Linda Lou Dawson v. United States Of America
Filing
58
MEMORANDUM ORDER AND OPINION DENYING THE REMAINDER OF THE PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DKT. NO. 46 . Court DENIES the remainder of Dawsons motion for partial summary judgment. (Dkt. No. 46). This case remains on the Courts trial docket and is scheduled as the first case on Monday, July 1, 2013. Signed by District Judge Irene M. Keeley on 6/20/2013. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LINDA LOU DAWSON, individually and
in her Capacity as Executor of the
Estate of Ronald Wade, Deceased,
Plaintiff,
v.
//
UNITED STATES
CIVIL ACTION NO. 1:11CV114
(Judge Keeley)
OF AMERICA,
Defendant.
MEMORANDUM ORDER AND OPINION DENYING THE REMAINDER OF THE
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 46]
Before the Court is that part of the motion for partial
summary
judgment
filed
by
the
plaintiff,
Linda
Lou
Dawson
(“Dawson”), not yet addressed by the Court. (Dkt. No. 46). For the
reasons that follow, the Court DENIES the remainder of the motion.
I.
The Court’s previous Memorandum Order and Opinion reviewed in
detail the procedural and factual history of this litigation
involving Ronald Wade (“Wade”), a veteran who was a patient at
Louis
A.
Johnson
Veterans
Administration
Medical
Center
in
Clarksburg, West Virginia (the “Clarksburg VA”), and West Virginia
University Hospitals, Inc. (“WVUH”). What follows, therefore, is a
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
brief summary of the case relevant to the questions that remain.1
See (Dkt. No. 55).
Dawson is the surviving daughter of Wade, who underwent
surgery for bladder cancer at the Clarksburg VA in 2007. Wade later
died of COPD in 2009, while a resident in the extended care
facility at the Clarksburg VA. Almost two years after Wade’s death,
on July 27, 2011, Dawson, as the executor of Wade’s estate, sued
the Government pursuant to the FTCA, 28 U.S.C. § 2671 et seq.,
alleging
injuries
stemming
from
several
instances
of
medical
negligence by Wade’s attending urologist, Douglas McKinney, MD
(“McKinney”).
Relevant to the pending motion, Dawson first argues that, as
a matter of law, West Virginia’s Medical Professional Liability Act
(the “MPLA”), W. Va. Code §§ 55-7B-1 – 12, permits a single
plaintiff
to
recover
for
multiple
occurrences
of
medical
malpractice. In addition, she contends that no genuine issues of
material fact remain regarding whether Wade was the victim of two
occurrences of medical negligence at the hands of McKinney, as a
consequence of which he lost two “bodily organ systems.” Pursuant
1
See the Court’s Memorandum Opinion and Order of June 14, 2013
(dkt. no. 55) for a fuller recitation of the factual history and
procedural background of the case.
2
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
to § 55-7B-8(b), Dawson asserts that Wade’s estate is entitled to
recover up to $1,000,000 for at least two instances of medical
negligence resulting in the loss of two bodily organ systems.2 See
id. § 55-7B-8(b).
The United States disputes these contentions. It argues that,
as a matter of law, the MPLA does not support multiple awards for
multiple occurrences of malpractice. Even if it did, the government
asserts that McKinney’s treatment did not fall below the applicable
standard of care. Consequently, Wade could not have suffered the
loss of any bodily organ system as a proximate result of one or
more negligent acts by McKinney. Dawson disputes these contentions,
arguing that, if Wade did not lose two bodily organ systems, he
nevertheless
suffered
two
“permanent
and
substantial
deformit[ies],” as a result of McKinney’s negligence –
i.e. the
installation
and
of
two
ostomoies
with
collection
bags
the
attendant scarring – and thus is entitled to recover up to $500,000
for each occurrence under the MPLA.
2
W. Va. Code § 55–7B–8(c) provides for the caps on
compensatory, non-economic damages found in § 55–7B–8(a), (b) to be
increased each year beginning on January 1, 2004, by an amount equal to
the consumer price index published by the United States Department of
Labor. According to Dawson, the cap in subsection (b) increased to
$610,610.00 in 2013 (or $1,221,220 in the case of two occurrences). For
simplicity of discussion, however, the statutory amounts of $250,000
($500,000 for two occurrences) and $500,000 ($1,000,000 for two
occurrences) will be referenced in this opinion.
