Johnson v. United States, No. CV-17-08218-PCT-DLR

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

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.

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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 not

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obtain her informed consent. (Doc. 68 at 5, 9-11.) However, Ms. Johnson has produced no evidence that the Doctors failed...