Linda Lou Dawson v. United States Of America

Filing 92

MEMORANDUM OPINION AND ORDER CONTAINING THE COURTS FINDINGS OF FACT AND CONCLUSIONS OF LAW AND GRANTING JUDGMENT TO PLAINTIFF. Court CONCLUDES that the United States is liable to Linda Lou Dawson, individually and in her capacity as executrix of Wades estate, for a total judgment in the amount of $635,641.30 Signed by District Judge Irene M. Keeley on 3/31/2014. (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 Executrix of the
Estate of Ronald Wade, Deceased,
Plaintiff,
v.

//

UNITED STATES

CIVIL ACTION NO. 1:11CV114
(Judge Keeley)

OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et
seq. (the “FTCA”), the Court held a bench trial on July 2-3, 2013,
to determine whether the plaintiff, Linda Lou Dawson (“Dawson”),
could establish

by

a

preponderance

of

the

evidence

that the

defendant, the United States of America (the “United States” or the
“government”), through the negligence of its employees at the Lewis
A. Johnson VA Medical Center in Clarksburg, West Virginia (the
“Clarksburg VA”), was liable in tort for injuries her father,
Ronald K. Wade (“Wade”), suffered prior to his death. Based on the
findings of fact and conclusions of law that follow,1 the Court
GRANTS judgment to Dawson in the amount of $635,641.30.

1

“In an action tried on the facts without a jury or with an
advisory jury, the court must find the facts specially and state its
conclusions of law separately.” Fed. R. Civ. P. 52.

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
I. INTRODUCTION
A. Procedural Background
On July 27, 2011, Dawson filed a complaint in this Court,
alleging medical negligence (Count I), negligence (Count II), and
wrongful death (Count III) against the United States, pursuant to
the

FTCA.

Her

claims

cystoprostactectomy

with

involved
ileal

an

allegedly

conduit

and

unnecessary

post-operative

abandonment by Wade’s attending urologist, Dr. Douglas McKinney
(“Dr. McKinney”).

On May 29, 2012, the parties stipulated to the

dismissal of Count II (dkt. no. 24), and, on April 29, 2013, Dawson
withdrew Count III (dkt. no. 51).
On April 8, 2013, Dawson filed a motion for partial summary
judgment, in which she contended that she was entitled to monetary
damages for non-economic losses suffered by Wade, and that, under
the West Virginia Medical Professional Liability Act, W. Va. Code
§ 55-7B-1, et seq. (the “MPLA”), those damages were neither limited
by the exclusion of punitive damages under 28 U.S.C. § 2674, nor
subject to the lower $250,000 cap on non-economic damages under the
MPLA.
The Court granted the motion in part and denied it in part,
(dkt. no. 55), holding that the FTCA did not preclude Dawson from
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1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
recovering compensatory (but not punitive) damages for Wade’s predeath

pain

and

suffering.

It

also

provided

definitions

of

“occurrence,” “urinary system,” and “digestive system” for purposes
of the MPLA.

Finally, it held that Dawson had not satisfied her

burden on summary judgment of establishing that no question of fact
existed as to either separate occurrences or entitlement to the
enhanced cap on statutory damages under § 55-7B-8(b).
The case then proceeded to trial, beginning July 2, 2013, and
concluding the following day.

Dawson testified on her own behalf,

and called Dr. McKinney, Ashley Dawson (her daughter), and Drs.
Stanley

Zaslau

(WVU

urologist),

Hannah

Hazard

(WVU

general

surgeon), and Ronald Hrebinko (“Dr. Hrebinko”) (urology expert) as
witnesses.

The Government called Maryann Pancake (“Ms. Pancake”),

Wade’s social worker at the CLC, and Drs. Lora Westfall (“Dr.
Westfall”) (internist at the Clarksburg VA), Clyde Moxley (“Dr.
Moxley”), Wade’s treating physician prior to his death, and John
Lyne (“Dr. Lyne”) (urology expert) as witnesses. The evidence
focused on questions regarding the following three elements of
Dawson’s medical negligence claim:
A.

Whether Dr. McKinney breached the applicable standard of
care

by

(1)

negligently

3

recommending

a

radical

DAWSON V. USA

1:11CV114

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

with

ileal

conduit,

and

(2)

abandoning Wade post-operatively;
B.

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

C.

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

B. Factual Background2
Born in 1935, Wade spent several years in the military and
then worked as a maintenance worker at West Virginia University
(“WVU”) until his retirement in 1995.

In 1996, he was united with

Dawson, a daughter he had not known existed.

(Dkt. No. 80 at 14).

Over the next decade, Wade developed a close relationship with
Dawson and her children.

Trial Tr. 25:12-14.

2

This subsection contains a general overview of the facts of the
case in order to provide relevant context.
More specific factual
findings are included within the analysis of each element of the medical
negligence claim.

4

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
In 2005, Wade began treatment for bladder cancer at the
Clarksburg

VA

under

the

care

of

Mataban”).3

When Dr. Mataban retired in February 2006, Dr. Douglas

McKinney took over Wade’s care.

Dr.

Antonio

Id. at 80:8-12.

Mataban

(“Dr.

After further

treatment and testing, in August 2007, Dr. McKinney recommended
that

Wade

undergo

a

surgical

procedure

known

as

a

radical

cystoprostatectomy with ileal conduit, which involves the removal
of the bladder and the construction of a conduit through which
urine is expelled.

Id. at 82:16-24.

The conduit is formed by

removing a portion of the ileum, connecting one end to the ureters,
protruding the other end through an ostomy in the abdominal wall,
and forming the externalized portion into a stoma, an opening in
the abdomen to allow for the excretion of bodily waste.

The

patient’s urine is expelled through the stoma into a plastic bag.
Id. at 84:9-20.
October 1, 2007.

Dr. McKinney performed the operation on Monday,
Id. at 92:10-12.

Following the surgery, Wade’s condition began to deteriorate
on the first post-operative day. Dr. McKinney consulted with Dr.
Lora Westfall, an internist, and Dr. Kashif Khan (“Dr. Khan”), a

3

Having served two terms in the United States Navy between 1952 and
1957, Wade was entitled to VA medical services.

5

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1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
nephrologist, regarding Wade’s clinical status. Id. at 97:16-19,
100:12-14. Wade’s condition continued to deteriorate until, on
Saturday, October 7, 2007, the sixth post-operative day, Dr. Khan
determined that Wade was in danger of dying and arranged to
transfer him to WVU Ruby Memorial Hospital (“Ruby”) in Morgantown,
West Virginia. Because Dr. McKinney did not respond to a page from
Dr. Khan, he did not participate in the decision to transfer Wade.
After assessing Wade’s condition, which Dr. Hrebinko called an
“abdominal catastrophe”, id. at 306:19, Dr. Zaslau, a urologist at
Ruby, took Wade into surgery in the early morning of Sunday,
October 8, 2014, where he resected the ileal conduit constructed by
Dr. McKinney, and attached a new one.

