Samuel Hernandez and Zusmitha Arnesto v. City Hospital, Inc. d/b/a WVU Medicine/Berkeley Medical Center

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
Spring 2026 Term FILED
_____________________________
May 18, 2026
No. 25-ICA-224 released at 3:00 p.m.
_____________________________ ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
SAMUEL HERNANDEZ
and ZUSMITHA ARNESTO,
Plaintiffs Below, Petitioners
v.
CITY HOSPITAL, INC. d/b/a
WVU MEDICINE/BERKELEY MEDICAL CENTER,
Defendant Below, Respondent
________________________________________________________________________
Appeal from the Circuit Court of Berkeley County
Honorable Laura Faircloth, Judge
Civil Action No. CC-02-2022-C-52

REVERSED and REMANDED
________________________________________________________________________
Submitted: April 14, 2026
Filed: May 18, 2026

C. Edward Amos II, Esq. Lauren T. Krupica, Esq.
Scott S. Segal, Esq. Joshua K. Boggs, Esq.
Segal & Amos, PLLC West Virginia United Health System, Inc.
Charleston, West Virginia Morgantown, West Virginia
Counsel for Petitioners Counsel for Respondent

CHIEF JUDGE GREEAR delivered the Opinion of the Court.
GREEAR, Chief Judge:

Petitioners, Samuel Hernandez and Zusmitha Arnesto, appeal the Circuit

Court of Berkeley County’s March 12, 2025, order granting summary judgment in favor

of Respondent, City Hospital, Inc. d/b/a WVU Medicine/Berkeley Medical Center

(“BMC”), and May 7, 2025, order denying petitioners’ motion to reconsider the order

granting summary judgment to BMC. In the March 12, 2025, order, the circuit court found

that petitioners failed to offer sufficient evidence to establish a prima facie case of medical

professional liability under West Virginia Code § 55-7B-3. Specifically, the circuit court

found that petitioners failed to present evidence connecting the alleged breaches of the

standard of care to Mr. Hernandez’s damages such that a reasonable jury could infer a

causal connection, either through direct causation or a loss of chance theory.

Petitioners argue on appeal that the circuit court erred in: (1) failing to review

all facts and permissible inferences in a light most favorable to petitioners as the

nonmoving party; (2) finding there was no genuine dispute of material fact as to causation;

and (3) usurping the fact-finding role of the jury. Based upon our review of the record,

applicable law, and the oral and written arguments of counsel, we find that the circuit court

erred by granting summary judgment to BMC. Petitioners offered expert testimony as to

causation that is sufficient to submit their claim to a jury. Any alleged deficiencies in the

evidentiary record bear on the weight, rather than the sufficiency, of the experts’ testimony

1
and, therefore, present questions of fact for the jury. Accordingly, we reverse the circuit

court’s entry of summary judgment and remand this case for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

This is a medical malpractice case in which petitioners allege that BMC-

employed nurses, therapists, and other non-physician care staff (“BMC care staff”)

breached various standards of care in their inpatient treatment of Mr. Hernandez following

spinal surgery. Petitioners claim that BMC care staff failed to escalate Mr. Hernandez’s

post-surgical condition through their chain of command and seek a second opinion from a

qualified physician prior to his discharge. Petitioners allege that these deviations in the

standard of care prevented Mr. Hernandez from receiving proper medical treatment,

including MRI studies and an additional surgical intervention, proximately causing him to

sustain permanent neurological damage and physical impairment.

On February 17, 2020, Mr. Hernandez tripped and fell, sustaining an injury

to his cervical vertebrae. He received medical care at the University of Virginia Medical

Center (“UVA”) until his discharge on February 20, 2020. At UVA, imaging revealed

osteophyte complexes of Mr. Hernandez’s cervical spine, resulting in chronic spinal

stenosis or spinal canal narrowing at levels C5-6 and C6-7. UVA recommended that Mr.

Hernandez obtain close follow-up care at UVA’s spine center and remain in a cervical

collar until reevaluation. Instead, Mr. Hernandez elected to pursue follow-up care locally.

