Dawson v. United States

• Decision Date: 31 March 2014
• Docket Number: Civil Action No. 1:11CV114.
• Citation: Dawson v. United States, 11 F.Supp.3d 647 (N.D. W.Va. 2014)
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Linda Lou DAWSON, individually and in her Capacity as Executrix of the Estate of Ronald Wade, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

11 F.Supp.3d 647

Linda Lou DAWSON, individually and in her Capacity as Executrix of the Estate of Ronald Wade, Deceased, Plaintiff

v.UNITED STATES of America, Defendant.

Civil Action No. 1:11CV114.

United States District Court, N.D. West Virginia.

Signed March 31, 2014.

Allan N. Karlin, Jane E. Peak, Sarah Wagner Montoro, Allan N. Karlin & Associates, Morgantown, WV, for Plaintiff.

Helen Campbell Altmeyer, U.S. Attorney's Office, Wheeling, WV, for Defendant.

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW AND GRANTING JUDGMENT TO PLAINTIFF

IRENE M. KEELEY, District Judge.

Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.(the “FTCA”), the Court held a bench trial on July 2–3, 2013, to determine whether the plaintiff, Linda Lou Dawson(“Dawson”), could establish by a preponderance of the evidence that the defendant, the United States of America (the “United States” or the “government”), through the negligence of its employees at the Lewis A. Johnson VA Medical Center in Clarksburg, West Virginia (the “Clarksburg VA”), was liable in tort for injuries her father, Ronald K. Wade(“Wade”), suffered prior to his death.Based on the findings of fact and conclusions of law that follow,¹the CourtGRANTS judgment to Dawson in the amount of $635,641.30.

I.INTRODUCTION

A.Procedural Background

On July 27, 2011, Dawson filed a complaint in this Court, alleging medical negligence (Count I), negligence (Count II), and wrongful death (Count III) against the United States, pursuant to the FTCA.Her claims involved an allegedly unnecessary cystoprostactectomy with ileal conduit and post-operative abandonment by Wade's attending urologist, Dr. Douglas McKinney(“Dr. McKinney”).On May 29, 2012, the parties stipulated to the dismissal of Count II (dkt. no. 24), and, on April 29, 2013, Dawson withdrew Count III (dkt. no. 51).

On April 8, 2013, Dawson filed a motion for partial summary judgment, in which she contended that she was entitled to monetary damages for non-economic losses suffered by Wade, and that, under the West Virginia Medical Professional Liability Act, W. Va.Code § 55–7B–1 et seq.(the “MPLA”), those damages were neither limited by the exclusion of punitive damages under 28 U.S.C. § 2674, nor subject to the lower $250,000 cap on non-economic damages under the MPLA.

The Court granted the motion in part and denied it in part, (dkt. no. 55), holding that the FTCA did not preclude Dawson from recovering compensatory (but not punitive) damages for Wade's pre-death pain and suffering.It also provided definitions of “occurrence,”“urinary system,” and “digestive system” for purposes of the MPLA.Finally, it held that Dawson had not satisfied her burden on summary judgment of establishing that no question of fact existed as to either separate occurrences or entitlement to the enhanced cap on statutory damages under § 55–7B–8(b).

The case then proceeded to trial, beginning July 2, 2013, and concluding the following day.Dawson testified on her own behalf, and called Dr. McKinney, Ashley Dawson(her daughter), and Drs. Stanley Zaslau(WVU urologist), Hannah Hazard(WVU general surgeon), and Ronald Hrebinko(“Dr. Hrebinko”)(urology expert) as witnesses.The Government called Maryann Pancake(“Ms. Pancake”), Wade's social worker at the CLC, and Drs. Lora Westfall(“Dr. Westfall”)(internist at the Clarksburg VA), Clyde Moxley(“Dr. Moxley”), Wade's treating physician prior to his death, and John Lyne(“Dr. Lyne”)(urology expert) as witnesses.The evidence focused on questions regarding the following three elements of Dawson's medical negligence claim:

A.Whether Dr. McKinney breached the applicable standard of care by (1) negligently recommending a radical cystoprostactectomy with ileal conduit, and (2) abandoning Wade post-operatively;

B.If Dr. McKinney did breach the applicable standard of care, whether one or both of the breaches alleged by Dawson proximately caused Wade to lose a bodily organ system or to suffer a permanent and substantial physical deformity; and

C.If Wade did lose a bodily organ system or suffer a qualifying deformity, what non-economic damages resulted from that loss or deformity.

B.Factual Background²

Born in 1935, Wade spent several years in the military and then worked as a maintenance worker at West Virginia University (“WVU”) until his retirement in 1995.In 1996, he was united with Dawson, a daughter he had not known existed.(Dkt. No. 80at 14).Over the next decade, Wade developed a close relationship with Dawson and her children.TrialTr. 25:12–14.

