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Goodman v. United States

United States District Court, S.D. West Virginia, Huntington Division

August 3, 2018

LORI GOODMAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE.

         There are presently eight pending motions in this case. As set forth herein, the motions are disposed of as follows: (1) Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction/Motion for Total or Partial Summary Judgment, ECF No. 36, is GRANTED in part and DENIED in part; (2) Defendant's Motion to Dismiss for Failure to Serve a Screening Certificate of Merit as Required by West Virginia Code, ECF No. 44, is DENIED; (3) Defendant's Motion to Exclude Evidence of Damages Not Already Disclosed, ECF No. 53, and Defendant's Motion to Preclude Plaintiff From Making Golden Rule Arguments, ECF No. 49, are GRANTED as uncontested; (4) Defendant's Motion to Exclude Opinions, Evidence, and/or Testimony Regarding Alleged Deviations From the Standard of Care, ECF No. 51, is GRANTED in part and DENIED in part; (5) Defendant's Motion to Exclude Evidence of Amounts Paid for Past Medical Expenses in Excess of Amounts Actually Paid, ECF No. 55, is GRANTED; and (5) Defendant's Motion to Preclude Plaintiff From Introducing or Using Literature, ECF No. 57, and Plaintiff's Cross-Motion to Preclude Defendant from Introducing or Using Literature, ECF No. 68, are DENIED as premature.

         I. Background

         Plaintiff filed the present Complaint on July 1, 2016. ECF No. 1. In her Complaint, Plaintiff alleges that during the time period relevant to her injury she was a patient of Dr. Andrea Kellar, a physician whose primary work location was at Valley Health Systems, Inc. (“Valley Health”). Id. Valley Health is “a designated federally supported health center under the Public Health Services Act, ” ECF No. 37, such that the Federal Tort Claims Act (“FTCA”) provides for Government compensation in the case of “personal injury or death caused by the negligent or wrongful act or omission of any employee [of Valley Health] while acting within the scope of [her] office or employment . . .” 28 U.S.C. § 2672. Plaintiff alleges that she was the victim of such acts and omissions.

         Plaintiff's claims, brought pursuant to the FTCA, allege that Dr. Kellar performed a hysterectomy on Plaintiff at Cabell Huntington Hospital on May 6, 2014. ECF No. 1. Plaintiff asserts that, during that operation, Dr. Kellar “inserted a suture through [Plaintiff's] bladder wall” and failed to discover the suture placement before closing Plaintiff's incision. Id. Plaintiff claims that, following the hysterectomy, she suffered from painful and abnormal urination and a low-grade fever, but Dr. Kellar failed to diagnose the misplaced suture. Id.

         On September 23, 2014, Plaintiff consulted with a urologist, Dr. James Woolums. ECF No. 1. On October 7, 2014, Dr. Woolums “performed a cystoscopy on Plaintiff and discovered a stitch/hole in Plaintiff's bladder and an area on Plaintiff's posterior bladder wall, consistent with a fistula.” Id. Dr. Woolums then performed a second surgery on Plaintiff on December 8, 2014, to repair the fistula and the injuries to Plaintiff's bladder. Id.

         Plaintiff alleges that Dr. Kellar was negligent in her care and treatment of Plaintiff in four ways: (1) misplacement of the suture; (2) failure to timely recognize the misplaced suture; (3) failure to timely remove the misplaced suture; and (4) other negligent acts. ECF No. 1. Plaintiff further alleges that, as a result of Dr. Kellar's alleged negligence, Plaintiff suffered personal injuries and damages.

         After Plaintiff filed her Complaint and Defendant timely answered on December 12, 2016, the parties underwent their first period of discovery. During that period, Dr. Kellar provided deposition testimony in which she informed the parties that she had been assisted during Plaintiff's surgery by a resident physician employed by the Marshall University School of Medicine, Dr. Jessica Granger. ECF No. 37. During her deposition, Dr. Kellar testified that it was Dr. Granger, not Dr. Kellar, who placed the suture through Plaintiff's bladder. ECF No. 36-4. After Dr. Kellar's testimony, the parties took the deposition of Plaintiff's expert, Dr. Robert Dein. At that time, Dr. Dein testified that, based on Dr. Kellar's testimony, Dr. Granger likely placed the errant suture. ECF No. 36-5 (“That is the best information I have based on what Dr. Kellar stated . . .”).

