PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2161

MISTY SIMMS, next friend of C.J., an infant, and 

individually, 

Plaintiffs - Appellees,

v.

UNITED STATES OF AMERICA,

Defendant - Appellant,

and

RICHARD BOOTH, M.D.; VALLEY HEALTH SYSTEMS, INC.; UNITED 

STATES DEPARTMENT OF HEALTH & HUMAN SERVICES,

Defendants.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

Chief District Judge. (3:11-cv-00932)

Argued: January 27, 2016 Decided: October 7, 2016

Before WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS,

United States District Judge for the Middle District of North 

Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published 

opinion. Judge Wynn wrote the opinion, in which Judge Harris 

and Judge Biggs joined. 
2

ARGUED: Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellant. Mark Davis Moreland, MORELAND 

& MORELAND, Lewisburg, West Virginia, for Appellees. ON BRIEF: 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, 

Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C.; R. Booth Goodwin II, United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West 

Virginia, for Appellant. Rachel Hanna, LAW OFFICE OF RACHEL 

HANNA, Lewisburg, West Virginia, for Appellees.
3

WYNN, Circuit Judge: 

Plaintiff Misty Simms brought this “wrongful birth” action

against the United States under the Federal Tort Claims Act

(“FTCA”) after her prenatal care provider--a federally-supported 

health center--failed to timely inform her that her child would 

be born with severe congenital abnormalities. Following a bench 

trial, the district court found in favor of Simms and awarded 

her over $12 million in economic and noneconomic damages. 

The government appeals the award of damages for past and 

future medical expenses and the district court’s decision not to 

order the creation of a reversionary trust for future medical

expenses. After careful review, we conclude that the district 

court properly awarded Simms damages attributable to her child’s 

past medical expenses. We further conclude that the district 

court correctly measured Simms’ damages using the amount medical 

providers billed for her child’s care, rather than the amount 

the West Virginia Medicaid program paid those providers. But 

the district court erred in failing to hold a post-verdict, 

prejudgment collateral source hearing. Accordingly, we affirm 

in part, vacate in part, and remand for further proceedings

consistent with this opinion. 
4

I.

A.

Simms received prenatal care at Valley Health Systems, Inc.

(“Valley Health”), a federally-supported health care center 

located in West Virginia. On February 25, 2008, when Simms was 

eighteen weeks pregnant, her Valley Health physician detected 

potential fetal abnormalities during a routine ultrasound. But 

due to errors on its part, Valley Health did not inform Simms of 

the abnormalities until May 2008, three months later. In a 

series of follow-up appointments, Simms learned that the fetus’s

brain was extremely underdeveloped, and, if not stillborn, her 

child would never walk or talk and would be severely mentally 

disabled. Because at that point Simms was well into her third 

trimester, the laws of West Virginia and nearby states barred 

Simms from terminating her pregnancy. 

On June 18, 2008, Simms gave birth to her son, C.J. C.J. 

survived birth but, as expected, suffered severe brain 

malformation and multiple other related developmental and 

muscular conditions. As a result, C.J. lives in what his 

physicians refer to as a “vegetative state.” And although C.J. 

is able to live at home with Simms, he requires twenty-four-hour

care and monitoring. To date, the extraordinary medical bills
5

resulting from the requisite care provided for C.J. have been 

paid by West Virginia’s Medicaid and Medicaid Waiver programs.1

B. 

On November 21, 2011, Simms filed this wrongful birth 

action individually, and on behalf of her son, C.J., in the 

United States District Court for the Southern District of West 

Virginia. Because Valley Health is a federally-supported health 

center, Simms sought relief under the FTCA. See 42 U.S.C. § 

233(g).

Because this case arises under the FTCA, the law of West 

Virginia—-the state where Valley Health’s negligent act took 

place—-governs. See 28 U.S.C. § 1346(b)(1); Starns v. United 

States, 923 F.2d 34, 37 (4th Cir. 1991); see also 28 U.S.C. 