3
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
II.
On
a
motion
for summary
judgment
the
Court
reviews
all
evidence in the light most favorable to the Government, which is
the nonmoving party.
322-23
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
Summary
judgment
“depositions,
documents,
affidavits
declarations,
or
is
appropriate
electronically
stipulations
stored
.
.
where
the
information,
.,
admissions,
interrogatory answers, or other materials” show 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(c)(1)(A), (a).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). The Court must avoid weighing the evidence or
determining
the
truth
and
limit
its
inquiry
solely
to
a
determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
and
of
establishing
the
nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
4
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence
must
be
such
that
a
rational
trier
of
fact
could
reasonably find for the nonmoving party. Id. at 248–52.
III.
As a general proposition, the MPLA limits a plaintiff’s
recovery for noneconomic losses in a professional liability action
against a health care provider. West Virginia Code § 55-7B-8(a)
states:
In any professional liability action brought against a
health care provider pursuant to this article, the
maximum amount recoverable as compensatory damages for
noneconomic loss shall not exceed two hundred fifty
thousand dollars per occurrence, regardless of the number
of plaintiffs or the number of defendants or, in the case
of wrongful death, regardless of the number of
distributees, except as provided in subsection (b) of
this section.
Thus, § 55-7B-8(a) limits a plaintiff’s recovery for noneconomic
damages from a negligent health care provider to $250,000 per
occurrence, regardless of the number of plaintiffs or defendants.
This cap, however, is subject to the following exception found
in subparagraph (b):
5
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
The plaintiff may recover compensatory damages for
noneconomic loss in excess of the limitation described in
subsection (a) of this section, but not in excess of five
hundred thousand dollars for each occurrence, regardless
of the number of plaintiffs or the number of defendants
or, in the case of wrongful death, regardless of the
number of distributees, where the damages for noneconomic
losses suffered by the plaintiff were for: (1) Wrongful
death; (2) permanent and substantial physical deformity,
loss of use of a limb or loss of a bodily organ system;
or (3) permanent physical or mental functional injury
that permanently prevents the injured person from being
able to independently care for himself or herself and
perform life sustaining activities.
§ 55-7B-8(b). Pursuant to subparagraph (b), whenever a plaintiff
suffers certain severe injuries due to the negligence of a health
care provider, she is no longer limited to the $250,000 cap in
subparagraph (a), but may instead recover up to $500,000 for each
occurrence.
IV.
Dawson’s motion for partial summary judgment poses three novel
legal questions relating to the MPLA. First, W. Va. Code § 55-7B-8
allow
a
single
plaintiff
to
recover
multiple
awards
of
compensatory, non-economic damages due to multiple occurrences of
negligence
by
a
health
care
provider?
Second,
what
is
the
definition of “occurrence,” a term used three times in § 55-7B-8,
which the West Virginia Legislature (the “Legislature”) failed to
define? Third, what does the term “bodily organ system,” found in
6
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
§ 55-7B-8(b) but also undefined, mean? The Court will address those
issues in turn.
A.
Where a statutory provision is “‘clear and unambiguous and
plainly expresses the legislative intent,’” the court will enforce
its plain meaning without resort to interpretation. Grubb v. Jos.
A. Bank Clothiers, Inc., No. Civ.A. 2:05-0056, 2005 WL 1378721, at
*6 (S.D.W. Va. Feb. 28, 2011) (quoting Daily Gazette Company, Inc.,
521 S.E.2d 543, 551 (W. Va. 1999) (quoting Syl. Pt. 1, State v.
Epperly, 65
S.E.2d
488
(W.
Va.
1951))).
“Absent
a
statutory
definition of [contested] terms, [a court] will necessarily defer
to the ‘common, ordinary, and accepted meanings of the terms in the
connection in which they are used.’” State v. Edmonds, 702 S.E.2d
408, 413 (W. Va. 2010) (citing In re Clifford K., 619 S.E.2d 138,
153 (W.Va. 2005)); see also Syl. pt. 1, Miners in Gen. Group v.
Hix, 17 S.E.2d 810 (W. Va. 1941), overruled on other grounds by
Lee-Norse Co. v. Rutledge, 291 S.E.2d 477 (W. Va. 1982). Finally,
when a court reads a statute it should do so in such a way that
avoids rendering any words of the statute surplusage. “It is
presumed the legislature had a purpose in the use of every word,
phrase and clause found in a statute and intended the terms so used
to be effective . . . .” Osborne v. United States, 567 S.E.2d 677,
7
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
673 (W. Va. 2002) (quoting Syl. pt. 7, Ex parte Watson, 95 S.E. 648
(W. Va. 1918)).