2
On February 25, 2020, Mr. Hernandez sought outpatient care from

neurosurgeon Ravi Yalamanchili, M.D. Dr. Yalamanchili’s plan of care for Mr. Hernandez

included preoperative steroid therapy and an anterior cervical discectomy and fusion

(“ACDF”) at C5-6 and C6-7. Mr. Hernandez was admitted to BMC on March 6, 2020, for

the ACDF procedure, at which time he was ambulatory and continent of bowel and bladder.

Dr. Yalamanchili performed the surgery at approximately 1:20 p.m. that day. After the

surgery, Mr. Hernandez was unable to move his lower extremities and exhibited weakness

in his left arm. Dr. Yalamanchili ordered a STAT MRI, which showed that Mr.

Hernandez’s spinal stenosis persisted with osteophytes continuing to compress his spinal

cord at C5-6 and C6-7. As a result, Dr. Yalamanchili performed a second ACDF procedure

that evening. The next day, Mr. Hernandez remained unable to move his lower extremities

and experienced severe numbness in both his upper and lower extremities. As a result, he

was diagnosed with paraplegia and motor deficits.

According to the medical records, Dr. Yalamanchili and BMC care staff

regularly assessed Mr. Hernandez in the week following these procedures. BMC care staff

documented mixed findings: Mr. Hernandez had weak grips and numbness in his

extremities; retained the ability to raise his right arm; demonstrated some improvement in

upper extremity strength but no lower extremity motor improvement; and, although

showing daily progress and motivation and, eventually, the ability to use both hands,

remained unable to feel or move his legs. On March 13, 2020, Mr. Hernandez was

3
discharged from BMC to Winchester Rehabilitation. At that time, he was quadriplegic and

dependent on others for all activities of daily living.

About eleven months later, on February 5, 2021, Mr. Hernandez underwent

a third spinal surgery, a decompressive cervical laminectomy from C3-C7 and

posterolateral fusion from C2-T2, performed at Winchester Medical Center by David

Salvetti, M.D., in an attempt to alleviate his remaining cervical spinal stenosis. A post-

operative CT scan showed that the surgery resolved the “moderate to severe spinal stenosis

with moderate cord compression at the C5-C6 level . . . .” Dr. Salvetti testified that Mr.

Hernandez regained minor improvements in neurological function from that third surgery.

Mr. Hernandez also testified that after the third surgery he regained the ability to sense

temperature, feeling on his bottom and parts of his groin, and the ability to wiggle his toes

when his leg spasms and is positioned straight in front of him. Despite these improvements,

he remains wheelchair bound and dependent on others for activities of daily living.

Mr. Hernandez and his wife, Ms. Arnesto, filed a civil action in Berkeley

County Circuit Court alleging that BMC, through its employed nurses, therapists, and staff,

breached the applicable standards of care by: (1) “failing to provide proper independent

assessments of Mr. Hernandez and the adverse changes in his condition”; (2) “failing to

seek out proper physician interventions so that the cause of Mr. Hernandez’[s] decline in

function could be properly diagnosed”; (3) “failing to be advocates for Mr. Hernandez and

seek out proper medical care and treatment for his decline in function prior to his discharge

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to rehabilitation”; and (4) “failing to use the chain of command to make sure that Mr.

Hernandez’[s] deteriorating condition was properly assessed and treated before he was

discharged to rehabilitation.”1 The case proceeded to discovery during which petitioners’

causation experts—spine surgeon Richard Ozuna, M.D., and hospitalist Aaron Leo

Gottesman, M.D.—opined that BMC care staff breached the applicable standards of care

by failing to escalate Mr. Hernandez’s post-surgical condition through the chain of

command and seek a second opinion beyond the assigned medical team before his

discharge. Drs. Ozuna and Gottesman opined that these breaches prevented additional

radiological imaging after Mr. Hernandez’s second procedure and a timely surgical

decompression of his spine, causing irreversible neurological damage and loss of function.

Dr. Ozuna testified that, if BMC care staff had escalated Mr. Hernandez’s

neurological decline through the chain of command, proper interventions by qualified

physicians would have included further radiological imaging and a spinal decompression,

which if initiated, would have resulted in a greater than twenty-five percent chance of

improvement.

