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Judge awards max to woman, 24, after hysterectomy

A federal judge awarded a 24-year-old woman the maximum amount permitted under West Virginia’s medical malpractice laws after finding that a Beckley doctor who removed the woman’s uterus acted in reckless disregard of her safety.

U. S. District Judge Irene Berger ruled Nov. 15 in favor of Sara Lambert Smith and her husband, Scott Smith, in a lawsuit they filed against the United States. The Smiths sued over the actions of Dr. Roy Wolfe, who is considered a U.S. employee through his job with Access Health Associates, a federally funded health clinic in Beckley.

After a two-day bench trial in July, Berger found that the couple “demonstrated by a preponderance of the evidence that Ms. Smith’s injuries were the result of the negligence of Dr. Roy Wolfe, who is deemed an employee of the United States.”

“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 judge wrote.

The cap on non-economic damages in medical malpractice cases in West Virginia is $643,020. Berger awarded $40,000 of that to Scott Smith, for loss of consortium, and the rest to Sara Smith, who was also awarded about $29,600 in economic damages for medical bills.

“The Court finds that Dr. Wolfe’s failure to attempt alternative treatments prior to performing a hysterectomy, on a twenty-four-year-old patient with stable vital signs and no evidence of hemodynamic instability, constitutes a reckless disregard to a risk of harm to the patient,” Berger wrote. “Therefore, there is no limitation on economic damages.”

Sara Smith’s damages include, among other things, Berger wrote, the loss of her fertility, the early menopause and hormonal changes after her hysterectomy, and emotional damages related to the loss of fertility, hormonal changes and marital problems.

The couple was represented by lawyers Arden Curry II, Robert Berthold Jr. and Holly DiCocco. Assistant U.S. attorneys Fred Westfall Jr. and Matthew Lindsay argued on behalf of the federal government. Wolfe could not be reached for comment last week.

Medical malpractice lawsuits filed in federal court are decided by a judge rather than a jury.

Though the case was tried in federal court, West Virginia’s laws on medical malpractice cases apply.

The state Medical Malpractice Liability Act requires plaintiffs to demonstrate that defendants failed to meet the applicable standard of care — typically by presenting expert witness testimony. Plaintiffs must also demonstrate that a failure caused the alleged injuries and deprived the patient of a chance of recovery or increased the risk of harm, Berger’s order states, among other things.

About five days after giving birth to the couple’s child via cesarean section, Sara Smith was taken to Raleigh General Hospital in December for heavy vaginal bleeding.

Sara Smith was admitted into the emergency room a little after 5 a.m. Blood tests showed an elevated white blood cell count and an ultrasound showed possible retained products of conception, the judge wrote.

“Her test results were otherwise normal, and indicative of hemodynamic stability despite her ongoing bleeding,” the order states, adding Sara Smith’s vital signs were also normal.

Wolfe saw Sara Smith at 6:30 a.m. and scheduled her for a dilation and curettage (D&C) and possible hysterectomy, in an effort to stop the bleeding.

“Though Ms. Smith does not recall the conversation, Dr. Wolfe informed her of the risks of the surgery and the possibility that a hysterectomy would be necessary to stop the bleeding, and she indicated her desire to have additional children and retain her uterus if at all possible,” Berger wrote in her order.

Sara Smith signed a consent form for the D&C and possible hysterectomy.

Following the D&C, the bleeding continued and Wolfe decided to convert to a hysterectomy, according to the order.

Wolfe did not attempt “uterine massage, additional uteronics (which promote contraction in different ways), balloon tamponade, open uterine massage, bilateral O’Leary stitches, bilateral hypogastric ligation, B-Lynch sutures, hemostatic multiple square suturing, or transfer [to Charleston Area Medical Center hospital] for uterine artery embolization,” Berger wrote.

Besides transfer, the judge added, “these procedures would not have taken more than a few minutes each. Some would have taken only seconds to perform.”

“Instead, she underwent a hysterectomy at twenty-four years old, following the birth of her first — and now only — biological child,” the judge wrote.

Reach Kate White at

kate.white@wvgazettemail.com,

304-348-1723 or follow

@KateLWhite on Twitter.

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