                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-1693


KAYLA BUTTS, Individually and on behalf of her daughter A.F., a minor,

                    Plaintiff - Appellee,

             v.

THE UNITED STATES OF AMERICA,

                    Defendant - Appellant,

and

BERKELEY MEDICAL CENTER; WEST VIRGINIA UNIVERSITY
HOSPITAL, INC.; SHENANDOAH WOMEN’S HEALTH CENTER;
SHENANDOAH COMMUNITY HEALTH CENTER; SHENANDOAH
MIDWIVES; AVINASH PUROHIT, M.D.; TRACY SWALM, CNM; SARA
SPURGEON, R.N.; SHELLY PALKOVIC, R.N.; REBECCA PFENDER, CNM;
SARAH HARDY, M.D.; SONYA JUSTICE, R.N.,

                    Defendants.



Appeal from the United States District Court for the Northern District of West Virginia,
at Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cv-00053-GMG-MJA)


Argued: May 7, 2019                                             Decided: July 11, 2019


Before HARRIS, RICHARDSON and QUATTLEBAUM, Circuit Judges.
Reversed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge
Harris and Judge Richardson joined.


ARGUED: Joshua Marc Salzman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Barry John Nace, PAULSON & NACE, PLLC,
Washington, D.C., for Appellee. ON BRIEF: Joseph H. Hunt, Assistant Attorney
General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; William J. Powell, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellant.
Matthew A. Nace, PAULSON & NACE, PLLC, Washington, D.C.; D. Michael Burke,
BURKE, SCHULTZ, HARMAN & JENKINSON, Martinsburg, West Virginia, for
Appellee.




                                        2
QUATTLEBAUM, Circuit Judge:

       This case arises from a tragic set of events involving A.F., a baby born with severe

respiratory problems who developed permanent brain damage. Kayla Butts (“Butts”),

A.F.’s mother, brought this action claiming A.F.’s brain damage was caused by the

medical malpractice of Dr. Sarah Hardy. More specifically, Butts contends that Dr. Hardy

should have transferred A.F. from the hospital where A.F. was born to a hospital with a

neonatal intensive care unit (“NICU”) that could have provided the care A.F. needed in

the hours after her birth. After a bench trial, the district court agreed and awarded Butts

over seven million dollars in damages. On appeal, we consider whether Butts presented

sufficient evidence to establish that Dr. Hardy violated the applicable standard of care.

Because the district court’s finding on this issue was clearly erroneous, we reverse the

district court’s order and vacate the judgment against Dr. Hardy.

                                            I.

       Butts delivered A.F. at Berkeley Medical Center (“Berkeley”) in Martinsburg,

West Virginia. Berkeley did not have a NICU, so infants who required additional support

were cared for in Berkeley’s “Max Care Nursery.” The Max Care Nursery offered

specialized care to newborn infants, including an oxygen-delivery system and equipment

to provide intubation. However, the Max Care Nursery did not have all the equipment

found in a NICU, including a breathing device known as a continuous positive airway

pressure (“CPAP”) machine. Infants delivered at Berkeley who needed specialized care

Berkeley could not provide were often transported to the NICU at Winchester Medical

Center (“Winchester”) in Virginia.

                                            3
      At the time of these events, Berkeley was working to establish a NICU of its own.

To that end, Berkeley hired Dr. Avinash Purohit, a board-certified neonatologist, to

establish and manage a NICU. But Dr. Purohit arrived at Berkeley only a few days before

A.F.’s birth and had not yet established a NICU.

      A.F. was born at Berkeley around 9:00 a.m. and immediately exhibited signs of

respiratory distress. In the minutes following delivery, A.F.’s Apgar score—a diagnostic

tool that allows a physician to evaluate a child’s physical health by measuring breathing

effort, heart rate, muscle tone, reflexes and skin color—was low. Nurses provided

immediate treatment to aid A.F.’s breathing, including suctioning A.F.’s airway. Ten

minutes after birth, A.F.’s Apgar score had improved, but, because of these initial

complications, she was transferred to Berkeley’s Max Care Nursery.

      Dr. Hardy, a pediatrician, was on call the morning of A.F.’s birth. Soon after A.F.

was delivered, the hospital paged Dr. Hardy, and she arrived around 9:15 a.m. Dr. Hardy

noticed A.F.’s respiratory distress and low glucose levels. She prescribed antibiotics to

prevent infection and ordered a range of tests and diagnostics to assess A.F.’s breathing

problems. Dr. Hardy also placed A.F. under an oxyhood, a device that provides

supplemental oxygen.