Q. Your disclosure states that, “To a reasonable degree of
medical probability, if nursing staff had gone up their chain of
command, which may include notifying risk management, Mr.
Hernandez would have received a proper medical assessment
prior to his discharge; he would have been provided additional
radiological studies following the second March 6, 2020,
surgery and before his discharge . . . and proper surgical

1
Petitioners also asserted claims against Dr. Yalamanchili and hospitalists Manie
Juneja, M.D., and Mehmet T. Kutlu, M.D., who provided care to Mr. Hernandez at BMC
but were not employed by the facility, as well as a loss of consortium claim by Ms. Arnesto.

5
intervention to decompress his spinal cord.” So, to a reasonable
degree of medical probability, you are speculating that an RN
reporting this case to risk management would have resulted in
risk management or whomever entirely upending Dr.
Yalamanchili’s and the hospitalists’ plan of care?

A. Yes, I think so.
***

Q. Okay. And are there any BMC policies other than what we
looked at, or including what we looked at,2 that you base that
on?

A. No.

Q. No transcripts or anything in the medical record that you
base that on?

A. No.

Q. No conversations with anybody from BMC?

A. (No audible response.)

Q. Is that no?

A. No. That’s a no. Sorry.

Q. That’s okay. So this is just your – your guess?

***

A. This is my opinion.

Q. And your opinion is based on what? That’s what I’m trying
to –

A. Everything we just talked about. The – the – the policy. The
lack of pushing it up. The lack of, I guess, realizing that
something else could be done.

2
Earlier in his deposition, Dr. Ozuna confirmed that he had reviewed BMC’s
Medical Staff Rules and Regulations.

6
***

Q. So your opinion assumes that Mr. Hernandez’s condition
after the second surgery could have been altered?

A. Yes.

Q. . . . There’s also a possibility that his condition was
unchangeable after the second surgery; is that fair?

A. That’s fair.

Q. And if that was the case, there was nothing the nurses or the
OTs or PTs could have done to change his outcome; is that
correct?

A. If we assume that he was not going to get better, that is
correct. But we don’t know. We do know he did get better after
his third surgery a year later.

Dr. Ozuna’s testimony included his opinions regarding the standard of care required of the

physicians providing care to Mr. Hernandez:

Q. Do you have an opinion within a reasonable degree of
medical certainty as to whether Mr. Hernandez had a greater
than 25 percent chance of an improved recovery had Dr.
Yalamanchili met the standard of care?

A. Yes, I believe that.

Q. And let me ask it this way then: What is your opinion?

A. My opinion is that if he had had an earlier decompression
he could have had a chance at improvement, and I believe it’s
more than 25 percent within reasonable medical certainty.

Q. When you say had he had an earlier decompression, was
earlier decompression required to meet the standard of care?

A. Yes.

7
***

Q. Doctor, do you have an opinion, based upon a reasonable
degree of medical certainty, as to whether Mr. Hernandez had
a greater than 25 percent chance of an improved recovery had
Dr. Juneja and Dr. Kutlu performed an MRI before his
discharge and sought a second opinion?

A. Yes, I believe so.

Q. And do you believe that they should have done that to meet
the standard of care?

A. Yes, I do.

Q. . . . What is your opinion in that regard? You may have said
it, but I missed it.

A. Yes. If they had initiated at least an MRI, triggered the
consult from a second opinion that evaluated the situation, they
would have decompressed the patient similar to what Dr.
Salvetti did a year later, and the patient would have had some
improvement. He had improvement 12 months later.

Q. And do you think that improvement would have been
greater than 25 . . . or that there would have been a –

A. Yes, I do.

Q. – greater than 25 percent chance of an improvement?

A. Yes.

Q. Dr. Ozuna, lastly, do you have an opinion, based on a
reasonable degree of medical certainty, as to whether Mr.
Hernandez had a greater than 25 percent chance of an improved
recovery had the nursing staff, the therapists, and the other
hospital staff that were treating or caring for Mr. Hernandez in
his postoperative period between the 6th and the 13th exercised
their chain of command and sought a – a second opinion of his
condition?

A. I do.

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Q. And what –

A. Yes.

Q. – is your opinion?

A. Yes. My opinion is that he would have had a greater than 25
percent chance of improvement within a reasonable medical
certainty if he’d had some notification of staff above and
initiated the care that we just outlined.

