Hysell v. Raleigh Gen. Hosp., CIVIL ACTION NO. 5:18-cv-01375
| Decision Date | 12 June 2020 |
| Docket Number | CIVIL ACTION NO. 5:18-cv-01375 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | RYAN HYSELL and CRYSTAL HYSELL, on behalf of their daughter, A.H., a minor, Plaintiffs, v. RALEIGH GENERAL HOSPITAL and THE UNITED STATES OF AMERICA, Defendants. |
Pending are Plaintiffs' Partial Motion for Summary Judgment and to Strike Defendant USA's Twelfth Affirmative Defense [Doc. 117], Defendant United States of America's Motion for Summary Judgment [Doc. 119], and Defendant Raleigh General Hospital's Motion for Summary Judgment [Doc. 121]. The matter is ready for adjudication.
A.H. is the daughter of Plaintiffs Ryan and Crystal Hysell. She was born at Raleigh General Hospital ("Raleigh General") on October 29, 2010. The Hysells allege that Raleigh General employees failed to properly respond to a fetal monitor warning of irregularities during the birthing process and failed to identify (or negligently omitted or misled the Hysells as to) brain abnormalities resulting from hypoxemia during birth.
At the time of delivery, Mrs. Hysell was forty-one weeks pregnant [Doc. 129-4 at 18]. Labor lasted approximately ten hours; Mrs. Hysell was actively pushing for the last two hours [Doc. 129-4 at 26]. Approximately five minutes before A.H. was delivered, Debra Crowder, a certified nurse midwife employed by Access Health, noted that the cord was impeding delivery and took steps to reposition A.H. [Doc 129-2 at 4; Doc. 129-4 at 20].
During the delivery, Mrs. Hysell's oxygen saturation level ("Sa02") was between 86% and 87% [Doc. 129-4 at 24]. Following birth, A.H.'s first APGAR score at one minute was a 7, which indicated deficits in respiratory effect, muscle tone, and color. A.H.'s second APGAR score at five minutes was an 8 [Doc. 119 at 12]. Approximately ten minutes after delivery, A.H. was given blow-by oxygen and bulb suction, bringing her Sa02 level up to an acceptable level (at least 85%) from 68% [Doc. 129-4 at 18; Doc. 129-7 at 2]. A.H. was taken to the nursery and given oxygen via a face mask, along with deep suctioning which produced thick mucus [Doc. 129-5 at 4]. A.H.'s Sa02 levels did not reach a normal threshold until after these two more intensive actions were deployed [Id. at 5]. A.H. was not returned to the Hysells until four hours after birth and was not seen by a pediatrician until the day after her birth [Id.].
Throughout her life, A.H. consistently failed to meet developmental milestones. Her parents embarked on a quest to determine the underlying cause. For example, A.H. was given an MRI that was reported as normal [Doc. 129-7 at 2]. As a result of the "normal" MRI, however, the Hysells obtained genetic and other testing. In March 2016, A.H. was diagnosed with a global developmental delay. The same month, another MRI revealed periventricular white matter gliosis, or low white matter volume [Id.]. Upon a more careful review, the earlier MRI exhibited the sameabnormalities [Id. at 3]. Ultimately, A.H. was diagnosed with cerebral palsy and autism spectrum disorder [Doc. 129-6 at 7].
On October 23, 2018, the Hysells, on behalf of A.H., instituted this action against Raleigh General. On March 11, 2019, the United States moved to substitute itself as the party Defendant in lieu of Access Health and Debra Crowder [Doc. 35]. The motion was predicated on Access Health and Debra Crowder being deemed federal employees by the United States Department of Health and Human Services [Doc. 35-1].1 On July 16, 2019, the Court dismissed Access Health and Debra Crowder, substituting the United States in their steads [Doc. 73].