§ 2674 (providing that “[t]he United States shall be liable 

. . . in the same manner and to the same extent as a private 

individual under like circumstances”). We therefore apply the 

law of West Virginia in evaluating the government’s claims. See

Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir. 1983). 

To the extent we are faced with an unsettled issue of West 

Virginia law, our task is “to predict how [the state’s highest] 

court would rule if presented with the issue.” Ellis v. La.-

 1 In this opinion, we refer to West Virginia’s Medicaid and 

Medicaid Waiver programs collectively as the “West Virginia

Medicaid program” or “Medicaid.” 
6

Pac. Corp., 699 F.3d 778, 782–83 (4th Cir. 2012) (internal 

quotation omitted); see Midwest Knitting Mills, Inc. v. United 

States, 950 F.2d 1295, 1298 (7th Cir. 1991). 

In West Virginia, “[t]he failure of a [healthcare provider]

to discover a birth defect and to advise the parents of its 

consequences will give rise to a cause of action” for “wrongful 

birth.” James G. v. Caserta, 332 S.E.2d 872, 882 (W. Va. 1985). 

The theory underlying a wrongful birth action is that the 

provider’s failure to advise of the birth defect caused the 

parents to lose the opportunity make an informed decision as to

whether to terminate the pregnancy. Id. at 879. 

After a bench trial, the district court issued a memorandum 

opinion and order finding the government liable. Simms v. 

United States, 107 F. Supp. 3d 561, 563–64 (S.D.W. Va. 2015).

The court held that Valley Health’s failure to provide follow-up 

care after the February 25, 2008, ultrasound “proximately caused 

[Simms] to be deprived of essential information” regarding the

fetus’s condition and thereby “prevent[ed] [Simms] from 

exercising her right to terminate [the] pregnancy.” Id. at 567.

The court entered judgment in favor of Simms individually and 

dismissed the claim brought by Simms on C.J.’s behalf, holding

that C.J. did not have a cause of action for wrongful birth 

under West Virginia law. Id. at 563 n.1. 
7

The district court awarded Simms a total of $12,222,743 in 

damages, distributed as follows: (1) $2,722,447 for past billed 

medical expenses, (2) $8,683,196 for future medical expenses—the 

present value of the projected future medical costs for C.J.’s 

care over a twenty-one-year life expectancy, (3) $175,526 for 

lost income, and (4) $641,544 in noneconomic damages.2 The 

government timely appealed. 

II.

On appeal to this Court, the government does not challenge 

the district court’s liability determination. Rather, the 

government disputes the district court’s award of damages 

attributable to C.J.’s past and future medical expenses.3 

We review the district court’s conclusions of law, 

including those regarding the availability and calculation of 

damages, de novo. See Rice v. Cmty. Health Ass’n, 203 F.3d 283, 

287 (4th Cir. 2000). We review factual findings relating to the 

calculation of damages for clear error. United States ex rel. 

 2 The district court’s memorandum opinion and order 

indicates a different damages award. See Simms, 107 F. Supp. 3d 

at 579–80. Following initial entry of judgment, the district 

court entered an amended judgment order revising the damages 

award to account for a clerical error in the damages 

calculation. 

3 Shortly after oral argument, in response to Simms’s 

unopposed motion, we entered an order partially affirming the 

district court’s judgment with respect to the undisputed portion 

of the damages award for lost income and noneconomic damages. 
8

Maddux Supply Co. v. St. Paul Fire & Marine Ins. Co., 86 F.3d 

332, 334 (4th Cir. 1996) (per curiam). 

A.

In its appeal, the government challenges the district 

court’s award of damages for past and future medical expenses on 

a number of grounds, each relating to the West Virginia Medicaid 

program’s payment of C.J.’s medical expenses. The government

first contends that Simms does not have a right to recover past

medical expenses because, in light of C.J.’s Medicaid coverage, 

Simms has not, to date, paid out-of-pocket for C.J.’s medical 

care. According to the government, awarding Simms damages

related to medical care costs she did not incur would contravene 

the basic tort principle that damages must compensate only for

actual loss. We disagree. 