Q. And, Doctor, do you have an opinion as to whether
exercising the – the chain of command and – and the policy
that was shown to you by defense counsel, if the nurses and
staff, therapists, had – if that would be the standard and care . .
. under the circumstances of Mr. Hernandez’s situation?

A. Yes, I do.

Q. And what is that opinion?

A. That – same – same as before, that if they had notified
somebody above that could initiate the process that we
outlined, the care would have been improved, and his chances
of improvement would be more than 25 percent within
reasonable medical certainty.

Dr. Gottesman testified that BMC care staff breached the standards of care

by violating BMC’s Medical Staff Rules and Regulations, which required them to escalate

Mr. Hernandez’s case through “the chain of command to the vice president of patient care

services, and go beyond that if necessary to the CEO, president of the medical staff, et

cetera,” who would do an external review. Dr. Gottesman opined that had BMC care staff

escalated Mr. Hernandez’s case through appropriate channels, a “chain reaction” would

9
more likely than not have occurred, resulting in a reversal of some of Mr. Hernandez’s

neurological and motor damage. Relevant here, Dr. Gottesman testified:

Q. So what I’d like to understand before trial is how these
nurses’ failure to make the call to . . . escalate caused Mr.
Hernandez’s paraplegia.

A. Well sure. In my opinion, . . . had the nursing staff escalated
the call, there is a chain reaction which, in my opinion,
hopefully and more likely than not, I hope, would have
occurred, which would have been that whoever the collective
nursing staff would have escalated this case to would have
acted upon this information and would have communicated
with an external neurosurgeon, the head of service, or the other
neurosurgery group working in this hospital to do a second
opinion on quality basis and to reassess the case.

I obviously can’t guarantee the outcome, and I’m not going to
say that, “Had that been done, 100 percent that there would
have been this -- would have been done, and there would have
been a complete reversal.”

I think a competent neurosurgeon . . . would have realized what
happened and hopefully would have intervened and reversed at
least some of this damage. But the first step of triggering that
on the nursing side would have been the escalation process.

Q. So . . . your assumption is that after that second surgery,
something could have been done to reverse the . . . paralysis
that he was experiencing after that; is that correct?

A. I think at least would have reversed some of the damage that
was done. I, of course, can’t tell you that all of it would have
been completely reversed and he would have been completely
back to a completely functional state, but it’s my opinion that
he certainly would have recovered function certainly beyond
what he did eventually, which was very little.

Q. Do you believe that you are qualified . . . to express that
opinion?

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A. I’m not qualified to say with absolute certainty that had he
had the surgery at some point between the 7th and the 13th that
he would have completely recovered his function, nor to what
degree he would have recovered. But I’m of the opinion that
had surgery been done to relieve the compression of the spinal
cord, certainly a degree of recovery would have returned. I
mean, we know from a year later that he had surgery almost a
year later, and he recovered some function at that point in time.
It stands to reason that the earlier this decompression would
have been successfully performed that he would have
recovered even more function.

BMC moved for summary judgment pursuant to West Virginia Rule of Civil

Procedure 56 arguing that petitioners’ experts’ causation opinions are speculative and fail

to establish proximate cause. On March 12, 2025, the circuit court granted summary

judgment to BMC. The circuit court found that Drs. Ozuna and Gottesman’s opinions

regarding the asserted “chain reaction” were speculative and unreliable because they were

conditioned upon their “hopes” and assumed actions of third parties for which there was

no evidentiary support. The circuit court went on to find that the record was devoid of any

evidence establishing what would have occurred had BMC care staff escalated Mr.

Hernandez’s case through the chain of command. Based on this perceived gap in the record,

the circuit court held that there was no basis upon which a jury could reasonably infer that

any conduct of BMC was a proximate cause of Mr. Hernandez’s injuries.3 Thereafter,

petitioners filed a motion to reconsider the order granting summary judgment to BMC. The

3
The circuit court also dismissed Ms. Arnesto’s only claim for loss of consortium
because it is derivative and cannot be maintained independent of an underlying tort claim.

11
circuit court entered an order on May 7, 2025, denying the motion to reconsider. Petitioners

now appeal the circuit court’s March 12, 2025, and May 7, 2025, orders.

