Misty Simms v. US

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cv-00932. [999943635]. [15-2161]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2161

MISTY
SIMMS,
individually,

next

friend

of

C.J.,

an

infant,

and

Plaintiffs - Appellees,
v.
UNITED STATES OF AMERICA,
Defendant - Appellant,
and
RICHARD BOOTH, M.D.; VALLEY HEALTH SYSTEMS,
STATES DEPARTMENT OF HEALTH & HUMAN SERVICES,

INC.;

UNITED

Defendants.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:11-cv-00932)

Argued:

January 27, 2016

Decided:

October 7, 2016

Before WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published
opinion.
Judge Wynn wrote the opinion, in which Judge Harris
and Judge Biggs joined.

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ARGUED: Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant.
Mark Davis Moreland, MORELAND
& MORELAND, Lewisburg, West Virginia, for Appellees. ON BRIEF:
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; R. Booth Goodwin II, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellant.
Rachel Hanna, LAW OFFICE OF RACHEL
HANNA, Lewisburg, West Virginia, for Appellees.

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WYNN, Circuit Judge:
Plaintiff Misty Simms brought this “wrongful birth” action
against

the

United

States

under

the

Federal

Tort

Claims

Act

(“FTCA”) after her prenatal care provider--a federally-supported
health center--failed to timely inform her that her child would
be born with severe congenital abnormalities.

Following a bench

trial, the district court found in favor of Simms and awarded
her over $12 million in economic and noneconomic damages.
The government appeals the award of damages for past and
future medical expenses and the district court’s decision not to
order the creation of a reversionary trust for future medical
expenses.

After careful review, we conclude that the district

court properly awarded Simms damages attributable to her child’s
past medical expenses.

We further conclude that the district

court correctly measured Simms’ damages using the amount medical
providers billed for her child’s care, rather than the amount
the West Virginia Medicaid program paid those providers.
the

district

court

erred

in

failing

prejudgment collateral source hearing.
in

part,

vacate

in

part,

and

remand

consistent with this opinion.

3

to

hold

a

But

post-verdict,

Accordingly, we affirm
for

further

proceedings

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I.
A.
Simms received prenatal care at Valley Health Systems, Inc.
(“Valley

Health”),

a

federally-supported

located in West Virginia.

health

care

center

On February 25, 2008, when Simms was

eighteen weeks pregnant, her Valley Health physician detected
potential fetal abnormalities during a routine ultrasound.

But

due to errors on its part, Valley Health did not inform Simms of
the abnormalities until May 2008, three months later.

In a

series of follow-up appointments, Simms learned that the fetus’s
brain was extremely underdeveloped, and, if not stillborn, her
child would never walk or talk and would be severely mentally
disabled.

Because at that point Simms was well into her third

trimester, the laws of West Virginia and nearby states barred
Simms from terminating her pregnancy.
On June 18, 2008, Simms gave birth to her son, C.J.
survived

birth

malformation
muscular

and

but,

as

expected,

multiple

conditions.

As

other
a

suffered

related

result,

C.J.

physicians refer to as a “vegetative state.”

severe

C.J.
brain

developmental
lives

in

what

and
his

And although C.J.

is able to live at home with Simms, he requires twenty-four-hour
care and monitoring.

To date, the extraordinary medical bills

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resulting from the requisite care provided for C.J. have been
paid by West Virginia’s Medicaid and Medicaid Waiver programs. 1
B.
On

November

21,

2011,

Simms

filed

this

wrongful

birth

action individually, and on behalf of her son, C.J., in the
United States District Court for the Southern District of West
Virginia.

Because Valley Health is a federally-supported health

center, Simms sought relief under the FTCA.

See 42 U.S.C. §

233(g).
Because this case arises under the FTCA, the law of West
Virginia—-the

state

place—-governs.

where

Valley

Health’s

negligent

act

took

See 28 U.S.C. § 1346(b)(1); Starns v. United

States, 923 F.2d 34, 37 (4th Cir. 1991); see also 28 U.S.C.
§ 2674

(providing

that

“[t]he

United

States

shall

be

liable

. . . in the same manner and to the same extent as a private
individual under like circumstances”).

