Drennen v. United States , 375 F. App'x 299 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1606
VERONICA DRENNEN; BOBBY DRENNEN, her husband,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee,
and
COMMUNITY HEALTH SYSTEMS, INCORPORATED; ROY WOLFE, JR.,
M.D.,
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:06-cv-00390)
Argued: March 24, 2010 Decided: April 22, 2010
Before NIEMEYER and MOTZ, Circuit Judges, and James A.
BEATY, Jr., Chief United States District Judge for the Middle
District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Thomas Fiorino Basile, THOMAS F. BASILE, ESQ.,
Charleston, West Virginia, for Appellants. Stephen Michael
Horn, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Charles T. Miller, United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
After a bench trial, the district court found in favor of
the United States in this Federal Tort Claims Act (“FTCA”)
medical malpractice action. Veronica Drennen and her husband,
Bobby Drennen, appeal. They challenge the district court’s
factual findings, evidentiary rulings, and legal conclusions.
For the reasons that follow, we affirm.
I.
Veronica Drennen suffered from a cystocele, a condition
where the fascia (soft tissue) between the bladder and the
vagina degrades such that the bladder bulges into the vagina.
On December 18, 2001, Dr. Roy Wolfe performed surgery, not
relevant here, to treat the problem. This surgery afforded
Drennen temporary relief, but twenty months later, in August of
2003, she again complained of pain. She returned to Dr. Wolfe,
who concluded that her cystocele had recurred.
On October 21, 2003, Dr. Wolfe performed an operation
called anterior colporrhaphy. In this surgery, a doctor holds
open the vagina with a speculum and looks in to locate the
cystocele. He then cuts the anterior vaginal wall to reveal the
fascia and uses sutures to pull together and reinforce strong
fascia before closing the vaginal wall. It is undisputed that
the surgery performed on Drennen followed this procedure.
3
On October 27, 2003, a week after her surgery, Drennen
called Dr. Wolfe’s office complaining of pain and requesting
medication, which she received. She called again on November 4.
Dr. Wolfe ordered a renal ultrasound, which revealed “gross
hydronephrosis,” meaning that Drennen’s kidney was swollen and
her ureters were likely obstructed.
Dr. Wolfe referred Drennen to Dr. Apolonio Lirio, who noted
in his operative report that Drennen’s ureter was deviated,
which suggested swelling. Dr. Lirio also noted that the ureter
was obstructed to the point where he could not pass a sensor
wire through it to determine the location of the blockage.
The next day, Drennen went to West Virginia University
Hospital for further treatment. First, Dr. Stanley Zaslau, a
urologist, attempted to correct Drennen’s ureteral blockage
using a stent. That attempt failed, leaving surgery as the only
option. To allow Drennen’s kidney to drain in the weeks prior
to surgery, Dr. Patricia Stoltzfus placed a tube into the kidney
to release the excess fluid from it into a bag. Dr. Stoltzfus
noted that Drennen’s ureter inserted ectopically (in the wrong
place) into the bladder.
On January 20, 2004, Dr. Zaslau performed ureteral
reimplantation surgery, which consists of cutting the ureter
near the obstruction and then re-inserting it into the bladder,
4
effectively bypassing the blockage. That surgery solved
Drennen’s problem.
Drennen believes that during the anterior colporrhaphy Dr.
Wolfe stitched through or near her ureter, causing the
obstruction. She and her husband brought this action alleging
medical malpractice against Dr. Wolfe and his employer. Dr.
Wolfe falls within the statutory definition of a “Public Health
Service employee” under the FTCA, and the United States thus
stands as the defendant in this action. See 42 U.S.C. § 233(g)
(2006).
Under the FTCA, West Virginia law governs this action. In
West Virginia, the Medical Professional Liability Act (“MPLA”)
controls medical malpractice claims. The MPLA provides that in
order to bring such a claim, a plaintiff must prove that:
(a) The 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; and
(b) Such failure was a proximate cause of the injury
or death.