B.
The government contends that the MPLA does not countenance
multiple recoveries
by
a
single
plaintiff
for
more
than one
occurrence of negligence by a health care provider. See (Dkt. No.
47 at 18). The plain language of the MPLA, however, as well as
foundational principles of statutory interpretation, belie that
interpretation.
W. Va. Code § 55-7B-8(a) limits any recovery of compensatory
damages for non-economic loss to “two hundred fifty thousand
dollars per occurrence.” Likewise, subparagraph (b) of that section
caps recovery of compensatory damages for non-economic loss in the
case of certain, severe injuries at “five hundred thousand dollars
for each occurrence.” Presumably, the Legislature purposefully
included the words “per” and “for each” in subparagraphs (a) and
(b), and intended those terms to be effective. See Osborne, 567
S.E.2d at 673.
Webster’s Third New International Dictionary defines “per” as
“with respect to each member of a specified group or series: for
each.”
Webster’s
(“Webster’s”).
Third
Likewise,
New
Int’l
Black’s
8
Law
Dictionary
Dictionary
1674
(2002)
(“Black’s”),
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
defines that term as “for each; for every.” Black’s 1250 (9th ed.
2009). Webster’s defines “each” as “being one of two or more
distinct
individuals
having
a
similar
relation
and
often
constituting an aggregate.” Webster’s 713 (2002); see Rattler
Tools, Inc. v. Bilco Tools, Inc., No. 05-293, 05-3777, 2007 WL
2008504, at *10 (E.D.La. July 6, 2007) (concluding that, in the
context of a particular patent, the phrase “for each” indicated a
“one-to-one correspondence”). Based on those definitions, the Court
concludes that “per” and “for each” are synonyms.
When, as here, the Legislature saw no need to define terms
such as “per” and “for each,” a court should apply those terms
according to their ordinary and accepted meanings. Edmonds, 702
S.E.2d at 413. As observed by the Eastern District of Louisiana in
Rattler
Tools,
Inc.,
2007
WL
2008504
at
*
10,
the
common
understanding of “for each” is a “one-to-one correspondence.” In
the context of W. Va. Code § 55-7B-8(a) and (b), “for each”, and
its synonym, “per”, clearly indicate a one-to-one correspondence
between an award for non-economic, compensatory damages (each
subject to its own statutory cap), and an occurrence of medical
negligence. Inductively, two occurrences of medical negligence
should correspond to two awards for non-economic, compensatory
damages (again, each subject to its own statutory cap).
9
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OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
This conclusion aligns with the oft-cited rule, applicable to
the MPLA, that “[s]tatutes in derogation of the common law are
strictly construed.” Phillips v. Larry’s Drive-In Pharmacy, Inc.,
647 S.E.2d 920, 928 (W. Va. 2007) (the Legislature passed the MPLA
in derogation of the common law). “Where there is any doubt about
their meaning or intent they are given the effect which makes the
least rather than the most change in the common law.” Id. (quoting
Norman J. Singer, 3 Sutherland Statutory Construction § 61:1 at 217
(6th Ed. 2001)). At common law, a plaintiff’s recovery is premised
on her ability to “prove that the defendant [is] guilty of primary
negligence and that such negligence [is] the proximate cause of the
injury of which the plaintiff complains.” Matthews v. Cumberland &
Allegheny Gas Co., 77 S.E.2d 180, 188 (W. Va. 1953). To adopt the
government’s position would drastically depart from that rule,
because a plaintiff such as Dawson would be limited to a single
recovery no matter how many negligent acts proximately caused
injury to Wade.
C.
The Legislature also failed to define the term “occurrence” as
it appears in W. Va. Code § 55-7B-8. Neither party argues the term
is
ambiguous,
however;
thus,
the
common meaning
of
the term
controls the Court’s analysis. Edmonds, 702 S.E.2d at 413. In the
10
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
legal
context,
“occurrence”
is
commonly
understood
to
mean
“[s]omething that happens or takes place; specif., an accident,
event, or continuing condition that results in personal injury or
property damage that is neither expected nor intended from the
standpoint of an insured party.” Black’s 1185 (9th ed. 2009).