During the operation, Dr.

Zaslau also realized that the section of Wade’s small bowel from
which Dr. McKinney had removed a portion of the ileum was dead. To
assist with the excision of the non-viable portion of the bowel,
Dr. Zaslau called in Dr. Hazard, a general surgeon, who created an
ileostomy that allowed Wade to expel feces externally through a
stoma.

Following this surgery, Wade was sent to Ruby’s intensive

care unit.

Id. at 189:20-21.

Wade remained at Ruby from October 7, 2007, until February 7,
2008, when he was transferred to the Clarksburg VA. Four days

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DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
later, on February 11, 2008, he was admitted to the Community
Living Center (the “CLC”) of the Clarksburg VA, where he received
rehabilitation and wound care. Ultimately, he remained at the CLC
until he died on November 5, 2009.

Id. at 404:16.

His certificate

of death listed “end stage COPD” and “failure to thrive” as the
immediate causes of death.

(Dkt. No. 47 at 2).
II. BREACH

A.

Legal Standard
“While the identification of the applicable standard of care

in a medical malpractice action is a question of law, the ultimate
determination of whether a party deviated from the standard of care
and was therefore negligent is a question of fact.”

Amy G. Gore,

et al., 61 Am. Jur. 2d Physicians, Surgeons, Etc. § 334 (2013).
In West Virginia, in a case alleging medical negligence, the
MPLA requires a plaintiff to prove by a preponderance of the
evidence that “[t]he health care provider failed to exercise that
degree of care, skill and learning required or expected of a
reasonable, prudent health care provider in the profession or class
to which the health care provider belongs acting in the same or
similar circumstances.” § 55-7B-3(a)(1). The general rule in West
Virginia is that a plaintiff must establish the standard of care
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DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
and its breach to a reasonable medical probability through expert
testimony.

See Goundry v. Wetzel-Saffle, 568 S.E. 2d 5, 8 (W. Va.

2002); see also § 55-7B-7(a).
B.

Findings of Fact
At trial, Dawson presented the testimony of Dr. Hrebinko, an

expert in urology.

(Trial Tr. 256:9-11). Dr. Hrebinko’s testimony

encompassed the standard of care applicable to Dr. McKinney’s
decision to perform a cystoprostatectomy with ileal conduit, as
well as his post-operative responsibilities to his patient. Id. at
433:21-435:11.

Dawson

argues

that

Dr.

McKinney

applicable standard of care in both instances.

Id.

breached

the

Dr. Lyne, the

United States’ expert, disagreed with Dr. Hrebinko, opining that
the cystoprostactectomy with ileal conduit was appropriate under
the circumstances.
1. First Occurrence: The Cystoprostactectomy & Ileal Conduit
Dr.

McKinney

assumed

responsibility

for

Wade’s

care

and

treatment in February 2006, following a referral from Dr. Mataban,
who had been treating Wade for bladder cancer by administering
immunotherapy in the form of Bacillus Calmette-Guerin (“BCG”).
(Trial Tr. 80:8-18). Although the BCG had cured several obvious
areas of Wade’s cancer, bladder washings ordered by Dr. McKinney
8

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
still returned positive cytologies, a fact that worried both Wade
and Dr. McKinney.

Id. at 81:5-9.

The positive cytologies alone, however, did not reveal where
the malignant cells were located, whether in the bladder or some
other component of the urinary system.
McKinney

therefore

performed

Id. at 257:5-260:25. Dr.

biopsies

of

Wade’s

bladder

determine whether it was the source of the cancerous cells.
tests were all negative.

Id. at 81:23-82:3.

to

Those

At that point, Dr.

McKinney did not biopsy the ureters or urethra, other potential
sources of the cancer.

Id. at 82:4-12.

Rather, without first

confirming whether Wade’s bladder was in fact the source of the
positive cytologies, he recommended removing Wade’s bladder through
a radical cystoprostactectomy.
The

plaintiff’s

expert,

Id. at 82:13-24.
Dr.

Hrebinko,

opined

that

“the

absolute indication for cystectomy was lacking,” and that positive
cytologies alone are “not a reason to take out someone’s bladder.”
Id.

at

257:5-15.

He

testified

that,

before

recommending

the

cystoprostactectomy, “standard practice” required Dr. McKinney to
“sample the prostatic urethra,” and perform a “retrograde pyelogram
to make sure there’s no tumor upstream.”

Id. at 263:6-264:5.

Moreover, without first determining that the bladder is cancerous,

9

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Dr. Hrebinko stated that a patient could undergo a needless,
complicated surgery to remove a healthy bladder, and still have
cancer.

Id. at 276:9-18.

Relying on his medical experience, Dr. McKinney determined
that Wade’s bladder likely was the source of the cancerous cells
and needed to be removed.

Id. at 10:14-17.

Although unknown to

Dr. McKinney at the time he operated on Wade, the pathology report
following

surgery

did

identify

the

dome

of

the

bladder

as

containing urothelial cell carcinoma in situ in the form of a
lesion measuring 0.8 x 0.6 centimeters.

(J. Ex. 5 at 3827-28. )

Given this pathology, Dr. Hrebinko could not opine at trial that
recommending and performing a cystoprostactectomy breached the
standard of care.

(Trial Tr. 330:15-332:18.)

He explained that,

although the cystoprostactectomy was not the preferable option,
“falling below the standard of care would be a little too much to
say.”

Id. at 332:10-18, 327:15-17.

Nevertheless, Dawson contends that Dr. McKinney also breached
the applicable standard of care when he constructed an ileal
conduit without considering the possibility of a neobladder.

A

neobladder is a “[s]urgically constructed (usually using stomach or
intestine) replacement for urinary bladder.”

10

Stedman’s Medical

DAWSON V. USA

1:11CV114

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

(28th

ed.

2006)

[hereinafter

Stedman’s].

Many

urologists find it preferable to the ileal conduit because it
allows patients to maintain the ability to urinate naturally,
rather than through a stoma and into a collection bag, and the
complication rate is lower than with an ileal conduit.

(Trial Tr.

282:7-284:21.)
According to Dr. Lyne, however, the neobladder requires more
operating time than the ileal conduit, as well as a patient who is
willing to catheterize himself.

