                                 UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 08-1606


VERONICA DRENNEN; BOBBY DRENNEN, her husband,

                  Plaintiffs - Appellants,

            v.

UNITED STATES OF AMERICA,

                  Defendant - Appellee,

            and

COMMUNITY   HEALTH    SYSTEMS,    INCORPORATED;   ROY     WOLFE,   JR.,
M.D.,

                  Defendants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:06-cv-00390)


Argued:   March 24, 2010                       Decided:    April 22, 2010


Before NIEMEYER and MOTZ, Circuit Judges, and James A.
BEATY, Jr., Chief United States District Judge for the Middle
District of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Thomas Fiorino  Basile, THOMAS   F.  BASILE,  ESQ.,
Charleston, West Virginia, for Appellants.    Stephen Michael
Horn, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.    ON BRIEF: Charles T. Miller, United
States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       After a bench trial, the district court found in favor of

the    United    States     in    this     Federal      Tort    Claims    Act    (“FTCA”)

medical malpractice action.                Veronica Drennen and her husband,

Bobby   Drennen,      appeal.        They      challenge       the    district    court’s

factual     findings,      evidentiary       rulings,       and   legal   conclusions.

For the reasons that follow, we affirm.



                                            I.

       Veronica      Drennen     suffered        from   a   cystocele,     a    condition

where    the    fascia     (soft    tissue)       between      the    bladder    and   the

vagina degrades such that the bladder bulges into the vagina.

On    December    18,    2001,     Dr.     Roy    Wolfe     performed     surgery,     not

relevant     here,    to   treat     the    problem.           This   surgery    afforded

Drennen temporary relief, but twenty months later, in August of

2003, she again complained of pain.                     She returned to Dr. Wolfe,

who concluded that her cystocele had recurred.

       On   October      21,     2003,   Dr.      Wolfe     performed     an    operation

called anterior colporrhaphy.                In this surgery, a doctor holds

open the vagina with a speculum and looks in to locate the

cystocele.       He then cuts the anterior vaginal wall to reveal the

fascia and uses sutures to pull together and reinforce strong

fascia before closing the vaginal wall.                        It is undisputed that

the surgery performed on Drennen followed this procedure.

                                             3
       On    October    27,     2003,    a    week    after      her    surgery,       Drennen

called Dr. Wolfe’s office complaining of pain and requesting

medication, which she received.                    She called again on November 4.

Dr.    Wolfe    ordered     a    renal       ultrasound,      which      revealed       “gross

hydronephrosis,” meaning that Drennen’s kidney was swollen and

her ureters were likely obstructed.

       Dr. Wolfe referred Drennen to Dr. Apolonio Lirio, who noted

in    his    operative    report       that    Drennen’s       ureter      was    deviated,

which suggested swelling.               Dr. Lirio also noted that the ureter

was obstructed to the point where he could not pass a sensor

wire through it to determine the location of the blockage.

       The    next   day,     Drennen        went    to   West    Virginia        University

Hospital for further treatment.                     First, Dr. Stanley Zaslau, a

urologist,      attempted        to    correct       Drennen’s         ureteral    blockage

using a stent.         That attempt failed, leaving surgery as the only

option.       To allow Drennen’s kidney to drain in the weeks prior

to surgery, Dr. Patricia Stoltzfus placed a tube into the kidney

to release the excess fluid from it into a bag.                            Dr. Stoltzfus

noted that Drennen’s ureter inserted ectopically (in the wrong

place) into the bladder.

       On    January      20,     2004,       Dr.     Zaslau      performed        ureteral

reimplantation         surgery,       which    consists     of    cutting        the    ureter

near the obstruction and then re-inserting it into the bladder,



                                               4
effectively    bypassing   the      blockage.       That   surgery   solved

Drennen’s problem.

     Drennen believes that during the anterior colporrhaphy Dr.

Wolfe     stitched   through   or    near   her    ureter,   causing    the

obstruction.     She and her husband brought this action alleging

medical malpractice against Dr. Wolfe and his employer.                 Dr.

Wolfe falls within the statutory definition of a “Public Health

Service employee” under the FTCA, and the United States thus

stands as the defendant in this action.            See 42 U.S.C. § 233(g)

(2006).

