Harris v. United States

• Decision Date: 08 June 2021
• Docket Number: No. CV-19-00248-TUC-DCB,CV-19-00248-TUC-DCB
• Parties: Jeffery J Harris, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — District of Arizona

Jeffery J Harris, Plaintiff, v. United States of America, Defendant.

No. CV-19-00248-TUC-DCB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 8, 2021

ORDER

The Court grants the Defendant's Motion for Summary Judgment¹ and denies the Plaintiff's Crossmotion for Summary Judgment.

Plaintiff brings this action pro se against Defendant under the Federal Tort Claims Act, which provides a limited waiver of the federal government's sovereign immunity for the common law torts of its officers and employees. United States v. Orleans, 425 U.S. 807, 813 (1976). Under the FTCA, the United States is liable under circumstances where, as a private person, it would be liable under "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987). Therefore, Arizona law governs the existence and extent of Defendant's liability for negligence.

In Arizona, negligence claims are governed by statute, Bailey-Null v. ValueOptions, 209 P.3d 1059, 1066 (Ariz. App. 2009), including actions arising from a licensed health care provider's alleged "negligence, misconduct, errors or omissions, or breach of contractin the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health care, medical services, nursing services or other health-related services, without express or implied consent..." A.R.S. § 12-561(2). Plaintiff brings both negligence and lack of consent (battery) claims against the Defendant.

Plaintiff alleges that during a routine surgical procedure performed on March 2, 2016 to remove an old pacemaker² and install a new one, the surgeon allegedly introduced infectious bacterial contamination into the pacemaker pocket which was otherwise closed against infection. Two months later, after infection set in allegedly due to the negligent surgical contamination of the pacemaker pocket, Defendant had an opportunity to limit further harm to the Plaintiff to two (additional) surgeries to which Plaintiff consented: one to extract Plaintiff's pacemaker from the negligently infected pocket, and after treatment by antibiotics for several weeks, a second surgery to replace it with a new pacemaker. (P CMSJ/Response (Doc. 82) at 2.)

Additionally, Defendant failed to minimize the harm to Plaintiff and committed a battery by performing the second surgery only three days after removing the pacemaker from the infected pocket instead of administering the several-week regimen of antibiotics. Id. at 3. As a result of Defendant's negligence in performing the March 2, 2016 surgery to replace the pacemaker that was nearing its life expectancy and the battery caused the "recurrent pocket infections and their complications extended—for another year and no less than five further surgeries—the treatment necessary to resolve a hospital-induced infection that needlessly became life threatening." (P CMSJ/Response (Doc. 82) at 2-3.) Plaintiff's theory of the case is that the negligently induced infection was the proximate cause of all his injuries. Id.

A. Counts One and Two: Negligence (March 2, 2016 surgery)

A health care provider bears the duty "to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider" in the same profession or class and under similar circumstances. A.R.S. § 12-563(1). The yardstick by which aprovider discharges this duty is known as the standard of care. Smethers v. Campion, 108 P.3d 946, 949 (Ariz. App. 2005). A plaintiff must affirmatively establish both this standard and deviation from it by expert medical testimony, unless "grossly apparent" to the layman. Harvey v. Kellin, 566 P.2d 297, 300 (Ariz. 1977). He must also prove that the provider's failure to discharge this duty constituted the proximate cause of injury, A.R.S. § 12-563(2), "through expert medical testimony, unless the connection is readily apparent to the trier of fact." Barrett v. Harris, 86 P.3d 954, 958 (Ariz. App. 2004); cf. Kreisman v. Thomas, 469 P.2d 107, 110 (Ariz. App. 1970) (showing must be "Probable and not merely Possible").

The Defendant moves for summary judgment because Plaintiff cannot prove a breach in the standard of care by any SAVAHCS provider because he has no expert witness to testify on the standard of care, and Plaintiff is not qualified to offer testimony on this issue. See A.R.S. § 12-2604 (prohibits expert testimony on the appropriate standard of care except by "expert witness, [who] shall be a specialist who is board certified in that specialty or claimed specialty.") See also Fed. R. Civ. P 702 (where scientific, technical, or other specialized knowledge is offered to assist the trier of fact to understand the evidence or to determine a fact in issue, a witness must be qualified as an expert in that knowledge, skill, experience, training, or education).

