Smith, et. al. v. United States of America
Filing
104
MEMORANDUM OPINION AND ORDER: The Court ORDERS that judgment be entered in favor of the Plaintiffs and against the United States, in the total amount of $672,681.67; the Court further ORDERS that all pending motions in this matter be TERMINATED AS MOOT. Signed by Judge Irene C. Berger on 11/15/2016. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
SARA M. LAMBERT SMITH
and SCOTT SMITH,
Plaintiffs,
v.
CIVIL ACTION NO. 5:14-cv-30075
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
On the 18th day of July, 2016, came the Plaintiffs, Sara M. Lambert Smith and Scott Smith,
in person and by counsel, Arden J. Curry, II, Robert Berthold, Jr., and Holly DiCocco, and also
came the United States by its Assistant United States Attorneys, Fred B. Westfall, Jr., and Matthew
C. Lindsay, for a bench trial in the above-styled matter. The trial concluded on July 19, 2016. In
addition to the evidence and testimony presented during the course of the trial, the Court has
reviewed the Defendant United States of America’s Proposed Findings of Fact and Conclusions
of Law (Document 83), the Plaintiffs’ Proposed Findings of Fact and Conclusions of Law
(Document 84), submitted prior to trial, and the Defendant United States of America’s
Supplemental Proposed Findings of Fact and Conclusions of Law (Document 98), and the
Plaintiffs’ Amended Proposed Findings of Fact and Conclusions of Law (Document 99), submitted
after the conclusion of trial. In addition, the Court has reviewed the videotaped testimony of Dr.
1
David Talan, submitted by the Plaintiffs and subject to objection by the Defendant, as well as that
of Dr. David Seidler.
For the reasons stated herein, the Court finds that the Plaintiffs have demonstrated by a
preponderance of the evidence that Ms. Smith’s injuries were the result of the negligence of Dr.
Roy Wolfe, who is deemed an employee of the United States.
FINDINGS OF FACT
The Plaintiffs, Sara Lambert Smith and her husband, Scott Smith, initiated this action with
a Complaint (Document 1) filed on December 16, 2014. Ms. Smith alleges medical malpractice
under the Federal Tort Claims Act (FTCA) in relation to a hysterectomy performed by Dr. Wolfe,
and Mr. Smith seeks damages for loss of consortium. The Smiths filed an administrative claim
for damages, which the United States Department of Health and Human Services denied on
October 21, 2014.
Ms. Smith began going to Access Health Associates in May 2013 as a prenatal patient.
On December 18, 2013, at 38 weeks’ pregnancy, she gave birth to her first child by cesarean
section. She was 24 years old at the time. The doctor who performed the cesarean section noted
that her placenta was abnormally adherent. He removed the placenta manually and scraped the
uterine lining with a curette to ensure the placenta was fully removed. He did not note any other
abnormality or problem, and Ms. Smith was discharged on December 20, 2013. She had no postnatal problems until experiencing mild spotting on December 24th.
Around 2:30 a.m., on
December 25, 2013, she passed a large blood clot and began to experience heavy vaginal bleeding.
Mr. and Ms. Smith called for an ambulance, but it did not arrive after an hour or so, and Mr. Smith
2
drove Ms. Smith to the emergency room at Raleigh General Hospital. Before arriving at the
hospital, Ms. Smith experienced two episodes of syncope, or brief fainting.
Ms. Smith was admitted to the emergency room a little after 5:00 a.m., and the E.R.
physician contacted Dr. Wolfe around 5:15 a.m., with a description of her continuing heavy
bleeding, pallor, and syncope episodes. Blood tests revealed an elevated white blood cell count,
and an ultrasound showed possible retained products of conception.
Her test results were
otherwise normal, and indicative of hemodynamic stability1 despite her ongoing bleeding. Ms.
Smith’s vital signs were tracked throughout her time in the emergency room, and remained normal.
Dr. Wolfe, who was the on-call Ob/Gyn, saw Ms. Smith around 6:30 a.m., and scheduled her for
a dilation and curettage (D&C) and possible hysterectomy. Though Ms. Smith does not recall the
conversation, Dr. Wolfe informed her of the risks of the surgery and the possibility that a
hysterectomy would be necessary to stop the bleeding, and she indicated her desire to have
additional children and retain her uterus if at all possible. She signed a consent for the D&C and
possible hysterectomy at 6:45 a.m., and was prepped for surgery and placed under general
anesthesia.