W. Va. Code § 55-7B-3.
Additionally, thirty days before filing a complaint, West
Virginia law requires a claimant to:
serve by certified mail . . . a notice of claim on
each health care provider the claimant will join in
litigation. The notice of claim shall include a
5
statement of the theory or theories of liability upon
which a cause of action may be based, and a list of
all health care providers and health care facilities
to whom notices of claim are being sent, together with
a screening certificate of merit.
W. Va. Code § 55-7B-6(b). In her notice of claim, Drennen
stated that:
Roy Wolfe, Jr., M.D. . . . negligently failed to
perform a routine cystoscopy after performing an
anterior colporrhaphy on Veronica Drennen. This
negligence caused Dr. Wolfe to fail to notice that he
had negligently stitched Mrs. Drennen’s left ureter
closed, creating an obstruction for the left kidney.
Mrs. Drennen was unable to pass urine from 10/21/03
thru 11/06/03, developed sepsis and nearly died. 1
Drennen’s “screening certificate of merit” included an expert
opinion from Dr. Zaslau, who performed her ureteral
reimplantation surgery, stating that Dr. Wolfe’s failure to
perform a “routine cystoscopy” during the anterior colporrhaphy
breached the standard of care, and that this breach caused
Drennen’s injuries.
Drennen’s complaint advanced two theories of liability:
(1) that Dr. Wolfe had stitched in a negligent manner causing an
obstruction to Drennen’s ureter; and (2) that Dr. Wolfe had
1
Cystoscopy is an invasive diagnostic procedure in which a
doctor inserts a cystoscope -- a tube with a lens at the end of
it -- into a patient’s urethra, and looks through the tube to
examine the bladder. When using cystoscopy to examine ureters,
the doctor injects blue dye into the bloodstream. The kidneys
remove the dye from the blood and the dye travels down the
ureters and into the bladder. If dye fails to emerge into the
bladder from a ureteral orifice, then the doctor can infer that
the corresponding ureter is obstructed.
6
negligently failed to perform a cystoscopy to check for ureteral
obstruction.
After discovery, including depositions of the relevant
experts, the Government moved for summary judgment. Although
the district court denied that motion, the court noted that Dr.
Zaslau had admitted in deposition that the standard of care did
not require a surgeon to perform a cystoscopy during anterior
repair surgery, and the court thus prohibited Drennen from
asserting that theory at trial. The district court thus
directed Drennen to proceed on two modified theories: (1) that
Dr. Wolfe had stitched in a negligent manner, causing an
obstruction to her ureter; and (2) that Dr. Wolfe had
negligently failed to do some additional diagnostic procedure
(not necessarily cystoscopy) during the anterior repair surgery
to check whether Drennen’s ureters were obstructed.
The district court held a one-day bench trial, in which Dr.
Zaslau testified as the sole expert witness for Drennen
regarding both the “negligent stitch” theory of liability and
the “failure to check” theory. For each theory, Dr. Zaslau
discussed the standard of care and causation. Dr. Wolfe
testified as the treating physician, and the Government
introduced the deposition testimony of its expert, urologist Dr.
Karen Ashby.
7
With regard to the “negligent stitch” theory, the district
court found that Drennen had failed to establish that a
misplaced stitch, standing alone, breached an applicable
standard of care. The court also found that Drennen had failed
to establish that a surgical stitch caused her ureteral
obstruction.
With regard to the “failure to check” theory, the court
found that the standard of care did not require physicians to
perform an invasive diagnostic procedure to evaluate the ureters
during an anterior repair surgery. The evidence at trial
established two ways to examine a ureter: cystoscopy or
intravenous pyelogram (“IVP”). 2 The court relied on its pre-
trial ruling that cystoscopy did not constitute the national
standard of care. Moreover, the court held that Drennen could
not prevail on the theory that IVP was the national standard of
care because she had not mentioned IVP in her pre-trial notice
of claim, and alternatively because no expert had testified that
the national standard of care required a doctor to perform an
IVP in these circumstances.
