Wilkinson v. United States of America

Filing 66

MEMORANDUM OPINION AND ORDER denying United States of America's 40 MOTION for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 3/30/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BRIAN WILKINSON,
Plaintiff,
v.
Civil Action No.: 15-16291
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is defendant United States of America’s motion
for summary judgment, filed on August 9, 2016 (ECF No. 40).

I.

This case is an action for medical negligence and
other torts pursuant to the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346 and 2672, seeking damages for failing to provide
plaintiff Brian Wilkinson with proper medical care.

Plaintiff

was being cared for from February through June 2013 by Cabin
Creek Health System (“Cabin Creek”), a medical clinic located in
Kanawha County, West Virginia, and Donna Burton, a nurse
practitioner there.

The complaint alleges that the clinic

“negligently fail[ed] to correctly diagnose and treat the cause
of his swollen lymph nodes from February 2013 to June 2013,”
which was cancerous carcinoma later diagnosed as such on or

about April 3, 2014.

Compl. ¶ 9, 11.

Cabin Creek was under the

jurisdiction of the United States as a part of the federal
Department of Health and Human Services, and therefore any
remedy will be against the United States under the FTCA.
Plaintiff alleges a loss of chance theory under which the
clinic’s negligence caused him pain, injury, and loss of life
expectancy.

The only argument raised in the United States’ motion
for summary judgment is that plaintiff’s medical expert, Dr.
Mark Levin, gave an expert opinion that is inconsistent and so
does not meet the statutory standard of the West Virginia
Medical Professional Liability Act (“MPLA”) for loss of chance.
Plaintiff responds that the United States has misread the expert
opinion that, plaintiff concludes, clearly meets the statutory
standard.

II.

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
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also News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010) (same).

A “genuine” dispute

of material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most favorable
to the non-moving party, a reasonable fact-finder could return a
verdict for the non-moving party.

Anderson, 477 U.S. at 248.

At bottom, a party is entitled to summary judgment if
the record as a whole could not lead a rational trier of fact to
find for the non-moving party.
820, 823 (4th Cir. 1991).

Williams v. Griffin, 952 F.2d

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.

Under the FTCA, the state tort law will govern the
substantive claims of a plaintiff against the United States.
See 28 U.S.C. 1346(b)(1); Def.’s Mem. in Supp. of Mot. for Summ.
J. 1 (hereinafter “Mot. for Summ. J.”).

If a plaintiff would

have a claim against a similarly situated private party under
state law, the claim usually will lie against the United States
under the FTCA.

United States v. Muniz, 374 U.S. 150, 153

(1963) (citing 28 U.S.C. § 2674).

Here, the MPLA provides the

substantive law that governs plaintiff’s claims.

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In particular,

the government notes that when a plaintiff proceeds under a loss
of chance theory, the relevant statutory text reads as follows:

If the plaintiff proceeds on the “loss of chance”
theory, i.e., that the health care provider's failure
to follow the accepted standard of care deprived the
patient of a chance of recovery or increased the risk
of harm to the patient which was a substantial factor
in bringing about the ultimate injury to the patient,
the plaintiff must also prove, to a reasonable degree
of medical probability, that following the accepted
standard of care would have resulted in a greater than
twenty-five percent chance that the patient would have
had an improved recovery or would have survived.
W. Va. Code § 55-7B-3(b).

The government argues that Dr. Levin’s report, dated
July 28, 2016, does not show that Cabin Creek created a loss of
chance of more than 25 percent for plaintiff.

According to the

government, Dr. Levin gave two inconsistent opinions by first
stating that there was a 25 percent decrease in prognosis or
five-year survival, and then that plaintiff suffered a reduction
in life expectancy of 30 to 35 percent.

Plaintiff responds that

defendant has simply failed to read the opinion properly, and
that in fact Dr. Levin’s conclusion was that the failure of
Cabin Creek to diagnose him led to a reduction of life
expectancy of 30 to 35 percent.