At 8:18 a.m., Dr. Wolfe began the D&C procedure. He started by performing a bimanual
exam to evaluate the size and consistency of Ms. Smith’s uterus, and testified that he found it firm
and not atonic.2 Dr. Wolfe then used a curette to scrape the lining of the uterus, and then used
suction to ensure nothing remained. He did not believe any placental tissue was extracted, and
the bleeding continued. He next attempted to pack the uterus by tying two laparotomy pads
1 Hemodynamic stability refers to blood flow. The Plaintiff’s standard-of-care expert witness, Dr. William Irvin,
Jr., explained that several blood tests, including fibrinogen, hemoglobin, hematocrit, and platelet counts, as well as
blood pressure, respiration, and heart rate, provide an objective warning sign of excessive blood loss.
2 “Atony” refers to a lack of muscle tone and inability of the muscle to contract.
3
together and inserting them into the uterus, then layering them until the uterus was fully packed
and applying pressure. The precise timing is not clear, but Dr. Wolfe also gave Ms. Smith two
uterotonics3 to encourage the uterus to contract while he performed other procedures.4 However,
her bleeding continued, and Dr. Wolfe decided to convert to a hysterectomy. Ms. Smith was reprepped and re-positioned, the appropriate instruments were assembled, and Dr. Wolfe prepared
for a hysterectomy.
Prior to the hysterectomy, which began at 9:04 a.m., additional lab results were obtained,
which again showed normal ranges of hemoglobin, hematocrit, and platelets. Dr. Wolfe testified
that he was very concerned about Ms. Smith’s ongoing blood loss, and that he did not place much
weight on the lab results because the tests lag behind the blood loss.
The hysterectomy began with an exploratory laparotomy (opening the abdomen). Dr.
Wolfe again palpated Ms. Smith’s uterus and found that it was firm.
He performed the
hysterectomy, which stopped Ms. Smith’s bleeding. She had no complications following the
surgery. Ms. Smith received two units of packed red blood cells and two units of plasma during
the hysterectomy, and her hemoglobin counts that evening and for the next two days, until her
discharge, were below normal, reflecting significant blood loss. Dr. Wolfe examined the uterus
after removing it, and testified that he observed an abnormal placentation site that he believed was
consistent with placenta accreta.5 The uterus was then sent to now retired Dr. Richard Myerowitz,
who was a pathologist at Raleigh General Hospital at the time. Dr. Myerowitz found that the
3 Uterotonics are medications that induce contraction of the uterus, and are used both to induce labor and to reduce
postpartum hemorrhage.
4 The billing record does not include one of the uterotonics, though it is listed in the anesthesia records. The Court
accepts Dr. Wolfe’s testimony that he ordered both.
5 Placenta accreta occurs when the placenta attaches directly to the wall of muscle of the uterus, and can cause
bleeding if the placenta does not detach. It is among the more serious potential causes of post-partum hemorrhage.
4
uterus and other tissue he examined were consistent with a normal 7-day postpartum state. He
found no evidence of placenta accreta, either on his initial examination or upon review of the slides
prior to offering his testimony via deposition.
The Defendant’s expert pediatric pathologist, Dr. Matthew Thompson, testified that Ms.
Smith had placenta accreta based on his review of the slides taken from her uterus by Dr.
Myerowitz after her hysterectomy. However, Dr. Thompson based his diagnosis on a textbook
in which the author expressed disagreement with the majority view as to the correct definition of
placenta accreta and set forth a more expansive diagnostic criterion. He admitted that the slides
would not support a placenta accreta diagnosis under the majority definition. The Plaintiffs’
rebuttal pathology expert, Dr. Michael Kaufman, agreed with Dr. Myerowitz that the uterus
reflected a normal post-partum state with no placenta accreta. Dr. Kaufman offered the opinion
that Ms. Smith’s bleeding was caused by infection, based on both clinical data (e.g., elevated white
blood cell count and mild fever) and the inflammation found on the slides of the uterus. Dr.
Thompson disagreed, stating that inflammation is normal following childbirth.
The Court finds that the testimony suggesting that placenta accreta caused Ms. Smith’s
post-partum hemorrhage to be unconvincing.
In particular, Dr. Myerowitz’s findings and
testimony as the treating pathologist, and not a compensated expert witness, were highly credible.