       Dr. Hardy then returned to her office for a few hours, while maintaining telephone

contact with the attending nurse. While she was away, A.F., with the aid of the oxyhood,

maintained acceptable oxygen-saturation levels, but continued to experience breathing

difficulty. Dr. Hardy came back to Berkeley around noon. At that time, A.F. was not

improving. For that reason, Dr. Hardy initially decided to transfer A.F. to the Winchester

                                            4
NICU. However, a nurse manager at Berkeley suggested that Dr. Hardy consult Dr.

Purohit prior to transfer. Dr. Hardy consulted with Dr. Purohit around 1:30 p.m. that

afternoon. Dr. Purohit assured Dr. Hardy that Berkeley had the necessary equipment and

staffing for him to provide care to A.F., and he specifically told Dr. Hardy that a transfer

to the Winchester NICU was unnecessary. After that discussion, Dr. Purohit agreed to

take A.F. on as his patient.

       After taking over A.F.’s care, Dr. Purohit ordered tests and altered A.F.’s

treatments. While there is some dispute as to whether Dr. Hardy complied with

Berkeley’s internal procedures for completing a formal transfer of responsibility for

A.F.’s care to Dr. Purohit, the district court assumed that Dr. Hardy’s responsibility for

A.F. terminated at 2:45 p.m.

       Over the next twenty-four hours, A.F.’s condition continued to deteriorate.

Ultimately, on the afternoon of the day following A.F.’s birth, Dr. Purohit ordered her to

be transferred to the NICU at Winchester. A.F. remained there for nearly a month. While

the parties dispute the timing and cause, there is no dispute A.F. suffered irreversible

brain injury from the insufficient flow of oxygenated blood to her brain.

       As a result of A.F.’s injuries, Butts sued multiple defendants including Berkeley,

Dr. Purohit and Dr. Hardy alleging medical malpractice. Because Dr. Hardy was

employed by a federally-funded hospital, the United States substituted itself on behalf of

Dr. Hardy under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671−2680.

Prior to trial, all defendants except the United States settled with Butts.



                                              5
       Butts’s claim against the United States proceeded to a bench trial. After the trial,

the district court issued findings in favor of Butts. The district court concluded “the

standard of care required that A.F. be transferred to a NICU and receive the level of care

that is only available in a NICU, such as the one at [Winchester].” J.A. 281. The court

found “Dr. Hardy should have transferred A.F. to [Winchester] the same afternoon A.F.

was born . . . .” J.A. 281. The court further found Dr. Hardy was not absolved by her

transfer of care to Dr. Purohit because, even though he was a board-certified

neonatologist, he “was without a NICU. Thus, at a minimum, he lacked the appropriate

equipment, specialized staff or necessary protocols to adequately assess and treat a baby

who needed intensive care.” J.A. 281. The district court concluded that Dr. Hardy’s

failure to follow the applicable standard of care caused A.F.’s injuries and awarded Butts

over seven million dollars in damages. 1

       The United States filed a timely appeal. We have jurisdiction of this appeal under

28 U.S.C. § 1291.

                                            II.

       We review a judgment following a bench trial under a mixed standard of review.

Equinor USA Onshore Properties Inc. v. Pine Res., LLC, 917 F.3d 807, 813 (4th Cir.

2019). While conclusions of law are examined de novo, we may reverse factual findings


       1
         The district court did not apportion liability among the other defendants that
settled prior to trial. Furthermore, the district court did not offset the damages award by
the amount of Medicaid and Supplemental Security Income payments that the federal
government will make to A.F. for her injuries.


                                            6
only if they are clearly erroneous. Id. The clearly erroneous standard “does not entitle a

reviewing court to reverse the finding of the trier of fact simply because it is convinced

that it would have decided the case differently.” Anderson v. City of Bessemer City, N.C.,

470 U.S. 564, 573 (1985). Rather, “[i]f the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of appeals may not reverse

it even though convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently.” Id. 573−74.

       But while clear error review is deferential, it is not toothless. United States v.

