Callahan v. Cho

• Decision Date: 06 July 2006
• Docket Number: Civil Action No. 1:05cv1243.
• Citation: 437 F.Supp.2d 557
• Parties: Terence CALLAHAN, Sr., Plaintiff, v. Kenneth CHO, M.D. and Veterans Administration/Veterans Administration Medical Center and United States of America, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

437 F.Supp.2d 557

Terence CALLAHAN, Sr., Plaintiff, v. Kenneth CHO, M.D. and Veterans Administration/Veterans Administration Medical Center and United States of America, Defendants.

Civil Action No. 1:05cv1243.

United States District Court, E.D. Virginia, Alexandria Division.

July 6, 2006.

Andrew M. Steinberg, Washington, DC, Edwin A. Williams, Kellogg, Williams & Lyons, Vienna, VA, for Plaintiff.

Kevin J. Mikolashek, United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

In this Federal Tort Claims Act (FTCA)¹ case, involving an allegation of medical malpractice stemming from a hip replacement operation at a Veterans Administration Hospital in West Virginia, two dispositive questions are presented at the summary judgment stage. The first question was presented and decided at the threshold dismissal stage and is revisited here sua sponte: It is whether plaintiff may proceed in this action given that no medical expert certificate accompanied the initial notice of suit, as required by West Virginia's Medical Professional Liability Act (MPLA).² The second question is simply whether plaintiff has presented a triable issue of fact with respect to his claim that the Veterans Administration (VA) surgeon failed to meet the professional standard of care when he made a medical judgment not to remove a small needle fragment that had broken off and lodged in plaintiff's soft muscle tissue during the surgery.

For the reasons that follow, the government is entitled to summary judgment both because plaintiff failed to present the requisite certificate with his initial claim of suit and because plaintiff has presented no evidence to create a triable issue for the jury on whether the surgeon's decision to leave the needle fragment in plaintiff's muscle tissue was contrary to the governing standard of care.

I.³

The record reflects that plaintiff was admitted to the Veterans Administration Medical Center (VAMC) in Martinsburg, West Virginia, in March 2003, for a substance abuse treatment program. Approximately two weeks after entering the VAMC program, plaintiff began to experience pain in his left hip. He had previously been diagnosed with avascular necrosis (AVN), a degenerative hip condition that causes both substantial pain and bone deterioration.⁴ To remedy this condition, plaintiff underwent a right hip replacement operation in 1997 at the VA Hospital in Washington, D.C. In 2003, the doctors at the VAMC in Martinsburg, including one of the initial defendants in the case, Dr. Kenneth Cho,⁵ determined that plaintiff was suffering from the same degenerative bone condition in his left hip that had led to his 1997 right hip replacement. Plaintiff's severe left hip pain did not subside and indeed was aggravated when he accidentally fell and landed directly on his left hip.

In October 2003, Dr. Cho recommended to plaintiff that another hip replacement operation was needed to alleviate plaintiffs severe pain. Plaintiff accepted this recommendation and consented to the surgery, which was performed by Dr. Cho on October 27, 2003.⁶ In the course of this lengthy surgical procedure, Dr. Cho enlarged plaintiff's femur canal and inserted the prosthetic hip.⁷ Dr. Cho then proceeded to repair the capsule, suture the muscle, and close the wound. As he was closing the joint capsule, the Ethibond needle Dr. Cho used for suturing broke off and a small fragment lodged within the plaintiff's muscle tissue, approximately six inches inside the hip. Dr. Cho searched for the needle fragment, but even with the assistance of specialized surgical instruments he was unable to locate it without more invasive searching. Ultimately, Dr. Cho determined that a prolonged search would destroy significant portions of muscle tissue and yet still not guarantee a successful retrieval of the small fragment. Moreover, based on his experience, Dr. Cho did not anticipate that the small needle fragment would cause the plaintiff any harm. Given these facts and circumstances, Dr. Cho made a medical judgment that, on balance, it was better to leave the needle fragment in the tissue because further invasive searching would likely be more harmful to plaintiff than leaving it in the tissue. Acting on this judgment, Dr. Cho ended his search and completed the surgery. Aside from the broken needle, there were no complications during plaintiff's surgery or postoperative recovery.