Id. at 416:18-417:12.

Moreover,

patients like Wade, with a history of carcinoma in situ, are not
good candidates for the neobladder.

Id.

As Dr. Lyne testified:

“When you do a neobladder you’re actually leaving more tissue
behind then [sic] was the case with this surgery [the ileal
conduit] and if you have a recurrence where the neobladder is now
affixed to the urethra, it’s a disaster.”

Id.

Because of this,

Dr. Lyne concluded that Wade was not a good candidate for the
neobladder.
Dr.

Id. at 417:13-19.

Hrebinko

testified

that

the

“[i]leal

conduit

is

an

accepted means of diverting the urine but for a fairly healthy 70
year-old

man

neobladder.”

I

would

definitely

(Trial Tr. 278:2-4.)

11

offer

him

an

orthotopic

Dr. McKinney disagreed and

DAWSON V. USA

1:11CV114

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

that,

given

Wade’s

age

and

COPD,

as

well

as

the

additional time the neobladder would have taken, the ileal conduit
was the better alternative.

Id. at 89:21-91:3.

with Dr. McKinney’s assessment.

Dr. Lyne agreed

Id. at 416:18-417:12.

2. Second Occurrence: Post-Operative Care
Dr. Hrebinko also testified that, to meet the standard of care
following a cystoprostactectomy, a urologist must visit the patient
once or twice a day. (Trial Tr. 300:17-25, 451:8-10.) Dr. McKinney
operated on Wade on October 1, 2007, and testified that he visited
Wade “every day” before Wade was transferred to Ruby. Id. at
136:21-23.
The evidence presented at trial establishes that Dr. McKinney
did perform his rounds on October 2 and 3 – the first two postoperative days following Wade’s surgery on October 1st. (Pl.’s Ex.
6 at 5663, 5653.) However, Wade’s medical record contains no notes
by Dr. McKinney after October 3. (Trial Tr. 108:9-10, 113:3-5,
136:24-137:1, 244:10-12.)

Although the lack of notes is not

dispositive of whether Dr. McKinney saw Wade and evaluated his
post-operative status on October 3 and thereafter, it raises a
significant doubt for a finder of fact as to whether Dr. McKinney
actually saw his patient on those days.
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1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Dr. McKinney conceded that he should have made notes to
document his visits, but claims that he did not want to “clutter
up” the patient chart.

Id. at 113:7-10. Indeed, making notes

following rounds is not considered clutter but rather standard
practice for attending physicians. Id. 244:13-15 (showing that Dr.
Westfall made notes every day), 304:5-12 (explaining that, even if
residents make the notes for the doctors, the notes are in the
medical records every day).

Thus, Dr. McKinney’s failure to note

his visits to Wade, and to document what he actually observed
regarding

his

patient’s

clinical

condition,

significantly

undermines his credibility overall, particularly regarding the
accuracy of his recollection of Wade’s clinical status.4
Dr. McKinney’s credibility is particularly dubious regarding
events that occurred on the third post-operative day, October 4th.
Early that morning, at 6:40 a.m., a nurse attending Wade called Dr.
McKinney to notify him that his patient’s oxygen saturations had
dropped.

(Pl.’s Ex. 6 at 5647; Trial Tr. 107:14-17.) Dr. McKinney

did not answer her call, nor did he call back, even after the nurse

4

As has often been observed regarding the state of the
medical record in a professional negligence case, “if it isn’t
documented, it didn’t happen.”
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MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
left him a voice mail. (Pl.’s Ex. 6 at 5647; Trial Tr. 107:20108:2.) On direct examination, Dr. McKinney explained that he did
not answer the nurse’s call at 6:40 a.m. because he rounded between
7:00 and 7:30 a.m. (Trial Tr. 107:24-108:8.) This testimony raises
more questions then it answers, however, including why the nurse
would have called Dr. McKinney in the first place had she been
aware that he regularly rounded at 7:00 a.m., and would be arriving
within twenty minutes.

It also raises the question how Dr.

McKinney could have failed to document his visit to Wade, and his
assessment of Wade’s status, after receiving a call from the
attending nurse concerning Wade’s deteriorating clinical condition.
Dr. Westfall testified that she saw Dr. McKinney at the
Clarksburg VA on the fourth post-operative day, October 5th, and
that they discussed Wade’s condition at that time.
22.

Id. at 237:15-

She further testified that she saw Dr. McKinney walk into

Wade’s room, although she did not know what happened beyond that.
Id. at 238:4-5.
Other than Dr. McKinney’s undocumented recollection, there is
no evidence in the record whatsoever that he saw Wade again prior
to Wade’s transfer to Ruby on October 7th. On the fifth postoperative day, Saturday, October 6, at 8:13 a.m., when Wade’s

14

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1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
physical status had deteriorated dramatically, Dr. Khan noted that
he would “call Urology today,” indicating he had not yet seen Dr.
McKinney, who, as the attending urologist, should have rounded
between 7:00 and 7:30 a.m.

(Pl.’s Ex. 6 at 5619.) Dr. Khan

eventually

to

placed

the

call

Dr.

McKinney

at

12:32

p.m.,

suggesting strongly that he had expected to see, but had not yet
seen, Dr. McKinney.

Id. at 5620.

He received no response. Id. On

Sunday, October 7, at 11:11 a.m., Dr. Khan noted that he had paged
Dr. McKinney again, because McKinney had not seen Wade. Id. at
5612. Furthermore, Dr. Santosh Shenoy, the staff surgeon, was
called upon to check on Wade because the ICU “cannot contact the
urologist.”

Id. at 5610.

Even assuming that he rounded every day, as Dr. McKinney
claims, as

the

attending

physician

he

was

obligated

to

take

appropriate action in response to Wade’s worsening condition,
including clinical indications that Wade was septic. On the first
post-operative day, Tuesday, October 2nd, one of the nurses noted
“possible urine tinged drainage from ileoconduit.” (Pl.’s Ex. 6 at
5668.) Significantly, the nurses’ notes continued to document urine
leakage every day until Wade was transferred. Id. at 5656 (October
3), 5647 (October 4), 5631 (October 5), and 5617 (October 6).

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MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Significantly, on October 2, Dr. McKinney also confirmed that the
“[d]rainage through wound is urine.”

Id. at 5663.

As Dr. Hrebinko explained, “urine leaking is a big problem”
because it enters the abdominal cavity, and “sepsis is bound to
happen if you have that ongoing for any period of time.”

(Trial

Tr. 290:19-291:9.) Moreover, “the wound will break down and you’ll
have a dehiscence of the wound where the muscle fascia that keeps
the wound together will break open.”