As causation was unknown during Dr. Wolfe’s treatment, and causation does not alter the standard
of care, the Court makes no definitive finding as to the cause of Ms. Smith’s bleeding, beyond
finding that it is more likely than not that she did not have placenta accreta.
Dr. William Irvin, who currently both practices and teaches gynecology and gynecologic
oncology, testified for the Plaintiffs regarding the proper standard of care for postpartum
5
hemorrhage. Dr. Irvin’s current primary practice does not include obstetrics, though it has in the
past, and he handles obstetrics cases during overseas trips to offer medical care and training in
Guyana. He had no opinion with respect to the cause of Ms. Smith’s bleeding, but testified that
doctors do not typically know the cause of postpartum bleeding, and the appropriate course of
treatment was the same regardless of cause. He testified that the standard of care requires
physicians to attempt a progression of treatments, proceeding from the least invasive to the most
invasive (with hysterectomy as the last resort), until the bleeding is controlled. Dr. Irvin relied on
a 2006 Practice Bulletin published by the American Congress of Obstetricians and Gynecologists
(ACOG), entitled Clinical Management Guidelines for Post-Partum Hemorrhage (hereinafter,
ACOG Bulletin), which the United States’ expert witnesses agreed was authoritative. Dr. Irvin
testified that the standard of care requires the following treatment modalities, in order:
1. uterine massage, by reaching inside the patient and massaging the uterus to try to get the
uterine muscle to contract;
2. multiple doses of multiple uterotonics, each of which stimulates contraction of the
uterine muscle in slightly different ways, such that use of a combination of several can be
more effective than just one or two types;
3. uterine packing with gauze, by soaking the gauze in thrombin to stimulate clot formation,
then layering it back and forth;
4. uterine packing with balloon tamponade, which is more effective than gauze because the
balloon can be inflated inside the uterus and provide uniform compression, without filling
with blood. Balloon tamponade can be done with a variety of types of inflatable balloon,
6
including commonly available devices such as a Foley catheter or condom, as well as more
specialized devices;
5. D&C, which removes any retained product of conception; and
6. exploratory laparotomy, accompanied by
a. open uterine massage, which can be more effective than the uterine massage prior
to a laparotomy because the physician has access to the entire uterus;
i. additional doses of uterotonics can be injected directly into the uterus to
further stimulate contraction at this stage
b. bilateral O’Leary stitches, which suture closed the uterine arteries to reduce the
blood flow into the uterus;
c. bilateral hypogastric ligation, which has largely been replaced by uterine artery
ligation;
d. B-lynch sutures, which are stitches placed on a compressed uterus to hold the
compression in place;
e. hemostatic multiple square suturing, which similarly stitches together the walls
of the uterus; and
f. uterine artery embolization, which is done by interventional radiologists and is
intended to block blood flow into the uterus. Uterine artery embolization was not
available at Raleigh General Hospital and would have required Ms. Smith to be
transferred to the Charleston Area Medical Center (CAMC).
Most of the treatment options take only minutes to perform, and Dr. Irvin testified that it
takes approximately one hour to complete the full cycle of treatment modalities. He cited balloon
7
tamponade, hemostatic multiple square suturing, B-Lynch sutures, and uterine artery embolization
as particularly effective in stopping bleeding, including bleeding caused by placenta accreta.
Studies showed that each had success rates over 60% in patients with placenta accreta and even
higher success rates for patients with bleeding caused by other conditions; uterine artery
embolization had a success rate of about 90%, for both all patients with post-partum hemorrhage
and for patients with placenta accreta.
The Defense expert, Dr. Larry Griffin, testified that there was no need to attempt each
treatment modality in this case, based on Dr. Wolfe’s finding that Ms. Smith’s uterus was firm and
not atonic. Dr. Griffin testified that, at the time Dr. Wolfe examined Ms. Smith and made
treatment decisions, the evidence pointed toward placenta accreta as the cause of her bleeding,
though a final diagnosis could not be made until after removal of the uterus. Because there was
no atony, he concluded that uterine massage was unnecessary, further uterotonics were
unnecessary, and uterine packing and/or balloon tamponade was unlikely to be successful.
Though the standard of care may require some attempt at applying pressure, Dr. Griffin offered
the opinion that no specific method was required, and that uterine packing with gauze and balloon
tamponade serve the same purpose. He further testified that Dr. Wolfe’s method of uterine
packing was within the standard of care, though he admitted that it was not the method described
in the ACOG Bulletin.
