Mann v. United States

• Decision Date: 12 June 2012
• Docket Number: No. CV-11-8018-PCT-LOA,CV-11-8018-PCT-LOA
• Parties: Marie Mann, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — District of Arizona

Marie Mann, Plaintiff, v. United States of America, Defendant.

No. CV-11-8018-PCT-LOA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: June 12, 2012

ORDER

The United States (the "Government") moves for summary judgment on Plaintiff's claims for negligence under the doctrine of res ipsa loquitur. (Doc. 31) The Government contends that Plaintiff may not rely upon res ipsa loquitur under Arizona law where, as here, 1) the alleged injury was not caused by patently outrageous behavior or circumstances that would be within the common knowledge of lay persons; and 2) Plaintiff was in a position to show the particular circumstances that caused her injuries. (Id. at 1) The Court has previously precluded Plaintiff's medical liability expert witness from testifying in this action due to Plaintiff's failure to comply with Arizona substantive law regarding expert witnesses. See Mann v. U.S., 2012 WL 273690 (D.Ariz. January 31, 2012). (Doc. 29) The Court expressly reserved ruling on the applicability of the doctrine of res ipsa loquitur pending further motion and briefing by the parties. (Id. at 11)

After considering the briefing and applicable law, the Court grants summary judgment in favor of the Government and terminates this action.

I. Background

On November 26, 2007, Plaintiff was admitted to Fort Defiance Indian Hospital (the "hospital"), located near Window Rock, Arizona, for in-patient medical care and treatment with pains in her chest and abdomen, weakness, and blood loss. (Doc. 1, ¶¶ 9-10 at 3) On December 1, 2007, Plaintiff "fell from the toilet after being left unattended in the bathroom and broke her left femur." (Id., ¶¶ 12-13 at 3) The hospital is an Indian Health Service facility, operating under the jurisdiction of the United States Department of Health and Human Services, pursuant to a contract with Defendant United States of America. (Id., ¶ 3) Pursuant to various federal statutes, the hospital provides medical care to Native Americans, like Plaintiff, a member and resident of the Navajo Nation. (Id., ¶¶ 3, 6)

A. The Allegations

The Complaint alleges the hospital's medical personnel involved in Plaintiff's care committed numerous acts of negligence and carelessness by failing to meet the standards of reasonable care, skill, and practice required of members of the medical and nursing professions, to wit:

1. negligently and carelessly failing adequately to supervise and care for Ms. Mann;

2. negligently and carelessly failing to provide Ms. Mann with proper medical care;

3. negligently and carelessly failing to respond to Ms. Mann's need for assistance;

4. negligently and carelessly leaving Ms. Mann alone and unattended on the toilet in her weakened state;

5. negligently and carelessly failing to measure up to the requisite standards of care and skill required and observed in the field of medicine, and in further particulars presently unknown to plaintiffs, but which are verily believed and alleged will be disclosed during discovery in the course of the litigation.

(Id., ¶ 17) Plaintiff contends these negligent acts or omissions were conducted by employees of the hospital, which "direct[ly] and proximate[ly] cause[d]" Plaintiff's injuries; and the Government "is liable for the acts of its employees acting within the course and scope of their employment relationship." (Id., ¶¶ 18-20)

The Government does not dispute that the hospital's employees were acting withinthe scope of their employment at the time of Plaintiff's injury, but denies its employees were medically negligent, caused Plaintiff's injuries, and avers that "[t]he United States of America [is] liable only in the same manner and to the same extent as a private individual under like circumstances." (Docs. 7, ¶ IV at 5)

The Government moves for summary judgment because "Plaintiff cannot pursue res ipsa loquitur where she cannot show that she [was] not in a position to show the particular circumstances that caused her injuries." (Doc. 31 at 1) Having lost the use of her expert witness for failing to comply with Arizona substantive law, Plaintiff may not now rely on the doctrine of res ipsa loquitur to establish a prima facie case of medical negligence and causation. "[A]rizona law has never applied the res ipsa loquitur doctrine to relieve a claimant of the necessity of securing expert testimony when such testimony would be required to establish the prerequisites for applying the doctrine[,]" citing Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 321, 183 P.3d 1285, 1289 (Az.Ct.App. 2008) (quoting Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 355, 873 P.2d 688, 693 (Az.Ct.App. 1994)). (Id at 2-3)