Under West Virginia law, a parent who successfully brings a 

wrongful birth suit against a healthcare provider is entitled to 

recover the “extraordinary costs for rearing a child with birth 

defects.” Caserta, 332 S.E.2d at 882; see id. at 878 n.12 

(“[T]he rule is that the . . . costs of extraordinary child care 

arising from the defects are recoverable in a wrongful birth 

action.”). These damages include “the medical or educational

costs attributable to the birth defect during the child’s 

minority” as well as medical and support costs “after the child 

reaches the age of majority if the child is unable to support 
9

himself.” Id. at 882–83. The entitlement to such recovery 

stems from parents’ legal duty to support their children. Id.; 

see State ex rel. Packard v. Perry, 655 S.E.2d 548, 554 (W. Va. 

2007) (“[P]arents ha[ve] a duty to support their child, and in 

turn [are] therefore obligated to pay for their child's medical 

expenses.”); see also 67A C.J.S. Parent and Child § 167 (2016)

(“Each parent has a duty to support his or her minor 

children.”). 

Here, the fact that Simms has not had to pay out-of-pocket 

for C.J.’s past medical care does not obviate her injury. Simms 

has a legal obligation to support her child and the weight of 

that obligation increased as a result of Valley Health’s 

negligence. And the fact that Medicaid has, to date, paid 

C.J.’s medical costs does not change this analysis.

West Virginia has long recognized the common law 

“collateral source rule,” which is “an exception to the general 

rule that in a tort action, the measure of damages is that that 

will compensate and make the plaintiff whole.” 25 C.J.S. 

Damages § 189 (2016); see Kenney v. Liston, 760 S.E.2d 434, 440

(W. Va. 2014). “The collateral source rule protects payments 

made to or benefits conferred upon an injured party from sources 

other than the tortfeasor by denying the tortfeasor any 

corresponding offset or credit against the injured party’s 

damages.” Kenney, 760 S.E.2d at 440. The rationale underlying 
10

the collateral source rule is that “it is better for injured 

plaintiffs to receive the benefit of collateral sources in 

addition to actual damages than for defendants to be able to 

limit their liability for damages merely by the fortuitous 

presence of these sources.” Id. at 445 (citation omitted)

(internal quotation marks omitted); see also Ilosky v. Michelin 

Tire Corp., 307 S.E.2d 603, 615 (W. Va. 1983) (“The purpose of 

the collateral source doctrine is to prevent reduction in the 

damage liability of defendants simply because the victim had the 

good fortune to be insured or have other means of 

compensation.”).

The collateral source rule protects Medicaid payments. 

Kenney, 760 S.E.2d at 433–34. Accordingly, under the collateral 

source rule, the government is not entitled to a credit or 

offset against Simms’ damages based on Medicaid’s payment of 

C.J.’s medical expenses. We therefore reject the government’s 

argument that common law tort principles preclude Simms from 

recovering damages related to C.J.’s past medical expenses. 

B.

The government further contends that, even if the 

collateral source rule applies and Simms is entitled to recover 

damages attributable to C.J.’s past medical expenses, the 

district court erred in calculating those damages because the 
11

court used the amount C.J.’s medical providers billed for his

care, rather than the amount the Medicaid program actually paid. 

Under West Virginia law, the “proper measure of damages 

[for medical expenses] is not simply the expenses or liability 

incurred, or that which may be incurred in the future, but 

rather the [r]easonable value of medical services made 

[n]ecessary because of the injury.” Jordan v. Bero, 210 S.E.2d 

618, 637 (W. Va. 1974); see also Delong v. Kermit Lumber & 

Pressure Treating Co., 332 S.E.2d 256, 258 (W. Va. 1985) (“The 

proper measure of damages for future medical expenses is ‘the 

reasonable value of medical services as will probably be 

necessary by reason of the permanent effects of a party’s 

injuries.’” (citation omitted)). Thus, when a tortfeasor causes 

a plaintiff an injury requiring medical services, the plaintiff 

is entitled to recover the reasonable value of those services, 

regardless of the amount actually paid or whether the services 

were rendered gratuitously. Kenney, 760 S.E.2d at 445-46.

