Johnson v. United States

• Decision Date: 06 July 2021
• Docket Number: No. CV-17-08218-PCT-DLR,CV-17-08218-PCT-DLR
• Parties: Berdie Johnson, Plaintiff, v. United States of America, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Berdie Johnson, Plaintiff, v. United States of America, et al., Defendants.

No. CV-17-08218-PCT-DLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 6, 2021

ORDER

Before the Court is Defendants' motion for summary judgment, which is fully briefed. (Docs. 99, 108, 111.) The Court will grant Defendants' motion in part and deny it in part for the following reasons.¹

I. Background

This case stems from injuries suffered by Berdie Johnson allegedly due to a gall bladder excision surgery performed by Dr. James Langevin and Dr. Moaz Abulfaraj (the "Doctors") at the Tsehootsoi Medical Center ("TMC") in Fort Defiance, Arizona on December 28, 2015. (Doc. 68.) The Doctors provided services at TMC pursuant to Provider Service Agreements with Staff Care, Inc. ("Staff Care") in which they agreed to serve temporarily as locum tenens physicians. During the surgery, the Doctors discovered and repaired two enterotomies—cuts caused during surgery—within Ms. Johnson's bowel.Post-operation, Ms. Johnson remained at TMC to recover. On January 1, 2016, TMC nursing staff noted that Ms. Johnson was experiencing drainage from the incision site. (Doc. 108-1 at 61.) Based on that development, TMC transferred Ms. Johnson to another facility on January 2, 2016, where she underwent emergency surgery the same day. (Doc. 99-1 at 17, 20; Doc. 108-1 at 62.) During this surgery, Dr. Lisa Balduf discovered a third through-and-through enterotomy in Ms. Johnson's small intestine, which she opined had been created during the gall bladder excision surgery but missed by the Doctors. (Doc. 99-1 at 19; Doc. 108-1 at 67-69.)

On October 25, 2017, Ms. Johnson filed suit against, inter alia, the Doctors and Staff Care. Ms. Johnson's operative complaint asserts claims against the Doctors for medical negligence and failure to obtain Ms. Johnson's informed consent prior to surgery and seeks to hold Staff Care vicariously liable for the Doctors' malfeasance on a theory of respondeat superior. (Doc. 68.) On January 12, 2021, Defendants moved for summary judgment on all of Ms. Johnson's claims. Defendants' motion is now ripe.

II. Discussion

A. Vicarious Liability

Staff Care seeks summary judgment on Ms. Johnson's vicarious liability claim, arguing that respondeat superior liability cannot attach because the evidence indisputably shows that the Doctors were independent contractors pursuant to their Provider Service Agreements. (Doc. 99-1 at 23.) With some exceptions, an alleged employer cannot be held vicariously liable for the negligence of an independent contractor. Pride of San Juan, Inc. v. Pratt, 212 P.3d 29, 31 (Ariz. Ct. App. 2009). Ms. Johnson has neither disputed the Doctors' independent contractor status nor suggested than an exception to the general independent contractor rule applies such that Staff Care may be held vicariously liable for the Doctors' actions. The Court will therefore grant summary judgment to Staff Care on Ms. Johnson's vicarious liability claim.

B. Informed Consent

In her complaint, Ms. Johnson alleges that, prior to surgery, the Doctors did notobtain her informed consent. (Doc. 68 at 5, 9-11.) However, Ms. Johnson has produced no evidence that the Doctors failed to meet the standards necessary such that Ms. Johnson could not and did not provide informed consent prior to her surgery. Rather, she merely notes she felt pressured to proceed with the December operation date, especially because Dr. Langevin informed her employer that "otherwise she will need to be rebooked and possibly to have an open cholecystectomy." (Doc. 108 at 4; Doc. 108-1 at 65.) Ms. Johnson has not explained how Dr. Langevin's advice, or any other circumstances, rendered her acquiescence to care uninformed or nonconsensual. Ms. Johnson has therefore failed to create a genuine dispute of material fact as to whether she gave informed consent prior to surgery and the Court will grant summary judgment to the Doctors on this claim.

C. Negligence

Defendants contend that summary judgment should be granted in their favor on Ms. Johnson's negligence claim because she has failed to produce evidence that creates a genuine dispute of material fact as to whether the Doctors breached their duty to Ms. Johnson performing the gall bladder excision surgery, thereby causing her harm. To the contrary, Ms. Johnson's expert, Dr. Thomas Gouge, opined that the standard of care obligated the Doctors to "run the bowel"² prior to closing Ms. Johnson's abdomen, the Doctors failed to run the bowel, and such failure caused the Doctors to miss the third enterotomy, leading Ms. Johnson to suffer infection and extensive hospitalization. In response, Defendants argue that Dr. Gouge's opinion is insufficient to create a genuine dispute of material fact as to breach for three reasons.³

First, Defendants suggest Dr. Gouge's opinion that the Doctors did not run the bowel is improperly speculative because it is based solely on the fact that the Doctors' operative note lacks a notation that they did so. To the contrary, Dr. Gouge's opinion doesnot stem only from guesswork or his review of the operative note in a vacuum; it relies on his knowledge and experience in the field. Fed. R. Evid. 703. Particularly, while Dr. Gouge opined that the standard of care does not require surgeons to include in their operative report a notation that they ran the bowel, he explained that the Doctors' failure to do so strongly indicates that they did not, in fact, run the bowel, explaining,

[i]t would be unusual in my experience with this type of situation for a surgeon not to describe having [run the bowel], having found two bowel injuries in a case where there really wasn't reason to suspect those. So it's beyond just the dictum that if you didn't write it down, it didn't happen.

(Doc. 99-1 at 44...