II. STANDARD OF REVIEW

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt.

1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). “A motion for summary

judgment should be granted only when it is clear that there is no genuine issue of fact to be

tried and inquiry concerning the facts is not desirable to clarify the application of the law.”

Id. at 190, 451 S.E.2d at 756, syl. pt. 2 (citation modified). Moreover, “[s]ummary

judgment is appropriate if, from the totality of the evidence presented, the record could not

lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving

party has failed to make a sufficient showing on an essential element of the case that it has

the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil Inc., 194 W. Va. 52, 459 S.E.2d

329 (1995).

III. DISCUSSION

Petitioners assign three errors to the circuit court’s orders. As these

assignments of error are closely related, we consolidate them for our review. See generally

Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237

(2012) (per curiam) (permitting consolidation of related assignments of error). According

to petitioners, the circuit court erred in finding that there was no genuine dispute of material

fact as to causation because Drs. Ozuna and Gottesman testified in their expert opinions

12
that proper intervention by BMC care staff—including requesting a second opinion and

using their chain of command to escalate Mr. Hernandez’s condition for further assessment

prior to discharge—would have, to a reasonable degree of medical probability, resulted in

Mr. Hernandez recovering greater function than he ultimately achieved. Petitioners argue

that the circuit court failed to consider this expert testimony, and all permissible inferences

therefrom, in the light most favorable to petitioners as the nonmoving party.

BMC responds that petitioners failed to produce evidence to causally connect

BMC care staff’s alleged failure to escalate Mr. Hernandez’s post-operative condition to

his alleged damages. More specifically, BMC argues there is no evidence in the record

establishing what the hospital’s response would have been or that the treatment plan

hypothesized by petitioners’ experts would have been undertaken had BMC care staff

escalated Mr. Hernandez’s case in accordance with the hospital’s policy.

West Virginia Code § 55-7B-3(a) provides the following elements of proof

to support a medical malpractice cause of action:

(1) The health care provider failed to exercise that degree of
care, skill and learning required or expected of a reasonable,
prudent health care provider in the profession or class to which
the health care provider belongs acting in the same or similar
circumstances; and

(2) Such failure was a proximate cause of the injury or death.

“The proximate cause of an injury is the last negligent act contributing to the injury and

without which the injury would not have occurred.” Syl. Pt. 1, Mays v. Chang, 213 W. Va.

13
220, 579 S.E.2d 561 (2003) (per curiam) (citation modified). In other words, proximate

cause is understood to mean “that cause which in actual sequence, unbroken by any

independent cause, produced the wrong complained of, without which the wrong would

not have occurred.” Id. at 224, 579 S.E.2d at 565 (quoting Syl. Pt. 3, Webb v. Sessler, 135

W. Va. 341, 63 S.E.2d 65 (1950)). To establish causation, the plaintiff need not show that

the defendant’s negligence was the sole proximate cause, only that it was a proximate

cause. Id. at 224, 579 S.E.2d at 565. Moreover, in the specific context of a “loss of chance”

theory,4 “the plaintiff must also prove, to a reasonable degree of medical probability, that

following the accepted standard of care would have resulted in a greater than twenty-five

percent chance that the patient would have had an improved recovery.” W. Va. Code § 55-

7B-3(b).

Generally, causation in medical professional liability cases must be

established by expert testimony. See Dellinger v. Pediatrix Med. Grp., P.C., 232 W. Va.

115, 124-25, 750 S.E.2d 668, 677-78 (2013) (per curiam). An expert who testifies as to

proximate causation “need only state the matter in terms of a reasonable probability.” Id.

at 117, 750 S.E.2d at 670, syl. pt. 5 (citation and quotations omitted). In Pygman v. Helton,

the Supreme Court of Appeals of West Virginia (“SCAWV”) clarified the rule of law with

respect to expert testimony in medical malpractice cases:

4
A “loss of chance” theory is the theory “that the health care provider’s failure to
follow the accepted standard of care deprived the patient of a chance of recovery or
increased the risk of harm to the patient which was a substantial factor in bringing about
the ultimate injury to the patient.” W. Va. Code § 55-7B-3(b).

