Harvey v. United States

• Decision Date: 13 July 2012
• Docket Number: No. 11–2164.,11–2164.
• Citation: 685 F.3d 939
• Parties: Frances Leon HARVEY, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

685 F.3d 939

Frances Leon HARVEY, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 11–2164.

United States Court of Appeals, Tenth Circuit.

July 13, 2012.

Mickale Carter, Beaver Dam, Wisconsin (Burton Broxterman, Albuquerque, NM, with her on the briefs), appearing for Appellant.

John S. Koppel, Attorney, Appellate Staff, Civil Division (Tony West, Assistant Attorney General; Kenneth J. Gonzales, United States Attorney; and Mark B. Stern, Attorney, Appellate Staff, Civil Division, with him on the brief), Department of Justice, Washington, DC, appearing for Appellee.

Before O'BRIEN, TYMKOVICH, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

I. INTRODUCTION

Frances Leon Harvey's appeal stems from a Federal Tort Claims Act (“FTCA”) lawsuit that Mr. Harvey brought against the United States government for complications arising from an injury to his hand.

Mr. Harvey claims that government employees injured him by (1) misdiagnosing and delaying treatment of his hand fracture, and (2) performing negligent surgery on his hand. He argues that the district court erred in holding the misdiagnosis/delay-in-treatment claim (“misdiagnosis claim”) to be time-barred and in granting summary judgment on the negligent surgery claim for failure to produce expert evidence. Also, as a threshold matter, Mr. Harvey contends that the district court should have granted his motion for default judgment.

The district court agreed with Mr. Harvey that Navajo law is the substantive law that should be applied to this case. But Mr. Harvey argues on appeal that the district court failed to follow Navajo law in dismissing his negligent surgery claim.

We hold that the district court properly denied Mr. Harvey's motion for default judgment. Although we disagree with the district court's conclusion that the misdiagnosis claim was time-barred, we conclude that Mr. Harvey's failure to provide expert evidence doomed both his misdiagnosis and surgical malpractice claims. Finally, although the parties disagree about whether Arizona law or Navajo law applies, we need not decide that issue because the outcome is the same under both.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

II. BACKGROUND

A. Factual Background

Mr. Harvey is an enrolled member of the Navajo Tribe and resides on the Navajo Reservation in New Mexico. Fort Defiance Indian Hospital (“FDIH”) is located on the Navajo Reservation in Arizona. Indian Health Services is an agency of the United States government and operates FDIH pursuant to a lease with the Navajo Nation.

In early February 2004, Mr. Harvey fell on ice and hurt his right hand. On February 6, 2004, he visited the walk-in clinic at FDIH, where his hand was x-rayed. The radiology report on the x-ray notes a fracture of the base of the fifth metacarpal, but a note from Mr. Harvey's medical records states “X-rays all ok.” Aplt. Appx. at 126. Health care providers at FDIH gave Mr. Harvey Motrin for his pain and advised him to return in a month if his condition did not improve.

On March 5, 2004, Mr. Harvey returned to FDIH. A note from that day again states that “X-rays were ok.” Id. at 129. Mr. Harvey was given more Motrin.

On March 29, 2004, Mr. Harvey returned to FDIH and was x-rayed again. The medical record from that visit notes a “[r]ight fifth metacarpal (digit) base fracture 2/6/04.” Id. at 132A. Mr. Harvey “was told he needs to see ortho ASAP.” Id.

The following day, Mr. Harvey visited FDIH's orthopedic clinic. An orthopedic surgeon determined that it was not possible to reduce the two-month-old fracture. The medical record states “2 months old not possible to reduce now.” Id. at 133. Mr. Harvey was provided with a splint and directed to “use [it] part time for comfort.” Id. He was asked to return to the clinic in approximately two or three weeks.

On April 20, 2004, Mr. Harvey returned to the orthopedic clinic. For the first time, he was advised to undergo surgery. Mr. Harvey returned to the clinic on May 3, 2004, for a pre-operation appointment. The medical record reflects that on that day both the surgery and “all adverse reactions” were discussed with Mr. Harvey. Id. at 135. Mr. Harvey also signed a consent form, which states that “[c]ommon and important risks associated with the proposed operation ... include [i]nfection, [n]eural [v]ascular trauma, [n]on-union, [and] [a]rthritis.” Id. at 136. On May 5, 2004, Mr. Harvey underwent surgery on his hand.

Mr. Harvey returned to the orthopedic clinic on May 10, 2004, for a follow-up appointment. On May 13, 2004, he again returned because of hand pain. An x-ray revealed no infection and that the hand was healing. Health care providers removed Mr. Harvey's stitches, recasted his hand, and instructed him to return to the clinic in four weeks for cast removal and an x-ray.

