Garcia v. United States

• Decision Date: 05 November 2015
• Docket Number: Case No. 3:12-cv-1369-J-34PDB
• Parties: MONICA GARCIA, as Personal Representative of the Estate of Robert Garcia, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Middle District of Florida

MONICA GARCIA, as Personal Representative of the Estate of Robert Garcia, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case No. 3:12-cv-1369-J-34PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

November 5, 2015

ORDER

THIS CAUSE is before the Court on (1) Plaintiff's Motion for Partial Summary Judgment as to Defendant's Twelfth Affirmative Defense and Incorporated Memorandum of Law in Support of Same (Doc. 36; Garcia's First Motion), filed on April 2, 2015¹; (2) Plaintiff's Motion for Partial Summary Judgment as to the Standard of Care Relating to Delivery of Robert Garcia's Sleep Study Report to His Primary Care Manager and Incorporated Memorandum of Law in Support of Same (Doc. 37; Garcia's Second Motion) (collectively "Garcia Motions"), filed on April 2, 2015²; and (3) Defendant's Motion for Summary Judgment and Suppor[t]ing Memorandum of Law (Doc. 48; United States'Motion), filed on June 1, 2015.³ On April 27, 2015, the United States filed Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment as to Defendant's Twelfth Affirmative Defense (Doc. 45; United States' Response to Garcia's First Motion) and Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment as to the Standard of Care Relating to Delivery of Robert Garcia's Sleep Study to His Primary Care Manager (Doc. 46; United States' Response to Garcia's Second Motion).⁴ On June 30, 2015, Plaintiff, Monica Garcia, filed Plaintiff's Response and Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc. 52; Garcia's Response).⁵ With the Court's leave, see Docs. 55, 60, the United States filed its Reply in Support of USA's Motion for Summary Judgment (Doc. 56; United States' Reply) on August 3, 2015,⁶ and Mrs. Garcia filed Plaintiff's Sur-Reply to Defendant's Reply in Support of Its Motion for Summary Judgment (Doc. 61; Garcia's Surreply) on September 21, 2015. Accordingly, this matter is ripe for review.

I. Background⁷

On June 11, 2010, Robert Garcia attended an appointment with Captain (now Major) Scott Schafer, a certified physician's assistant, at the 673rd Medical Group at Joint Base Elmendorf-Richardson outside Anchorage, Alaska. Doc. 48-2 at 31-35. Maj. Schafer observed that Mr. Garcia "said he is ... concerned with his sleep. He stated his wife's been telling him that he snores heavily[,] and he also mentioned not getting a full night of sleep lately." Id. at 32. Maj. Schafer further observed that Mr. Garcia had "no formal [history] of insomnia or sleep apnea; does not have [diagnosed] primary snoring." Id. at 34. Maj. Schafer noted that Mr. Garcia complained of ongoing sleep problems, increasing daytime somnolence, morning fatigue, and snoring problems, and that Mr. Garcia stated he had never had therapy for the problem but had been taking over-the-counter Tylenol PM daily. Id. Mr. Garcia denied having trouble falling asleep at night and denied falling asleep at work, in the car, and watching movies or television but reported waking up throughout the night. Id. Mr. Garcia reported he occasionally drank alcohol one to two hours before bed. Id. Additionally, Mr. Garcia denied any history of sleep apnea or restless-leg syndrome. Id. That same day, Maj. Schafer referred Mr. Garcia on a routine basis to the 673rd Medical Group's Sleep Disorder Center ("the Sleep Lab") for a sleep study. Id. In the meantime, Mr. Garcia attended several other appointments at Maj.Schafer's request and saw Maj. Schafer on August 16, 2010, for a follow-up appointment. Id. at 10-30.

On August 16, 2010, Mr. Garcia participated in a split-night sleep study⁸ conducted by Registered Polysomnographic Technologist Nancy Johnston. Johnston Depo. at 9; Ashman Depo. at 79, 118; Doc. 48-2 at 4-5. The study results were sent out for review by independent contractor Dr. Daron Scherr, a physician specializing in sleep medicine. Johnston Depo. at 36-37; Ashman Depo. at 50, 93.⁹ Dr. Scherr issued a report, which included a diagnosis of "Severe Obstructive Sleep Apnea (OSA) with significant oxyhemoglobin desaturation"¹⁰ and a recommendation that Mr. Garcia begin treatment with a continuous-positive-airway-pressure ("CPAP") machine.¹¹ Doc. 48-2 at 6-9. On August 25, 2010, Dr. Scherr's report was uploaded to the Department of Defense's electronic medical-record system, id. at 8, but was never sent to Maj. Schafer or Mr. Garcia, Schafer Depo. at 63-64; Herold Depo. at 85.

On October 5, 2010, Mr. Garcia saw Dr. Eric Ashman, a neurologist and the director of the Sleep Lab at the time, for a follow-up appointment to discuss the sleep-study results. Ashman Depo. at 74-75, 100; Doc. 48-2 at 1-3. Dr. Ashman discussed the results and treatment options with Mr. Garcia, and Mr. Garcia chose to begin treatment with a CPAP machine. Ashman Depo. at 100; Doc. 48-2 at 3. Dr. Ashman ordered the CPAP machine, Doc. 48-2 at 3, and the medical-equipment provider approved the order on October 12, 2010, Herold Depo. at 56. On October 16, 2010, before he received the CPAP machine, Mr. Garcia died. Doc. 1 ¶ 20; Doc. 29 ¶ 20. Although a medical examiner did not perform an autopsy or toxicological testing to determine Mr. Garcia's cause of death, see Doc. 52-4; Kreitzer Depo. at 90, the death certificate listed respiratory failure and obstructive sleep apnea as his causes of death, Doc. 52-4.

On December 29, 2010, Mrs. Garcia, her daughters (Jessica and Erica Garcia), and the Estate of Mr. Garcia filed administrative claims with the Department of the Air Force, and the United States denied them initially on November 22, 2011, and on reconsideration on August 12, 2012.¹² Doc. 1 ¶ 9; Doc. 29 ¶ 9. Mrs. Garcia then filed this lawsuit on December 20, 2012, alleging that federal employees and the medical facilities at JBER negligently failed to timely evaluate and treat Mr. Garcia's obstructive sleep apnea. Doc. 1 (Complaint). On March 18, 2013, the United States answered the Complaint. Doc. 5 (Answer). With the Court's leave, and without opposition from Mrs. Garcia, the United States filed an Amended Answer on October 16, 2014. Doc. 29. On April 2, 2015, Mrs. Garcia filed her First and Second Motions for partial summary judgment, and on June 1, 2015, the United States filed its Motion for summary judgment.

II. Standard of Review

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Rule 56(c)(1)(A).¹³ An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact tobe determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)). "Where the nonmoving party has failed to make a sufficient showing 'to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' there exist no genuine issues of material fact." Mize, 93 F.3d at 742 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

III. Discussion¹⁴

It is well-established that the United States is immune from suit unless it has consented to be sued, and its consent to be sued defines the terms and conditions upon which it may be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). The Federal Tort Claims Act ("FTCA") provides that the United States may be held liable for moneydamages for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" in the same manner and to the same extent as a private person under like circumstances. 28 U.S.C. § 1346(b)(1); Turner ex rel. Turner v. United States, 514 F.3d 1194, 1203 (11th Cir. 2008). Thus, the "FTCA is a specific, congressional exception" to the United States' sovereign immunity. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). As such,...