Plaintiff's Statement of Facts, doc. 38,¹ contains inadmissible hearsay, but the Government has not filed either an objection or controverting statement of facts to the inadmissible portions of Plaintiff's Statement of Facts. Pursuant to Rule 56(e)(2), Fed.R.Civ.P., the Court will consider these facts as undisputed for purposes of this motion. See Rule 56(e)(2), Fed.R.Civ.P. Thus, Plaintiff relies on the following facts to justify use of the res ipsa loquitur doctrine or, in other words, the lack of necessity to present a standard-of-care expert at trial.

It is undisputed that on November 26, 2007, Plaintiff, age 63, was admitted to the hospital's emergency room with acute symptoms of chest pain, tachycardia, and anemia, and a history of black stools. (PSOF, ¶ 1; doc. 38-17 at 1, Exh. 17) Her medical history includedsevere osteoporosis, Type II diabetes, and cardiac abnormalities. (Id.) Plaintiff was admitted to the hospital's intensive care unit ("ICU") with a diagnosis of anemia (low red blood cells) that was likely due to an upper GI blood loss, tachycardia (rapid heart rate) due to dehydration, and/or hypoxemia (deficient oxygenation of the blood). (Id.) (footnote omitted). On November 27, while a patient in the emergency room and ICU, Plaintiff was confused at times, and very fatigued. (PSOF, ¶ 2) On December 1, Plaintiff was transferred to the medical surgical floor. Her level of functioning at this time required assistance with her ADLs (activities of daily living), basic hygiene, and transfers, and her "Patient Care Classification" indicated that during "movement/transportation" she required an assistant for all shifts. (PSOF, ¶¶ 10-12) That same day, Plaintiff continued to be fatigued and feeble. (PSOF, ¶ 14) A nursing assessment indicated Plaintiff experienced shortness of breath upon exertion, had "crackles" in both lungs, required oxygen by a nasal cannula, had limited range of movement with unsteady gait, generalized weakness, and used a cane. (Id.) While a patient on the medical surgical floor, "fall risk signage" was posted outside of Plaintiff's room. (PSOF, ¶ 17) The exact wording of the sign was not provided to the Court.

On December 1, at 8:30 p.m., after visiting hours were over, a nurse's aide assisted Plaintiff to the bathroom. (PSOF, ¶ 19) The nurse's aide verbally reminded Plaintiff to call her when Plaintiff was ready to get up off the toilet. (Doc. 38-16 at 1, Exh. 16) ("2030 Nurse aid assisted pt to bathroom. Reminded to call when ready to get up. Nurse passed by room pt yelled and was on floor in the bathroom. Called for help. . . .") It is unknown how long Plaintiff had been left alone on the commode before the nurse's aide heard her yell and found Plaintiff on the floor in the bathroom. (Id.) It is undisputed that as a result of Plaintiff's fall off the toilet, she fractured her left distal femur and needed surgery. (PSOF, ¶¶ 20, 23) She does not recall how she fell and has "only an uncertain recollection of the circumstances prior to [my] fall and immediately after [my] fall." (Exh. 1, Affidavit of Plaintiff, ¶ 13; doc. 38-1 at 2) Plaintiff does not provide any evidence of the medical significance of Plaintiff's blood work on the issues of liability and causation in her Statement of Facts.

II. Jurisdiction

Federal courts may exercise jurisdiction over claims only when authorized by the Constitution or federal statute. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In 28 U.S.C. § 1331, Congress granted federal courts jurisdiction to adjudicate cases arising under the United States Constitution or federal statutes. 28 U.S.C. § 1331. The Federal Tort Claims Act ("FTCA") specifies that

[d]istrict courts . . . have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1); Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992) (The FTCA "vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of Government employees."); Sierra v. Lincoln Family Medicine, 2008 WL 5068807, * 2 (D.Or. November 24, 2008). Additionally, all parties have consented in writing to magistrate-judge jurisdiction, pursuant to 28 U.S.C. § 636(c). (Doc. 15)

III. Summary Judgment Standard

A district court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Jesinger, 24 F.3d. at 1130. In addition, "[o]nly...