Id. at 291:14-16.

According

to Dr. Hrebinko, the applicable standard of care for urine leakage
following a cystoprostactectomy required Dr. McKinney to “take the
patient back to the operating room” on post-operative day one to
“find out why it’s leaking,” and “fix it so it won’t leak anymore.”
Id. at 292:9-20.
Additionally, Wade’s white blood cell count (“WBC”) rose to
concerning

levels.

While

Dr.

Hrebinko

acknowledged

that

a

patient’s WBC is often elevated after surgery, he testified that,
typically, it does not rise above 15 to 20 thousand. (Trial Tr.
293:24-294:6.) Although not an expert witness, Dr. Zaslau, the
attending urologist at WVU who operated on Wade, testified that a
patient’s WBC should be less than 12,000. (Trial Tr. 149:10-12.)
The nurses’ notes recorded Wade’s WBC as 21.7 on October 2, the

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MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
first post-operative day, when they also noted the urine tinged
drainage from the ileoconduit. (Pl.’s Ex. 6 at 5673.) On October 3,
they recorded his WBC as 25.9, and noted that it had taken a
“marked left shift.” Id. at 5653-54. Following the administration
of antibiotics by Dr. Westfall, a decision with which Dr. McKinney
disagreed, id. at 231:4-7, on Thursday, October 4, the third postoperative day, the nurses

recorded Wade’s WBC as 15.8, id. at

5639; 17.9 on October 5, the fourth post-operative day, id. at
5625; and 23.0 on October 6, the fifth post-operative day (Dkt. No.
90-1).5

Dr.

Hrebinko

testified

that

the

combination

of

the

elevated WBC, especially on the first and second post-operative
days, with documented urine leakage, should have prompted Dr.
McKinney to return to the operating room with Wade to correct the
problem.

Id. 295:10-11.

Wade also experienced elevated potassium, or hyperkalemia, and
elevated creatinine levels following his surgery. The medical
records document a potassium level of 7.1 on Tuesday, October 2,
the first post-operative day. (Pl.’s Ex. 6 at 5673).
admitted that this level of potassium was concerning.

5

Dr. McKinney
(Trial Tr.

According to Dr. Zaslau’s testimony, Wade had a WBC of 40 prior
to the reconstruction of his ileal conduit at Ruby. Trial Tr. 149:1-3.

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MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
96:8-11).

Moreover, Wade’s level of creatinine increased from a

baseline level of 1.2 to 2.5 on Tuesday, October 2, and to 3.9 on
Wednesday, October 3. Id. at 104:7-11. These elevated levels were
further clinical indications that urine was leaking into Wade’s
abdominal cavity.

Id. at 299:23-25.

Dr. Hrebinko explained that Dr. McKinney’s knowledge of the
urine

leakage,

together

with

Wade’s

worsening

clinical

presentation, including the elevated WBC with a marked left shift,
and elevated potassium and creatinine levels, should have provoked
Dr. McKinney to surgically explore Wade’s abdomen to determine
whether a leak existed.

Id. 300:1-7.

Although Dr. Lyne did not address this issue in his testimony,
Dr. McKinney testified that he “did not think that it was from
urine leakage causing those tinges so [he] was not that concerned
because that can happen.”

Id. at 111:10-12.

The Court, however,

does not credit Dr. McKinney’s testimony in this regard in the face
of the strong clinical evidence that urine was leaking into his
patient’s abdominal cavity, and that Wade was displaying increasing
symptoms of sepsis, a situation that so alarmed his consulting
physicians

they

transferred

Wade

emergency corrective surgery.

18

to

Ruby

where

he

underwent

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
C. Conclusions of Law
1. First Occurrence: The Cystoprostactectomy & Ileal Conduit
With regard to Dr. McKinney’s recommendation that Wade undergo
a cystoprostactectomy, Dr. Hrebinko stated that, in light of the
pathology report’s later determination of the presence of cancer in
the

dome

of

the

bladder,

he

could

not

say

that

recommendation breached the applicable standard of care.

such

a

However,

he and Dr. Lyne expressed contradictory opinions as to whether Dr.
McKinney breached the applicable standard of care by routing Wade’s
urinary tract through an ileal conduit, rather than by constructing
a neobladder.
“[W]here there is more than one method of medical treatment
accepted and applied by average physicians similarly situated, the
physician may take into account the particular circumstances of
each

case

and

may

exercise

his

honest

and

best

judgment

selecting a course of treatment for individual patients.”

in

Bellomy

v. United States, 888 F. Supp. 760, 765-66 (S.D.W. Va. 1995); see
also Moats v. United States, No. 3:06CV120, 2008 WL 8872727, *9
(N.D.W. Va., Mar. 19, 2008) (citing Yates v. University of W. Va.
Bd. of Trustees, 549 S.E.2d 681 (2001)).

Dr. Hrebinko testified

that the ileal conduit is an accepted means of medical treatment,
19

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
although he did not prefer it for Wade.

(Trial Tr. 332:14-15).

Furthermore, Dr. McKinney offered a reasonable explanation that, in
his opinion, the ileal conduit was a better alternative than the
neobladder for a patient with Wade’s medical history.
89:21-90:5.

Id. at

The Court therefore concludes that the evidence does

not preponderate that Dr. McKinney breached the applicable standard
of care by recommending the cystoprostactectomy, or by constructing
an ileal conduit instead of a neobladder.
2. Second Occurrence: Post-Operative Care
As to the plaintiff’s allegation that Dr. McKinney breached
the applicable standard of care regarding Wade’s post-operative
care, the evidence preponderates that Dr. McKinney’s post-operative
care of Wade did breach the applicable standard of care. Based on
Dr. Hrebinko’s undisputed testimony, the Court concludes that the
degree of care, skill and learning required or expected of a
reasonably

prudent

urologist

acting

in

the

same

or

similar

circumstances as Dr. McKinney is to visit a patient every day after
performing a radical cystoprostactectomy with ileal conduit, until
it becomes clear that any issues and complications are resolved.
See § 55-7B-3(a)(1). The Court finds as a fact that Dr. McKinney
did not round on Wade every day between Monday, October 1st, the
20

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
date of the initial surgery, and Wade’s transfer to Ruby on Sunday,
October 7th, and concludes as a matter of law that his failure to
do so breached the applicable standard of care for an attending
urologist.
Moreover, even assuming that Dr. McKinney did round every day,
Dr. Hrebinko’s testimony established by a preponderance of the
evidence that the degree of care, skill and learning required or
expected of a reasonably prudent urologist acting in the same or
similar circumstances as Dr. McKinney is to take the patient back
to the operating room on post-operative day one or two to fix a
suspected urine leak.
that,

because

Dr.