In 2005, Wade began treatment for bladder cancer at the Clarksburg VA under the care of Dr. Antonio Mataban(“Dr. Mataban”).³When Dr. Mataban retired in February 2006, Dr. Douglas McKinney took over Wade's care.Id.at 80:8–12.After further treatment and testing, in August 2007, Dr. McKinney recommended that Wade undergo a surgical procedure known as a radical cystoprostatectomy with ileal conduit, which involves the removal of the bladder and the construction of a conduit through which urine is expelled.Id.at 82:16–24.The conduit is formed by removing a portion of the ileum, connecting one end to the ureters, protruding the other end through an ostomy in the abdominal wall, and forming the externalized portion into a stoma, an opening in the abdomen to allow for the excretion of bodily waste.The patient's urine is expelled through the stoma into a plastic bag.Id.at 84:9–20.Dr. McKinney performed the operation on Monday, October 1, 2007. Id.at 92:10–12.

Following the surgery, Wade's condition began to deteriorate on the first post-operative day.Dr. McKinney consulted with Dr. Lora Westfall, an internist, and Dr. Kashif Khan(“Dr. Khan”), a nephrologist, regarding Wade's clinical status.Id.at 97:16–19, 100:12–14.Wade's condition continued to deteriorate until, on Saturday, October 7, 2007, the sixth post-operative day, Dr. Khan determined that Wade was in danger of dying and arranged to transfer him to WVU Ruby Memorial Hospital (“Ruby”) in Morgantown, West Virginia.Because Dr. McKinney did not respond to a page from Dr. Khan, he did not participate in the decision to transfer Wade.

After assessing Wade's condition, which Dr. Hrebinko called an “abdominal catastrophe”, id.at 306:19, Dr. Zaslau, a urologist at Ruby, took Wade into surgery in the early morning of Sunday, October 8, 2014, where he resected the ileal conduit constructed by Dr. McKinney, and attached a new one.During the operation, Dr. Zaslau also realized that the section of Wade's small bowel from which Dr. McKinney had removed a portion of the ileum was dead.To assist with the excision of the non-viable portion of the bowel, Dr. Zaslau called in Dr. Hazard, a general surgeon, who created an ileostomy that allowed Wade to expel feces externally through a stoma.Following this surgery, Wade was sent to Ruby's intensive care unit.Id.at 189:20–21.

Wade remained at Ruby from October 7, 2007, until February 7, 2008, when he was transferred to the Clarksburg VA.Four days later, on February 11, 2008, he was admitted to the Community Living Center (the “CLC”) of the Clarksburg VA, where he received rehabilitation and wound care.Ultimately, he remained at the CLC until he died on November 5, 2009. Id.at 404:16.His certificate of death listed “end stage COPD” and “failure to thrive” as the immediate causes of death.(Dkt. No. 47at 2).

II.BREACH

A.Legal Standard

“While the identification of the applicable standard of care in a medical malpractice action is a question of law, the ultimate determination of whether a party deviated from the standard of care and was therefore negligent is a question of fact.”Amy G. Gore, etal., 61 Am.Jur.2dPhysicians, Surgeons, Etc. § 334(2013).

In West Virginia, in a case alleging medical negligence, the MPLA requires a plaintiff to prove by a preponderance of the evidence that “[t]he 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.”§ 55–7B–3(a)(1).The general rule in West Virginia is that a plaintiff must establish the standard of care and its breach to a reasonable medical probability through expert testimony.SeeGoundry v. Wetzel–Saffle,211 W.Va. 698, 568 S.E.2d 5, 8(2002);see also§ 55–7B–7(a).

B.Findings of Fact

At trial, Dawson presented the testimony of Dr. Hrebinko, an expert in urology.(TrialTr. 256:9–11).Dr. Hrebinko's testimony encompassed the standard of care applicable to Dr. McKinney's decision to perform a cystoprostatectomy with ileal conduit, as well as his post-operative responsibilities to his patient.Id.at 433:21–435:11.Dawson argues that Dr. McKinney breached the applicable standard of care in both instances.Id.Dr. Lyne, the United States' expert, disagreed with Dr. Hrebinko, opining that the cystoprostactectomy with ileal conduit was appropriate under the circumstances.

1.First Occurrence: The Cystoprostactectomy & Ileal Conduit

Dr. McKinney assumed responsibility for Wade's care and treatment in February 2006, following a referral from Dr. Mataban, who had been treating Wade for bladder cancer by administering immunotherapy in the form of Bacillus Calmette–Guerin (“BCG”).(TrialTr. 80:8–18).Although the BCG had cured several obvious areas of Wade's cancer, bladder washings ordered by Dr. McKinney still returned positive cytologies, a fact that worried both Wade and Dr.McKinney. Id. at 81:5–9.

The positive cytologies alone, however, did not reveal where the malignant cells were located, whether in the bladder or some other component of the urinary system.Id.at 257:5–260:25.Dr. McKinney therefore performed biopsies of Wade's bladder to determine whether it was the source of the cancerous cells.Those tests were all negative.Id.at 81:23–82:3....