On facts analogous to those presented in Dawson’s motion, the
Court of Appeals of Indiana (the “Indiana court”), in Medical
Assurance of Indiana v. McCarty, 808 N.E.2d 737 (Ind. Ct. App.
2004), adopted a definition of “occurrence” very similar to that in
Black’s.3 For purposes of Indiana’s medical malpractice reform
statute, the Indiana court defined “occurrence of malpractice” as
“the negligent act itself plus the resulting injury, with a health
care provider’s liability limited to the lowest common denominator
between act and injury.” McCarty, 808 N.E.2d at 745.
Decisions of the Supreme Court of Appeals of West Virginia
(the “Supreme Court of Appeals”) relied on by the parties support
the adoption of the Indiana court’s definition of “occurrence” for
purposes of W. Va. Code § 55-7B-8. For example, in Shamblin v.
3
Like West Virginia, Indiana has capped damages recoverable
from qualified health care providers at $250,000 per occurrence. Compare
Ind. Code. § 34-18-14-3 (“A health care provider qualified under this
article . . . is not liable for an amount in excess of two hundred fifty
thousand dollars ($250,000) for an occurrence of malpractice.”) with W.
Va. Code § 55-7B-8(a). Also as in West Virginia, the Indiana legislature
failed to define “occurrence.”
11
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
Nationwide Mutual Ins. Co., 332 S.E.2d 639, 644 (W. Va. 1985), the
Supreme Court of Appeals reasoned that where two negligent acts
occurred simultaneously to produce the same collision only one
occurrence – the collision – had taken place for insurance coverage
purposes. Likewise, in Helmick v. Jones, 452 S.E.2d 408, 411 (W.
Va. 1994), another coverage case, the negligence of a “covered
auto” and an “other than covered auto” that had caused a single
accident gave rise to only one occurrence for policy purposes.
Finally, in Auber v. Jellen, 469 S.E.2d 104 (W. Va. 1996), where
the defendant repeatedly failed to diagnose the plaintiff’s colon
cancer,
the
Supreme
Court
of
Appeals
treated
the
successive
examinations as if they had “result[ed] in one injury” for the
purpose of the defendant’s claims-made policy. Id. at 108. The
court in Auber concluded that, because the policy treated “all
injury resulting from a series of acts or omissions in providing
medical services to one person,” the plaintiff presented only one
compensable incident. Id. at 108-09.
The definition of “occurrence” adopted by the Indiana court in
McCarty employs the logic followed in these West Virginia insurance
cases. Rather than focus on the collision, as the Supreme Court of
Appeals did in Shamblin and Helmick, the court in McCarty looked to
the
personal
injury
resulting
12
from
the
defendant’s
alleged
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
negligence. McCarty, 808 N.E.2d at 745. That shift is appropriate
here in light of the fact that the term “occurrence” is used in W.
Va. Code § 5507B-8 in reference to the damages available to medical
malpractice plaintiff, who must successfully show that a health
care provider failed to meet the applicable standard of care and
that such failure “was the proximate cause of the injury or death”.
See W. Va. Code 55-7B-3.
Moreover, when the Indiana court’s definition of occurrence in
McCarty is applied to the facts in Shamblin, Helmick, and Auber the
conclusion is the same: where multiple acts of negligence produce
the
same
result,
only
one
compensable
occurrence
arises.
Conversely,“if there is only one [negligent] act but two injuries,
there can
only
be
one ‘occurrence’
and
health
care provider
payment.” McCarty, 808 N.E.2d at 745-46.
For
those
reasons,
the
Court
adopts
the
definition
of
“occurrence” in McCarty, but with one addition. W. Va. Code § 557B-3 requires that a plaintiff in a medical negligence case prove
that the health care provider’s failure to adhere to the applicable
standard of care was “a proximate cause of the injury or death.”
Thus, any definition of “occurrence” must reflect the element of
proximate cause in order to comport with the legislative intent
expressed
in
§
55-7B-3,
a
well
13
as
traditional
elements
of
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OF AMERICA
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negligence. See Marcus v. Staubs, 736 S.E.2d 360, 371 (W. Va.