         On December 22, 2017, Defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or Motion for Total or Partial Summary Judgment. ECF No. 36. In that Motion, Defendant disclosed an Affiliation Agreement between Marshall University School of Medicine and Valley Health Systems, Inc. ECF No. 36-1. According to Defendant, the Affiliation Agreement is a key document in determining the relationships between the parties - specifically the relationship between Dr. Granger and Valley Health. ECF No. 36. The Agreement, however, was not produced in discovery despite Plaintiff's requests for any such information or material. ECF No. 66.

         As a result of the nondisclosure of the Affiliation Agreement during the discovery period, Plaintiff moved the Court to allow for additional discovery regarding the relationships between the involved parties and Dr. Kellar's potential liability for the acts of Dr. Granger. ECF No. 65. Finding good cause, the Court granted Plaintiff an additional discovery period for the purpose of clarifying these relationships on February 28, 2018. ECF No. 81. During this period of additional discovery, the parties deposed Dr. Paulette Wehner, Vice Dean for Graduate Medical Education at Marshall University's medical school. ECF No. 92, at 2. Dr. Wehner testified at that deposition that the Affiliation Agreement was inapplicable to Marshall residents assisting physicians at Cabell Hunting Hospital. ECF No. 92-1, at 4.

         The additional discovery period expired in June 2018. Id. At that time, both parties submitted supplemental briefing to the Court regarding the issue of the relevant relationships and liability for the involved parties and actors. ECF Nos. 92, 93. In their briefing, the parties informed the Court that they discovered it is In addition to Defendant's Motion to Dismiss and/or Motion for Total or Partial Summary Judgment, the parties have several other pretrial motions pending in this case. The Court disposes of all pending motions as set forth herein.

         II. Discussion

         a. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction/Motion for Total or Partial Summary Judgment

         Defendant argues that Plaintiff's case should be dismissed or that the Court should grant summary judgment in favor of Defendant for several reasons. The Court considers each of Defendant's arguments below and, for reasons specified herein, GRANTS in part and DENIES in part.

         i. Dr. Kellar's Alleged Negligence

         First, Defendant argues that it is entitled to summary judgment because “Dr. Kellar did not place a suture into the plaintiff's bladder during the hysterectomy . . .” ECF No. 37, at 4.

         A party is entitled to summary judgment “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). Summary judgment may not be granted where the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment should be granted, however, when, drawing all inferences in a light most favorable to the non-movant, “the record as a whole could not lead a rational trier of fact to find for the non-movant.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

         Defendant asserts that the evidence as to who placed the stitch causing injury is “undisputed” and that, as a result, Defendant is entitled to summary judgment. Plaintiff points out in her Response that, in her Complaint, the placement of the stitch was only one of several injuries she allegedly suffered at the hands of Dr. Kellar. ECF No. 39, at 8. Plaintiff's Complaint alleges the following in support of her negligence claim: (1) Dr. Kellar negligently placed a suture in Plaintiff's bladder; (2) Dr. Kellar failed to timely recognize that a suture had been placed through Plaintiff's bladder during the operation; (3) Dr. Kellar failed to timely remove the misplaced suture; and (4) “other negligent acts.” ECF No. 1.

         Defendant's argument addresses only the first of these claims and does not address the alleged negligence underlying Plaintiff's claims that Dr. Kellar failed to timely recognize the suture, failed to timely remove the suture, and committed other negligent acts. Accordingly, the Court finds that there remains a genuine dispute of material fact as to whether Dr. Kellar's overall treatment of Plaintiff fell below the applicable standard of care. On this point, Defendant's Motion is DENIED.

         ii. Sovereign Immunity as to Actions of Dr. Granger

         While Plaintiff's claims as to Dr. Kellar's negligence remain, Defendant argues that it cannot be held vicariously liable for any negligence on the part of Dr. Granger. ECF No. 37, at 5. Defendant admits that Valley Health is a “federally supported clinic covered by [relevant federal laws and the FTCA], ” but argues that because Dr. Granger was not an employee of Valley Health at the time of the alleged negligence, Defendant cannot be held liable for any negligence on Dr. Granger's part. Id.

         “The [FTCA] is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment. United States v. Orleans, 96 S.Ct. 1971, 1975 (1976). The FTCA's definitions section provides that its term “employee of the government” includes “officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official ...


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