Veronica Drennen v. US

Filing 920100422

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1606

VERONICA DRENNEN; BOBBY DRENNEN, her husband, Plaintiffs - Appellants, v. UNITED STATES OF AMERICA, Defendant - Appellee, and COMMUNITY M.D., HEALTH SYSTEMS, INCORPORATED; ROY WOLFE, JR.,

Defendants.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:06-cv-00390)

Argued:

March 24, 2010

Decided:

April 22, 2010

Before NIEMEYER and MOTZ, Circuit Judges, and James A. BEATY, Jr., Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Thomas Fiorino Basile, THOMAS F. BASILE, ESQ., Charleston, West Virginia, for Appellants. Stephen Michael Horn, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West

Virginia, for Appellee. ON BRIEF: Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: After a bench trial, the district court found in favor of the United States in this Federal Tort Claims Act ("FTCA")

medical malpractice action. Bobby Drennen, appeal.

Veronica Drennen and her husband, challenge rulings, the district court's

They

factual

findings,

evidentiary

and

legal

conclusions.

For the reasons that follow, we affirm.

I. Veronica where the Drennen suffered tissue) from a cystocele, the a condition and the

fascia

(soft

between

bladder

vagina degrades such that the bladder bulges into the vagina. On December 18, 2001, treat Dr. the Roy Wolfe performed This surgery, not

relevant

here,

to

problem.

surgery

afforded

Drennen temporary relief, but twenty months later, in August of 2003, she again complained of pain. She returned to Dr. Wolfe,

who concluded that her cystocele had recurred. On October 21, 2003, Dr. Wolfe performed an operation

called anterior colporrhaphy.

In this surgery, a doctor holds

open the vagina with a speculum and looks in to locate the cystocele. He then cuts the anterior vaginal wall to reveal the

fascia and uses sutures to pull together and reinforce strong fascia before closing the vaginal wall. It is undisputed that

the surgery performed on Drennen followed this procedure. 3

On October

27,

2003,

a

week

after

her

surgery,

Drennen

called Dr. Wolfe's office complaining of pain and requesting medication, which she received. Dr. Wolfe ordered a renal She called again on November 4. which revealed "gross

ultrasound,

hydronephrosis," meaning that Drennen's kidney was swollen and her ureters were likely obstructed. Dr. Wolfe referred Drennen to Dr. Apolonio Lirio, who noted in his operative report that Drennen's ureter was deviated,

which suggested swelling.

Dr. Lirio also noted that the ureter

was obstructed to the point where he could not pass a sensor wire through it to determine the location of the blockage. The next day, Drennen went to West Virginia University

Hospital for further treatment. urologist, attempted to correct

First, Dr. Stanley Zaslau, a Drennen's ureteral blockage

using a stent. option.

That attempt failed, leaving surgery as the only

To allow Drennen's kidney to drain in the weeks prior

to surgery, Dr. Patricia Stoltzfus placed a tube into the kidney to release the excess fluid from it into a bag. Dr. Stoltzfus

noted that Drennen's ureter inserted ectopically (in the wrong place) into the bladder. On January 20, 2004, which Dr. Zaslau of performed cutting ureteral ureter

reimplantation

surgery,

consists

the

near the obstruction and then re-inserting it into the bladder,

4

effectively

bypassing

the

blockage.

That

surgery

solved

Drennen's problem. Drennen believes that during the anterior colporrhaphy Dr. Wolfe stitched through or near her ureter, causing the

obstruction.

She and her husband brought this action alleging Dr.

medical malpractice against Dr. Wolfe and his employer.

Wolfe falls within the statutory definition of a "Public Health Service employee" under the FTCA, and the United States thus stands as the defendant in this action. (2006). Under the FTCA, West Virginia law governs this action. In See 42 U.S.C. § 233(g)

West Virginia, the Medical Professional Liability Act ("MPLA") controls medical malpractice claims. The MPLA provides that in

order to bring such a claim, a plaintiff must prove that: (a) 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 (b) Such failure was a proximate cause of the injury or death. W. Va. Code § 55-7B-3. Additionally, thirty days before filing a complaint, West Virginia law requires a claimant to: serve by certified mail . . . a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a 5

statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. W. Va. Code § 55-7B-6(b). stated that: Roy Wolfe, Jr., M.D. . . . negligently failed to perform a routine cystoscopy after performing an anterior colporrhaphy on Veronica Drennen. This negligence caused Dr. Wolfe to fail to notice that he had negligently stitched Mrs. Drennen's left ureter closed, creating an obstruction for the left kidney. Mrs. Drennen was unable to pass urine from 10/21/03 thru 11/06/03, developed sepsis and nearly died. 1 Drennen's "screening certificate of merit" included an expert opinion from Dr. Zaslau, stating who that performed Dr. her ureteral failure to In her notice of claim, Drennen

reimplantation

surgery,

Wolfe's

perform a "routine cystoscopy" during the anterior colporrhaphy breached the standard of care, and that this breach caused