We therefore apply the

law of West Virginia in evaluating the government’s claims.

See

Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir. 1983).
To the extent we are faced with an unsettled issue of West
Virginia law, our task is “to predict how [the state’s highest]
court would rule if presented with the issue.”
1

Ellis v. La.-

In this opinion, we refer to West Virginia’s Medicaid and
Medicaid Waiver programs collectively as the “West Virginia
Medicaid program” or “Medicaid.”

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Pac.

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Corp.,

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699

F.3d

778,

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782–83

(4th

Cir.

2012)

(internal

quotation omitted); see Midwest Knitting Mills, Inc. v. United
States, 950 F.2d 1295, 1298 (7th Cir. 1991).
In West Virginia, “[t]he failure of a [healthcare provider]
to discover a birth defect and to advise the parents of its
consequences will give rise to a cause of action” for “wrongful
birth.”
The

James G. v. Caserta, 332 S.E.2d 872, 882 (W. Va. 1985).

theory

provider’s

underlying
failure

to

a

wrongful

advise

of

birth

the

action

birth

is

defect

that

the

caused

the

parents to lose the opportunity make an informed decision as to
whether to terminate the pregnancy.

Id. at 879.

After a bench trial, the district court issued a memorandum
opinion

and

order

finding

the

government

liable.

Simms

v.

United States, 107 F. Supp. 3d 561, 563–64 (S.D.W. Va. 2015).
The court held that Valley Health’s failure to provide follow-up
care after the February 25, 2008, ultrasound “proximately caused
[Simms] to be deprived of essential information” regarding the
fetus’s

condition

and

thereby

“prevent[ed]

[Simms]

exercising her right to terminate [the] pregnancy.”

from

Id. at 567.

The court entered judgment in favor of Simms individually and
dismissed the claim brought by Simms on C.J.’s behalf, holding
that C.J. did not have a cause of action for wrongful birth
under West Virginia law.

Id. at 563 n.1.

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The district court awarded Simms a total of $12,222,743 in
damages, distributed as follows: (1) $2,722,447 for past billed
medical expenses, (2) $8,683,196 for future medical expenses—the
present value of the projected future medical costs for C.J.’s
care over a twenty-one-year life expectancy, (3) $175,526 for
lost

income,

and

(4)

$641,544

in

noneconomic

damages. 2

The

government timely appealed.
II.
On appeal to this Court, the government does not challenge
the

district

government

court’s

disputes

liability
the

determination.

district

court’s

award

Rather,
of

the

damages

attributable to C.J.’s past and future medical expenses. 3
We

review

the

district

court’s

conclusions

of

law,

including those regarding the availability and calculation of
damages, de novo.

See Rice v. Cmty. Health Ass’n, 203 F.3d 283,

287 (4th Cir. 2000).

We review factual findings relating to the

calculation of damages for clear error.

United States ex rel.

2

The district court’s memorandum opinion and order
indicates a different damages award. See Simms, 107 F. Supp. 3d
at 579–80.
Following initial entry of judgment, the district
court entered an amended judgment order revising the damages
award to account for a clerical error in the damages
calculation.
3

Shortly after oral argument, in response to Simms’s
unopposed motion, we entered an order partially affirming the
district court’s judgment with respect to the undisputed portion
of the damages award for lost income and noneconomic damages.

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Maddux Supply Co. v. St. Paul Fire & Marine Ins. Co., 86 F.3d
332, 334 (4th Cir. 1996) (per curiam).
A.
In

its

appeal,

the

government

challenges

the

district

court’s award of damages for past and future medical expenses on
a number of grounds, each relating to the West Virginia Medicaid
program’s payment of C.J.’s medical expenses.

The government

first contends that Simms does not have a right to recover past
medical expenses because, in light of C.J.’s Medicaid coverage,
Simms has not, to date, paid out-of-pocket for C.J.’s medical
care.

According

to

the

government,

awarding

Simms

damages

related to medical care costs she did not incur would contravene
the basic tort principle that damages must compensate only for
actual loss.

We disagree.

Under West Virginia law, a parent who successfully brings a
wrongful birth suit against a healthcare provider is entitled to
recover the “extraordinary costs for rearing a child with birth
defects.”