2
IVP is a more involved diagnostic procedure than
cystoscopy. In IVP, a radiologist injects contrast material
into the patient’s veins. Eventually, the contrast travels
through the bloodstream and into the kidneys, down the ureters,
and into the bladder. Using x-rays, the radiologist can observe
whether the contrast encounters a blockage.
8
For these reasons, the district court granted judgment to
the United States. After Drennen moved unsuccessfully for a new
trial, she timely noted this appeal.
Drennen raises three contentions on appeal. First, she
argues that the district court did not give sufficient weight to
Dr. Zaslau’s expert testimony, and thus erred in its factual
findings. Second, she maintains that the district court made
two evidentiary errors: admitting the testimony of Dr. Wolfe as
an expert and excluding an alleged statement against interest
made by Dr. Resley, Dr. Wolfe’s partner in his medical practice.
Third, she challenges the district court’s holding regarding her
IVP argument. We consider each contention in turn.
II.
In West Virginia, as in most states, the plaintiff in a
medical malpractice action bears the burden of proving that the
treating physician violated the national standard of care. 3 This
means that “the reasonable man standard is . . . replaced by a
standard based upon the usual conduct of other members of the
defendant's profession in similar circumstances.” Reynolds v.
City Hosp., Inc., 529 S.E.2d 341, 348 (W. Va. 2000) (quoting
3
West Virginia has abolished the “locality rule,” which
means that courts must determine the standard of care by
reference to national standards. Paintiff v. City of
Parkersburg, 345 S.E.2d 564, 567 (W. Va. 1986).
9
Bell v. Maricopa Med. Ctr., 755 P.2d 1180, 1182 (Ariz. Ct. App.
1988)). To comply with this standard, “a physician or other
medical practitioner is not required to exercise the highest
degree of skill and diligence possible.” Schroeder v. Adkins,
141 S.E.2d 352, 357 (W. Va. 1965). Rather, “he is required to
exercise only such reasonable and ordinary skill and diligence
as are ordinarily exercised by the average of the members of the
profession in good standing.” Id.The plaintiff must establish, through the use of expert
testimony, both the standard of care and that the treating
physician’s actions breached that standard. W. Va. Code § 55-
7B-7(a). Finally, the plaintiff must prove that the breach was
the proximate cause of the injuries suffered.
Determinations about both the standard of care and
causation constitute findings of fact. See Mays v. Chang, 579
S.E.2d 561, 565 (W. Va. 2003). After a bench trial, we review
such findings for clear error. Ellis v. Grant Thornton LLP, 530
F.3d 280, 286-87 (4th Cir. 2008); Fed. R. Civ. P. 52(a)(6).
Factual findings will be overturned only if “the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Ellis, 530 F.3d
at 287 (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)). In considering the evidence, we must
give due regard to the trial court’s ability to judge the
10
credibility of witnesses. Fed. R. Civ. P. 52(a)(6). With these
principles in mind, we examine each of the district court’s
challenged factual findings.
A.
The district court found that a doctor’s placement of a
stitch through a ureter, in and of itself, does not violate the
standard of care. The record offers strong support for this
finding. Drennen’s own expert, Dr. Zaslau, although opining
that negligence arises when a physician fails to perform an
invasive diagnostic procedure to check whether he stitched
incorrectly, conceded that an errant stitch, standing alone,
does not breach any applicable standard of care.
B.