Drennen's injuries. Drennen's complaint advanced two theories of liability:

(1) that Dr. Wolfe had stitched in a negligent manner causing an obstruction
1

to

Drennen's ureter;

and

(2)

that

Dr.

Wolfe had

Cystoscopy is an invasive diagnostic procedure in which a doctor inserts a cystoscope -- a tube with a lens at the end of it -- into a patient's urethra, and looks through the tube to examine the bladder. When using cystoscopy to examine ureters, the doctor injects blue dye into the bloodstream. The kidneys remove the dye from the blood and the dye travels down the ureters and into the bladder. If dye fails to emerge into the bladder from a ureteral orifice, then the doctor can infer that the corresponding ureter is obstructed. 6

negligently failed to perform a cystoscopy to check for ureteral obstruction. After discovery, including depositions of the relevant Although

experts, the Government moved for summary judgment.

the district court denied that motion, the court noted that Dr. Zaslau had admitted in deposition that the standard of care did not require a surgeon to perform a cystoscopy during anterior repair surgery, that and the at court thus prohibited The district Drennen court from thus

asserting

theory

trial.

directed Drennen to proceed on two modified theories: Dr. Wolfe had to stitched her in a negligent and (2) manner, that Dr.

(1) that an had

causing Wolfe

obstruction

ureter;

negligently failed to do some additional diagnostic procedure (not necessarily cystoscopy) during the anterior repair surgery to check whether Drennen's ureters were obstructed. The district court held a one-day bench trial, in which Dr. Zaslau testified as the sole expert witness for Drennen

regarding both the "negligent stitch" theory of liability and the "failure to check" theory. discussed testified the as standard the of care For each theory, Dr. Zaslau and causation. and the Dr. Wolfe

treating

physician,

Government

introduced the deposition testimony of its expert, urologist Dr. Karen Ashby.

7

With regard to the "negligent stitch" theory, the district court found that Drennen standing had failed to establish an that a

misplaced

stitch,

alone,

breached

applicable

standard of care. to establish that

The court also found that Drennen had failed a surgical stitch caused her ureteral

obstruction. With regard to the "failure to check" theory, the court found that the standard of care did not require physicians to perform an invasive diagnostic procedure to evaluate the ureters during an anterior two repair to surgery. examine a The evidence at trial or

established

ways

ureter:

cystoscopy

intravenous pyelogram ("IVP"). 2

The court relied on its pre-

trial ruling that cystoscopy did not constitute the national standard of care. Moreover, the court held that Drennen could

not prevail on the theory that IVP was the national standard of care because she had not mentioned IVP in her pre-trial notice of claim, and alternatively because no expert had testified that the national standard of care required a doctor to perform an IVP in these circumstances.

IVP is a more involved diagnostic procedure than cystoscopy. In IVP, a radiologist injects contrast material into the patient's veins. Eventually, the contrast travels through the bloodstream and into the kidneys, down the ureters, and into the bladder. Using x-rays, the radiologist can observe whether the contrast encounters a blockage. 8

2

For these reasons, the district court granted judgment to the United States. After Drennen moved unsuccessfully for a new

trial, she timely noted this appeal. Drennen raises three contentions on appeal. First, she

argues that the district court did not give sufficient weight to Dr. Zaslau's expert testimony, and thus erred in its factual findings. Second, she maintains that the district court made

two evidentiary errors: admitting the testimony of Dr. Wolfe as an expert and excluding an alleged statement against interest made by Dr. Resley, Dr. Wolfe's partner in his medical practice. Third, she challenges the district court's holding regarding her IVP argument. We consider each contention in turn.

II. In West Virginia, as in most states, the plaintiff in a medical malpractice action bears the burden of proving that the treating physician violated the national standard of care. 3 This

means that "the reasonable man standard is . . . replaced by a standard based upon the usual conduct of other members of the defendant's profession in similar circumstances." Reynolds v.