     Under the FTCA, West Virginia law governs this action.              In

West Virginia, the Medical Professional Liability Act (“MPLA”)

controls medical malpractice claims.            The MPLA provides that in

order to bring such a claim, a plaintiff must prove that:

     (a) The 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; and

     (b) Such failure was a proximate cause of the injury
     or death.

W. Va. Code § 55-7B-3.

     Additionally, thirty days before filing a complaint, West

Virginia law requires a claimant to:

     serve by certified mail . . . a notice of claim on
     each health care provider the claimant will join in
     litigation.   The notice of claim shall include a

                                      5
     statement of the theory or theories of liability upon
     which a cause of action may be based, and a list of
     all health care providers and health care facilities
     to whom notices of claim are being sent, together with
     a screening certificate of merit.

W. Va. Code § 55-7B-6(b).               In her notice of claim, Drennen

stated that:

     Roy Wolfe, Jr., M.D. . . . negligently failed to
     perform a routine cystoscopy after performing an
     anterior colporrhaphy on Veronica Drennen.         This
     negligence caused Dr. Wolfe to fail to notice that he
     had negligently stitched Mrs. Drennen’s left ureter
     closed, creating an obstruction for the left kidney.
     Mrs. Drennen was unable to pass urine from 10/21/03
     thru 11/06/03, developed sepsis and nearly died. 1

Drennen’s “screening certificate of merit” included an expert

opinion    from      Dr.     Zaslau,      who        performed      her     ureteral

reimplantation      surgery,    stating       that    Dr.    Wolfe’s      failure    to

perform a “routine cystoscopy” during the anterior colporrhaphy

breached   the    standard     of    care,     and    that   this   breach    caused

Drennen’s injuries.

     Drennen’s      complaint       advanced    two    theories     of    liability:

(1) that Dr. Wolfe had stitched in a negligent manner causing an

obstruction    to   Drennen’s       ureter;    and    (2)    that   Dr.    Wolfe    had

     1
       Cystoscopy is an invasive diagnostic procedure in which a
doctor inserts a cystoscope -- a tube with a lens at the end of
it -- into a patient’s urethra, and looks through the tube to
examine the bladder. When using cystoscopy to examine ureters,
the doctor injects blue dye into the bloodstream.    The kidneys
remove the dye from the blood and the dye travels down the
ureters and into the bladder.    If dye fails to emerge into the
bladder from a ureteral orifice, then the doctor can infer that
the corresponding ureter is obstructed.


                                         6
negligently failed to perform a cystoscopy to check for ureteral

obstruction.

      After   discovery,         including            depositions        of   the     relevant

experts, the Government moved for summary judgment.                                   Although

the district court denied that motion, the court noted that Dr.

Zaslau had admitted in deposition that the standard of care did

not require a surgeon to perform a cystoscopy during anterior

repair   surgery,     and       the    court         thus    prohibited       Drennen      from

asserting     that    theory      at       trial.           The   district       court    thus

directed Drennen to proceed on two modified theories:                                 (1) that

Dr.   Wolfe    had    stitched         in    a       negligent     manner,       causing    an

obstruction     to    her       ureter;          and    (2)       that    Dr.    Wolfe     had

negligently failed to do some additional diagnostic procedure

(not necessarily cystoscopy) during the anterior repair surgery

to check whether Drennen’s ureters were obstructed.

      The district court held a one-day bench trial, in which Dr.

Zaslau   testified         as    the       sole       expert      witness       for    Drennen

regarding both the “negligent stitch” theory of liability and

the “failure to check” theory.                         For each theory, Dr. Zaslau

discussed     the    standard         of    care       and    causation.          Dr.    Wolfe

testified     as     the    treating         physician,            and    the     Government

introduced the deposition testimony of its expert, urologist Dr.

Karen Ashby.



                                                 7
        With regard to the “negligent stitch” theory, the district

court       found    that    Drennen     had   failed      to   establish     that   a

misplaced        stitch,      standing     alone,     breached       an     applicable

standard of care.            The court also found that Drennen had failed

to   establish        that    a   surgical       stitch     caused    her    ureteral

obstruction.

     With regard to the “failure to check” theory, the court

found that the standard of care did not require physicians to

perform an invasive diagnostic procedure to evaluate the ureters

during      an   anterior     repair     surgery.         The   evidence     at   trial

established         two   ways    to   examine    a   ureter:        cystoscopy      or

intravenous pyelogram (“IVP”). 2               The court relied on its pre-

trial ruling that cystoscopy did not constitute the national

standard of care.            Moreover, the court held that Drennen could

not prevail on the theory that IVP was the national standard of

care because she had not mentioned IVP in her pre-trial notice

of claim, and alternatively because no expert had testified that

the national standard of care required a doctor to perform an

IVP in these circumstances.