In Kenney, the West Virginia Supreme Court of Appeals

addressed the application of the collateral source rule in 

situations in which a healthcare provider discounts or writes 

off a portion of a medical bill pursuant to an agreement with a

plaintiff’s health insurer. Id. at 439-40. The court held 

that, under the collateral source rule, a plaintiff is entitled 

to “the total amount billed by his medical providers absent his 
12

health insurance coverage,” and therefore, that “[t]he 

tortfeasor is not entitled to receive the benefit of the 

reduced, discounted or written-off amount.” Id. at 446.

The government principally attempts to distinguish Kenney

on grounds that Kenney dealt with discounts obtained by a 

private insurer, whereas the West Virginia Medicaid program 

reimbursed C.J.’s medical costs. But the Kenney Court drew no 

such distinction between benefits conferred by private and 

governmental entities. To the contrary, Kenney held that 

benefits rendered by “social legislation” “are not [to be] 

subtracted from a plaintiff’s recovery.” Id. at 445–46; see 

also id. at 446 (“[T]he law does not differentiate between the 

nature of . . . collateral source benefits . . . .”). And 

Kenney identified benefits conferred by numerous specific 

governmental entities and programs--including Medicaid--as 

falling within the collateral source rule. Id. at 628-632 

(identifying as collateral sources “veteran’s and military 

hospitals,” “government pension programs such as Social 

Security,” “other government programs like Medicare and 

Medicaid,” and “social services,” among others). Accordingly, 

Kenney provides no basis to distinguish between benefits 

conferred by public and private payers. 

The government also suggests that the difference between 

the amount billed by C.J.’s medical providers and the amount 
13

paid by Medicaid does not constitute a “benefit” for purposes of

the collateral source rule because C.J.’s providers were 

required by federal law to accept the amount paid by Medicaid as 

payment in full. But Kenney expressly refused to restrict the 

universe of benefits protected by the collateral source rule to 

“payments” made to a plaintiff or on a plaintiff’s behalf, 

explaining that “the collateral source rule applies to any

benefit received by a plaintiff from any source in line with the 

plaintiff’s interests.” Id. at 445; see also id. at 440 (“The 

collateral source rule protects payments made to or benefits 

conferred upon an injured party from sources other than the 

tortfeasor . . . .” (emphasis added)). And the Kenney court

specifically identified discounted rates negotiated by payers as 

one type of “benefit” subject to the collateral source rule. 

Id. at 445-46 (“The damage is sustained when the plaintiff 

incurs the liability, and the method by which that liability is 

later discharged has no effect on the measure of damages.” 

(internal quotation omitted)). That C.J.’s medical providers 

accepted the discounted reimbursement rates as condition of 

participation in the Medicaid program rather than a private 

insurance plan does not change the analysis because, as 

explained above, the West Virginia collateral source rule does 

not distinguish between benefits conferred by public and private 

entities. 
14

Accordingly, we conclude that, as a matter of West Virginia 

law, regardless of whether a provider decides to discount a

medical bill by agreement with a private health insurer or by 

virtue of voluntary participation in the Medicaid program, proof 

of the original medical bill remains “prima facie evidence the 

expense was necessary and reasonable.” Id. at 438. The district 

court, therefore, did not err in calculating Simms’ damages 

award using the amount C.J.’s medical providers billed the 

Medicaid program. 

C.

Finally, we address the government’s argument that the

district court erred in refusing to reduce the damages award 

under the provisions of West Virginia’s Medical Professional 

Liability Act (the “Professional Liability Act”). 

The Professional Liability Act modifies the common law

collateral source rule in the context of medical professional 

liability actions, like the instant case. Manor Care, Inc. v. 