At a postoperative treatment session, Dr. Cho informed plaintiff about the needle fragment. Dr. Cho explained that the surgical team had decided against removal of the small needle fragment based on the length of time that had elapsed during the surgery, the risks to plaintiff of continuing to search invasively, and the remote chance that the small fragment would cause plaintiff any harm.

Plaintiff continues to experience severe pain in his left hip and attributes his pain to the needle fragment left inside his hip, which he contends should have been found and removed at the time of the surgery. Thus, on October 26, 2005, plaintiff filed this FTCA medical malpractice claim against Dr. Cho, the Veterans Administration, and the VAMC in Martinsburg, West Virginia, alleging that Dr. Cho negligently performed the hip replacement surgery and, as a result of this negligence, plaintiff suffered severe and debilitating hip pain. Pursuant to 28 U.S.C. § 2679(d)(2), orders issued substituting the United States for all named defendants.⁸ Also a threshold dismissal motion by the government was denied, and at the close of discovery, the government filed the motion for summary judgment that is addressed here.

II.

The bench ruling denying the government's threshold dismissal motion was based on the view that even assuming the applicability of the West Virginia MPLA, that law did not require that a medical expert certificate accompany the complaint where, as then appeared to be the case, a plaintiff's case could proceed on the basis of res ipsa loquitur. Now on the basis of a more fully developed record, it is apparent that this ruling must be revisited.

Analysis of this issue properly begins with the recognition that the FTCA is a limited waiver of sovereign immunity. While the FTCA Waives sovereign immunity with respect to actions for personal injury and property damage caused by the negligent or wrongful acts of a government employee acting within the scope of his employment, it explicitly limits this waiver by stating that the government is only "liable in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. In other words, the United States is subject to suit and liability for personal injuries "in the same respect as a private person under the law of the place where the act occurred," and even then prejudgment interest and punitive damages are excluded. See Medina v. United States, 259 F.3d 220, 223 (4th Cir.2001). Thus, it follows that because the alleged negligent acts in this case occurred at the VAMC in Martinsburg, West Virginia, the MPLA, West Virginia's medical malpractice law, governs the government's liability here.⁹ And it further follows that if the MPLA requires that a medical certificate accompany the filing of a medical malpractice complaint, then, absent some exception to this requirement, plaintiff's failure to comply with this requirement must be fatal to his FTCA claim if it would be fatal to a medical malpractice action governed by the MPLA. It is necessary, therefore, to examine the nature of the MPLA medical certificate requirement, its exceptions, and the consequences of not complying with it.

The MPLA makes clear that a claimant must obtain a medical screening certificate of merit to accompany the initial notice of suit, as a prerequisite for filing an action against a health care provider. See W.Va. Code § 55-7B-6(b). The MPLA also prescribes the certificate's contents and authorship requirements. Specifically, it must be executed under oath by "a health care provider qualified as an expert under the West Virginia Rules of Evidence," (presumably in this case an orthopaedic surgeon familiar with the West Virginia standard of care in this specialty) and the certificate must state:

(1) the expert's familiarity with the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death.

W.Va.Code § 55-7B-6(b). Significantly, under West Virginia law, failure to comply with the certificate requirement is grounds for prompt dismissal of a claim. See Stanley v. United States, 321 F.Supp.2d 805, 808 (N.D.W.Va.2004) (dismissing plaintiff's FTCA claim for failure to submit a screening certificate). Equally significant is that the certificate requirement may be excused only if "the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care." W.Va.Code § 55-76(c). In this event, claimants wishing to rely on this exception must nonetheless "file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of an actual certificate of merit." Id.

As a general rule, a plaintiff is not required to provide a medical screening certificate when the plaintiff's case will not require expert medical witnesses.¹⁰ Yet, this exception is not easily invoked, as a plaintiff seeking to do so must overcome the general presumption in West Virginia medical malpractice law that "negligence or want of professional skill can be proved only by expert witnesses." McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389, 394 (1997) (citing Syl. pt. 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1965)). It is only where the

lack of care...