Uterine artery embolization would have required that Ms. Smith be transferred to CAMC.
Dr. Wolfe testified that he would not have considered transfer a viable or prudent option because
of Ms. Smith’s ongoing severe bleeding. The medical records generated at the time describe the
bleeding as severe, but do not state that the hysterectomy had to be performed immediately to
8
preserve Ms. Smith’s life, that transfer was impossible because of the level of blood loss, or any
other indication that Dr. Wolfe or another treatment provider considered the level of blood loss to
be imminently dangerous. No blood transfusion was given until the hysterectomy was performed.
Dr. Irvin testified that all objective measures indicated that Ms. Smith remained stable enough for
the approximately fifteen-minute helicopter ride to CAMC, and that if any indicator suggested she
had lost too much blood, the proper course would have been to give her a transfusion prior to
transfer. Dr. Griffin explained that blood count may not stabilize for a day or two after blood loss,
and so, in his opinion, Dr. Wolfe properly rejected transfer as an option based on the reported
heavy bleeding and his own observations as to the level of blood loss.
The Plaintiffs’ rebuttal expert, Dr. David Talan,6 offered the opinion that Ms. Smith was
hemodynamically stable and could have been transferred or undergone additional treatment. Dr.
Talan, an emergency physician, explained that vital signs (e.g., blood pressure, heart rate), are the
key objective factor to consider when evaluating the stability of a patient experiencing blood loss.
Ms. Smith’s vital signs remained normal as Dr. Wolfe made the decision to convert to a
hysterectomy. All other measures, including blood counts, urine output, and electrolyte levels,
were also normal and signaled that Ms. Smith’s blood loss was not reaching dangerous levels.
Though some blood count numbers can lag behind blood loss, Dr. Talan testified that the several
hours between the start of Ms. Smith’s bleeding and the decision to convert to a hysterectomy were
6 The Defendant objected to Dr. Talan’s rebuttal testimony, arguing that it was not proper rebuttal because it did not
counter new facts presented in the Defendant’s case and was duplicative of Dr. Irvin’s testimony. The Court finds
that it was proper rebuttal. Dr. Irvin, to some extent, anticipated the defense that Ms. Smith’s condition was too
urgent to permit additional treatment or transfer. However, the Plaintiffs are entitled to rebut the core contention
presented in defense. Further, while Dr. Irvin briefly addressed Ms. Smith’s stability, Dr. Talan’s specialized
expertise in emergency medicine and detailed testimony, at the least, provided a significant expansion on the basic
principles Dr. Irvin testified to. That said, while the Court finds Dr. Talan’s testimony admissible and helpful, the
outcome would be the same absent his testimony, given the other evidence presented and, importantly, the medical
records.
9
sufficient that the normal blood count numbers provided reassuring information regarding the level
of blood loss. Dr. Talan further testified that it would have been fairly routine to give blood
transfusions in order to maintain stability for transfer, as is often necessary in cases with more
serious trauma.
Dr. David Seidler, the associate medical director for critical care transport, testified that a
physician capable of performing uterine artery embolization was available at CAMC on December
25, 2013, and that the weather would not have precluded either air or ground transport on that date.
He further testified that multiple companies providing both air and ground transport between
Beckley and Charleston, West Virginia, were available.
Ms. Smith testified that she has little memory of her treatment on December 25, 2013, and
learned that she had had a hysterectomy when she spoke with her husband after the surgery. Mr.
Smith, in turn, learned about the hysterectomy when Dr. Wolfe met with him afterwards and
represented that there were no other options. Mr. Smith cared for Ms. Smith and their newborn
daughter when Ms. Smith was released from the hospital. Ms. Smith testified that she and her
husband had planned to have additional children, that she wanted her daughter to have siblings,
and that she is very upset by her infertility. She has also suffered depression and moodiness since
the hysterectomy, which she believes contributes to marital problems. She and Mr. Smith both
testified that they argue far more often than they did prior to the hysterectomy, and Mr. Smith
testified that they no longer have a sexual relationship. The hysterectomy has caused Ms. Smith
to go into early menopause, for which she takes Premarin. The Premarin has been somewhat
helpful with her mood swings and hot flashes, though her marital problems have not improved.
10
In addition to her non-economic damages, Ms. Smith incurred economic losses in the amount of
$29,661.67 in medical bills related to her treatment for post-partum hemorrhage.