(Trial Tr. 292:9-20).

McKinney

did

not

The Court concludes

intervene

to

surgically

investigate the cause of Wade’s urine leakage within the first two
post-operative days following Wade’s surgery, he breached the
applicable standard of care.
Because the Court has found that Dr. McKinney breached the
applicable standard of care in the post-operative care he rendered
to Wade, but not in recommending that Wade undergo a radical
cystoprostactectomy with ileal conduit, it concludes as a matter of
law that the United States is liable for one “occurrence” of
professional negligence under the MPLA.

21

See § 55-7B-8(b).

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
III. PROXIMATE CAUSE
A.

Legal Standard
The MPLA requires plaintiffs to prove to a reasonable medical

probability that a health care provider breached the applicable
standard of care, and that such breach was the proximate cause of
the plaintiffs’ injury.

See § 55-7B-3(a)(2).

The West Virginia

Supreme Court of Appeals has interpreted “proximate cause” as
“‘that cause which in actual sequence, unbroken by any independent
cause, produced the wrong complained of, without which the wrong
would not have occurred.’”

Mays v. Chang, 579 S.E.2d 561, 565 (W.

Va. 2003) (quoting Syl. Pt. 3, Web v. Sessler, 63 S.E.2d 65 (W. Va.
1950)).
Here, Dawson has claimed that Dr. McKinney’s breach of the
applicable post-operative standard of care proximately caused the
loss of Wade’s digestive system and a permanent and substantial
physical deformity in the form of scarring and an ostomy bag, both
resulting in significant pain, suffering, and distress to Wade. If
Dawson can prove that her father suffered either the loss of his
digestive

system,6

or

a

permanent

6

and

substantial

physical

In its June 20, 2013 memorandum opinion on summary judgment, the
Court, relying on Stedman’s, explained that the digestive system is a
bodily organ system within the meaning of the statute, and that it

22

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
deformity, and that Dr. McKinney’s breach proximately caused either
of them, she is entitled to recover damages up to the statutory
maximum amount provided in § 55-7B-8(b) for her father’s resulting
non-economic losses.

Dawson alleges that these losses include

pain, suffering, and mental distress.
B. Findings of Fact
Within hours of Wade’s transfer to Ruby, Dr. Zaslau resected
the

defective

ileal

conduit

constructed

reconstructed and connected a new one.

by

Dr.

McKinney

and

(J. Ex. 11 at ANK336.)

When he opened Wade’s abdomen, Dr. Zaslau also discovered that a
part of Wade’s bowel was “nonviable,” id. at ANK337, (Trial Tr.
158:3-6), and that there was “frank perforation at the ileo-ileal
anastomosis with free stool contamination.”

(J. Ex. 15 at ANK338;

(Trial Tr. 156:18-24.) At that point, he called in Dr. Hazard to
address and correct these life-threatening bowel complications. (J.
Ex. 15 at ANK338; Trial Tr. 155:5-14.)

encompasses “the digestive tract from the mouth to the anus with all its
associated glands and organs.”
(Dkt. No. 58).
On summary judgment,
Dawson argued that Wade had “lost the ability to absorb vitamins taken
orally, lost the ability to regulate the recirculation of water within
his body and lost the ability to excrete solid waste from his body
through his colon.” (Dkt. No. 51). The United States, on the other
hand, argued that “Wade’s intestinal tract continued to function until
his death as he was able to ingest nutrients and eliminate waste.” (Dkt.
No. 47). (Dkt. No. 58).

23

DAWSON V. USA

1:11CV114

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

Hazard

testified

that,

after

resecting

the

necrotic

portion of Wade’s bowel, she needed to maintain the continuity and
integrity of the gastrointestinal tract, from the mouth to the
anus, by reconnecting the bowel.
However,

reconnecting

the

bowel

Id. at 194:17-18, 195:4-6.
through

anastomosis

is

not

advisable when there is “extensive intra-abdominal contamination”
from

stool,

contents.”

as

well

as

“inflammation

Id. at 195:6-25.

of

the

intra-abdominal

Such circumstances create a dilation

of the bowel wall, or edema, and a shortening of the mesentery, or
blood supply to the bowel.

Id. at 195:10-12.

This, in turn,

creates tension on the two segments of bowel and is likely to
result in an intra-abdominal enteric leak.

Id. at 195:12-15.

Based on her concerns with anastomosis, Dr. Hazard decided to
externalize Wade’s GI tract through an ileostomy.
18, 185:1-5, 159:4-15.

Id. at 195:16-

As she explained, “the externalization of

the GI tract is your rectum and anus.”

Id. at 194:15-16.

Thus,

the purpose of the ileostomy was to remove the “enteric contents to
the outside world.”

Id. at 196:17-20.

However, its other purpose

was “to provide nutrition through the GI tract.” Id. at 194:20-22.
To this end, several days after performing the ileostomy, Dr.
Hazard returned to the operating room to insert a gastrostomy tube

24

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
(“G-tube”) through Wade’s esophagus and into his stomach.

Id. at

193:14-23; (J. Ex. 18 at ANK1072.) This G-tube served a dual
function “as a source of nutrition” and “as a draining apparatus”
for the stomach.

Id. at 196:23-197:2.

It was not removed until

nearly nine months later, on June 30, 2008, when Wade first was
able to resume eating by mouth.

Id. at 201:14-17; (J. Ex. 19 at

ANK275.) Wade, however, was never able to resume normal bowel
function, and continued to excrete feces through the ileostomy and
stoma into a plastic bag for the remainder of his life.

(J. Ex. 22

at 4009.)
The

testimony

elicited

at

trial

provides

minimal

expert

guidance as to whether Wade suffered the loss of his digestive
system.

Neither party called a gastrointerologist to provide

expert testimony on this issue.

Thus, the Court had the benefit of

only Dr. Hrebinko’s testimony, who equivocated on how much of the
digestive system Wade had lost, finally concluding that it was at
least half of the system.

The following exchange took place on

redirect examination:
Q. Go ahead and put up the digestive system. And also,
although it’s not your area of expertise, it is an area
that you deal with because they’re all adjacent, do you
consider the digestive system, with the intestines and
the stomach a separate system from the urinary system?