2012)(“To be actionable, negligence must be the proximate cause of
the injury complained of and must be such as might have been
reasonably expected to produce an injury.”) (quoting Syl. Pt. 3,
Hartley v. Crede, 82 S.E.2d 672 (1954)). Accordingly, the Court
defines “occurrence” for the purposes of W. Va. Code § 55-7B-8 as
“the negligent act itself plus the injury that proximately results,
with a health care provider’s liability limited to the lowest
common denominator between act and injury.”
Forshey
v.
Jackson,
on
which
the
Government
relies,
is
inapposite. Forshey, 671 S.E.2d 748, 758 (examining the continuing
tort doctrine in the context of a medical malpractice action). West
Virginia recognizes a distinction “between the continuing tort
theory for purposes of a statute of limitations analysis and a
‘series
of
acts’
under
an
insurance
policy
for
purposes
of
coverage.” Beckley Mech., Inc. v. Erie Ins. & Cas. Co., 374 Fed.
App'x 381, 384 (4th Cir. 2010) (citing Auber, 469 S.E.2d at 108).
In other words, whether a series of acts constitute a continuing
tort for the purpose of tolling the statute of limitations, and
whether that same series presents one or multiple occurrences for
insurance coverage purposes, are separate inquiries. See Beckley
Mech., Inc., 374 Fed. App’x. at 384; Auber, 469 S.E.2d at 108.
14
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Moreover, there is no ambiguity in the Legislature’s use of the
term “occurrence” that would “tie[] the interpretation of [that
term] to whether such series of acts would constitute a continuing
tort.” See Beckley Mech., Inc., 374 Fed. App’x. at 384. To the
extent
that
the
interpretation
of
a
policy
term
and
the
interpretation of a term in a statute are similar inquiries, the
Court concludes that, because “occurrence” is unambiguous as it
appears in W. Va. Code § 55-7B-8, there is no need to look to the
continuing tort doctrine.
Chastain v. Anmed Health Foundation, 694 S.E.2d 541 (S.C.
2010), another case relied upon by the government, is equally
inapplicable. Chastain addressed the proper application of the
definition
of
“occurrence”
enacted
by
the
South
Carolina
Legislature as part of the South Carolina Tort Claims Act. Id. at
173
(citing
S.C.
Code
Ann.
§§
15-78-30(g),
15-78-120(a)(1),
(a)(3)). That Act, however, addresses the immunity of the State of
South Carolina and its political subdivisions to tort claims. See
id. § 15-78-20. It is not a medical malpractice reform statute,
compare id. §§ 15-79-110 – 130 (Medical Malpractice Actions), and
therefore provides no apt comparison here.
15
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D.
Finally, the Court must define “bodily organ system.” Here,
again, although the Legislature failed to define this term, it is
not
ambiguous
and
the
Court
therefore
may
simply
apply
the
“‘common, ordinary, and accepted meanings of the terms.’” Edmonds,
702 S.E.2d at 413.
The Court looks to Stedman’s Medical Dictionary (28th ed.
2006) (“Stedman’s”) for the common definitions of the “urinary
system” and the “digestive system,” the two “bodily organ systems”
at issue in this case.4 (Dkt. No. 46-1 at 22-23); see Williams v.
Bausch & Lomb Co., No. 2:08-cv-910, 2010 WL 2521753 (S.D.Oh. June
22, 2010) (applying Stedman’s definition of “organ” and “system” to
define “bodily organ system” for the purposes of Ohio’s medical
malpractice
reform
statute).
Based
on
those
definitions,
it
concludes that, for purposes of this case, the “urinary system”
includes “all organs concerned with the formation, storage, and
voidance
of
urine
including
kidneys,
ureters,
bladder,
and
urethra.” Stedman’s 1928 (28th ed. 2006). As well, the “digestive
system,” also known as the “alimentary system,” encompasses “the
4
The urinary and digestive systems are two “complex[es] of
structures” that are “functionally related” and thus are “bodily organ
systems.” See Stedman’s 1923 (28th ed. 2006).
16
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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
digestive tract from the mouth to the anus with all its associated
glands and organs.” Id. at 1923.5
V.
Having defined the terms “occurrence” and the relevant “bodily
organ systems” (the “urinary system” and the “digestive system”),
the Court turns finally to whether Dawson has successfully met her
burden on summary judgment of establishing that there are no
genuine issues of material fact regarding her entitlement to two
awards of compensatory damages for non-economic loss pursuant to W.
Va. Code § 55-7B-8.
