United States District Court, S.D. West Virginia, Beckley Division
SARA M. LAMBERT SMITH and SCOTT SMITH, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
C. BERGER, UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF
Court has reviewed the Defendant United States of
America's Motion for a New Trial, and/or to Vacate, Alter
and/or Amend the Judgment Entered in this Civil Action
(Document 113) and Memorandum in Support (Document
114), the Plaintiffs' Response to Defendant, United
States of America's Motion for a New Trial, and/or to
Vacate, Alter, and/or Amend the Judgment Order Entered in
this Civil Action (Document 118), and the Defendant
United States of America's Reply Memorandum in Support of
Its Motion for a New Trial, and/or to Vacate, Alter and/or
Amend the Judgment Entered in this Civil Action
parties appeared for a bench trial in this matter from July
18, 2016 through July 19, 2016. On November 15, 2016, the
Court entered a Memorandum Opinion and Order
(Document 104), finding that the Plaintiffs had demonstrated
that they were injured by the actions of a doctor deemed to
be an employee of the United States. The Court awarded $29,
661.67 in economic damages and $603, 020.00 in non-economic
damages to Plaintiff Sarah Lambert Smith, and $40, 000 in
loss of consortium damages to Plaintiff Scott Smith.
brief summary, the Plaintiffs claimed that Dr. Roy Wolfe,
deemed an employee of the United States, deviated from the
applicable standard of care in treating Ms. Smith when she
presented to the emergency room at Raleigh General Hospital
with postpartum bleeding. She was admitted to the E.R. a
little after 5:00 a.m., on December 25, 2013. Dr. Wolfe
ordered tests, and saw her at around 6:30 a.m. Ms.
Smith's bleeding appeared heavy and had been ongoing
since about 2:30 a.m., but her vital signs and lab results
relevant to blood loss remained stable and normal. She was
prepped for surgery. Dr. Wolfe examined the size and
consistency of Ms. Smith's uterus, and found it normal.
He performed a dilation and curettage (D&C) to ensure no
products of conception remained, attempted to pack her uterus
with sponges, administered two uterotonics, and then
converted to a hysterectomy. He began the hysterectomy at
Court made no definitive finding regarding the cause of Ms.
Smith's post-partum bleeding, but found that the United
States' evidence that she had placenta accreta was
unconvincing. The Court credited the standard of care
testimony of the Plaintiffs' expert, Dr. William Irvin,
who set forth a series of treatment modalities, to be
attempted from the most conservative to the most intrusive.
The evidence established that the cause of post-partum
hemorrhage could not typically be diagnosed unless the uterus
is removed through hysterectomy and examined by a
pathologist. Therefore, the standard of care for post-partum
bleeding is not dependent on the cause of the bleeding. Dr.
Irvin presented several studies establishing that multiple
treatment methods had success rates of over 60%, regardless
of the cause of the bleeding, and some had success rates as
high as 90%. The Court concluded that the Plaintiffs had
demonstrated by a preponderance of the evidence that there
was a greater than 25% chance that Ms. Smith's bleeding
could have been stopped without a hysterectomy, if Dr. Wolfe
had followed the applicable standard of care.
artery embolization is a particularly effective treatment,
but would have required Ms. Smith to be transferred to the
Charleston Area Medical Center. The Defendant contended that
she was not stable enough for transfer, which would have
taken approximately fifteen minutes by helicopter or one hour
by ambulance. The Court found that the evidence did not
support that contention, but, instead, supported the
conclusion that transfer for uterine artery embolization was
required, if less invasive procedures were not successful in
stopping Ms. Smith's bleeding.
United States seeks reconsideration of the Court's
judgment pursuant to Rule 52(b) and/or Rule 59(e). Rule 52(b)
provides that, in cases tried without a jury, a party may
move the court to amend its findings, make additional
findings, and amend the judgment within 28 days after entry
of judgment. Such motions may be brought in conjunction with
a motion under Rule 59. Rule 59(e) permits parties to seek to
alter or amend a court's judgment within 28 days of entry
of that judgment. Fed.R.Civ.P. 59(e). Rule 59(e) motions
“may only be granted in three situations: (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest
injustice.” Mayfield v. Nat'l Ass'n for
Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir.
2012) (internal quotation marks and citation omitted).
