United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
a bench trial on May 21 and 22, 2019, the Court found in
favor of Plaintiff and awarded $398, 017.57 in damages. ECF
No. 133. A subsequent Order corrected the damages calculation
and reduced the damages to $355, 359.43. ECF No. 137. Now
pending is Defendant's Motion to Vacate, Alter and/or
Amend the Judgment Entered in this Civil Action and Enter
Judgment in Favor of the United States, or, in the
Alternative, Motion for a New Trial. ECF No. 141. For the
reasons below, the Court DENIES
Federal Rule of Civil Procedure 59(e), a court may alter or
amend a judgment “(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.” Irani v.
Palmetto Health, 767 Fed. App'x 399, 423 (4th Cir.
2019) (citation omitted). Mere disagreement with a
court's decision does not support a Rule 59(e) motion.
Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.
1993) (citation omitted).
Defendant makes three arguments “to correct a clear
error of law or prevent manifest injustice.”
Irani, 767 Fed. App'x at 423. First, Defendant
argues the Court had inadequate evidence and legal
justification to conclude Defendant violated the applicable
standard of care. ECF No. 142, at 11-17. Second, Defendant
argues the Court had inadequate evidence to conclude the
alleged negligence proximately caused the alleged injury.
Id. at 17-18. Third, Defendant argues the Court
awarded excessive damages and should reduce them.
Id. at 19. The Court will address these arguments in
The evidence supports the Court's finding that Defendant
violated the standard of care.
argues Defendant was not negligent because the inadvertent
suturing of the bladder during a hysterectomy is a known risk
that can occur at the hands of any surgeon. ECF No. 142, at
11-12. The medical pamphlet given to Plaintiff,
Plaintiff's expert Dr. Robert Dein, and Defendant's
expert Dr. Steven McCarus all acknowledged this risk of
injury. ECF No. 132-28; ECF No. 145, at 42; ECF No. 136, at
192. However, the fact that a particular injury is a known
risk of a procedure does not preclude a finding of
negligence. For example, in Klepack v. United
States, the court found a physician breached the
standard of care by burning a patient's bowel even though
the physician had communicated the risk of burning to the
patient. 5:13-CV-124, 2015 WL 12791400, at *2, *7 (N.D. W.Va.
Nov. 19, 2015). Plaintiff's knowledge of a possible risk
to her bladder is therefore irrelevant to determining whether
Defendant was negligent.
also contends that two cases, Varga v. United States
and Franklin v. United States, confirm that
“the inadvertent placement of a suture in the bladder
during a hysterectomy is not negligence as a matter of
law.” ECF No. 144, at 2; 314 F.Supp. 671 (E.D. Va.
1969), aff'd, 422 F.2d 1333 (4th Cir. 1970);
12-1167 KBM, 2014 WL 12628533 (D.N.M. 2014). Both
Varga and Franklin did hold that the
suturing of the bladder during a hysterectomy was not
negligent. 314 F.Supp. at 675; 2014 WL 12628533, at *5.
However, Defendant's argument that these cases compel a
finding of no negligence here overstates their
significance. The Court reads Varga and
Franklin to hold only that suturing a bladder during
a hysterectomy can occur without negligence. Neither case
precludes the possibility of a negligent suturing of the
bladder. In other words, suturing the bladder during a
hysterectomy is not necessarily, but can be, the result of
and Franklin are also of limited help because they
contain little discussion of expert testimony specific to the
hysterectomies at issue. Instead, the opinions rely more on
the general proposition that suturing the bladder is a known
and inevitable risk. See 314 F.Supp. at 675; 2014 WL
12628533, at *5. Without more specific analysis of expert
testimony, the Court cannot use these cases for guidance on
how to measure a physician's performance against the
standard of care to distinguish between negligent and
nonnegligent bladder injuries. Any reliance on Varga
for determining negligence is further suspect given the
opinion's age, for the expert testimony that persuaded
the court is now approaching fifty years old.
factor relevant to the standard of care-a patient's
anatomy and related medical history-further distinguishes
this case from Varga and Franklin. In
Varga, a physician diagnosed the plaintiff with a
first degree uterine prolapse and a third degree
cystourethrocele prior to surgery. 314 F.Supp. at 673. And,
in Franklin, the plaintiff's physician found
remodeling of the cervix and vagina and a mass in the
cul-de-sac of the rectum that may have resulted from a
retroverted uterus. 2014 WL 12628533, at *4. The physician
also found the plaintiff's uterus was slightly enlarged
and very firm and that there was no distinct cervix with an
anterior and posterior lip. Id. Anatomic
irregularities like these may heighten the risk of suturing a
patient's bladder during a hysterectomy. ECF No. 145, at
23-25, 36-37. But here, Plaintiff exhibited normal anatomy.
Id. at 23. She had no distortion from scar tissue,
endometriosis, prior radiation, abscesses, or any other
anatomic distortion that would have made a bladder injury
more acceptable under the standard of care. Id.
also argues the Court cannot rely on Dr. Dein's testimony
because it lacks factual support. ECF No. 142, at 14-15.
However, Dr. Dein based his opinion on the totality of the
evidence in this case. ECF No. 145, at 22. He reviewed
Plaintiff's medical records, including Dr. McCarus's
report and Dr. Charles Woolums's operative report from
repairing Plaintiff's fistula. Id. at 20, 29. He
read the depositions of Dr. Andrea Kellar, Dr. Jessica
Granger, Dr. Woolums, and Plaintiff. Id. at 20. And
he evaluated this evidence based on his extensive medical
education, training, and experience performing hundreds of
vaginal hysterectomies and evaluating adverse treatment
outcomes as chair of a risk management committee.
Id. at 20-21, 11, 7-8. Dr. Dein testified that this
combination of education, training, experience, and review of
the relevant materials allowed him to testify on Dr.
Kellar's alleged negligence to reasonable medical
probability. Id. at 21-22.
Court concluded Dr. Dein testified to reasonable medical
probability, and, after reviewing the record, the Court
agreed with his conclusions. Plaintiff had no anatomic
distortions that would make injury to the bladder more
reasonable. Id. at 23. As the attending physician,
Dr. Kellar was responsible for the placement of all sutures,
including those placed by Dr. Granger. Id. at 25.
Dr. Kellar was also responsible for knowing the location of
Plaintiff's bladder. Id. at 23, 18. However, Dr.
Kellar lacked situational awareness during the operation.
Id. at 25. She did not know the location of the
bladder, and she overlooked the placement of a suture in the
bladder. Id. at 25- 26. Dr. Kellar should have been
able to see that the suture was close to the bladder.
Id. If Dr. Kellar was unable to see whether a suture
was close to the bladder, she should have manipulated the
field to check. Id. at 26. Dr. Kellar should have
suspected she was close to the bladder, and the standard of
care is to use a cystoscopy if a physician suspects being
close to the bladder. Id. at 50, 25. However, Dr.
Kellar did not suspect an injury because she lacked proper
anatomic orientation, so she did not discover the misplaced
suture. Id. at 50. Therefore, she violated the
standard of care.
The evidence supports the Court's finding that
Defendant's negligence proximately caused Plaintiff's
needed to prove that Dr. Kellar's negligent suturing of
Plaintiff's bladder proximately caused Plaintiff's
subsequent injuries. W.Va. Code § 55-7B-3(a)(2) (2003).
Proof of proximate causation must ordinarily be by expert
testimony. Hicks v. Chevy, 358 S.E.2d 202, 205
(W.Va. 1987) (citation omitted). A physician testifying to
the causal relationship between a physical condition and a
defendant's negligence only needs to testify to a