Caserta, 332 S.E.2d at 882; see id. at 878 n.12

(“[T]he rule is that the . . . costs of extraordinary child care
arising from the defects are recoverable in a wrongful birth
action.”).
costs

These damages include “the medical or educational

attributable

to

the

birth

defect

during

the

child’s

minority” as well as medical and support costs “after the child
reaches the age of majority if the child is unable to support
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himself.”

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Id. at 882–83.

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The entitlement to such recovery

stems from parents’ legal duty to support their children.

Id.;

see State ex rel. Packard v. Perry, 655 S.E.2d 548, 554 (W. Va.
2007) (“[P]arents ha[ve] a duty to support their child, and in
turn [are] therefore obligated to pay for their child's medical
expenses.”); see also 67A C.J.S. Parent and Child § 167 (2016)
(“Each

parent

has

a

duty

to

support

his

or

her

minor

children.”).
Here, the fact that Simms has not had to pay out-of-pocket
for C.J.’s past medical care does not obviate her injury.

Simms

has a legal obligation to support her child and the weight of
that

obligation

negligence.

And

increased
the

as

fact

a

that

result

of

Medicaid

Valley

has,

to

Health’s

date,

paid

common

law

C.J.’s medical costs does not change this analysis.
West

Virginia

has

long

recognized

the

“collateral source rule,” which is “an exception to the general
rule that in a tort action, the measure of damages is that that
will

compensate

and

make

the

plaintiff

whole.”

25

C.J.S.

Damages § 189 (2016); see Kenney v. Liston, 760 S.E.2d 434, 440
(W. Va. 2014).

“The collateral source rule protects payments

made to or benefits conferred upon an injured party from sources
other

than

the

corresponding
damages.”

tortfeasor

offset

or

by

denying

the

credit

against

the

Kenney, 760 S.E.2d at 440.
9

tortfeasor
injured

any

party’s

The rationale underlying

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the collateral source rule is that “it is better for injured
plaintiffs

to

receive

the

benefit

of

collateral

sources

in

addition to actual damages than for defendants to be able to
limit

their

presence

of

liability
these

for

damages

sources.”

Id.

merely
at

445

by

the

fortuitous

(citation

omitted)

(internal quotation marks omitted); see also Ilosky v. Michelin
Tire Corp., 307 S.E.2d 603, 615 (W. Va. 1983) (“The purpose of
the collateral source doctrine is to prevent reduction in the
damage liability of defendants simply because the victim had the
good

fortune

to

be

insured

or

have

other

means

of

compensation.”).
The

collateral

source

rule

Kenney, 760 S.E.2d at 433–34.
source

rule,

the

government

protects

Medicaid

payments.

Accordingly, under the collateral
is

not

entitled

to

a

credit

or

offset against Simms’ damages based on Medicaid’s payment of
C.J.’s medical expenses.

We therefore reject the government’s

argument that common law tort principles preclude Simms from
recovering damages related to C.J.’s past medical expenses.
B.
The

government

further

contends

that,

even

if

the

collateral source rule applies and Simms is entitled to recover
damages

attributable

to

C.J.’s

past

medical

expenses,

the

district court erred in calculating those damages because the

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court used the amount C.J.’s medical providers billed for his
care, rather than the amount the Medicaid program actually paid.
Under West Virginia law, the “proper measure of damages
[for medical expenses] is not simply the expenses or liability
incurred,
rather

or

the

that

which

may

[r]easonable

be

incurred

value

of

[n]ecessary because of the injury.”

in

the

medical

future,

services

but
made

Jordan v. Bero, 210 S.E.2d

618, 637 (W. Va. 1974); see also Delong v. Kermit Lumber &
Pressure Treating Co., 332 S.E.2d 256, 258 (W. Va. 1985) (“The
proper measure of damages for future medical expenses is ‘the
reasonable
necessary

value
by

of

reason

medical
of

the

services
permanent

injuries.’” (citation omitted)).

as

will

effects

probably
of

a

be

party’s

Thus, when a tortfeasor causes

a plaintiff an injury requiring medical services, the plaintiff
is entitled to recover the reasonable value of those services,
regardless of the amount actually paid or whether the services
were rendered gratuitously.
In

Kenney,

addressed

the

the

West

application

Kenney, 760 S.E.2d at 445-46.
Virginia
of

the

Supreme

Court

collateral

of

source

Appeals
rule

in

situations in which a healthcare provider discounts or writes
off a portion of a medical bill pursuant to an agreement with a
plaintiff’s health insurer.

