United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is defendant United States of America's motion for
summary judgment, filed on August 9, 2016 (ECF No. 40).
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.
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.
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 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.
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. Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991). 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.
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. In particular, the
government notes that when a plaintiff proceeds under a loss
of chance theory, the relevant statutory text reads as
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.
Code § 55-7B-3(b).
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.
appears to be correct. Dr. Levin's report reads as
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; ...