With regard to causation, the district court found that
Drennen had not established, by a preponderance of the evidence,
that a stitch had obstructed her ureter. Again, the testimony
of Drennen’s own expert supports this finding, as Dr. Zaslau
acknowledged that he had not personally seen a stitch in
Drennen’s ureter. Instead, he opined that the other possible
causes of a blockage to the ureter -- edema (swelling), a
congenital stricture, and kidney stones -- were relatively
unlikely. Dr. Zaslau also asserted that, although Dr. Stoltzfus
had noted that Drennen’s ureter inserted ectopically, Dr. Zaslau
considered that possibility unlikely.
11
The district court found Dr. Zaslau’s process-of-
elimination rationale unpersuasive. The court found that edema
could have caused the blockage, and that an ectopically inserted
ureter might also have caused the problem. It also found Dr.
Zaslau’s testimony not entirely credible because the doctor had
not voiced any concerns about a surgical stitch until after
Drennen had retained him as an expert witness. The district
court found that this shift in Dr. Zaslau’s views “cast a shadow
of doubt on the objectivity of his reports,” and thus diminished
the weight of his testimony.
Drennen argues that Dr. Zaslau was the only expert who
testified as to causation, and therefore the district court
clearly erred in rejecting Dr. Zaslau’s testimony. This
argument fails. Drennen cites no rule of law requiring a finder
of fact to accept the testimony of an expert witness, especially
when it finds that witness’s testimony inconsistent and his
credibility impaired. Indeed, it seems axiomatic that when a
district court acts as a fact-finder it, like a jury, may accept
all, part, or none of a paid expert’s opinion. See 9C Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 2586 (3d ed. 2004) (“The court need not accept even
uncontradicted and unimpeached testimony if it is from an
interested party or is inherently improbable.”).
12
Furthermore, Drennen points to no hard evidence that
corroborates Dr. Zaslau’s testimony. Dr. Zaslau himself
conceded that he did not see any stitch, but rather concluded
that a stitch probably caused Drennen’s blockage because, in his
opinion, other causes were unlikely. To be sure, Dr. Zaslau’s
testimony appears methodical and thorough. But absent some
concrete proof, Dr. Zaslau’s reasoning is only as persuasive as
the district court -- which had an opportunity to observe Dr.
Zaslau and weigh his demeanor and credibility -- found it to be.
Because we are not “left with the definite and firm conviction
that a mistake has been committed,” we cannot disturb the
judgment of the district court. Ellis, 530 F.3d at 287.
C.
Finally, we see no error in the district court’s findings
as to the standard of care relating to the “failure to check”
theory. Dr. Zaslau conceded in his deposition that the risk of
an injury to the ureter in anterior repair surgery was low, 4 but
stated that in his opinion, a prudent physician would still
perform some ancillary diagnostic procedure. Dr. Zaslau
testified that there were two procedures that a physician might
4
Dr. Zaslau cited a study stating that in a broad array of
vaginal surgeries, including anterior repairs, the total injury
rate was 8.8 out of 1000, or 0.88%. He first characterized this
as a high number, but then backtracked and stated that the
“incidents of these renal injuries is low.”
13
use: cystoscopy and IVP. 5 He admitted, however, that cystoscopy
had not yet been adopted as the standard of care.
Dr. Zaslau testified inconsistently on the question of
whether the standard of care required IVP in lieu of cystoscopy.
At one point, he stated that it would be negligent to do neither
cystoscopy nor IVP. However, moments later, Dr. Zaslau agreed
that it was “a fair statement” that “there is really only one
good way to check, and that’s using cystoscopy.” Of course, he
had already conceded that the standard of care did not require
cystoscopy.
Dr. Ashby and Dr. Wolfe, on the other hand, both
unequivocally testified that the risk of obstructing a ureter
during anterior repair surgery was sufficiently low that a
prudent physician would not perform any invasive diagnostic
procedure. These experts stated that the standard of care
required the physician to perform the surgery carefully, but did
not require cystoscopy or IVP. The district court credited
5
On appeal, Drennen suggests that a surgeon could use
methods other than cystoscopy and IVP to check for ureteral
obstruction. She discusses antegrade and retrograde pyelograms
(which may or may not be the same as an intravenous pyelogram
(IVP)), dye tests (which require cystoscopy in order to be
effective), and the use of balloon catheters and sensor wires.