LEGAL CONCLUSIONS
The FTCA provides that the United States is liable for the negligent acts of its employees
acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). Though FTCA cases are
tried in federal court, the underlying state substantive law applies.
West Virginia medical
malpractice cases are governed by the West Virginia Medical Processionals Liability Act (MPLA).
Medical malpractice cases in West Virginia require a plaintiff to demonstrate that the defendant
failed to meet the applicable standard of care, typically by presenting expert witness testimony.
W. Va. Code § 55-7B-7; Goundry v. Wetzel-Saffle, 568 S.E.2d 5, 8 (W. Va. 2002). Plaintiffs must
also demonstrate that the failure to comply with the standard of care proximately caused the alleged
injuries. W. Va. Code § 55-7B-3(a)(2). The MPLA requires that plaintiffs who claim the
deviation from the 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” must “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” of an improved
recovery. § 55-7B-3(b).
Ms. Smith claims that Dr. Wolfe did not meet the applicable standard of care for her postpartum hemorrhage because he did not attempt all available treatment options before performing
a hysterectomy. She argues that this deviation from the standard of care resulted in her having a
hysterectomy and the loss of her fertility. Ms. Smith relies on expert testimony to demonstrate
11
that the treatment modalities Dr. Wolfe did not attempt would have had a greater than twenty-five
percent chance of stopping the bleeding, thus eliminating the need for a hysterectomy.
Like most medical malpractice cases, this case rests largely on expert testimony. The
Court found the expert witnesses for both parties to be well qualified, with significant relevant
education and experience, although they reached differing conclusions.
In short, Dr. Irvin
testified that, had Dr. Wolfe employed the treatments required by the standard of care and/or
transferred Ms. Smith to a facility with the ability to perform uterine artery embolization and with
more expertise on the other treatment modalities, she would have been likely to retain her uterus
and fertility. He gave the opinion that Dr. Wolfe’s treatment was reckless and fell egregiously
below the standard of care. Dr. Wolfe and Dr. Griffin testified that Ms. Smith’s blood loss was
too severe to spend additional time on treatment or transfer, and that other treatments were unlikely
to be effective in treating placenta accreta. The Court credits Dr. Irvin’s very thorough, well
researched analysis, particularly in light of the Court’s finding that there is little evidence to
support a diagnosis of placenta accreta.
First, Dr. Irvin’s explanation of the standard of care was based on the ACOG Bulletin,
which both parties agreed was reliable. His testimony connected the general standards, research,
and statistical success rates with the facts of this case. It was also reflective of certain facts both
parties agree upon. For instance, the experts were all in agreement that placenta accreta cannot
be confirmed as a diagnosis until after a hysterectomy has been performed, but Dr. Griffin
nonetheless found some treatment modalities to be unnecessary under the standard of care based
on diagnostic factors. Given the agreement among the experts that the cause of post-partum
hemorrhage is often unknown during treatment, the Court accepts the credibility of Dr. Irvin’s
12
opinion that the standard of care requires use of all available treatment modalities, from the most
conservative to the most invasive. Dr. Irvin also offered research regarding the high success rates
of treatments, including balloon tamponade, suturing to close arteries that bring blood to the uterus,
suturing to compress the uterus, and uterine artery embolization, that demonstrate the likelihood
that Ms. Smith’s hemorrhage could have been stopped without a hysterectomy. The success rates
of those treatments also supports the finding that the standard of care requires that they be
attempted.
Next, the Court finds Dr. Wolfe’s explanation that he proceeded to hysterectomy because
it was unsafe to spend additional time on other treatments or to attempt transfer due to Ms. Smith’s
blood loss unconvincing. The Court accepts the initial contention that the standard of care is
sufficiently flexible to permit a doctor to perform an emergency hysterectomy when necessary to
save the life of the patient. However, the medical records in this case do not reflect the level of
urgency described after the fact. Ms. Smith arrived at the hospital around 5:00 a.m., and Dr.
Wolfe began the hysterectomy after 9:00 a.m. He first examined Ms. Smith around 6:30 a.m.