Id. at 439-40.

The court held

that, under the collateral source rule, a plaintiff is entitled
to “the total amount billed by his medical providers absent his
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health

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insurance

tortfeasor

is

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coverage,”

not

entitled

and
to

therefore,

receive

the

reduced, discounted or written-off amount.”

that

benefit

“[t]he
of

the

Id. at 446.

The government principally attempts to distinguish Kenney
on

grounds

private

that

Kenney

insurer,

dealt

whereas

the

with
West

reimbursed C.J.’s medical costs.
such

distinction

governmental
benefits

between

entities.

rendered

by

Virginia

the

“social

obtained

Medicaid

by

a

program

But the Kenney Court drew no

benefits
To

discounts

conferred
contrary,

by

private

Kenney

legislation”

“are

subtracted from a plaintiff’s recovery.”

held

not

[to

and
that
be]

Id. at 445–46; see

also id. at 446 (“[T]he law does not differentiate between the
nature

of

. . .

Kenney

identified

governmental
falling

collateral
benefits

entities

within

the

and

as

collateral

hospitals,”

“government
“other

benefits

conferred

by

. . . .”).
numerous

programs--including

collateral

(identifying

Security,”

source

source

sources

pension

government

rule.

programs

Id.

Medicaid,” and “social services,” among others).
Kenney

provides

no

basis

to

distinguish

at

and

such

like

specific

Medicaid--as

“veteran’s

programs

And

as

628-632
military
Social

Medicare

and

Accordingly,

between

benefits

conferred by public and private payers.
The government also suggests that the difference between
the amount billed by C.J.’s medical providers and the amount
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paid by Medicaid does not constitute a “benefit” for purposes of
the

collateral

source

rule

because

C.J.’s

providers

were

required by federal law to accept the amount paid by Medicaid as
payment in full.

But Kenney expressly refused to restrict the

universe of benefits protected by the collateral source rule to
“payments”

made

to

a

explaining

that

plaintiff

“the

or

collateral

on

a

source

plaintiff’s

rule

behalf,

applies

to

any

benefit received by a plaintiff from any source in line with the
plaintiff’s interests.”

Id. at 445; see also id. at 440 (“The

collateral source rule protects payments made to or benefits
conferred

upon

an

injured

tortfeasor . . . .”

party

(emphasis

from

sources

added)).

And

other

the

than

Kenney

the

court

specifically identified discounted rates negotiated by payers as
one type of “benefit” subject to the collateral source rule.
Id.

at

445-46

(“The

damage

is

sustained

when

the

plaintiff

incurs the liability, and the method by which that liability is
later

discharged

has

no

effect

(internal quotation omitted)).
accepted

the

participation
insurance

discounted
in

plan

the
does

on

the

not

of

damages.”

That C.J.’s medical providers

reimbursement

Medicaid

measure

program

change

the

rates
rather

as

condition

than

analysis

a

of

private

because,

as

explained above, the West Virginia collateral source rule does
not distinguish between benefits conferred by public and private
entities.
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Accordingly, we conclude that, as a matter of West Virginia
law, regardless

of

whether

a

provider

decides

to

discount

a

medical bill by agreement with a private health insurer or by
virtue of voluntary participation in the Medicaid program, proof
of the original medical bill remains “prima facie evidence the
expense was necessary and reasonable.”
court,
award

therefore,
using

the

did

not

amount

err

in

C.J.’s

Id. at 438. The district

calculating

medical

Simms’

providers

damages

billed

the

Medicaid program.
C.
Finally,

we

address

the

government’s

argument

that

the

district court erred in refusing to reduce the damages award
under

the

provisions

of

West

Virginia’s

Medical

Professional

Liability Act (the “Professional Liability Act”).
The

Professional

Liability

Act

modifies

the

common

law

collateral source rule in the context of medical professional
liability actions, like the instant case.