On June 10, 2004, Mr. Harvey came to the clinic and reported his hand was swollen and turning yellow. He returned on June 16, 2004. The medical record from that day states that Mr. Harvey's hand was swelling but healing well. Mr. Harvey claims that he was informed on June 16, 2004, that it would take a year for his hand to return to normal.

On March 21, 2005, Mr. Harvey returned to the clinic and complained of pain. An examination of his hand revealed ulnar nerve entrapment. The medical record states that Mr. Harvey was instructed to wear a wrist support and to undergo physical/occupational therapy. Mr. Harvey claims he was told that it would take “yet another year” for his hand to return to normal. Id. at 182. By April of 2006, Mr. Harvey did not believe that his hand was “right.” Id.

B. Procedural History

On September 20, 2004, Mr. Harvey signed an Authorization for Use or Disclosure of Health Information for records related to “Misdiagnos [sic] of R hand & L knee” for the period of February 1, 2004, to August 31, 2004. Id. at 137. The purpose or need for the disclosure indicated “Attorney–Roosenfelt.” Id.

On May 1, 2006, Mr. Harvey filed an administrative claim with the Department of Health and Human Services. He described the basis of his claim as “[f]ailure to diagnose broken bone in right hand. Surgery to repair fell below the standard of care. All took place at [FDIH] ... during February, March, April, and May of 2004.” Id. at 138. In the box marked “Date and Day of Accident,” Mr. Harvey wrote “May 2004.” Id. He sought personal-injury damages of $300,000.

By letter dated July 10, 2006, counsel for Mr. Harvey advised that Mr. Harvey was amending the amount of his claim from $300,000 to $2,016,120. Mr. Harvey believed that the Navajo law concept of “ nalyeeh ” required this change. On July 16, 2007, Mr. Harvey's counsel received a letter dated June 20, 2007, that denied the administrative claim as untimely.

On January 29, 2008, Mr. Harvey filed a complaint in the U.S. District Court for the District of New Mexico. Mr. Harvey alleged that government health care providers had initially misdiagnosed and failed to treat his hand injury and thereafter had committed surgical malpractice. He brought the claim under the FTCA and sought damages of $2,016,120 “pursuant to nalyeeh.” Id. at 19.

On October 6, 2008, Mr. Harvey filed a motion for partial summary judgment. The FTCA provides that, under certain conditions, the United States is liable for torts “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In his motion, Mr. Harvey asked the court to determine that his FTCA action “is governed by the tort law of the Navajo Nation” because the triggering act or omission occurred on the Navajo Reservation. Aplt. Appx. at 36. The Government argued that “law of the place” in the FTCA refers to the “state” and that Arizona law should apply. The district court granted Mr. Harvey's motion on September 29, 2009. The Government sought reconsideration of that decision, which was denied.

On June 12, 2009, the Government filed a motion to dismiss Mr. Harvey's claim relating to the initial failure to diagnose and treat his hand injury, arguing that it was barred by the two-year statute of limitation under 28 U.S.C. § 2401(b). The Government argued that Mr. Harvey knew on March 29, 2004, that his hand was broken and had been previously misdiagnosed but did not file his FTCA administrative claim until May 1, 2006. Mr. Harvey opposed the motion, but the district court granted it in an order filed March 9, 2010. The court held that the “failure-to-diagnose/failure-to-treat claims accrued on April 20, 2004, when [Mr. Harvey] learned that more extensive care ( i.e., surgery) was required to treat an injury that health care providers originally believed could be taken care of with painkillers and an ice pack.” Id. at 251.

Mr. Harvey sought reconsideration, which the district court denied. The court stated that “if anything, the circumstances support a determination that Mr. Harvey's claims of medical malpractice, to the extent those claims are based on FDIH providers' failure to diagnose and treat his fractured hand, accrued on the earlier date of March 29, 2004,” but the court let the April 20, 2004, date stand because the Government had not sought reconsideration on that point. Id. at 340–41.

On September 21, 2010, the Government moved to dismiss Mr. Harvey's negligent surgery claim for lack of subject matter jurisdiction. The Government argued that even if Navajo law is “the law of the place,” Mr. Harvey's action should be dismissed because he had not designated an expert witness who could establish the Government's negligent or otherwise wrongful conduct, as required under the FTCA. Mr. Harvey contested the motion. On May 4, 2011, the district court issued an order notifying the parties that it intended to convert the Government's motion to dismiss for lack of jurisdiction into a summary judgment motion.

Meanwhile, on September 27, 2010, Mr. Harvey filed a motion for default judgment, arguing that the Government had filed its...