Wooden, 693 F.3d 440, 452 (4th Cir. 2012). A finding is clearly erroneous “when

although there is evidence to support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.” Anderson, 470

U.S. at 573. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948)). Pertinent here, this Court’s conviction that a mistake has been committed may be

properly based upon a conclusion that the findings under review “are not supported by

substantial evidence” in the record. 2 Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th

Cir. 1983).




       2
          In reviewing this case, the standard we apply is effectively the same standard a
trial judge applies in considering a motion for judgment as a matter of law under Federal
Rule of Civil Procedure 50 in the context of a jury trial.


                                             7
                                            III.

       On appeal, the United States argues Butts did not introduce sufficient evidence to

support a conclusion that Dr. Hardy breached the applicable standard of care. 3 To

establish breach, West Virginia law 4 requires a party bringing a medical malpractice

claim to show that “[t]he health care provider failed to exercise that degree of care, skill

and learning required or expected of a reasonable, prudent health care provider in the

profession or class to which the health care provider belongs acting in the same or similar

circumstances . . . .” W. Va. Code § 55-7B-3(a)(1); see also MacDonald v. City Hosp.,

Inc., 715 S.E.2d 405, 423 n.22 (W. Va. 2011). The applicable standard of care, and the

defendant’s failure to meet the standard of care, must be established by the “testimony of

one or more knowledgeable, competent expert witnesses if required by the court.” Id.

§ 55-7B-7. A physician is not required to provide a patient with “the highest degree of

care possible.” Bellomy v. United States, 888 F. Supp. 760, 765 (S.D.W. Va. 1995) (citing


       3
          The United States also raises the following issues on appeal: (1) whether the
district court erred in concluding Butts introduced evidence supporting a finding that Dr.
Hardy’s treatment was the proximate cause of A.F.’s injuries; (2) whether the district
court erred by failing to consider whether a share of liability should have been
apportioned to other defendants who settled before trial; (3) whether the damages award
must be reduced by the amounts that plaintiff will receive from federal benefits programs
as compensation for the same injuries covered by the damages award; and (4) whether the
district court erred in refusing to reduce the damages award by the amounts that plaintiff
received from settling co-defendants as required by West Virginia law.
       4
         Because this is an action brought under the FTCA, we apply “the substantive law
of the state in which the act or omission giving rise to the action occurred.” Myrick v.
United States, 723 F.2d 1158, 1159 (4th Cir. 1983). Accordingly, we apply the
substantive law of West Virginia in resolving this appeal.


                                             8
Schroeder v. Adkins, 141 S.E.2d 352, 357 (W. Va. 1965)). “Moreover, where there is

more than one method of medical treatment accepted and applied by average physicians

similarly situated, the physician may take into account the particular circumstances of

each case and may exercise his honest and best judgment in selecting a course of

treatment for individual patients.” Id. at 765–66. In fact, if there is more than one

acceptable method of treatment, the physician need not choose the best one. Id. at 766

(citing Maxwell v. Howell, 174 S.E. 553, 554−55 (W. Va. 1934)).

       On the issue of whether Dr. Hardy breached the applicable standard of care, Butts

first called Dr. John C. Partridge, a physician who is board-certified in pediatrics and

neonatal perinatal medicine. Dr. Partridge, the expert the district court found to be the

most credible, testified to a reasonable degree of medical probability that by noon “the

child, I think would have been better served, far better served in a different hospital.” J.A.

500. Dr. Partridge further opined that, because of A.F.’s continuing symptoms and

deteriorating condition, “that child should have been transferred.” J.A. 501. But Dr.

Partridge significantly qualified his opinion on cross-examination when he acknowledged

that transfer to a NICU was not required. Rather, Dr. Partridge opined “the child should

have been transferred either to a higher level of care within Berkeley Medical Center or

to a NICU.” J.A. 525. Dr. Partridge then acknowledged that Dr. Hardy did in fact transfer

A.F. to Dr. Purohit, a board-certified neonatologist who had been hired to start a NICU at

Berkeley. Dr. Partridge also opined on cross that the first time Dr. Purohit was required to

transfer A.F. under the applicable standard of care was at 11:15 p.m. that night. Critically,

this was almost nine hours after Dr. Hardy transferred care to Dr. Purohit.

