Nayokpuk v. United States
| Decision Date | 30 January 2012 |
| Docket Number | No. 2:09–cv–0009 JWS.,2:09–cv–0009 JWS. |
| Citation | 87 Fed. R. Evid. Serv. 649,848 F.Supp.2d 1030 |
| Parties | Diana NAYOKPUK, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Alaska |
OPINION TEXT STARTS HERE
Kenneth S. Roosa, Cooke, Roosa & Valcarce LLC, Richard E. Vollertsen, Atkinson, Conway & Gagnon, Inc., Anchorage, AK, for Plaintiff.
Richard L. Pomeroy, U.S. Attorney's Office, Anchorage, AK, for Defendant.
At docket 40, plaintiff Diana Nayokpuk (“plaintiff” or “Nayokpuk”) moves for a ruling that the Sweet1 presumption of negligence applies. Defendant United States of America (“the government”) opposes the motion at docket 69. Nayokpuk's reply is at docket 74. Oral argument was not requested and would not assist the court.
This lawsuit arises out of the medical treatment of A.N. (“A.N.”), who is Nayokpuk's daughter. A.N. is Alaska Native and lives in the village of Shishmaref. In many remote Alaskan villages, there are no doctors. First-line medical care is instead provided by Community Health Aides (“CHAs”), who are supervised by doctors at regional hospitals. CHAs examine patients locally and then telephone the doctors who receive calls in the “radio room.” Upon examining a patient, CHAs complete a Patient Encounter Form (“PEF”) which describes the patient's complaints, symptoms, current medications, vital signs, and the CHA's assessment. The PEFs are then faxed to the doctor at the regional hospital. After talking to the doctor over the phone, CHAs generally record the doctor's diagnosis on the PEF.
A.N. was born on September 1, 2007. On September 27, 2007, A.N. was found to have a temperature of 102.4. She was transported to Norton Sound Regional Hospital (“NSRH”) in Nome, Alaska, where a full bacteriological work-up was done. She was treated with two antibiotics. On November 13, 2007, A.N. was taken to NSRH again after her temperature was recorded at 103.1. Again a bacteriological work-up was done, and A.N. returned to Shishmaref on November 16, 2007.
On January 28, 2008, A.N. went to her village clinic with a temperature of 99.5. Gwen Nayokpuk was the CHA who examined her. She reported the encounter to Dr. Livermont at NSRH. Dr. Livermont prescribed Tylenol and amoxicillin. Plaintiff maintains that the government has been unable to produce the faxed PEF that Dr. Livermont would have reviewed. Dr. Livermont has no recollection of treating A.N..
On February 1, 2008, A.N. was taken back to the clinic with a temperature of 100. A different CHA, Frieda Eningowuk (“Eningowuk”), treated her. Eningowuk assessed A.N. and thought that she had a common cold. Eningowuk contacted Dr. Head at NSRH, and Dr. Head ordered a continuation of Tylenol and amoxicillin. A.N. was scheduled to be in Anchorage, Alaska, the following week, where she had an appointment scheduled at the Alaska Native Medical Center (“ANMC”). Plaintiff maintains that the government has been unable to produce any notes made by Dr. Head regarding his treatment or diagnosis, although plaintiff was provided with the PEF and the faxed PEF.
On February 3, 2008, A.N. returned to the clinic after her mother reported that her cold had worsened. She was seen again by Gwen Nayokpuk. A.N. was having difficulty breathing and was coughing up discharge. She had a fever of 100.2. Gwen Nayokpuk diagnosed A.N. with bronchiolitis and contacted Dr. Sharma at NSRH. Dr. Sharma ordered a continuation of amoxicillin and saline nebulizer treatments to help A.N.'s breathing. Plaintiffs maintain that the government has been unable to produce the PEF that was faxed to Dr. Sharma.
A.N. was brought back to the clinic on February 5, 2008, with a temperature of 102.8. She was still coughing, displayed an audible wheezing, was picking at her ears, and her upper lip was blue. Eningowuk was the on-duty CHA, and she called Dr. Sharma. Dr. Sharma authorized A.N. to be flown to NSRH on the next commercial flight. Dr. Sharma does not recall treating or evaluating A.N..
A.N. was flown to Nome later that day. She was examined by Dr. Superville at NSRH and diagnosed with a viral respiratory infection and bronchospasm. She returned to Shishmaref on February 7.
A.N. returned to the village clinic on February 19, 2008, and was examined by CHA Amelia Milligrock (“Milligrock”). A.N. was vomiting and coughing, and she had a temperature of 102.9. Her right tympanic membrane was red and bulging, and she had lesions on her mouth. Milligrock diagnosed A.N. with acute otitis media and bronchiolitis. A.N. visited the clinic a second time on February 19 because her feet were turning blue, and her temperature had increased to 104. Eningowuk was on duty, and she called Dr. Superville at NSRH. Dr. Superville ordered A.N. to be transported to NSRH that evening. Her flight could not land due to weather, and A.N. was therefore rescheduled for a flight on the morning of February 20. Plaintiff maintains that there are no records of the reasons for A.N.'s transport and no record of Dr. Superville's treatment.