In keeping with the limited waiver of sovereign immunity in the Federal Tort Claims Act (the "FTCA"), the Court bifurcated the trial [Doc. 72]. First, the parties will present evidence to both the Court and a jury. The jury will render findings concerning Raleigh General's liability and damages, if any. The Court, separately, will adjudicate the United States' liability and damages, if any. But, as noted in the March 30, 2020, Amended Scheduling Order, "The Court is additionally considering utilization of th[e] . . . jury [as to the claims against the United States] in an advisory capacity pursuant to Federal Rule of Civil Procedure 39(c)" [Doc. 186 at 2].
On February 12, 2020, the parties moved for summary judgment. Respecting the Hysells' partial motion, they seek a striking order eliminating the United States' twelfth affirmative defense; the targeted defense invokes the noneconomic damages cap found in the WestVirginia Medical Professional Liability Act (the "MPLA"). The Hysells contend the United States' failure to carry medical professional liability insurance of at least one million dollars precludes its reliance upon the MPLA cap [Doc. 118 at 3]. In the alternative, the Hysells assert the MPLA is preempted, resulting in the applicable cap rising to $50 million under the FTCA.
The United States responds that applicable precedent permits imposition of the MPLA's non-economic damages cap in FTCA medical negligence cases. Regarding the professional liability insurance contention, the United States asserts that it provides "the functional equivalent" through the FTCA [Doc. 123 at 3]. Further, the United States asserts that the Hysells have misconstrued the source of the United States' liability, namely, the FTCA rather than state law. And, despite that federal source of liability, precedent yet permits the United States "to take advantage of the cap on damages even though the state law analog under the FTCA is not totally identical to all of the requirements that must be met by private parties under state law due to the sovereign immunity of the United States." [Id. at 4].
The Hysells reply that the United States ignores its intervening party status, which places it squarely in the shoes of its agents and representatives. And those agents and representatives, the Hysells assert, are "not of the class that the provisions of the West Virginia [MPLA] on non-economic damages were put in place to protect." [Doc. 126 at 1]. The Hysells additionally asserts that, while the "functional equivalent" standard upon which the United States relies has been applied to other states' laws, it has not been applied to West Virginia law.
Respecting the United States' motion [Doc. 119], judgment as a matter of law is sought on the single medical negligence claim based upon the Hysells' putative failure to prove proximate cause. Raleigh General's motion for summary judgment [Doc. 121], joins in the United States' motion, and contends the Hysells offer no sound expert proof of proximate cause. RaleighGeneral additionally incorporates by reference its motion to exclude the expert testimony of Dr. A.M. Iqbal O'Meara [Docs. 144, 145], asserting she "is unqualified to render opinions in this case" and "the opinions she does offer do not pass muster under the reliability requirements of Daubert and Rule 702 of the Federal Rules of Evidence." [Doc. 151 at 6].
Federal Rule of Civil Procedure 56 provides that summary judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The nonmoving party must do so by offering 'sufficient proof in the form of admissible evidence' rather than relying solely on the allegations of her pleadings." Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)). If the nonmoving party fails to make a sufficient showing on an essential element, "there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The Court must "view the evidence in the light most favorable to the [nonmoving] party." Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks omitted); Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). "The court . . . cannot weigh the evidence or make credibility determinations." Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); see also Lee v. Town of Seaboard, 863 F.3d 323, 327(4th Cir. 2017). In general, if "an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate." Fed. R. Civ. P. 56 advisory committee's note to 1963 amendment.
"When the principles of summary judgment are applied in a medical malpractice case, one of the threshold questions is the existence of expert witnesses opining the alleged negligence." Neary v. Charleston Area Med. Ctr., Inc., 194 W. Va. 329, 334, 460 S.E.2d 464, 469 (1995). Indeed, where the parties tender qualified experts whose testimony conflicts, "[t]he evidence . . . sets up a battle of the experts, which should not be resolved at summary judgment." Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 417 (4th Cir. 2015); see also Anderson, 477 U.S. at 249 ().
The pending cross motions for summary judgment raise two fundamental issues. First, whether the Hysells' proposed expert testimony gives rise to a genuine issue of material fact on the issue of proximate cause. Second, whether the MPLA's cap on damages applies to a suit prosecuted against the United States by way of the FTCA. Inasmuch as the MPLA...
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