14
Medical testimony to be admissible and sufficient to warrant a
finding by the jury of the proximate cause of an injury is not
required to be based upon a reasonable certainty that the injury
resulted from the negligence of the defendant. All that is
required to render such testimony admissible and sufficient to
carry it to the jury is that it should be of such character as would
warrant a reasonable inference by the jury that the injury in
question was caused by the negligent act or conduct of the
defendant.

Syl. Pt. 1, Pygman v. Helton, 148 W. Va. 281, 134 S.E.2d 717 (1964). Notwithstanding, a

nonmoving party cannot meet their burden in opposing summary judgment with

“unsupported speculation.” Dellinger, 232 W. Va. at 122, 750 S.E.2d at 675.

Petitioners contend that Drs. Ozuna and Gottesman’s testimony creates a

genuine issue of material fact as to proximate cause because they opined to a reasonable

degree of medical probability that escalation through the chain of command and advocacy

for a second opinion would have triggered a chain reaction, including proper medical

assessment and treatment, that would have improved Mr. Hernandez’s outcome.

Significantly, BMC has not challenged the admissibility of these experts’ opinions. BMC

has not disputed the qualifications of Petitioners’ experts, nor have they sought to exclude

their opinions on the basis that they lack a factual basis or do not rise to the level of

reasonable medical probability. Rather, BMC argues that the opinions of these experts do

not create an issue of material fact because they rest on an uncertain chain of events or

presuppose that escalation would have initiated the response and treatment hypothesized

by these experts. We disagree.

15
Petitioners’ experts’ testimony on causation must be considered in light of

their opinions that the standard of care dictated a response through the chain of command.

Dr. Gottesman grounded his opinion in BMC’s own written policies and procedures that

expressly authorize BMC care staff to escalate clinical concerns to higher levels of

authority, including physicians, through the chain of command. Relying on those policies

and procedures, Dr. Gottesman opined that BMC care staff breached the standard of care

by failing to initiate that process. He further testified that if BMC care staff had escalated

Mr. Hernandez’s case through the appropriate channels, it is more likely than not that this

process would have triggered further clinical evaluation. Dr. Gottesman’s description of

this chain reaction is his expert opinion regarding how such escalation procedures are

expected to function in hospital settings. Dr. Gottesman was not required to recite any

“rigid incantation” or formulaic language in rendering this opinion. Sexton v. Grieco, 216

W. Va. 714, 720, 613 S.E.2d 81, 87 (2005) (per curiam) (citation omitted). It is sufficient

that he opined to a reasonable degree of medical probability that escalation under the

policies and procedures would have led to further assessment by a physician. See Syl. Pt.

3, Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W. Va. 689, 271 S.E.2d 335

(1980) (“Where a physician is testifying as to the causal relation between a given physical

condition and the defendant’s negligent act, he need only state the matter in terms of a

reasonable probability.”).

Based on Dr. Gottesman’s opinion, a jury could reasonably infer that

escalation through the chain of command would have led to further clinical evaluation.

16
That inference is further supported when Dr. Gottesman’s testimony is considered in

conjunction with Dr. Ozuna’s opinion regarding the standard of care of a physician

presented with Mr. Hernandez’s case. Dr. Ozuna testified that a physician was obligated

under the standard of care to order an MRI, which would have led to a subsequent spinal

decompression procedure. Dr. Ozuna also testified that the standard of care required this

decompression procedure, and that this procedure would have resulted in a greater than

twenty-five percent chance of an improved recovery. Like Dr. Gottesman, Dr. Ozuna did

not speculate about an unknown physician’s subjective approach to care but described what

the standard of care required. This evidence, viewed in the light most favorable to

petitioners, is sufficient to permit a rational jury to find that this chain reaction would have

occurred, resulting in a better outcome for Mr. Hernandez. See Est. of Fout-Iser ex rel.