25

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
A. Yes.
Q. Okay. And based on what happened here with the –with the creation of the ileostomy rather than the use of
the colon, would you consider that the loss of the
digestive system?
A. The loss of part of it. The loss of the ability to
defecate and the loss of the rectum and anus. In fact,
the whole colon since he had an ileostomy and not a
colostomy.
Q. And a very shortened ileum –A. Right.
Q. Correct? Is that enough for this to be considered a
loss of the system?
A. I would think so.
(Trial Tr. 336:4-21.) (Emphasis added).
On recross, however, Dr. Hrebinko walked that opinion back,
and seemed to confirm that Wade had lost the use of only part of
his digestive system:
Q. Thank you.
And with regard to the intestine –intestine system, I think you said he lost the function
of part of it, is that right?
A. Yes.
Q. But he could still consume nutrients and eliminate
waste, so he did not lose the entire system, did he?
A. No. He lost the ability to store the stool, but he
still was able to excrete it.
...
26

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Q. Would it be fair to say to lose a system –- a bodily
organ system, you’d have to lose the function of that
system; the function being in the urinary system to expel
urine from the body and the function being in the
intestinal system, to eliminate waste, is that right?
A. Well one of the functions, the other function is at
least half of that is to be able to store the urine and
the stool and so that is completely gone.
Those two
functions would be gone.
But, yeah, the ability to
excrete those –- urine and stool would still be there.
Id. at 337:23-338:5, 339:19-340:3 (emphasis added).
C. Conclusions of Law
Few states tether an increased cap on non-economic damages to
the

“loss

of

a

bodily

organ

system,”

legislature has done in the MPLA.

as

the

West

Virginia

See also Ohio Rev. Code Ann. §

2315.18(B)(3)(a). For this reason, case law applying the phrase is
limited. But see MacDonald v. City Hosp., Inc., 715 S.E.2d 405 (W.
Va. 2011); Williams v. Bausch & Lomb Co., No. 2:08CV910, 2010 WL
2521753 (S.D. Ohio, June 22, 2010).

Nevertheless, this Court

remains unpersuaded by Dr. Hrebinko’s testimony that Wade suffered
a loss of something more than “part of” his digestive system.

As

such, the evidence does not preponderate that Dawson is entitled to
the increased amount of damages under that clause of the MPLA.
Under a preceding clause of the same statute, however, Dawson
may recover increased damages if Wade suffered a “permanent and
27

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
substantial physical deformity.”

§ 55-7B-8(b)(2).

Stedman’s

defines “deformity” as a “permanent structural deviation from the
normal shape, size, or alignment, resulting in disfigurement.”

As

one court has noted, whether an injury qualifies as a deformity
under the MPLA is a question of fact.

See Wilson v. United States,

375 F. Sup. 2d 467, 471 n.5.
Dr. Hazard testified that the purpose of an ileostomy is “to
allow for externalization of the GI tract,” i.e., “your rectum and
anus.”

Trial Tr. 194:14-16.

One need not be a medical doctor to

understand that externalizing one’s rectum and anus, and moving
those organs to the side of one’s abdomen, results in a realignment
of the digestive tract and a disfigurement to the body. Moreover,
this disfigurement was permanent; Dr. Hazard testified that the
ileostomy was not reversible due to “a pretty significant increased
risk

of

postoperative

complications.”

Id.

at

198:13-199:4.

Finally, the ileostomy also resulted in the permanent fixture of a
plastic bag attached to the stoma protruding from Wade’s abdomen.
The bag was often filled with Wade’s own feces.
Having

determined

that

Wade

suffered

a

Id. at 59:18.
substantial

and

permanent physical deformity as a consequence of the ileostomy, the
Court next must determine whether Dr. McKinney’s negligent failure

28

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
to correct Wade’s negligent post-operative care proximately caused
the need for the ileostomy. As Dr. Hazard explained, the ileostomy
was necessary due to “inflammation of the intra-abdominal contents”
(i.e., “contamination of stool”), “dilation of the bowel wall,” and
“shortening of the mesentery.” Trial Tr. 195:3-25. Dr. Hrebinko’s
testimony established to a reasonable medical probability that
these problems were avoidable.
Q. [A]re you saying there may have been a perforation of
the bowel during surgery?
A. . . . [W]hen you monkey around with that mesentery you
have to make absolutely certain at [sic] all those
intestinal segments still have an appropriate blood
supply and if they don’t, you have to correct it then.
You can’t let the patient go without correcting that
because you will have dead bowel eventually.
. . .
Q. So then are you saying that had he taken him back, as
you think he should have anyway, with regard to the ileal
conduit, the –- the leak –- the urine leakage, he would
have discovered this?
A. I think so. Especially with the description of the
stoma being, you know, purple or deep red that –- that
makes it very likely that the intestinal segment or
segments were ischemic very early on.7

7

Dr. McKinney disagreed with Dr. Hrebinko’s testimony that,
following an ileal conduit procedure, the stoma should be pink rather
than purple or dark red, which would indicate an ischemic intestine.
Instead, Dr. McKinney testified that the stoma being dark red is “what
you would expect of a normal stoma six days after surgery.” Trial Tr.

29

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
. . .
Q. Although the ischemic injury with the blood supply
occurred during surgery, the longer that bowel goes
without appropriate nourishment, the worse the injury?
A. Yes. When you have a piece of dead intestine that, in
and of itself, immediately if it’s recognized and
replaced causes no harm but as it is allowed to go on
further and further that piece of intestine dies and then
it can perforate because the integrity of the intestine
just falls apart and your start having holes in the
intestine and in the anastomosis and stool leakage.
Id. at 311:3-313:8 (emphasis added).
This testimony establishes that, had Dr. McKinney taken Wade
back into surgery on the first or second post-operative day, see
id.

at

292:9-18,

he

could

have

reanastomosis without complication.

reconnected

the

bowel

via

Instead, the necrotic portion

of Wade’s bowel deteriorated for at least four additional days
causing bowel perforation and stool leakage, which required Dr.
Hazard to resect a larger portion of the bowel, thereby shortening
the

mesentery

and

precluding

reanastomosis.

As

Dr.

Zaslau

explained, “now we have to take new ileum and also had some –- some
bowel resection work as well so [Wade] has quite a shortening of

115:7-8. Dr. Zaslau, however, confirmed Dr. Hrebinko’s understanding of
the stoma color by testifying that a stoma’s dark red or purple color
“may suggest that there is some ischemia to it.” Id. at 153:20-21. The
evidence preponderates that, at a minimum, Dr. McKinney was required to
investigate this clinical development, which he did not do.

30

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
his intestine.”

Id. at 156:5-7.