Plaintiff appears to be correct.
reads as follows:
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Dr. Levin’s report

Given these circumstances, my opinions are
as follows: Cabin Creek Health Systems by and through
their employee Ms. Burton deviated from the standard
of care by negligently failing to consider, diagnose
and treat throat cancer on February 19, 2013 and
thereafter; negligently failing to properly examine
Mr. Wilkinson on February 19, 2013 and thereafter; and
negligently failing to refer Mr. Wilkinson to a
specialist on February 19, 2013.
. . . [The cancer] in February 2013 was
stage III. At diagnosis, it was stage IVB.
Survival rates for tongue cancer were
reported by Yang et al to be 45% for stage III and 30%
for stage IV. However, that includes stages IVA and
IVB; in my opinion, it is significantly lower for the
sub-stage IVB. American Head and Neck Society says
that “five year survival drops to about 50 percent for
stage III cancers and further drops to roughly 35
percent for (overall) stage IV cancers.” Survival for
these patients had not substantially improved over the
past 5 years. In summary, there had been a decrease in
prognosis of 25% or a total drop in 5 year survival of
25%.
There are two more factors relevant to
prognosis. First the cancer was P16 positive, which
means that it is more responsive to treatment with
chemotherapy. The outcome would have been better when
treated earlier. Secondly, at diagnosis he had
anaplastic histology, which denotes worse prognosis,
because it is more aggressive disease. In my opinion,
it became more aggressive because of the delay.
In summary, deviations from the standard of
care proximately caused Mr. Wilkinson to suffer a
reduction of life expectancy of at least 30-35% as a
consequence of his cancer not being treated on
February 19, 2013. More likely than not Mr. Wilkinson
cancer on February 19, 2013 was stage III. In
addition, had Mr. Wilkinson been diagnosed on or about
February 19, 2013 he would likely have only needed
chemotherapy and radiation and not surgery. Because
earlier stage disease of the p16 type responds well to
chemotherapy and radiation alone. Surgery
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substantially contributes to dysfunction, pain and
suffering following treatment. Further, the likelihood
of recurrence is significantly greater than the
occurrence of another primary cancer.
I hold the foregoing opinions to a
reasonable degree of medical probability and/or
certainty. I reserve the right to offer additional
opinions based upon additional discovery.
Mot. for Summ. J. 10-11.
The government latches on to two statements it
alleges are inconsistent.

First, with respect to a study

he cites, Dr. Levin states that “there had been a decrease
in prognosis of 25% or a total drop in 5 year survival of
25%.”

Id. 10.

After listing two more factors relevant to

Mr. Wilkinson’s particular prognosis, he then states “[i]n
summary, deviations from the standard of care proximately
caused Mr. Wilkinson to suffer a reduction of life
expectancy of at least 30-35% as a consequence of his
cancer not being treated on February 19, 2013.”

Id. 11.

These statements are not inconsistent for two
reasons.

On one hand, the first statement appears simply

to be Dr. Levin’s summary of a medical study, not a
conclusion about plaintiff’s case in particular.

On the

other hand, the second statement clearly expresses a
conclusion regarding Mr. Wilkinson – that he suffered a 30
to 35 percent life expectancy reduction.
6

Indeed, it

Plaintiff,
v.

Civil Action No. 15-14025

THE DOW CHEMICAL COMPANY LONG TERM of the two additional
appears that Dr. Levin’s discussion DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE prognosis BOSTON,
factors relevant to his COMPANY OF caused him to fix
a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
plaintiff’s reduction in life expectancy at a level of at
least 30 toDefendants. as a consequence of his not being
35 percent
ORDER AND NOTICE
treated properly on February 19, 2013. Especially when
consideringPursuant court on Civ. P. 16.1, it is ORDERED that the
that a to L.R. summary judgment draws
following dates are hereby fixed as the time by or on which
certain events are occur:
inferences that must favorable to the non-moving party,
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
there is no reason to draw the government’s conclusion that
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
Dr. Levin gave contradictory opinions. Consequently, the
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
court denies the government’s motion for summary judgment.
02/08/2016
Last day for Rule 26(f) meeting.
02/15/2016

Last day to file Report of Parties= Planning
IV.
Meeting. See L.R. Civ. P. 16.1.

02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
For the foregoing reasons, it is ORDERED that
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
defendant’s motion for summary judgment be, and it hereby
directed to appear.
is, denied.
02/29/2016
03/08/2016

Entry of scheduling order.
Last day to serve F.R. Civ. P 26(a)(1) disclosures.

The Clerk is directed to transmit copies of this order
The Clerk is requested to transmit this Order and
to all counsel counsel of and any and to any unrepresented
Notice to all of record record unrepresented parties.
parties.
DATED:
ENTER:

January 5, 2017
March 30, 2016

John T. Copenhaver, Jr.
United States District Judge

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