        2
        IVP is a more involved diagnostic procedure than
cystoscopy.   In IVP, a radiologist injects contrast material
into the patient’s veins.      Eventually, the contrast travels
through the bloodstream and into the kidneys, down the ureters,
and into the bladder. Using x-rays, the radiologist can observe
whether the contrast encounters a blockage.


                                           8
     For these reasons, the district court granted judgment to

the United States.   After Drennen moved unsuccessfully for a new

trial, she timely noted this appeal.

     Drennen raises three contentions on appeal.       First, she

argues that the district court did not give sufficient weight to

Dr. Zaslau’s expert testimony, and thus erred in its factual

findings.   Second, she maintains that the district court made

two evidentiary errors: admitting the testimony of Dr. Wolfe as

an expert and excluding an alleged statement against interest

made by Dr. Resley, Dr. Wolfe’s partner in his medical practice.

Third, she challenges the district court’s holding regarding her

IVP argument.   We consider each contention in turn.



                                II.

     In West Virginia, as in most states, the plaintiff in a

medical malpractice action bears the burden of proving that the

treating physician violated the national standard of care. 3   This

means that “the reasonable man standard is . . . replaced by a

standard based upon the usual conduct of other members of the

defendant's profession in similar circumstances.”      Reynolds v.

City Hosp., Inc., 529 S.E.2d 341, 348 (W. Va. 2000) (quoting

     3
       West Virginia has abolished the “locality rule,” which
means that courts must determine the standard of care by
reference   to  national   standards.     Paintiff v. City of
Parkersburg, 345 S.E.2d 564, 567 (W. Va. 1986).


                                 9
Bell v. Maricopa Med. Ctr., 755 P.2d 1180, 1182 (Ariz. Ct. App.

1988)).      To comply with this standard, “a physician or other

medical practitioner is not required to exercise the highest

degree of skill and diligence possible.”                   Schroeder v. Adkins,

141 S.E.2d 352, 357 (W. Va. 1965).                 Rather, “he is required to

exercise only such reasonable and ordinary skill and diligence

as are ordinarily exercised by the average of the members of the

profession in good standing.”            Id.

       The plaintiff must establish, through the use of expert

testimony,    both    the   standard        of   care   and   that    the    treating

physician’s actions breached that standard.                   W. Va. Code § 55-

7B-7(a).     Finally, the plaintiff must prove that the breach was

the proximate cause of the injuries suffered.

       Determinations       about      both      the    standard     of     care    and

causation constitute findings of fact.                   See Mays v. Chang, 579

S.E.2d 561, 565 (W. Va. 2003).                After a bench trial, we review

such findings for clear error.              Ellis v. Grant Thornton LLP, 530

F.3d 280, 286-87 (4th Cir. 2008); Fed. R. Civ. P. 52(a)(6).

Factual findings will be overturned only if “the reviewing court

on   the   entire    evidence     is    left     with   the   definite      and     firm

conviction that a mistake has been committed.”                     Ellis, 530 F.3d

at 287 (quoting United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948)).              In considering the evidence, we must

give   due   regard    to   the     trial     court’s    ability     to     judge    the

                                         10
credibility of witnesses.                 Fed. R. Civ. P. 52(a)(6).             With these

principles     in    mind,     we    examine         each   of   the   district       court’s

challenged factual findings.

                                                A.

       The district court found that a doctor’s placement of a

stitch through a ureter, in and of itself, does not violate the

standard of care.            The record offers strong support for this

finding.       Drennen’s own expert, Dr. Zaslau, although opining

that   negligence      arises       when     a   physician       fails    to    perform    an

invasive      diagnostic       procedure         to     check    whether       he    stitched

incorrectly,        conceded    that       an    errant     stitch,      standing       alone,

does not breach any applicable standard of care.

                                                B.