Furthermore, “Rule 59(e) motions may not be used to
re-litigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.” Melendez v. Sebelius, 611
F.App'x 762, 764 (4th Cir. 2015) (unpublished) (internal
quotation marks and citations omitted).
United States argues that the Court should amend its findings
and vacate its judgment based on evidence that the treatments
the Court found to be required by the standard of care
“were effective only for the treatment of uterine atony
and/or placenta accreta.” (Def.'s Mem. at 3.) The
Court did not find that either condition caused Ms.
Smith's bleeding, and so the United States argues that
the failure to employ those treatments could not have caused
her damages. The United States further argues that the
finding that Dr. Wolfe acted in reckless disregard of Ms.
Smith's condition is erroneous. This argument is also
based on the United States' position that the failure to
use certain treatments could not have caused Ms. Smith's
harm because those treatments would not have been effective
for bleeding caused by any condition other than placenta
accreta or atony.
Plaintiffs argue that the United States is simply attempting
to re-litigate facts and legal theories that the Court
considered and rejected in the first instance, and is
therefore not entitled to relief under the standard of review
for motions under Rules 52(b) and 59(e). Substantively, the
Plaintiffs emphasize that Dr. Irvin opined, repeatedly, that
the standard of care did not depend on the cause of the
bleeding. Likewise, Dr. Irvin testified that the likelihood
that following the standard of care would successfully stop
post-partum bleeding without hysterectomy did not vary
significantly based on the cause of the bleeding. The
Plaintiffs argue that there was a more than sufficient
factual basis to support the Court's finding that Dr.
Wolfe acted with reckless disregard in failing to attempt
alternative treatment required by the standard of care before
performing a hysterectomy.
Court finds, as an initial matter, that the United States has
not presented an intervening change in controlling law, new
evidence, or a clear error of law or potential manifest
injustice. Its motion must be denied on that basis alone.
However, the Court will briefly address the United
States' contentions regarding the evidence on causation.
United States misconstrues the causation issues presented by
this case. The Plaintiffs were required to show that Dr.
Wolfe's failure to comply with the standard of care
caused her damages-or, more specifically, that failure to
comply with the applicable standard of care cost her a more
than 25% chance of an improved outcome. The Court determined,
based on the expert testimony, that the cause of her
post-partum bleeding was not a factor in determining either
the standard of care or the chance that she could have
avoided a hysterectomy with proper treatment. Under the
circumstances, the Plaintiffs were not required to prove the
cause of Ms. Smith's bleeding. The evidence revealed that
whether she had placenta accreta, retained products of
conception, an infection, or some other problem, the standard
of care includes effective treatments short of hysterectomy.
Court detailed in the original opinion, Dr. Irvin testified
that certain treatment modalities were more effective for
bleeding caused by certain conditions, such as using uterine
massage for uterine atony. He explained that doctors work
through the entire list because the cause of post-partum
bleeding is generally unknown during treatment. He
specifically addressed success rates for bleeding caused by
placenta accreta because the United States' position at
trial was that Ms. Smith's bleeding was caused by
placenta accreta. That testimony was essentially aimed at
demonstrating that even if the United States was correct, and
Ms. Smith had placenta accreta-among the more difficult and
dangerous potential causes of post-partum bleeding-the
treatment modalities in the standard of care would have been
likely to effectively stop the bleeding without a
hysterectomy. Dr. Irvin did not suggest that those treatments
were only effective for bleeding caused by placenta
Irvin also offered the general success rates of various
treatment methods, including compression sutures (B-Lynch,
hemostatic, and multiple square sutures), uterine artery
embolization, balloon tamponade, and arterial ligation, each
of which have general success rates, regardless of the cause
of bleeding, of over 80%. On cross-examination, Dr. Irvin
agreed that uterine massage and uterotonics were effective
primarily for uterine atony, and would have been of little
benefit to Ms. Smith if her bleeding was not caused by atony.
When questioned about B-Lynch sutures and uterine packing on
cross, he reaffirmed that they are effective treatments for
post-partum bleeding, no matter the cause. Dr. Irvin also
repeatedly explained that doctors do not know the cause of
bleeding with any certainty at the time of treatment, and
must therefore attempt all treatments. He testified that the
treatments required by the standard of care are collectively
very effective in treating post-partum bleeding of any cause.
The Court therefore concluded that, had Dr. Wolfe followed
the standard of care, there was a greater than 25% chance
that Ms. Smith would have retained her fertility. The Court
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 ...