However, to the extent that these methods differ from cystoscopy
or IVP, no witness (or lawyer) advocated any of them before the
district court. In fact, the experts specifically testified
that cystoscopy and IVP were the only plausible ways to perform
an intraoperative diagnosis for ureteral obstruction.
14
their views, noting that while cystoscopy might become the
standard of care in the future, currently that is not the case.
“Evaluating the credibility of experts and the value of
their opinions is a function best committed to the district
courts, and one to which appellate courts must defer. An
appellate court should be especially reluctant to set aside a
finding based on the trial court's evaluation of conflicting
expert testimony.” Hendricks v. Cent. Reserve Life Ins. Co., 39
F.3d 507, 513 (4th Cir. 1994). Given the conflict in the expert
testimony and the inconsistencies in Dr. Zaslau’s testimony, we
cannot say that the district court’s decision to credit the
testimony of Dr. Wolfe and Dr. Ashby constituted clear error. 6
III.
Drennen challenges two of the district court’s evidentiary
rulings. We review these rulings “under the deferential abuse
6
Drennen argues that the district court erred by treating
Dr. Wolfe as an expert. We address this argument below in
section III. But we note here that even if Dr. Wolfe should not
have been regarded as an expert, the principal effect of
excluding his testimony regarding the standard of care would be
to ignore his statement that the standard of care does not
require IVP. This exclusion would not aid Drennen. Because she
did not present any evidence that the standard of care does
require IVP, she still would have failed to carry her burden of
proof. Furthermore, Dr. Ashby, whose status as an expert is
undisputed, stated that the standard of care does not require an
IVP, or any other additional diagnostic test.
15
of discretion standard.” United States v. Rooks, 596 F.3d 204,
209-10 (4th Cir. 2010).
First, Drennen argues that the district court improperly
admitted Dr. Wolfe as an expert in this case. Federal Rule of
Civil Procedure 26(a)(2) requires parties to disclose the
identities of expert witnesses in advance of trial. Rule
26(a)(2)(B) provides that, unless a court orders otherwise, when
“the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party's
employee regularly involve giving expert testimony,” such
disclosures “must be accompanied by a written report” setting
forth the relevant details of the witness’s testimony.
In this case, the district court noted that the Government
identified Dr. Wolfe as an expert, but it did not submit a
written report regarding his testimony. The court nevertheless
admitted Dr. Wolfe’s testimony on the ground that treating
physicians like Dr. Wolfe are exempt from Rule 26’s written
report requirement because treating physicians are not “retained
or specially employed to provide expert testimony.”
The district court did not abuse its discretion in so
holding. As a treating physician, Dr. Wolfe was not retained or
specially employed to provide expert testimony in this case.
The note accompanying the 1993 amendments to Rule 26 confirms
that this is the proper interpretation of Rule 26. It states:
16
The requirement of a written report in paragraph
(2)(B) . . . applies only to those experts who are
retained or specially employed to provide such
testimony in the case or whose duties as an employee
of a party regularly involve the giving of such
testimony. A treating physician, for example, can be
deposed or called to testify at trial without any
requirement for a written report.
Fed. R. Civ. P. 26(a)(2) advisory committee’s note (emphasis
added). The district court thus properly relied on Dr. Wolfe’s
testimony as an expert opinion. 7
Second, Drennen contends that the district court
erroneously refused to consider an alleged “statement against
interest” by Dr. Wolfe’s partner, Dr. Resley. Dr. Resley
testified that Dr. Wolfe “may have said something to the effect
of we got -- I got a ureter during this case. I don’t really
remember, but, yes, you know, the assumption would have been
that this was related to the surgery.”
