Judge denies motion to dismiss in Berkeley Medical Center malpractice lawsuit

By Kyla Asbury | Apr 22, 2016

MARTINSBURG – District Judge Gina Groh has denied a motion to dismiss in a lawsuit involving Berkeley Medical Center and alleged malpractice during the birth of a child.

The plaintiffs, Tina Gregory and B.A.M., did not name the United States of America as a defendant in the suit, according to the Feb. 22 order.

“The earliest date that the instant case turned into a case against the United States…was the date on which it was removed from the Circuit Court of Berkeley County, West Virginia, to this Court,” the order states.

On Nov. 23, 2015, the United States filed its notice of removal, indicating that Shenandoah Valley Medical System Inc.; Shenandoah Women’s Health; and Shenandoah Community Health Center were entities receiving federal funding pursuant to 42 U.S.C. § 254b or 254c, and Consuela Cruden-Parham, Lisa Wyatt and Rebecca Pfender were employees of those entities during the dates alleged in the complaint.

“The Plaintiffs filed their administrative claim with the DHHS nearly seven months earlier, on April 27, 2015,” the order states. “Meredith Torres, a Senior Agency Attorney for the DHHS, declared that as of November 18, 2015, a final decision on the Plaintiffs’ administrative claim had not been reached. However, by October 27, 2015, six months had passed since the Plaintiffs filed their administrative claim. Thus, because the DHHS failed to make a final disposition of the Plaintiffs’ claim within six months after it was filed, the Plaintiffs’ claim was deemed to be finally denied on October 27, 2015.”

The United States removed the underlying cause of action to this court on Nov. 23—27 days after the plaintiffs’ claim was finally denied by the appropriate federal agency, according to the order.

“Therefore, pursuant to and in accordance with 28 U.S.C. § 2675(a), the Plaintiffs exhausted their administrative remedies prior to initiating a claim against the United States,” the order states.

For those reasons, the court denies the United States’ motion to dismiss.

City Hospital Inc.; University Health Care; University Medical Center; Shenandoah Medical Center; Shenandoah Women’s Health; Shenandoah Community Health Center; Shenandoah Midwife Inc.; Shenandoah Valley Medical System Inc.; Dr. Consuela Cruden-Parham; Lisa Wyatt; West Virginia University Hospitals Inc.; and Rebecca Pfender were also named as defendants in the suit.

City Hospital Inc. is doing business as Berkeley Medical Center.

On May 26, 2013, Gregory went to the Emergency Department of University Healthcare-City Hospital in Martinsburg with vaginal bleeding and her unborn child’s fetal heart rate at the time was 135, according to a complaint filed July 30 in Berkeley Circuit Court and removed to federal court on Nov. 23.

Gregory claims she was seen by a registered nurse and a certified nurse midwife of Shenandoah Women’s Health Shenandoah Midwives and briefly admitted, where she was given Terbutaline before being discharged.

On May 29, 2013, she returned, where it was noted that she was 24 weeks and 5 days in her pregnancy and that she had had continued bleeding with a large clot and the cause of the vaginal bleeding was unknown, according to the suit.

Gregory claims radiology films showed a breech presentation and amniotic fluid index of 14.1cm and that the placenta was low lying. She also reported pain of five on a scale of one to ten and indicated that it felt like pressure. She was then discharged.

On May 31, 2013, Gregory returned to the hospital again with vaginal bleeding and abdominal cramping and it was noted that her heart rate was 100 to 110 and the fetal heart rate was 130 to 140, with a regular contraction pattern, according to the suit.

Gregory claims she was administered Terbutaline with a reduction in contractions and it was decided that her case would be reviewed at the high-risk meeting the next week and she was discharged that same day.

On June 3, 2013, Gregory went to Winchester Medical Center and while there, it was decided that, at 25 weeks and 3 days, she would have a c-section, according to the suit.

Gregory claims B.A.M. was born with serious cerebral palsy and other injuries.

The defendants failed to hospitalize Gregory on May 29, 2013, and May 31, 2013, and failed to ensure that she would be seen by a physician considering she was in a high-risk situation, according to the suit.

The nurses and midwives failed to properly advocate for her staying in the hospital and failed to provide the kind of healthcare needed by the plaintiffs at all times, according to the suit.

Gregory and B.A.M. are seeking compensatory damages. They are being represented by Barry J. Nace and Christopher T. Nace of Paulson & Nace PLLC; and D. Michael Burke of Burke, Schultz, Harman & Jenkinson.

The defendants are represented by Assistant U.S. Attorney Erin K. Reisenweber.

The case is assigned to District Judge Gina M. Groh.

U.S. District Court for the Northern District of West Virginia case number: 3:15-cv-00129

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