       With regard to causation, the district court found that

Drennen had not established, by a preponderance of the evidence,

that a stitch had obstructed her ureter.                          Again, the testimony

of Drennen’s own expert supports this finding, as Dr. Zaslau

acknowledged        that   he       had    not       personally    seen    a     stitch    in

Drennen’s ureter.          Instead, he opined that the other possible

causes   of    a    blockage        to    the    ureter     --    edema    (swelling),      a

congenital      stricture,       and       kidney       stones    --     were       relatively

unlikely.      Dr. Zaslau also asserted that, although Dr. Stoltzfus

had noted that Drennen’s ureter inserted ectopically, Dr. Zaslau

considered that possibility unlikely.

                                                11
       The      district         court      found          Dr.     Zaslau’s           process-of-

elimination rationale unpersuasive.                         The court found that edema

could have caused the blockage, and that an ectopically inserted

ureter might also have caused the problem.                               It also found Dr.

Zaslau’s testimony not entirely credible because the doctor had

not    voiced      any     concerns      about       a    surgical      stitch       until    after

Drennen had retained him as an expert witness.                                     The district

court found that this shift in Dr. Zaslau’s views “cast a shadow

of doubt on the objectivity of his reports,” and thus diminished

the weight of his testimony.

       Drennen       argues      that    Dr.    Zaslau       was     the      only    expert     who

testified       as    to    causation,         and       therefore      the    district       court

clearly      erred       in     rejecting       Dr.       Zaslau’s       testimony.              This

argument fails.            Drennen cites no rule of law requiring a finder

of fact to accept the testimony of an expert witness, especially

when    it    finds      that    witness’s       testimony         inconsistent           and    his

credibility impaired.                  Indeed, it seems axiomatic that when a

district court acts as a fact-finder it, like a jury, may accept

all, part, or none of a paid expert’s opinion.                                   See 9C Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure

§ 2586       (3d     ed.       2004)    (“The        court       need      not       accept      even

uncontradicted           and     unimpeached         testimony        if      it     is   from    an

interested party or is inherently improbable.”).



                                                12
       Furthermore,            Drennen      points     to    no     hard    evidence      that

corroborates           Dr.      Zaslau’s       testimony.           Dr.    Zaslau     himself

conceded that he did not see any stitch, but rather concluded

that a stitch probably caused Drennen’s blockage because, in his

opinion, other causes were unlikely.                        To be sure, Dr. Zaslau’s

testimony         appears      methodical       and    thorough.          But   absent    some

concrete proof, Dr. Zaslau’s reasoning is only as persuasive as

the district court -- which had an opportunity to observe Dr.

Zaslau and weigh his demeanor and credibility -- found it to be.

Because we are not “left with the definite and firm conviction

that       a    mistake       has   been    committed,”        we   cannot      disturb    the

judgment of the district court.                     Ellis, 530 F.3d at 287.

                                                C.

       Finally, we see no error in the district court’s findings

as to the standard of care relating to the “failure to check”

theory.         Dr. Zaslau conceded in his deposition that the risk of

an injury to the ureter in anterior repair surgery was low, 4 but

stated         that    in    his    opinion,    a    prudent      physician     would    still

perform         some        ancillary      diagnostic       procedure.          Dr.     Zaslau

testified that there were two procedures that a physician might


       4
       Dr. Zaslau cited a study stating that in a broad array of
vaginal surgeries, including anterior repairs, the total injury
rate was 8.8 out of 1000, or 0.88%. He first characterized this
as a high number, but then backtracked and stated that the
“incidents of these renal injuries is low.”


                                                13
use: cystoscopy and IVP. 5           He admitted, however, that cystoscopy

had not yet been adopted as the standard of care.

      Dr.   Zaslau   testified        inconsistently         on   the    question      of

whether the standard of care required IVP in lieu of cystoscopy.

At one point, he stated that it would be negligent to do neither

cystoscopy nor IVP.        However, moments later, Dr. Zaslau agreed

that it was “a fair statement” that “there is really only one

good way to check, and that’s using cystoscopy.”                        Of course, he

had already conceded that the standard of care did not require

cystoscopy.

      Dr.    Ashby   and   Dr.       Wolfe,     on     the    other      hand,      both

unequivocally testified that the risk of obstructing a ureter

during    anterior   repair     surgery       was    sufficiently        low    that   a

prudent     physician   would    not    perform      any     invasive      diagnostic

procedure.      These   experts       stated    that    the       standard     of   care

required the physician to perform the surgery carefully, but did

not   require   cystoscopy      or    IVP.     The    district      court      credited


      5
       On appeal, Drennen suggests that a surgeon could use
methods other than cystoscopy and IVP to check for ureteral
obstruction.   She discusses antegrade and retrograde pyelograms
(which may or may not be the same as an intravenous pyelogram
(IVP)), dye tests (which require cystoscopy in order to be
effective), and the use of balloon catheters and sensor wires.
However, to the extent that these methods differ from cystoscopy
or IVP, no witness (or lawyer) advocated any of them before the
district court.    In fact, the experts specifically testified
that cystoscopy and IVP were the only plausible ways to perform
an intraoperative diagnosis for ureteral obstruction.