Manor Care, Inc. v.

Douglas, 763 S.E.2d 73, 87 (W. Va. 2014); see W. Va. Code § 557B-9a.

The

statute

entitles

a

defendant

to

a

post-verdict,

prejudgment hearing regarding payments received by the plaintiff
from

collateral

sources.

W.

Va.

Code

§ 55-7B-9a(a)

(“[A]

defendant who has been found liable to the plaintiff for damages
for

medical

care,

rehabilitation

services,

lost

earnings

or

other economic losses may present to the court, after the trier
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of fact has rendered a verdict, but before entry of judgment,
evidence of payments the plaintiff has received for the same
injury from collateral sources.”).
finds

that

certain

statutory

At the hearing, if the court
preconditions

are

met,

the

defendant may also “present evidence of future payments from
collateral sources.”

Id. § 55-7B-9a(b) (emphasis added).

After

making findings based on the evidence, the court then reduces
the

economic

damages

award

by

the

“net

amount

of

collateral

source payments received or to be received by the plaintiff”
before entering judgment.

Id. § 55-7B-9a(f).

The court may not

reduce the award, however, with respect to any amounts “which
the collateral source has a right to recover from the plaintiff
through

subrogation,

9a(g)(1).

Medicaid

lien,

or

reimbursement.”

payments

qualify

as

payments under the Professional Liability Act.

Id.

§ 55-7B-

collateral

source

See id. § 55-7B-

2(b) (defining the term “[c]ollateral source” to include “[a]ny
federal or state act, public program or insurance which provides
payments for medical expenses”).
Here, the district court did not hold a collateral source
hearing before it entered judgment.

Instead, the district court

ruled that, as a matter of law, the Professional Liability Act
did not entitle the government to any damages reduction because
“the West Virginia state Medicaid program has a subrogation lien
against any

verdict

in

Plaintiffs’
15

favor.”

Simms

v.

United

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States, No. CIV.A. 3:11-0932, 2015 WL 128101, at *3 (S.D.W. Va.
Jan. 8, 2015).
The district court did not explain its basis for concluding
that

the

Medicaid

Simms’ judgment.
Medicaid

program

program

holds

a

subrogation

lien

against

And the parties disagree as to whether the
holds

such

a

lien.

In

particular,

Simms

asserts that the Medicaid program holds a subrogation lien by
virtue of Section 9-5-11(b), which provides that when a Medicaid
“recipient”

recovers

damages

from

a

third

party

related

to

medical expenses previously paid by the Medicaid program, the
state Medicaid agency holds a “priority right to be paid first”
out of the recovery.

W. Va. Code § 9-5-11(b)(6).

To that end,

the West Virginia Medicaid program “shall be legally subrogated
to

the

rights

contrast,

the

of

the

recipient.”

government

argues

Id.

that

§ 9-5-11(b)(5).

Section 9-5-11

By

does

not

apply because C.J.--not Simms--is the Medicaid “recipient” for
purposes of the subrogation provision.
(defining

“[r]ecipient,”

“unless

See id. § 9-5-11(a)(3)
the

context

otherwise

requires,” as “a person who applies for and receives assistance
under the Medicaid Program”).
Because the district court did not squarely address the
government’s

argument

that

Simms

16

does

not

qualify

as

a

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“recipient” under W. Va. Code § 9-5-11, 4 we believe the district
court

should

entering

have

held

judgment

warranted

so

the

in

a

collateral

Simms’

district

favor.

court

source

hearing

Accordingly,

can

determine,

in

before

remand
the

is

first

instance, whether Simms, in her individual capacity, qualifies
as a “recipient” under W. Va. Code § 9-5-11.