Because reanastomosis of the

bowel was not possible on October 8, Dr. Hazard had to perform the
ileostomy, which resulted in a permanent ostomy bag.
Based

on

preclusion

of

this

evidence,

reanastomosis

the

of

Court

concludes

that

bowel

due

shortened

the

to

a

the

mesentery was reasonably foreseeable given Wade’s urine leakage and
dark red stoma, as well as his well-documented deteriorating
clinical presentation.

See Syl. Pt. 3, Hartley v. Cede, 82 S.E.2d

672, 674 (W. Va. 1954) (“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.”).
Therefore,

the

Court

concludes

as

a

matter

of

law

that

Dr.

McKinney’s post-operative abandonment proximately caused the need
for the ileostomy and thus Wade’s substantial deformity.
IV. DAMAGES
A.

Legal Standard
Under § 55-7B-8(b), the plaintiff may recover compensatory

damages up to $500,000 “where the damages for noneconomic losses
suffered by the plaintiff were for . . . permanent and substantial
physical deformity.”

Dawson seeks non-economic losses for Wade’s

pain, suffering, and emotional distress.
31

Thus, the Court must

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
assign a monetary value up to the statutory maximum for the pain,
suffering, and distress attributable to Wade’s second surgery and
substantial permanent deformity. In so doing, it must distinguish
such losses from those attributable to other sources, such as
Wade’s COPD.

At trial, Dawson focused primarily on the pain and

suffering Wade endured at Ruby and the CLC associated with his
ileostomy, and the collection bags, as well as his overall distress
and discomfort and loss of independence.
B.

Findings of Fact
Dr. Hazard explained in her notes following Wade’s surgery on

October 8, 2007, that “[d]ue to the shortening of the mesentery, an
ileostomy

was

created

on

the

conduit.”

J. Ex. 15 at ANK339.

ipsilateral

side

to

the

ileal

Because both the ileal conduit and

the ileostomy were constructed on the same side of Wade’s body, the
stomas were in close proximity, see (J. Ex. 22 at 4459); (Pl.’s Ex.
2), which caused complications with the collection bags.

These

would overlap and stick to each other such that, if one detached,
it would pull off the other. (Trial Tr. 61:6-12, 13:21-22.)
Dawson testified that the nurses at Ruby had devised a way “to
keep appliances on for at least maybe 24 hours.”

Id. at 55:18-20.

After Wade returned to the Clarksburg VA, and entered the CLC in
32

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
February, 2008, however, his ostomy bags frequently became detached
from his abdomen, which caused feces and urine to leak over his
wounds. Id. at 59:13-15; (J. Ex. 22 at 5445) (“Multiple ostomies continue to be a problem with bags.”). Dawson testified that
cleaning

him

up

surrounding skin.

would

cause

excoriation8

of

the

stomas

and

(Trial Tr. 59:13-15; Pl.’s Ex. 2; J. Ex. 22 at

4358) (“Pt. abd, sheets, and bed pad covered in stool. . . .
Umbilicus is so excoriated it is a burgundy color and bleeding.”);
(Trial Tr. 363:22-363:2.)

She further testified that,

[w]hen he had stool and urine on his body like that, he
would be in so much pain that he would actually cry out.
Just taking wet gauze to wipe it and clean it off caused
great deal of pain and at times they would have to give
him some medication to try and ease the pain but they
weren’t able to completely get rid of the pain while they
were trying to take care of this.
Id. at 61:23-62:4. In addition to falling off, the collection bags
would sometimes stick to Wade’s ostomy wounds, and peeling them off
resulted in painful irritation to the ostomy sites.

Id. at 60:17-

23; J. Ex. 22 at 4688 (“[C]hronic irritation from osteomy [sic]
sites.”).

8

“Excoriation” is defined as “a linear break in the skin
surface, usually covered with blood or serous crusts.” Stedman’s.
33

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
In April, 2009, nearly fourteen (14) months after he became a
resident on the CLC, the nurses noted that Wade had begun to change
his ostomy bags, and to care for his wounds himself. See (J. Ex. at
4334) (“[P]t refuses to have appliances applied. [U]sing 4x4's and
pad over stomas. [U]sing brief to hold in place.”); id. at 4327
(“[P]t cont to refuse appliances and is using 4x4's with with [sic]
pads and brief.”).

Dr. Moxley, Wade’s attending physician on the

CLC, testified that once Wade began “taking care of these things
himself,” “most of that pain later on, okay, I hate to say it, but
a lot of it was self-inflicted,” because “when the ostomy bags
would leak he wouldn’t always immediately call for a nurse.”
(Trial Tr. 363:20-21; 399:13-18, 358:23-359:5.)Despite Dr. Moxley’s
testimony, the evidence preponderates that the cleaning of Wade’s
stomas and ostomy would have caused him pain, regardless of who
attended to those needs.
To be sure, Dr. Moxley testified that he and the CLC staff did
all they could to mitigate Wade’s pain and suffering through
medication.

Id. at 363:23-364:8.

efforts actually helped.

But it is unclear how much their

As one nurse noted just a month before

Wade passed away, “[r]ates pain as a ‘10’ and pain really never
improves regardless of meds given.”

34

(J. Ex. 22 at 4063.)

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Thus, the evidence preponderates that Wade suffered enormous
pain and suffering both during the long months of convalescence at
Ruby, and also during the time he resided at the CLC.

In fact,

counsel for the United States conceded as much during her opening
statement. (Trial Tr. 13:20) (“[Wade] enjoyed his life at the VA;
however,

he

did

experience

pain.”).

Moreover,

as

Dr.

Moxley

explains, this pain was directly related to Wade’s ileostomy. Id.
at 406:15-407:3.

While the Court is cognizant of the government’s

argument that Wade’s own actions caused his pain, that argument is
disingenuous at best. The vast majority of the pain and suffering
Wade endured both at Ruby and at the CLC was proximately caused by
the ileostomy that was medically necessary following the negligent
post-operative care of Dr. McKinney at the Clarksburg VA.
In

addition

to

Wade’s

pain

and

suffering,

the

parties

contested Wade’s overall mental status while a patient at the CLC.
See

King

v.

Ferguson,

480

S.E.2d

516,

522

(W.

Va.

1996)

(recognizing “mental anguish” and “mental distress” as types of
non-economic losses).

On direct examination, Dr. Moxley described

Wade as “happy,” “content,” and “independent.”
367:6-7.)

(Trial Tr. 364:10,

Wade’s social worker at the CLC, Ms. Pancake, described

him “always smiling,” “a pleasant guy,” and “a nice –- nice man.”