                                        14
their    views,     noting        that    while    cystoscopy    might    become    the

standard of care in the future, currently that is not the case.

     “Evaluating the credibility of experts and the value of

their    opinions       is   a    function   best    committed    to     the   district

courts,    and     one       to   which    appellate    courts     must    defer.    An

appellate court should be especially reluctant to set aside a

finding based on the trial court's evaluation of conflicting

expert testimony.”            Hendricks v. Cent. Reserve Life Ins. Co., 39

F.3d 507, 513 (4th Cir. 1994).                Given the conflict in the expert

testimony and the inconsistencies in Dr. Zaslau’s testimony, we

cannot    say    that    the      district   court’s    decision    to    credit    the

testimony of Dr. Wolfe and Dr. Ashby constituted clear error. 6



                                            III.

        Drennen challenges two of the district court’s evidentiary

rulings.        We review these rulings “under the deferential abuse



     6
       Drennen argues that the district court erred by treating
Dr. Wolfe as an expert.      We address this argument below in
section III. But we note here that even if Dr. Wolfe should not
have been regarded as an expert, the principal effect of
excluding his testimony regarding the standard of care would be
to ignore his statement that the standard of care does not
require IVP. This exclusion would not aid Drennen. Because she
did not present any evidence that the standard of care does
require IVP, she still would have failed to carry her burden of
proof.   Furthermore, Dr. Ashby, whose status as an expert is
undisputed, stated that the standard of care does not require an
IVP, or any other additional diagnostic test.


                                             15
of discretion standard.”          United States v. Rooks, 596 F.3d 204,

209-10 (4th Cir. 2010).

     First, Drennen argues that the district court improperly

admitted Dr. Wolfe as an expert in this case.                       Federal Rule of

Civil   Procedure      26(a)(2)       requires     parties      to    disclose       the

identities    of     expert    witnesses      in   advance     of     trial.      Rule

26(a)(2)(B) provides that, unless a court orders otherwise, when

“the witness is one retained or specially employed to provide

expert testimony in the case or one whose duties as the party's

employee     regularly      involve     giving       expert     testimony,”      such

disclosures “must be accompanied by a written report” setting

forth the relevant details of the witness’s testimony.

     In this case, the district court noted that the Government

identified Dr. Wolfe as an expert, but it did not submit a

written report regarding his testimony.                  The court nevertheless

admitted   Dr.     Wolfe’s     testimony      on   the   ground       that    treating

physicians    like    Dr.     Wolfe   are   exempt     from    Rule    26’s    written

report requirement because treating physicians are not “retained

or specially employed to provide expert testimony.”

     The   district      court    did   not    abuse     its   discretion       in   so

holding.     As a treating physician, Dr. Wolfe was not retained or

specially employed to provide expert testimony in this case.

The note accompanying the 1993 amendments to Rule 26 confirms

that this is the proper interpretation of Rule 26.                    It states:

                                         16
     The requirement of a written report in paragraph
     (2)(B) . . . applies only to those experts who are
     retained   or   specially   employed  to  provide  such
     testimony in the case or whose duties as an employee
     of a party regularly involve the giving of such
     testimony.    A treating physician, for example, can be
     deposed or called to testify at trial without any
     requirement for a written report.

Fed. R. Civ. P. 26(a)(2) advisory committee’s note (emphasis

added).     The district court thus properly relied on Dr. Wolfe’s

testimony as an expert opinion. 7

     Second,      Drennen    contends        that     the   district      court

erroneously refused to consider an alleged “statement against

interest”    by   Dr.   Wolfe’s   partner,     Dr.    Resley.      Dr.   Resley

testified that Dr. Wolfe “may have said something to the effect

of we got -- I got a ureter during this case.                   I don’t really

remember, but, yes, you know, the assumption would have been

that this was related to the surgery.”