Douglas, 763 S.E.2d 73, 87 (W. Va. 2014); see W. Va. Code § 55-

7B-9a. The statute entitles a defendant to a post-verdict, 

prejudgment hearing regarding payments received by the plaintiff 

from collateral sources. W. Va. Code § 55-7B-9a(a) (“[A]

defendant who has been found liable to the plaintiff for damages 

for medical care, rehabilitation services, lost earnings or 

other economic losses may present to the court, after the trier 
15

of fact has rendered a verdict, but before entry of judgment, 

evidence of payments the plaintiff has received for the same 

injury from collateral sources.”). At the hearing, if the court 

finds that certain statutory preconditions are met, the 

defendant may also “present evidence of future payments from 

collateral sources.” Id. § 55-7B-9a(b) (emphasis added). After 

making findings based on the evidence, the court then reduces

the economic damages award by the “net amount of collateral 

source payments received or to be received by the plaintiff”

before entering judgment. Id. § 55-7B-9a(f). The court may not 

reduce the award, however, with respect to any amounts “which 

the collateral source has a right to recover from the plaintiff 

through subrogation, lien, or reimbursement.” Id. § 55-7B9a(g)(1). Medicaid payments qualify as collateral source 

payments under the Professional Liability Act. See id. § 55-7B2(b) (defining the term “[c]ollateral source” to include “[a]ny 

federal or state act, public program or insurance which provides 

payments for medical expenses”). 

Here, the district court did not hold a collateral source 

hearing before it entered judgment. Instead, the district court 

ruled that, as a matter of law, the Professional Liability Act 

did not entitle the government to any damages reduction because 

“the West Virginia state Medicaid program has a subrogation lien 

against any verdict in Plaintiffs’ favor.” Simms v. United 
16

States, No. CIV.A. 3:11-0932, 2015 WL 128101, at *3 (S.D.W. Va. 

Jan. 8, 2015). 

The district court did not explain its basis for concluding 

that the Medicaid program holds a subrogation lien against 

Simms’ judgment. And the parties disagree as to whether the 

Medicaid program holds such a lien. In particular, Simms 

asserts that the Medicaid program holds a subrogation lien by 

virtue of Section 9-5-11(b), which provides that when a Medicaid 

“recipient” recovers damages from a third party related to 

medical expenses previously paid by the Medicaid program, the

state Medicaid agency holds a “priority right to be paid first” 

out of the recovery. W. Va. Code § 9-5-11(b)(6). To that end,

the West Virginia Medicaid program “shall be legally subrogated

to the rights of the recipient.” Id. § 9-5-11(b)(5). By 

contrast, the government argues that Section 9-5-11 does not 

apply because C.J.--not Simms--is the Medicaid “recipient” for 

purposes of the subrogation provision. See id. § 9-5-11(a)(3) 

(defining “[r]ecipient,” “unless the context otherwise 

requires,” as “a person who applies for and receives assistance 

under the Medicaid Program”). 

Because the district court did not squarely address the 

government’s argument that Simms does not qualify as a 
17

“recipient” under W. Va. Code § 9-5-11,4 we believe the district 

court should have held a collateral source hearing before 

entering judgment in Simms’ favor. Accordingly, remand is 

warranted so the district court can determine, in the first 

instance, whether Simms, in her individual capacity, qualifies 

as a “recipient” under W. Va. Code § 9-5-11. See Am. Foreign 

Serv. Ass’n v. Garfinkel, 490 U.S. 153, 160 (1989) (“[B]ecause 

appellants’ argument raises a question of statutory 

interpretation not touched upon by the [d]istrict [c]ourt, we 

leave these matters for that court to decide in the first 

instance.”).