Plaintiff argues that the Defendant's contention that expert opinion testimony is required in this case is faulty because Plaintiff does not assert a claim of negligence against individual health care professionals. (P CMSJ/Response (Doc. 82) at 22.) Plaintiff expressly abandons any such claims of negligence. Id. at 22. "Plaintiff has both clarified that he does not assert a claim of negligence against any individual health care professional and has elected to abandon his claims for negligence, if any, that he might have contemplated against . . . Drs. Thal, Buckley, and Mahoney." Id. According to the Plaintiff, "[a]bsent a negligence claim against an individual health care professional, the standard of care for individual professionals, as governed by Arizona statute, is not at issue in the case at bar in which Defendant's liability due to negligence is premised on respondeat superiorprinciples." Id. at 22-23 (citing Simon v. Maricopa Medical Center, 234 P.3d 623, 632 (Ariz. App. 2010)).

The Court in Simons held that A.R.S. § 12-2603 applies only to claims asserted against health care professionals in the context of considering Simon's claims which included "allegations that Maricopa Medical Center (MMC) security guards conspired with the Officers to assault him in MMC's parking lot and that MMC failed to provide adequate medical care after he was beaten." The court held that because Simon included allegations not related to MMC's "rendering professional services" total dismissal of MMC on that ground [] was inappropriate." Simon,_234 P.3d at 632. The court in Simon added, "A.R.S. § 12-2603 applies only to claims asserted against health care professionals. A.R.S. § 12-2603(H)(1)(b) defines such a claim and states that a lawsuit is not a claim unless it pertains to "breach of contract, negligence, misconduct, errors or omissions in rendering professional services." Id.

Suing SAVAHCS based on respondeat superior does not save the Plaintiff from having to make a prima faice case of negligence to survive summary judgment. "In Arizona, an employer may be held vicariously liable under the doctrine of respondeat superior for the negligent acts of its employee acting within the course and scope of employment." Engler v. Gulf Interstate Eng'g, Inc., 258 P.3d 304, 309-10 (Ariz. App. 2011), aff'd, 280 P.3d 599 (2012) (citing Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 5 P.3d 249, 254 (Ariz. App.2000); Restatement (Third) of Agency ("Restatement") § 7.07(1) (2006)). Plaintiff must still establish that an employee, in this case a health care professional, acted negligently.

Under Arizona's statutes, negligence is failure to exercise "that degree of care, skill and learning expected of a reasonable, prudent health care provider" in the same profession or class and under similar circumstances. A.R.S. § 12-563(1). Put another way, negligence is a failure of due care. See (P CMSJ/Response (Doc. 82) at 13 (citing Falcher v. Saint Luke's Hosp. Med. Ctr., 506 P.2d 287, 290 (Ariz. App. 1973) (describing res ipsa loquitor as: "when it is a matter of common knowledge among laymen or medical men, or both,that the injury would not ordinarily have occurred if due care had been exercised")). Simply put, to survive summary judgment, the Plaintiff must address the standard of care and show that the care provided to him at SAVAHCS fell below that standard.

The Plaintiff faces this burden against the Defendant's presentation of expert testimony that there was no negligence. Summary Judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.56(c). It is not for the judge to determine the truth of a matter asserted, weigh the evidence, or determine credibility, but only to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The movant carries the burden of showing that there is no genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party, Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). This inquiry is decidedly factual in nature and summary judgment is only appropriate if no trier of fact could reasonably find for Plaintiffs. See, Celotex, 477 U.S. at 323 (citing Liberty Lobby, 477 U.S. at 250 (essentially, the standard for granting summary judgment mirrors that for a directed verdict). Where different inferences can be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North Am., 638 F.2d 136, 140 (9th Cir. 1981).

Both parties seek summary judgment, and either way the dispositive issue hinges on whether Plaintiff can make a prima facie case of negligence and/or battery, with Defendant presenting expert testimony on the question of negligence. Plaintiff does not present any expert witness evidence regarding negligence. He presents no expert witness evidence to...