Fout-Iser v. Hahn, 220 W. Va. 673, 679, 649 S.E.2d 246, 252 (2007) (finding that

testimony of three experts was interconnected and, when read together, was sufficient to

create a genuine issue of material fact). Accordingly, we find that the circuit court erred in

finding that petitioners developed no evidence proving what, if anything, would have

happened had BMC care staff escalated Mr. Hernandez’s case through the chain of

command. Indeed, that is precisely what the expert testimony concerns. Any alleged gaps

or contingencies in the record go to the weight of the experts’ testimony, not their

sufficiency at the summary judgment stage.5

5
This ruling does not foreclose BMC from seeking to exclude portions of
petitioners’ experts’ testimony through appropriate pretrial motions. After resolving any
such motion, the circuit court may revisit whether sufficient evidence exists to proceed to
trial. Absent such a challenge, however, the court’s role at the summary judgment stage is

17
BMC relies on the SCAWV’s decision in Dellinger, 232 W. Va. 115, 750

S.E.2d 668, and this Court’s decision in Stoudt v. Eads, 248 W. Va. 583, 889 S.E.2d 305

(Ct. App. 2023) for the notion that petitioners’ experts’ causation opinions are

impermissibly speculative in the absence of evidence establishing that the expected chain

reaction would have, in fact, occurred. Those cases are readily distinguishable. In

Dellinger, the expert’s opinions regarding breach of the standard of care and causation

were conditioned upon the existence of facts that were unsupported by the record, namely,

that the plaintiff’s provider had access to lab results at a time when earlier intervention was

allegedly required. 232 W. Va. at 122-25, 750 S.E.2d at 675-78. Significantly, the

plaintiff’s expert conceded that he could not establish when the provider received or should

have received those results, and the plaintiff offered no evidence to fill that gap. Id. at 121,

750 S.E.2d at 674. As a result, the opinion was not merely questionable; it was wholly

untethered from the facts in the record and, thus, speculative. Id. at 122, 750 S.E.2d at 675.

By contrast, the opinions offered here are grounded in facts regarding Mr. Hernandez’s

post-operative condition, BMC’s written policies and procedures, and the standards of care

that required BMC’s care staff to escalate, the hospital to communicate with a physician,

and a physician to initiate an MRI. Unlike in Dellinger, petitioners’ experts do not assume

not to weigh the credibility or reliability of expert opinions but to determine whether
genuine issues of material fact exist under Rule 56.

18
missing facts. Rather, they opine to a reasonable degree of medical probability that

escalation would have triggered this chain reaction.6

Stoudt is also distinguishable. There, the expert’s testimony was insufficient

because it failed to rise above the level of possibility and, critically, could not account for

or exclude multiple, alternative causes of the plaintiff’s symptoms. 248 W. Va. at 589, 889

S.E.2d at 311. The expert repeatedly characterized the alleged harm as only “potentially”

related to a foreign object left in the plaintiff’s abdomen and acknowledged the difficulty

in determining causation given the plaintiff’s medical history. Id. at 590, 889 S.E.2d at 312.

In that context, the SCAWV concluded that the testimony would require the jury to

speculate. Id. at 590-91, 889 S.E.2d at 312-13. Here, however, petitioners’ experts do not

suggest that escalation through the chain of command might have led to a subsequent MRI

and third surgical decompression; they opine it, more likely than not, would have based on

the required institutional and clinical responses under the applicable standards of care.

Applying Pygman, this testimony is sufficient to create a reasonable inference as to

causation for the jury’s consideration. See 148 W. Va. at 281, 134 S.E.2d at 718, syl. pt. 1.

While not binding on this Court, our conclusion is consistent with the

approach taken in other jurisdictions. For example, Adventist Healthcare, Inc. v. Mattingly,

223 A.3d 1025, 1032 (Md. Ct. Spec. App. 2020) involved a nurse who failed to activate a

6
Additionally, unlike this case, in Dellinger the plaintiff did not rely on the “loss of
chance” theory. See 232 W. Va. at 123 n.13, 750 S.E.2d at 676 n.13.

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rapid response team regarding a patient’s deteriorating condition after surgery. The

plaintiff presented two expert opinions on causation: a nurse who testified that the nurse at

issue was required to activate the rapid response team by 8:30 a.m. pursuant to the

hospital’s written chain of command policy; and a physician who testified that (1) the

patient’s condition was a surgical emergency requiring immediate operation, (2) the patient

should have been taken for a new colostomy by 9:00 or 10:00 a.m., and (3) the patient

would have survived had the surgery been performed by 10:00 a.m. Id. at 1039.

