Daniel v. Charleston Area Medical Center, Inc
In Daniel v. Charleston Area Medical Center, Inc., 209 W.Va. 203, 544 S.E.2d 905 (2001), the plaintiff appealed a decision of the circuit court granting summary judgment to the defendant hospital after the court determined that expert testimony was required and that the plaintiff had failed to secure an expert within the time frame allotted by the court's scheduling order.
Upon review, we determined that W.Va. Code 55-7B-6 required the circuit court to hold a status conference to determine whether expert testimony was necessary and if so, provide a reasonable time for the plaintiff to obtain an expert witness.
The Court stated:
Because this case has been determined to fall within the parameters of the Medical Professional Liability Act, the provisions of the Act necessarily control our decision in this case. In section six, which governs the issue of expert retention, the Medical Professional Liability Act contemplates that the issue of experts will be resolved during a mandatory status conference in requiring the plaintiff to "certify to the court that either an expert witness has or will be retained to testify ... as to the applicable standard of care or that under the alleged facts of the action, no expert witness will be required." W.Va.Code 55-7B-6(a)(2).
The final determination regarding the need for an expert witness, as the Act makes clear, is a matter for the trial court: "If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness." Id.
(Daniel, 209 W.Va. at 206, 544 S.E.2d at 908.)
Accordingly, the Court concluded in Daniel that the circuit court had prematurely granted summary judgment.