Had he arranged transport shortly after examining her, the uterine artery embolization could have
been completed by the time Dr. Wolfe began the hysterectomy. Further, there is no indication
that any treatment provider suggested a blood transfusion until the hysterectomy was being
performed. That indicates that the treatment providers were not as concerned about the level of
blood loss as is now suggested. A blood transfusion could also have alleviated any concern and
allowed Ms. Smith to be stabilized for transport or additional treatment, if necessary. Ms. Smith’s
stable vital signs and lab work indicate that it was not necessary to give blood transfusions prior
13
to the hysterectomy or to perform the hysterectomy without attempting other treatments or transfer
to prevent her from bleeding to death.
Finally, the Court finds that Dr. Wolfe’s treatment fell egregiously below the standard of
care. He performed a D&C, gave single doses of two uterotonics, made a haphazard attempt at
uterine packing by tying laparotomy sponges together and inserting them into the uterus, a method
unlikely to be successful, and proceeded to a hysterectomy. He did not attempt uterine massage,
additional uterotonics (which promote contraction in different ways), balloon tamponade, open
uterine massage, bilateral O’Leary stitches, bilateral hypogastric ligation, B-Lynch sutures,
hemostatic multiple square suturing, or transfer for uterine artery embolization.
Excepting
transfer for uterine artery embolization, these procedures would not have taken more than a few
minutes each. Some would have taken only seconds to perform. Based on the success rates cited
by Dr. Irvin, the Court finds that Ms. Smith would have a significantly greater than twenty-five
percent (25%) chance of retaining her uterus and her fertility had Dr. Wolfe complied with the
applicable standard of care.7 Instead, she underwent a hysterectomy at twenty-four years old,
following the birth of her first—and now only—biological child.
Ms. Smith’s damages include the medical expenses associated with her post-partum
hemorrhage, the loss of her fertility, the early menopause and/or hormonal changes that occurred
following her hysterectomy, and emotional damages related to the loss of fertility, hormonal
changes, and marital problems.
Mr. Smith’s loss of consortium damages include his
7 In finding that the standard of care requires all available treatment modalities, and that the likelihood of stopping
the bleeding without a hysterectomy was greater than twenty-five percent (25%), the Court does not mean to suggest
that the failure to perform each treatment, individually, caused Ms. Smith’s damages. For example, additional
uterotonics may have had little effect, given the lack of evidence of uterine atony. However, several treatments have
high success rates for all causes of post-partum hemorrhage, and the Court finds a high likelihood that performing
each of the treatment options in turn, until one proved successful, would have resulted in stopping Ms. Smith’s
bleeding without a hysterectomy.
14
corresponding inability to have additional biological children with his wife, and the marital
problems that occurred as a result of Ms. Smith’s hysterectomy.
The MPLA imposes limits on damages under specified circumstances. Section 55-7B9c(a) sets a $500,000 cap for total damages in cases involving emergency care rendered at a
designated trauma center. Section 55-7B-9c(h) provides that the cap does not apply if the care is
“in willful and wanton or reckless disregard of a risk of harm to the patient; or in clear violation
of established written medical protocols for triage and emergency health care procedures…” The
Plaintiffs concede that Raleigh General Hospital is a trauma center and that Ms. Smith suffered an
emergency medical condition, but argue that the exception is applicable because “the actions of
Dr. Wolfe in not attempting to use the multiple modalities of treatment that were recognized for
the use in a patient such as Mrs. Smith constituted a reckless disregard of a risk of harm to Mrs.
Smith.” (Pl.’s Am. Proposed Findings, at 50.) Instead, the Plaintiffs argue that W.Va. Code §
55-7B-8 is applicable. Section 55-7B-8 limits noneconomic damages in medical malpractice
cases to $250,000, or $500,0008 in cases involving, as relevant herein, loss of use of bodily organ
system.
The Court finds that Dr. Wolfe’s failure to attempt alternative treatments prior to
performing a hysterectomy, on a twenty-four-year-old patient with stable vital signs and no
evidence of hemodynamic instability, constitutes a reckless disregard to a risk of harm to the
patient. Therefore, there is no limitation on economic damages, and the limitation on noneconomic damages is $643,020. Ms. Smith’s economic loss totaled $29,661.67.
8 Section 55-7B-8(c) provides that the limitations on compensatory damages in that section shall be subject to
increases for inflation, from 2003, based on the Consumer Price Index published by the Department of Labor. The
current cap is $643,020.