Dr. Resley also stated, “Dr. Wolfe assumed that it was
related to the surgery at the time. Now, whether it was a
direct injury to the ureter or whether it was something that had
7
Drennen argues that the district court acted
inconsistently because it permitted Dr. Wolfe to testify as an
expert, but it refused at trial to admit the testimony of Dr.
Resley. The difficulty with this argument is that Dr. Wolfe and
Dr. Resley are not similarly situated. In fact, during the
colloquy in which Drennen’s trial counsel successfully objected
to Dr. Resley answering questions about the standard of care, he
conceded that “this line of questioning is certainly appropriate
for Dr. Wolfe, who actually did the cystocele repair . . . .”
17
occurred during the healing process or whether it was a kinking,
he didn’t indicate. I certainly don’t know.”
On appeal, Drennen reiterates her argument to the district
court that Dr. Resley’s reporting of Dr. Wolfe’s statement that
he “got a ureter” was an admission of liability. Drennen
emphasizes that Rule 804(b) creates an exception to the hearsay
rule for admissions against interest, and argues that the
district court therefore erred in refusing to consider this
testimony.
This argument fails. Drennen objects to a ruling that the
district court never made, as the court never excluded Dr.
Resley’s testimony on the ground that it was hearsay. Rather,
the court explicitly evaluated Dr. Resley’s testimony and found
his statement susceptible to different interpretations. We
agree with that assessment. To “get” a ureter could mean, as
Drennen contends, that Dr. Wolfe conceded that he inadvertently
stitched through the ureter, but it could also mean, as the
district court held, that Dr. Wolfe only stated that Drennen
“got” a ureter problem after her surgery, without any opinion as
to the cause of the problem. Taken in context, the latter
meaning seems just as likely as the former, and the district
court did not abuse its discretion in so finding.
Furthermore, even if we accept Drennen’s characterization
of Dr. Resley’s statement, she still has not demonstrated
18
reversible error. Taken at face value, Drennen’s argument is
that when she came to see Dr. Wolfe two weeks after her surgery,
complaining of pain consistent with a ureteral obstruction, he
expressed concern that he had obstructed a ureter. That
statement may prove that Dr. Wolfe was anxious that he might
have obstructed a ureter, but it certainly does not prove that
he actually did obstruct a ureter. When weighed alongside the
other evidence, Dr. Wolfe’s assumption that Drennen’s injuries
might have been related to the surgery is simply not
sufficiently probative to warrant reversal.
IV.
Finally, Drennen argues that the district court erred by
refusing to consider her IVP theory. The district court held
that under governing West Virginia law, Drennen was required to
outline this theory in her pre-trial notice of claim, but had
failed to do so, focusing instead on cystoscopy to the exclusion
of IVP or any other diagnostic test. The court held, in the
alternative, that “[e]ven if Plaintiffs had complied with the
notice requirements . . . the testimony elicited at trial does
not establish IVP as the national standard of care.”
We need not reach Drennen’s statutory interpretation
argument because even if the district court was bound to
consider her IVP theory, it did not err in concluding that
19
Drennen had failed to offer evidence that the national standard
of care requires a surgeon to perform an IVP during an anterior
repair. West Virginia medical malpractice law places the burden
on the plaintiff to come forth with expert testimony to
substantiate her claim. See W. Va. Code § 55-7B-7(a); Farley v.
Shook, 629 S.E.2d 739, 744 (W. Va. 2006); Roberts v. Gale, 139
S.E.2d 272, 276 (W. Va. 1964). As the district court explained,
no expert testified that the standard of care requires a
physician to employ an IVP here. In fact, two experts, Dr.
Wolfe and Dr. Ashby, explicitly testified to the contrary.
Thus, even assuming that Drennen properly complied with the
notice requirements of the MPLA, she cannot demonstrate that the
national standard of care requires a physician to perform an
intraoperative IVP in the circumstances of this case.
V.
The judgment of the district court is
AFFIRMED.
20