     Dr.    Resley   also   stated,   “Dr.    Wolfe    assumed    that   it   was

related to the surgery at the time.                  Now, whether it was a

direct injury to the ureter or whether it was something that had



     7
         Drennen   argues   that   the   district   court   acted
inconsistently because it permitted Dr. Wolfe to testify as an
expert, but it refused at trial to admit the testimony of Dr.
Resley. The difficulty with this argument is that Dr. Wolfe and
Dr. Resley are not similarly situated.      In fact, during the
colloquy in which Drennen’s trial counsel successfully objected
to Dr. Resley answering questions about the standard of care, he
conceded that “this line of questioning is certainly appropriate
for Dr. Wolfe, who actually did the cystocele repair . . . .”


                                      17
occurred during the healing process or whether it was a kinking,

he didn’t indicate.          I certainly don’t know.”

       On appeal, Drennen reiterates her argument to the district

court that Dr. Resley’s reporting of Dr. Wolfe’s statement that

he    “got    a    ureter”     was   an    admission        of    liability.       Drennen

emphasizes that Rule 804(b) creates an exception to the hearsay

rule    for       admissions    against         interest,        and   argues    that   the

district      court    therefore      erred          in   refusing     to    consider   this

testimony.

       This argument fails.           Drennen objects to a ruling that the

district      court    never     made,     as       the   court    never     excluded   Dr.

Resley’s testimony on the ground that it was hearsay.                              Rather,

the court explicitly evaluated Dr. Resley’s testimony and found

his    statement      susceptible         to    different        interpretations.         We

agree with that assessment.                    To “get” a ureter could mean, as

Drennen contends, that Dr. Wolfe conceded that he inadvertently

stitched through the ureter, but it could also mean, as the

district court held, that Dr. Wolfe only stated that Drennen

“got” a ureter problem after her surgery, without any opinion as

to the cause of the problem.                         Taken in context, the latter

meaning seems just as likely as the former, and the district

court did not abuse its discretion in so finding.

       Furthermore, even if we accept Drennen’s characterization

of    Dr.    Resley’s    statement,            she    still      has   not    demonstrated

                                               18
reversible error.          Taken at face value, Drennen’s argument is

that when she came to see Dr. Wolfe two weeks after her surgery,

complaining of pain consistent with a ureteral obstruction, he

expressed    concern       that    he       had    obstructed       a    ureter.       That

statement may prove that Dr. Wolfe was anxious that he might

have obstructed a ureter, but it certainly does not prove that

he actually did obstruct a ureter.                       When weighed alongside the

other evidence, Dr. Wolfe’s assumption that Drennen’s injuries

might     have     been    related       to        the    surgery        is   simply    not

sufficiently probative to warrant reversal.



                                             IV.

     Finally, Drennen argues that the district court erred by

refusing to consider her IVP theory.                       The district court held

that under governing West Virginia law, Drennen was required to

outline this theory in her pre-trial notice of claim, but had

failed to do so, focusing instead on cystoscopy to the exclusion

of IVP or any other diagnostic test.                        The court held, in the

alternative, that “[e]ven if Plaintiffs had complied with the

notice requirements . . . the testimony elicited at trial does

not establish IVP as the national standard of care.”

     We     need    not     reach       Drennen’s         statutory       interpretation

argument    because       even    if    the       district       court    was   bound    to

consider    her    IVP    theory,      it    did    not    err    in     concluding     that

                                             19
Drennen had failed to offer evidence that the national standard

of care requires a surgeon to perform an IVP during an anterior

repair.    West Virginia medical malpractice law places the burden

on   the   plaintiff    to     come    forth    with    expert    testimony     to

substantiate her claim.         See W. Va. Code § 55-7B-7(a); Farley v.

Shook, 629 S.E.2d 739, 744 (W. Va. 2006); Roberts v. Gale, 139

S.E.2d 272, 276 (W. Va. 1964).              As the district court explained,

no   expert    testified      that    the    standard   of    care   requires    a

physician to employ an IVP here.                 In fact, two experts, Dr.

Wolfe   and    Dr.   Ashby,    explicitly      testified     to   the   contrary.

Thus,   even   assuming    that      Drennen    properly     complied   with    the

notice requirements of the MPLA, she cannot demonstrate that the

national standard of care requires a physician to perform an

intraoperative IVP in the circumstances of this case.



                                        V.

     The judgment of the district court is

                                                                        AFFIRMED.




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