15
Non-economic damages are more difficult to quantify. See, e.g., In re Air Crash Disaster
at Charlotte, N.C. on July 2, 1994, 982 F. Supp. 1115, 1127-30 (D.S.C. 1997) (stating that
“[q]uantifying the pain and suffering experienced by a personal injury plaintiff is difficult in the
best of circumstances” and noting that emotional damages are unique to each plaintiff and require
a subjective analysis). The Court has reviewed the damages awarded by juries in other medical
malpractice cases involving potentially unnecessary hysterectomy and accompanying loss of
fertility. See, e.g., Brown v. State ex rel. LSU Med. Ctr. Health Care Servs. Div., 2008-273 (La.
App. 3 Cir. 12/10/08), 998 So. 2d 367, 373, writ denied sub nom. Brown v. State, 2009-0072 (La.
3/6/09), 3 So. 3d 491 (jury included $725,000 in non-economic damages; total damage award of
over $2,000,000 reduced to state damages cap); PAULING v. GEORGE WASHINGTON
UNIVERSITY, JVR No. 434579, 2003 WL 25032008 ($900,000 pain and suffering award to 38year-old woman who underwent a hysterectomy after physician negligently performed surgery to
remove uterine fibroids, causing infection)9; WEISE v. MEDSTAR HEALTH CARE SERVICES;
GEORGETOWN UNIVERSITY MEDICAL CENTER, JVR No. 434507, 2005 WL 4255167
(pain and suffering award of over $11 million to 28-year-old woman who suffered hysterectomy,
pelvic nerve damage, bladder and ureter damage, kidney infection, chronic pain, and PTSD
following negligently-performed C-section); DABROWSKI v. PORTNER, M.D., JVR No.
187732, 1996 WL 696013 ($200,000 awarded to 35-year-old woman who underwent a
hysterectomy after a doctor failed to properly diagnose and treat peritonitis); HALL v.
ALEXANDER, M.D.; INTEGRATED OB/GYN, JVR No. 1306010009, 2013 WL 2468371
($1,070,636 awarded to 21-year-old woman who underwent a hysterectomy and suffered the
9 This and the following cases are the result of a search for “hysterectomy” within the “Jury Verdict and Settlements”
database in Westlaw, limited to the Fourth Circuit.
16
metastasis of uterine cancer to her lungs after a doctor failed to diagnose a gestational trophoblastic
malignancy); REDFORD v. U.S.A., JVR No. 107624, 1992 WL 507570 ($170,000 awarded to
27-year old FTCA plaintiff who alleged a hysterectomy was performed without exhausting
conservative treatment options).
Though non-economic damages require subjective analysis of each unique plaintiff, it is
clear that juries generally consider hysterectomy and loss of fertility to be quite serious. Here, the
Court has carefully considered Ms. Smith’s testimony, as well as the testimony of her husband.
The couple planned to have additional children. The inability to have children is itself a loss, and
it also contributes to the emotional harm Ms. Smith continues to suffer. Hormonal changes have
also impacted her personality and mood, which has in turn damaged her marriage. Ms. Smith’s
age is an additional factor that increases her damages, given the increased number of years she
would otherwise have had before reaching menopause. Mr. Smith is also impacted by the
couple’s inability to have additional biological children and the deterioration of their marriage.
Having carefully considered the damages suffered by the Plaintiffs, and in light of both the Court’s
experience with jury verdicts in state and federal medical malpractice cases and a review of similar
cases, the Court finds that Ms. Smith has suffered damages in excess of the statutory cap. The
Court therefore awards her $643,020.00 in compensatory damages for non-economic losses, in
addition to the $29,661.67 for medical bills. Although Mr. Smith is impacted by Ms. Smith’s
hysterectomy and emotional suffering, his testimony did not indicate significant emotional
suffering of his own. Of the $643,020.00 in non-economic damages, the Court finds that Mr.
Smith is entitled to $40,000 for loss of consortium, an amount in line with both the Court’s
experience and review of similar cases.
17
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court finds that Dr.
Roy Wolfe breached the applicable standard of care in treating Sarah Lambert Smith for postpartum hemorrhage on December 25, 2013. The Court ORDERS that judgment be entered in
favor of the Plaintiffs and against the United States, in the amount of $29,661.67 for Ms. Smith’s
economic damages, $603,020.00 in non-economic damages for Ms. Smith, and $40,000 in loss of
consortium damages for Mr. Smith, for a total of $672,681.67.
The Court further ORDERS that all pending motions in this matter be TERMINATED
AS MOOT.
The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER:
18
November 15, 2016
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