A.N. was taken to the clinic again at 2:45 a.m. on February 20. Her temperature had risen to 104.5 and she had an irregular pulse. Eningowuk contacted Dr. Logan at NSRH. Dr. Logan prescribed 100 mg of Rocephin, a dosage that plaintiff claims was insufficient. Dr. Logan does not recall his treatment of A.N., and plaintiff maintains that there is no contemporaneous record of his treatment of her.
Although A.N. was scheduled to be flown to Nome later that morning, the transport order was cancelled. Plaintiff maintains that there is no record of the order cancelling the transport.
Later on February 20, A.N. returned to the clinic and was seen by Milligrock. Her fever had decreased to 99.6. Milligrock spoke with Dr. Sharma who ordered that A.N. be seen again the next day. Dr. Sharma does not recall treating A.N., and plaintiff maintains that there is no record of her thoughts or impressions.
A.N. returned to the clinic on February 22, 2008. Her temperature was 100.8, and her hands and feet were blue. Milligrock contacted Dr. Logan who ordered that A.N. be kept warm and rechecked in two days. A.N. returned to the clinic on February 24, 2008, with a temperature of 102.2. Eningowuk contacted Dr. Superville who diagnosed unresolved bronchiolitis and authorized A.N. to be transported to NSRH the next morning. A.N. was transported to Nome on February 25, 2008. At approximately 3:15 p.m., A.N. began seizing. She was ultimately transported to Alaska Native Medical Center (“ANMC”) in Anchorage. A lumbar puncture was performed which allowed doctors to identify the specific bacteria that had infected A.N..
Plaintiff maintains that the delay in diagnosing and treating A.N.'s meningitis caused irreversible brain damage and that A.N. will require intensive care for the rest of her life. Plaintiff filed a complaint against the United States, pursuant to the Federal Tort Claims Act, on November 11, 2009. The complaint alleged negligence on the part of care providers at NSRH and ANMC, whose employees are deemed employees of the United States for purposes of the FTCA by virtue of compacts between those entities and the Indian Health Service. The complaint was amended to plead recklessness on June 17, 2011.
The FTCA provides that the United States is liable for the “negligent or wrongful act[s] or omission[s] of any employee ... if a private person ... would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 2 Here, the alleged acts or omissions occurred in Alaska and, therefore, Alaska law governs disposition of plaintiff's claims.
Nayokpuk maintains that her doctors had a duty to create and maintain appropriate records of her treatment and that her doctors breached that duty. Because her doctors allegedly breached that duty, she argues that her ability to prove malpractice is impaired and that the court should therefore apply a rebuttable presumption of negligence.3
A. The Sweet Presumption
In Sweet, the Alaska Supreme Court held that where a medical malpractice plaintiff's ability to prove negligence is impaired by the defendant's breach of duty to create or maintain adequate records, a trial court should shift the burden of proof to the defendant to prove by a preponderance of the evidence that it was not negligent.4 “[A] plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case.” 5 Second, “burden shifting should only occur when the essential medical records are missing through the negligence or fault of the adverse party.” 6
In suits brought under the FTCA, courts apply state substantive law and federal procedural law.7 The government's primary argument in response to plaintiff's motion is that the Sweet presumption is procedural and therefore should not be applied in this FTCA action. The government maintains that Sweet has been treated by Alaska courts as a discovery sanction. Plaintiffs respond that the presumption is substantive and that its application is mandated by Federal Rule of Evidence 302 and extension of the Erie doctrine.8
Federal Rule of Evidence 302 provides that “[i]n a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.” 9 The advisory committee notes make clear that although not “all presumptions in diversity cases are governed by state law,” state law presumptions apply where “the burden of proof question ha[s] to do with a substantive element of [a] claim or defense.” 10 The Sweet presumption affects the burden of proof as to the substantive elements of duty, breach, and causation.11 It is therefore applicable pursuant to Federal Rule of Evidence 302.
The government argues that Alaska “cases have consistently held that the burden-shifting...
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Noble v. United States
...JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 1. 895 P.2d 484 (Alaska 1995). 2. Id. at 492. 3. Id. at 491. 4. Nayokpuk v. United States, 848 F. Supp. 2d 1030, 1035 (D. Alaska 2012). 5. Doc. 70 at p. 1. 6. Doc. 5. 7. Doc. 80 at p. 1. 8. Sweet, 895 P.2d at 491. 9. The Sweet presumption may als......