Federal Judge Awards Maximum Allowable Damages In West Virginia Medical Malpractice Case

162017_132140396847214_292624_nOn November 15, 2016, a federal judge ruled in favor of a woman and her husband in a federal medical malpractice case, finding that the woman’s physician, who was a federal employee, acted with reckless disregard to a risk of harm to the woman, thereby leading the judge to award the plaintiffs the maximum allowable damages in medical malpractice cases in West Virginia. The two-day trial before the federal judge took place in July 2016.

West Virginia’s Medical Professional Liability law provides, in part:

(b) The plaintiff may recover compensatory damages for noneconomic loss in excess of the limitation described in subsection (a) of this section [$250,000], but not in excess of $500,000 for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, where the damages for noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities.

(c) On January 1, 2004, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the Consumer Price Index published by the United States Department of Labor, not to exceed one hundred fifty percent of the amounts specified in said subsections.

(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the aggregate amount of at least $1 million for each occurrence covering the medical injury which is the subject of the action.


The cap (limit) on noneconomic damages in West Virginia medical malpractice cases applicable to the plaintiffs’ federal medical malpractice case was $643,020. The Federal Tort Claims Act provides that the damages caps of the states where the medical negligence occurs apply in federal medical malpractice cases. The federal judge awarded the woman’s husband $40,000 in noneconomic damages and the woman was awarded the balance of the cap on noneconomic damages. The federal judge awarded the woman an additional $29,600 in economic damages for her medical expenses.

The 24-year-old woman’s doctor performed a total hysterectomy on her without attempting alternative treatments despite the woman having stable vital signs with no evidence that she was hemodynamically unstable, resulting in loss of fertility, hormonal changes and early menopause following her hysterectomy, and injury to her marriage and emotional distress. The federal judge found the doctor’s actions constituted a reckless disregard to a risk of harm to the patient that allowed the federal judge to award unlimited economic damages. The judge stated in her written opinion, “Having carefully considered the damages suffered by the Plaintiffs, and in light of both the Court’s experience with jury verdicts in state and federal medical malpractice cases and a review of similar cases, the Court finds that Ms. Smith has suffered damages in excess of the statutory cap.”

The Underlying Facts

About five days after she gave birth to her first child by Cesarean delivery, the woman was taken to a local hospital due to heavy vaginal bleeding. Medical testing at the hospital revealed that she had an elevated white blood cell count and that she was experiencing possible retained products of conception. Other test results were normal and she was hemodynamically stable and her vital signs were normal despite her ongoing bleeding.

About one and a half hours after the woman was checked into the hospital emergency room, the federal employee doctor examined the woman and scheduled her for a D&C (dilation and curettage) and possible hysterectomy to stop the woman’s bleeding. During the informed consent conversation with the doctor, the woman told him that she wanted more children and that she wanted to keep her uterus if at all possible.

The doctor performed the D&C after which the woman continued to bleed and the doctor then performed the hysterectomy without first attempting uterine massage, additional uteronics, balloon tamponade, open uterine massage, bilateral O’Leary stitches, bilateral hypogastric ligation, B-Lynch sutures, hemostatic multiple square suturing, or transfer to another hospital for uterine artery embolization, most of which would have taken only seconds or a few minutes to perform, according to the federal judge’s written opinion.


If you or a loved one suffered injury (or worse) as a result of medical malpractice by a federal health care provider, you should promptly consult with a local medical malpractice lawyer in your U.S. state who handles Federal Tort Claims Act claims and who may investigate your federal medical malpractice claim for you and represent you or your loved one in a federal tort claim action, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to find federal medical malpractice attorneys (federal tort claim attorneys) who may assist you.

Turn to us when you don’t know where to turn.

This entry was posted on Wednesday, November 30th, 2016 at 5:13 am. Both comments and pings are currently closed.

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