City Hosp., Inc., 529 S.E.2d 341, 348 (W. Va. 2000) (quoting West Virginia has abolished the "locality rule," which means that courts must determine the standard of care by reference to national standards. Paintiff v. City of Parkersburg, 345 S.E.2d 564, 567 (W. Va. 1986). 9
3

Bell v. Maricopa Med. Ctr., 755 P.2d 1180, 1182 (Ariz. Ct. App. 1988)). To comply with this standard, "a physician or other

medical practitioner is not required to exercise the highest degree of skill and diligence possible." 141 S.E.2d 352, 357 (W. Va. 1965). Schroeder v. Adkins,

Rather, "he is required to

exercise only such reasonable and ordinary skill and diligence as are ordinarily exercised by the average of the members of the profession in good standing." Id.

The plaintiff must establish, through the use of expert testimony, both the standard of care and that the treating

physician's actions breached that standard. 7B-7(a).

W. Va. Code § 55-

Finally, the plaintiff must prove that the breach was

the proximate cause of the injuries suffered. Determinations about both the standard of care and

causation constitute findings of fact. S.E.2d 561, 565 (W. Va. 2003). such findings for clear error.

See Mays v. Chang, 579

After a bench trial, we review Ellis v. Grant Thornton LLP, 530

F.3d 280, 286-87 (4th Cir. 2008); Fed. R. Civ. P. 52(a)(6). Factual findings will be overturned only if "the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed."

Ellis, 530 F.3d

at 287 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). give due regard to the In considering the evidence, we must trial 10 court's ability to judge the

credibility of witnesses. principles in mind, we

Fed. R. Civ. P. 52(a)(6). examine each of the

With these court's

district

challenged factual findings. A. The district court found that a doctor's placement of a stitch through a ureter, in and of itself, does not violate the standard of care. finding. that The record offers strong support for this

Drennen's own expert, Dr. Zaslau, although opining arises when a physician to check fails to perform he an

negligence

invasive

diagnostic conceded

procedure that an

whether

stitched alone,

incorrectly,

errant

stitch,

standing

does not breach any applicable standard of care. B. With regard to causation, the district court found that Drennen had not established, by a preponderance of the evidence, that a stitch had obstructed her ureter. Again, the testimony

of Drennen's own expert supports this finding, as Dr. Zaslau acknowledged that he had not personally seen a stitch in

Drennen's ureter. causes of a

Instead, he opined that the other possible to and the ureter -edema -(swelling), a

blockage

congenital unlikely.

stricture,

kidney

stones

were

relatively

Dr. Zaslau also asserted that, although Dr. Stoltzfus

had noted that Drennen's ureter inserted ectopically, Dr. Zaslau considered that possibility unlikely. 11

The

district

court

found

Dr.

Zaslau's

process-of-

elimination rationale unpersuasive.

The court found that edema

could have caused the blockage, and that an ectopically inserted ureter might also have caused the problem. It also found Dr.

Zaslau's testimony not entirely credible because the doctor had not voiced any concerns about a surgical stitch until after

Drennen had retained him as an expert witness.

The district

court found that this shift in Dr. Zaslau's views "cast a shadow of doubt on the objectivity of his reports," and thus diminished the weight of his testimony. Drennen testified clearly as erred argues to in that Dr. Zaslau and Dr. was the the only expert who

causation, rejecting

therefore Zaslau's

district

court This

testimony.

argument fails.

Drennen cites no rule of law requiring a finder

of fact to accept the testimony of an expert witness, especially when it finds that witness's testimony inconsistent and his

credibility impaired.

Indeed, it seems axiomatic that when a

district court acts as a fact-finder it, like a jury, may accept all, part, or none of a paid expert's opinion. See 9C Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2586 (3d ed. and 2004) ("The court need if not it accept is from even an

uncontradicted

unimpeached

testimony

interested party or is inherently improbable.").

12

Furthermore, corroborates Dr.

Drennen Zaslau's

points

to

no

hard Dr.

evidence Zaslau

that

testimony.

himself

conceded that he did not see any stitch, but rather concluded that a stitch probably caused Drennen's blockage because, in his opinion, other causes were unlikely. testimony appears methodical and To be sure, Dr. Zaslau's But absent some

thorough.

concrete proof, Dr. Zaslau's reasoning is only as persuasive as the district court -- which had an opportunity to observe Dr. Zaslau and weigh his demeanor and credibility -- found it to be. Because we are not "left with the definite and firm conviction that a mistake has been committed," we cannot disturb the

judgment of the district court.

Ellis, 530 F.3d at 287. C.