Additionally, there was evidence that the chain of command policy required the rapid

response team to respond to medical emergencies. Id. The court held that the jury could

reasonably infer, based on the expert testimony and policy, that activation of the rapid

response team by 8:30 a.m. would have resulted in surgery within the requisite time. Id. at

1040. Like Adventist where the jury could reasonably infer that escalation under the chain

of command policy would have led to a timely colostomy, a jury could reasonably infer

here, based on Drs. Ozuna and Gottesman’s testimony, that the standard of care required

the hospital to respond by communicating with a physician who would have ordered an

MRI and initiated a third spinal decompression had escalation through the chain of

command occurred. Such inferences would not require a jury to speculate but are supported

by the opinions of medical experts.

Petitioners also argue that the circuit court usurped the fact-finding role of

the jury by crediting the testimony of Mr. Hernandez’s assigned medical team when the

conflicting testimony of petitioners’ causation experts created a genuine issue of material

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fact. Petitioners argue that the circuit court’s conclusion that, in light of the conflicting

testimony of other witnesses, petitioners’ experts engaged in speculation is a factual

determination for the jury.7 BMC counters that the circuit court did not weigh evidence but

found that petitioners failed to produce evidence to support their experts’ prediction of

what would have occurred regarding Mr. Hernandez’s plan of care had BMC care staff

escalated his post-surgical condition up the chain of command. BMC argues that, in the

absence of such evidence, petitioners did not meet their burden in opposing summary

judgment.

The SCAWV has repeatedly emphasized that “[q]uestions of . . . proximate

cause . . . present issues of fact for jury determination when the evidence pertaining to such

issues is conflicting or where the facts, even though undisputed, are such that reasonable

men may draw different conclusions from them.” Syl. Pt. 7, MacDonald v. City Hosp., Inc.,

227 W. Va. 707, 715 S.E.2d 405 (2011) (quotation omitted). As such, “questions of

proximate cause are often fact-based issues best resolved by a jury.” Stewart v. George,

216 W. Va. 288, 293, 607 S.E.2d 394, 399 (2004) (per curiam).

7
Dr. Yalamanchili testified that the goal of the surgical procedures was to prevent
further injury; they were not expected to yield immediate improvement in Mr. Hernandez’s
neurological function and that any improvement could take up to a year. Dr. Juneja testified
that he could have sought a second opinion but had no doubts about Dr. Yalamanchili’s
plan of care or explanation of Mr. Hernandez’s post-operative condition. Dr. Kutlu
similarly testified that he did not believe a second opinion regarding Mr. Hernandez’s post-
operative condition was warranted and, accordingly, did not seek one.

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Here, the evidence regarding proximate cause is not one-sided. Although the

assigned medical team testified that a second opinion was not necessary, this evidence is

not exclusive considering the competing expert opinions offered by Drs. Ozuna and

Gottesman. As stated above, a reasonable jury could conclude, based on Drs. Ozuna and

Gottesman’s testimony, that had escalation through the chain of command occurred, the

hospital would have communicated with a physician who would have ordered an MRI and

a subsequent spinal decompression prior to discharge, thereby improving Mr. Hernandez’s

condition. Alternatively, a reasonable jury could conclude that a physician would not have

been contacted through the chain of command or would not have upended the treatment

plan for Mr. Hernandez. These differing inferences as to whether BMC care staff’s

negligence proximately caused Mr. Hernandez’s injury present questions of fact for the

jury. See MacDonald, 227 W. Va. at 726-27, 715 S.E.2d at 424-25 (finding that proximate

cause remained an issue of fact for the jury, despite treating physician’s testimony that he

would not have changed the course of treatment even if the pharmacy warned him

regarding possible drug interactions in accordance with the standard of care). Accordingly,

we find that the circuit court erred in resolving this factual dispute on summary judgment.

IV. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s March 12, 2025,

order granting summary judgment in favor of BMC. As such, the circuit court’s May 7,

2025, order denying petitioners’ motion for reconsideration is vacated as moot. We remand

this case to the circuit court for further proceedings consistent with this opinion.

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Reversed and Remanded.

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