35

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
Id. at 211:8-11. Moreover, she testified that, although she tried
to arrange Wade’s transfer to a nursing home in West Virginia,
because they are smoke-free, Wade, a smoker who refused to quit,
rejected the transfer.

Id. at 208:12-20, 209:16-18.

Ms. Pancake

even contacted nursing homes in Maryland so that Wade could be
closer to his daughter, but he refused that transfer as well.

Id.

at 209:19-210:1.
The medical records from the CLC paint a different picture of
Wade’s mental status from that described by Dr. Moxley and Ms.
Pancake. After he arrived on the CLC, the speech pathologist noted
that Wade “does not see improvement in daily life and voiced
concerns if he would ever leave this ‘hell hole.’

He was unable to

voice much happiness with his life and current status.”
at 5280.

J. Ex. 22

On February 17, 2009, Wade told a CLC nurse “I’M SO TIRED

OF THIS I COULD JUST SCREAM, WOULD LIKE TO TAKE THIS FULL COLOSTOMY
BAG DOWN AND PUT IT ON THAT DR DESK, CAN’T SLEEP ALL NIGHT WITHOUT
WAKING UP TO A MESS.” Id. at 4464 (emphasis in original). Dr.
Moxley diagnosed Wade with anxiety that could only be controlled
with Ativan, and Wade mentioned suicide on one occasion, although
he later recanted. Id. at 4459, 4358. Finally, Wade’s occupational
therapist noted that Wade had “recent episodes of depression and

36

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
[was] becoming tearful.”

Id. at 5302.

Thus, despite testimony

recalling Wade’s happy attitude, the records convincingly document
that he actually suffered a great deal of mental anguish and
frustration over his situation due to chronic problems with his
ostomy bags and the attendant discomfort and inconveniences.
The Court recognizes, however, that not all of Wade’s distress
was directly related to problems with his ostomy bag. That he
suffered from COPD, with attendant hypoxia and cachexia exacerbated
by the smoking habit he refused to give up, is clearly documented.
(Trial Tr. 361:19-21, 354:6, 353:25; J. Ex. 22 at 4788).

Dr.

Moxley testified that Wade’s COPD was so bad that “he was actually
losing not only his reserve lung function, he was losing a lot of
the lung function that he actually needed to survive.”

(Trial Tr.

353:12-15.) Because of this, Wade required an oxygen machine until
the CLC staff was able to get his breathing under control.

Id. at

353:18-354:3.
Certainly, the effects of Wade’s chronic pulmonary diseases
contributed

to

his

overall

discomfort.

Nevertheless,

in

this

Court’s opinion, as the finder of fact, it is a bridge too far to
blame all – or

even most – of Wade’s physical and psychological

discomfort on his COPD. The evidence preponderates that, following

37

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
his surgery at the Clarksburg VA, Wade suffered great physical
distress and mental anguish as he struggled to live with the
consequences of Dr. McKinney’s professional negligence.
Finally, Dawson urges the Court to increase her damages based
on her father’s loss of independence. She testified that, prior to
his surgeries, Wade shopped for groceries, prepared his own meals,
cut

his

grass,

enjoyed

assistance to others.

recreational

activities,

and

provided

Id. at 32-33. She argues that “[a]fter the

October 1, 2007 surgery, Mr. Wade was not able to return to his
home or to otherwise live independently as he had prior to the
surgery.”

(Dkt. No. 84 at 33).

The Court is not persuaded by this argument. Dawson never
acknowledges

how

much

of

Wade’s

inability

to

ambulate

was

attributable to his COPD. Nor did she present evidence at trial
establishing

whether,

given

his

COPD,

her

father

could

have

returned to his former life following his cystoprostactectomy with
ileal

conduit.

Thus,

the

Court

is

unable

to

find

by

a

preponderance of the evidence that, but for the ileostomy, Wade
would have spent the remainder of his life living independently.
It is also notable that when the CLC offered to transfer Wade
to nursing homes where he could have been more independent, Wade

38

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
refused to leave since he wanted to smoke. Moreover, the CLC did
all that it could to improve Wade’s independence by placing him in
a private room, providing him with a scooter, allowing him to come
and go as he pleased, and permitting him to smoke.
Nevertheless, despite Wade’s COPD and related illnesses, the
evidence preponderates that Wade suffered significant non-economic
losses that were proximately caused by the medical negligence of
Dr. McKinney. These losses included long-term pain, suffering, and
mental

distress

related

to

his

ileostomy,

both

during

his

convalescing months at Ruby and during his life at the CLC.
C. Conclusions of Law
The

losses

attributable

to

Dr.

McKinney’s

professional

negligence are significant and warrant an award of damages in
excess of the statutory maximum amount. Although § 55-7B-8(b) caps
damages at $500,000, subsection (c) provides for the adjustment of
inflation based on the United States Department of Labor’s consumer
price index, with adjustments beginning January 1, 2004, and
continuing annually thereafter.

Based on this calculation, the

Court concludes as a matter of law that Dawson, in her individual

39

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
capacity and as executrix of Wade’s estate, is entitled to recover
$635,641.30 in non-economic damages.9
V. FINAL JUDGMENT
Dawson has proven by a preponderance of the evidence the
elements of medical professional liability set forth at West
Virginia

Code

§

55-7B-3.

Not

only

did

she

demonstrate

to

a

reasonable medical probability that the United States, through Dr.
McKinney’s professional negligence, breached the standard of care
applicable to the post-operative care he provided to Wade, but she
also established by a preponderance of the evidence that, to a
reasonable probability, Dr. McKinney’s breach proximately caused
Wade to suffer a permanent and substantial physical deformity,
which proximately caused a substantial amount of Wade’s pain,
suffering, and distress.

Under the MPLA, therefore, Dawson is

entitled to recover the statutory maximum amount of monetary
damages for non-economic loss, in the amount of $635,641.30.
The Court therefore CONCLUDES that the United States is liable
to Linda Lou Dawson, individually and in her capacity as executrix

9

This calculation was performed on March 31, 2014 using the U.S.
Department
of
Labor’s
“CPI
Inflation
Calculator,”
found
at
http://www.bls.gov/data/inflation_calculator.htm.

40

DAWSON V. USA

1:11CV114

MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND GRANTING JUDGMENT TO PLAINTIFF
of Wade’s estate, for a total judgment in the amount of $635,641.30.
It is so ORDERED.
The Court directs the Clerk to enter a separate judgment order
in favor of the plaintiff against the defendant in the amount of
$635,641.30, to dismiss the case with prejudice, and to transmit
copies of these Findings of Fact and Conclusions of Law to counsel
of record.
DATED: March 31, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

41