Finally, we see no error in the district court's findings as to the standard of care relating to the "failure to check" theory. Dr. Zaslau conceded in his deposition that the risk of

an injury to the ureter in anterior repair surgery was low, 4 but stated perform that some in his opinion, a prudent physician would Dr. still Zaslau

ancillary

diagnostic

procedure.

testified that there were two procedures that a physician might

Dr. Zaslau cited a study stating that in a broad array of vaginal surgeries, including anterior repairs, the total injury rate was 8.8 out of 1000, or 0.88%. He first characterized this as a high number, but then backtracked and stated that the "incidents of these renal injuries is low." 13

4

use: cystoscopy and IVP. 5

He admitted, however, that cystoscopy

had not yet been adopted as the standard of care. Dr. Zaslau testified inconsistently on the question of

whether the standard of care required IVP in lieu of cystoscopy. At one point, he stated that it would be negligent to do neither cystoscopy nor IVP. However, moments later, Dr. Zaslau agreed

that it was "a fair statement" that "there is really only one good way to check, and that's using cystoscopy." Of course, he

had already conceded that the standard of care did not require cystoscopy. Dr. Ashby and Dr. Wolfe, on the other hand, both

unequivocally testified that the risk of obstructing a ureter during prudent anterior repair would surgery not was sufficiently any invasive low that a

physician These

perform

diagnostic of care

procedure.

experts

stated

that

the

standard

required the physician to perform the surgery carefully, but did not require cystoscopy or IVP. The district court credited

On appeal, Drennen suggests that a surgeon could use methods other than cystoscopy and IVP to check for ureteral obstruction. She discusses antegrade and retrograde pyelograms (which may or may not be the same as an intravenous pyelogram (IVP)), dye tests (which require cystoscopy in order to be effective), and the use of balloon catheters and sensor wires. However, to the extent that these methods differ from cystoscopy or IVP, no witness (or lawyer) advocated any of them before the district court. In fact, the experts specifically testified that cystoscopy and IVP were the only plausible ways to perform an intraoperative diagnosis for ureteral obstruction. 14

5

their

views,

noting

that

while

cystoscopy

might

become

the

standard of care in the future, currently that is not the case. "Evaluating the credibility of experts and the value of their opinions and is a to function which best committed courts to the district An

courts,

one

appellate

must

defer.

appellate court should be especially reluctant to set aside a finding based on the trial court's evaluation of conflicting expert testimony." Hendricks v. Cent. Reserve Life Ins. Co., 39 Given the conflict in the expert

F.3d 507, 513 (4th Cir. 1994).

testimony and the inconsistencies in Dr. Zaslau's testimony, we cannot say that the district court's decision to credit the

testimony of Dr. Wolfe and Dr. Ashby constituted clear error. 6

III. Drennen challenges two of the district court's evidentiary rulings. We review these rulings "under the deferential abuse

Drennen argues that the district court erred by treating Dr. Wolfe as an expert. We address this argument below in section III. But we note here that even if Dr. Wolfe should not have been regarded as an expert, the principal effect of excluding his testimony regarding the standard of care would be to ignore his statement that the standard of care does not require IVP. This exclusion would not aid Drennen. Because she did not present any evidence that the standard of care does require IVP, she still would have failed to carry her burden of proof. Furthermore, Dr. Ashby, whose status as an expert is undisputed, stated that the standard of care does not require an IVP, or any other additional diagnostic test. 15

6

of discretion standard." 209-10 (4th Cir. 2010).

United States v. Rooks, 596 F.3d 204,

First, Drennen argues that the district court improperly admitted Dr. Wolfe as an expert in this case. Civil Procedure of 26(a)(2) requires in parties advance Federal Rule of to of disclose trial. the Rule

identities

expert

witnesses

26(a)(2)(B) provides that, unless a court orders otherwise, when "the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony," such

disclosures "must be accompanied by a written report" setting forth the relevant details of the witness's testimony. In this case, the district court noted that the Government identified Dr. Wolfe as an expert, but it did not submit a written report regarding his testimony. admitted Dr. Wolfe's Dr. testimony Wolfe are on the The court nevertheless ground Rule that 26's treating written

physicians

like

exempt

from

report requirement because treating physicians are not "retained or specially employed to provide expert testimony." The holding. district court did not abuse its discretion in so

As a treating physician, Dr. Wolfe was not retained or

specially employed to provide expert testimony in this case. The note accompanying the 1993 amendments to Rule 26 confirms that this is the proper interpretation of Rule 26. 16 It states:

The requirement of a written report in paragraph (2)(B) . . . applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report. Fed. R. Civ. P. 26(a)(2) advisory committee's note (emphasis added). The district court thus properly relied on Dr. Wolfe's

testimony as an expert opinion. 7 Second, Drennen contends that the district court

erroneously refused to consider an alleged "statement against interest" by Dr. Wolfe's partner, Dr. Resley. Dr. Resley

testified that Dr. Wolfe "may have said something to the effect of we got -- I got a ureter during this case. I don't really

remember, but, yes, you know, the assumption would have been that this was related to the surgery." Dr. Resley also stated, "Dr. Wolfe assumed that it was

related to the surgery at the time.

Now, whether it was a

direct injury to the ureter or whether it was something that had

Drennen argues that the district court acted inconsistently because it permitted Dr. Wolfe to testify as an expert, but it refused at trial to admit the testimony of Dr. Resley. The difficulty with this argument is that Dr. Wolfe and Dr. Resley are not similarly situated. In fact, during the colloquy in which Drennen's trial counsel successfully objected to Dr. Resley answering questions about the standard of care, he conceded that "this line of questioning is certainly appropriate for Dr. Wolfe, who actually did the cystocele repair . . . ." 17

7

occurred during the healing process or whether it was a kinking, he didn't indicate. I certainly don't know."

On appeal, Drennen reiterates her argument to the district court that Dr. Resley's reporting of Dr. Wolfe's statement that he "got a ureter" was an admission of liability. Drennen

emphasizes that Rule 804(b) creates an exception to the hearsay rule for admissions court against interest, in and argues to that the this

district

therefore

erred

refusing

consider

testimony. This argument fails. district court never Drennen objects to a ruling that the as the court never excluded Dr.

made,

Resley's testimony on the ground that it was hearsay.

Rather,

the court explicitly evaluated Dr. Resley's testimony and found his statement susceptible to different interpretations. We

agree with that assessment.

To "get" a ureter could mean, as

Drennen contends, that Dr. Wolfe conceded that he inadvertently stitched through the ureter, but it could also mean, as the district court held, that Dr. Wolfe only stated that Drennen "got" a ureter problem after her surgery, without any opinion as to the cause of the problem. Taken in context, the latter

meaning seems just as likely as the former, and the district court did not abuse its discretion in so finding. Furthermore, even if we accept Drennen's characterization of Dr. Resley's statement, she 18 still has not demonstrated

reversible error.

Taken at face value, Drennen's argument is

that when she came to see Dr. Wolfe two weeks after her surgery, complaining of pain consistent with a ureteral obstruction, he expressed concern that he had obstructed a ureter. That

statement may prove that Dr. Wolfe was anxious that he might have obstructed a ureter, but it certainly does not prove that he actually did obstruct a ureter. When weighed alongside the

other evidence, Dr. Wolfe's assumption that Drennen's injuries might have been related to the surgery is simply not

sufficiently probative to warrant reversal.

IV. Finally, Drennen argues that the district court erred by refusing to consider her IVP theory. The district court held

that under governing West Virginia law, Drennen was required to outline this theory in her pre-trial notice of claim, but had failed to do so, focusing instead on cystoscopy to the exclusion of IVP or any other diagnostic test. The court held, in the

alternative, that "[e]ven if Plaintiffs had complied with the notice requirements . . . the testimony elicited at trial does not establish IVP as the national standard of care." We argument consider need not reach even if Drennen's the it statutory court in interpretation was bound to that

because her IVP

district not err

theory,

did 19

concluding

Drennen had failed to offer evidence that the national standard of care requires a surgeon to perform an IVP during an anterior repair. on the West Virginia medical malpractice law places the burden plaintiff to come forth with expert testimony to

substantiate her claim.

See W. Va. Code § 55-7B-7(a); Farley v.

Shook, 629 S.E.2d 739, 744 (W. Va. 2006); Roberts v. Gale, 139 S.E.2d 272, 276 (W. Va. 1964). no expert testified that the As the district court explained, standard of care requires a

physician to employ an IVP here. Wolfe Thus, and even Dr. Ashby, explicitly Drennen

In fact, two experts, Dr. testified properly to the contrary. with the

assuming

that

complied

notice requirements of the MPLA, she cannot demonstrate that the national standard of care requires a physician to perform an intraoperative IVP in the circumstances of this case.

V. The judgment of the district court is AFFIRMED.

20