                                              9
       Based on Dr. Partridge’s testimony, Dr. Hardy did not violate any generally

applicable standard of care. As discussed, a physician is not required to provide a patient

with “the highest degree of care possible.” Bellomy, 888 F. Supp. at 765. Additionally,

where there is more than one acceptable method of treatment, the physician need not

choose the best method. Id. at 766. Here, Dr. Partridge testified that Dr. Hardy could

satisfy the standard of care by either transferring A.F. to a higher level of care within

Berkeley Medical Center or to a NICU. The facts show, and Dr. Partridge acknowledges,

that Dr. Hardy chose to transfer A.F. to a higher level of care within Berkeley by

transferring care to Dr. Purohit. Based on Dr. Partridge’s own testimony this was an

acceptable method of treatment for Dr. Hardy to pursue, whether or not it was the best

method of treatment. Therefore, Dr. Partridge’s testimony fails to establish that Dr. Hardy

breached the standard of care.

       Butts next presented the testimony of Dr. Carol Miller, a board-certified

pediatrician. Dr. Miller testified that Dr. Hardy breached the applicable standard of care

by not transferring A.F. to a NICU. While she testified generally about other benefits of a

NICU, Dr. Miller explained that A.F. needed to be transferred to a NICU to receive

treatment with a CPAP machine or intubation. More specifically, when asked about the

care A.F. would have received at a NICU that she did not receive at Berkeley, Dr. Miller

responded “[m]ost importantly is enhanced respiratory support . . . . That could be in the

way of CPAP, which is a method of giving increased pressure, or it could be intubating,

which is what this baby needed . . . .” J.A. 755−76. Dr. Miller did not testify that a CPAP

machine was medically necessary or preferable to intubation. Rather, she indicated that

                                            10
either a CPAP machine or intubation could be used under the circumstances. Dr.

Partridge agreed, testifying that the choice between using a CPAP machine and

intubation is “a management style choice.” J.A. 481−82.

       Whether Dr. Miller realized it or not, intubation was available at Berkeley. Indeed,

Dr. Purohit testified that he intubated a baby the first day he arrived at Berkeley, and the

district court identified only one specific NICU-level intervention, a CPAP machine, that

was not available at Berkeley. Because Dr. Hardy transferred A.F. to Dr. Purohit, who

had the expertise and equipment to perform the treatment Dr. Miller said A.F. needed,

Dr. Hardy’s conduct did not fall below the standard of care.

       We are mindful of our responsibility to consider the district court’s findings on

breach in light of the entire record. With that in mind, when the complete testimony of

Dr. Partridge and Dr. Miller is considered together, Butts presented evidence that Dr.

Hardy was required to transfer A.F. to a higher level of care to receive enhanced

respiratory intervention. But that is what Dr. Hardy did. Dr. Hardy transferred A.F. to a

board-certified neonatologist, Dr. Purohit, who assured Dr. Hardy that he had the

equipment and ability to care for A.F. at Berkeley. Dr. Purohit had the ability to provide

more aggressive respiratory intervention, including intubation. Intubation is the exact

procedure that Dr. Miller said was required. And Dr. Partridge opined that once Dr.

Hardy transferred care to Dr. Purohit, Dr. Purohit was not required to transfer A.F. to a

NICU until 11:15 p.m. that evening. If Dr. Purohit was not required to transfer A.F. to a




                                            11
NICU until 11:15 p.m., it cannot have been malpractice for Dr. Hardy to transfer A.F. to
                                                                                        5
Dr. Purohit to receive an elevated level of care at 1:45 p.m. earlier that afternoon.

                                             IV.

       After reviewing the whole record, we are firmly convinced the district court’s

finding that Dr. Hardy breached the standard of care was a mistake. The district court’s

finding as to breach was not supported by substantial evidence in the record and was thus

clearly erroneous. Specifically, the district court’s finding on breach was not supported

by Butts’s own expert testimony. Therefore, despite the sympathy we feel for A.F., the

district court’s order finding Dr. Hardy liable for medical malpractice must be reversed.

       Because we hold the district court erred in finding Dr. Hardy liable for

malpractice, we need not address the remaining issues raised by the United States. The

judgment of the district court is reversed, and the district court is directed to enter

judgment in favor of the United States.

                                                                                 REVERSED




       5
         The deficiencies in the testimony offered by Butts’s experts are exacerbated
because neither clearly articulated a standard of care in the first place. While they both
used the “standard of care” label during their testimony, neither explained any
meaningful criteria for judging A.F.’s conditions that required transfer. Put another way,
neither expert appropriately said what was right before saying what was wrong.




                                             12