See Am. Foreign

Serv. Ass’n v. Garfinkel, 490 U.S. 153, 160 (1989) (“[B]ecause
appellants’

argument

raises

a

question

of

statutory

interpretation not touched upon by the [d]istrict [c]ourt, we
leave

these

matters

for

that

court

to

decide

in

the

first

instance.”).
A

collateral

source

additional reasons.

hearing

is

necessary

for

several

First, even if the state Medicaid program

does not hold a subrogation lien by virtue of Section 9-5-11(b),
the state of West Virginia may have “a right to recover” the
amount it has paid for C.J.’s medical care by some other means
that would bar the district court from reducing Simms’ award. To
that

end,

Simms

contends

that

4

the

Medicaid

application

she

The district court never addressed whether Medicaid held a
subrogation lien against Simms because, before trial, the court
ruled that Medicaid had a subrogation lien against C.J., who was
still a party to the action at that point.
Simms, 2015 WL
128101, at *3.
Neither party appears to have disputed that
ruling.
After trial, the district court dismissed C.J. as a
plaintiff, see Simms, 107 F. Supp. 3d at 563 n.1, making it
necessary for the court to determine whether Medicaid’s lien
against any recovery by C.J. extends to recoveries by Simms.

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completed and signed on C.J.’s behalf gives the Medicaid program
a

right

to

recovers.

seek
The

reimbursement

record,

related

however,

does

to

not

any

damages

include

a

she

copy

of

Simms’ Medicaid application so we are in no position to evaluate
that

argument.

Complicating

matters

further,

the

government

asserts that there are “lien letters” demonstrating that any
lien asserted by the state of West Virginia runs only against a
damages award for C.J., not Simms.

Reply Br. at 8.

Again, we

can find nothing in the record establishing the existence of
such letters, let alone their contents.

We believe a collateral

source hearing is the proper vehicle for the parties to present
such evidence for consideration by the district court in the
first instance.
Finally, regardless of whether West Virginia has a right to
reimbursement

with

respect

to

the

damages

awarded

for

past

medical expenses, such a right would not resolve whether the
Professional Liability Act requires a reduction in the damages
award

for

future

medical

expenses.

See

W.

Va.

Code

§ 9-5-

11(g)(3) (indicating that the amount the West Virginia Medicaid
program may recoup shall “not exceed the amount of past medical
expenses paid”).

Under the statute, a liable defendant “may

present evidence of future payments from collateral sources” and
receive a damages reduction on account thereof, if the court
finds that:
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(1)

(2)

The
benefits,
to
a
reasonable
degree
certainty, will be paid to the plaintiff
expenses the trier of fact has determined
plaintiff will incur in the future; and

(3)

Id.

There is a preexisting contractual or statutory
obligation on the collateral source to pay the
benefits;

The amount of the future
reducible to a sum certain.

§ 55-7B-9a(b).

findings—-one

way

expenses

The

court

the

or

district
other—-as

to

is

did

these

of
for
the

readily

not

make

any

three

statutory

court’s

judgment

preconditions before it entered judgment.
Accordingly,
solely

with

we

respect

vacate
to

the

damages

district

awarded

for

past

and

future

medical expenses and remand the case to the district court so
that it may hold a collateral source hearing.
the

court

argument,

should
and

accept

decide

evidence

whether,

from

and

to

At the hearing,

the

parties,

what

extent,

hear
the

Professional Liability Act entitles the government to a damages
reduction.

Among

other

issues,

the

court

should

address

whether, in light of C.J.’s dismissal, West Virginia’s Medicaid
program may recover from Simms “through subrogation, lien or
reimbursement,” W. Va. Code § 55-7B-9a(g)(1), some or all of the
damages awarded for past medical expenses.

The district court

also should determine whether Medicaid has any other “right to
recover” against Simms. In addition, the district court should
make findings relevant to the issue of future collateral source
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payments, including whether there is a “reasonable degree of
certainty” that C.J.’s medical care will continue to be covered
by West Virginia’s Medicaid program. 5

Id. § 55-7B-9a(b)(2).

III.
For the foregoing reasons, we vacate the district court’s
judgment

solely

with

respect

to

damages

award

for

past

and

future medical expenses and remand to the district court for
further proceedings consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

5

Because we remand for a collateral source hearing under
the Professional Liability Act, we need not--and thus do not-address Defendant’s alternative argument that there should be a
damages setoff to account for the financial contribution the
federal government made to the West Virginia Medicaid program.
Additionally, on remand, the district court may consider anew,
if the issue arises, whether it is an appropriate exercise of
its discretion to order the creation of a reversionary trust.

20