Dawson has not satisfied that burden. See Celotex Corp., 477
U.S. at 323 (moving party bears the initial burden of establishing
the nonexistence of genuine issues of fact). As the Court has
concluded, in order to prove two separate occurrences of medical
5
In reply, Dawson argues that the Supreme Court of Appeals
would not interpret “loss of a bodily organ system” to require permanent
and total loss of the entire system. See (Dkt. No. 51 at 11) (citing
MacDonald v. City Hosp., Inc., 715 S.E.2d 405, 423 (W. Va. 2011)). While
Dawson correctly observes that, in MacDonald, the Supreme Court of
Appeals left undisturbed the trial court’s conclusion that the plaintiff
had lost a “bodily organ system,” i.e. his muscle system, because he had
lost the use of his legs, the Supreme Court of Appeals did so reluctantly
and on an extremely deferential standard of review. The court in fact
stated that “[w]hile this Court might have reached a different conclusion
based on the evidence and record before us, it is not the role of an
appellate court to second-guess the finder of fact.” For that reason,
this Court does not find MacDonald persuasive, and intends to apply the
common meaning of the terms “urinary system” and “digestive system” in
this case.
17
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
negligence for purposes of the MPLA, Dawson must establish by a
preponderance of the evidence that McKinney committed two distinct
acts of negligence proximately causing two distinct injuries. See
supra (definition of “occurrence” for the purpose of W. Va. Code
§ 55-7B-8).
Clearly, there are disputed issues of fact material to these
issues. The parties dispute whether McKinney’s decision to perform
the cystoprostatectomy deviated from the applicable urological
standard of care. Dawson maintains the surgery was medically
unnecessary; the government contends the procedure saved Wade’s
life. The parties also dispute whether McKinney failed to follow
Wade appropriately after the surgery. Dawson contends that McKinney
abandoned his patient. The government asserts McKinney’s post
surgery follow up was within the applicable standard of care.
Important questions of causation also remain concerning whether
Wade’s post-operative complications and resulting surgery at WVUH
were
proximately
caused
by
1)
an
allegedly
unnecessary
cystoprostatectomy, 2) McKinney’s allegedly negligent failure to
provide and monitor Wade’s post-operative condition, or 3) were
unfortunate post-operative complications for which McKinney bears
no fault.
18
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
In addition, the parties dispute whether
Wade’s injuries
merit application of the $500,000 cap on compensatory, non-economic
damages found in W. Va. Code§ 55-7B-8(b). While Dawson maintains
that Wade lost his urinary and digestive systems as a consequence
of McKinney’s alleged negligent acts, the government contends that,
although Wade may have lost portions of those systems, he did not
lose the entire function of those systems. (Dkt. No. 47 at 23). The
government also alleges that Wade, a smoker, was comparatively at
fault for his failure to fully recover following his surgery.
The applicability of W. Va. Code § 55-7B-8(b) also remains an
issue for trial because, as Dawson also argues, the two ostomies
constructed in Wade’s abdominal wall – the first for the external
collection of urine, the second for the collection of solid waste caused “scarring” or some “permanent and substantial physical
deformity” meriting application of the $500,000 cap in § 55-7B8(b). Those issues certainly raise material questions of fact
regarding liability and damages that will need to be resolved at
trial. See Bransteter v. Moore, 3:09cv2, 2009 WL 152317, at *3
(N.D. Ohio Jan. 21, 2009) (“scarring may be so severe as to qualify
as a serious disfigurement”) (emphasis in original); Wilson v.
United States, 375 F. Supp. 2d 467, 471 n.5 (E.D. Va. 2005)
(applicability of the “permanent and substantial physical deformity
19
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
ORDER DENYING THE REMAINDER OF THE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 46]
exception[] is a question to be determined at trial”). But see
Weldon v. Presly, 1:10cv1077, 2011 WL 37494469, at *7 (N.D.Oh. Aug.
9, 2011) (holding that, as a matter of law, a four (4) centimeter
scar was not a “permanent and substantial physical deformity”).
VI.
In conclusion, for the reasons discussed, the Court DENIES the
remainder of Dawson’s motion for partial summary judgment. (Dkt.
No. 46). This case remains on the Court’s trial docket and is
scheduled as the first case on Monday, July 1, 2013.
It is so ORDERED.
The Court directs the Clerk of Court to transmit copies of
this Order to counsel of record.
DATED: June 20, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
20
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