter. As Syllabus Point 2 of Cross, supra, illustrates, the duty of disclosure is predicated upon a recommended treatment or procedure. Thus, by asserting that she was entitled to an informed consent instruction as set forth in Cross , the appellant is asking this Court to extend the duty of disclosure to procedures not recommended by the physician.”

   1 later decision quote this exact passage
   e.g. Cline v. Kresa-Reahl

3. “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. Accordingly, we hereby overrule Dye v. Corbin, 59 W.Va. 266 , 53 S.E. 147 (1906), and its progeny, insofar as those cases approve the giving of a “mistake of judgment” instruction.”

   1 later decision quote this exact passage
   e.g. 213 W. Va. 220 - Mays v. Hao Chang