A collateral source hearing is necessary for several 

additional reasons. First, even if the state Medicaid program 

does not hold a subrogation lien by virtue of Section 9-5-11(b), 

the state of West Virginia may have “a right to recover” the 

amount it has paid for C.J.’s medical care by some other means

that would bar the district court from reducing Simms’ award. To 

that end, Simms contends that the Medicaid application she 

 4 The district court never addressed whether Medicaid held a 

subrogation lien against Simms because, before trial, the court 

ruled that Medicaid had a subrogation lien against C.J., who was 

still a party to the action at that point. Simms, 2015 WL 

128101, at *3. Neither party appears to have disputed that 

ruling. After trial, the district court dismissed C.J. as a 

plaintiff, see Simms, 107 F. Supp. 3d at 563 n.1, making it 

necessary for the court to determine whether Medicaid’s lien 

against any recovery by C.J. extends to recoveries by Simms. 
18

completed and signed on C.J.’s behalf gives the Medicaid program

a right to seek reimbursement related to any damages she 

recovers. The record, however, does not include a copy of 

Simms’ Medicaid application so we are in no position to evaluate 

that argument. Complicating matters further, the government

asserts that there are “lien letters” demonstrating that any 

lien asserted by the state of West Virginia runs only against a 

damages award for C.J., not Simms. Reply Br. at 8. Again, we 

can find nothing in the record establishing the existence of 

such letters, let alone their contents. We believe a collateral 

source hearing is the proper vehicle for the parties to present 

such evidence for consideration by the district court in the 

first instance. 

Finally, regardless of whether West Virginia has a right to 

reimbursement with respect to the damages awarded for past

medical expenses, such a right would not resolve whether the 

Professional Liability Act requires a reduction in the damages 

award for future medical expenses. See W. Va. Code § 9-5-

11(g)(3) (indicating that the amount the West Virginia Medicaid 

program may recoup shall “not exceed the amount of past medical 

expenses paid”). Under the statute, a liable defendant “may

present evidence of future payments from collateral sources” and 

receive a damages reduction on account thereof, if the court 

finds that: 
19

(1) There is a preexisting contractual or statutory 

obligation on the collateral source to pay the 

benefits;

(2) The benefits, to a reasonable degree of 

certainty, will be paid to the plaintiff for 

expenses the trier of fact has determined the 

plaintiff will incur in the future; and

(3) The amount of the future expenses is readily 

reducible to a sum certain.

Id. § 55-7B-9a(b). The district court did not make any 

findings—-one way or the other—-as to these three statutory 

preconditions before it entered judgment. 

Accordingly, we vacate the district court’s judgment 

solely with respect to damages awarded for past and future 

medical expenses and remand the case to the district court so 

that it may hold a collateral source hearing. At the hearing,

the court should accept evidence from the parties, hear 

argument, and decide whether, and to what extent, the 

Professional Liability Act entitles the government to a damages 

reduction. Among other issues, the court should address

whether, in light of C.J.’s dismissal, West Virginia’s Medicaid 

program may recover from Simms “through subrogation, lien or 

reimbursement,” W. Va. Code § 55-7B-9a(g)(1), some or all of the 

damages awarded for past medical expenses. The district court 

also should determine whether Medicaid has any other “right to 

recover” against Simms. In addition, the district court should 

make findings relevant to the issue of future collateral source 
20

payments, including whether there is a “reasonable degree of 

certainty” that C.J.’s medical care will continue to be covered 

by West Virginia’s Medicaid program.5 Id. § 55-7B-9a(b)(2).

III. 

For the foregoing reasons, we vacate the district court’s 

judgment solely with respect to damages award for past and 

future medical expenses and remand to the district court for 

further proceedings consistent with this opinion.

AFFIRMED IN PART, 

VACATED IN PART,

AND REMANDED

 5 Because we remand for a collateral source hearing under 

the Professional Liability Act, we need not--and thus do not--

address Defendant’s alternative argument that there should be a 

damages setoff to account for the financial contribution the 

federal government made to the West Virginia Medicaid program. 

Additionally, on remand, the district court may consider anew, 

if the issue arises, whether it is an appropriate exercise of

its discretion to order the creation of a reversionary trust.