Nez v. United States

• Decision Date: 13 February 2019
• Docket Number: No. 16-CV-0527-MV-KBM,16-CV-0527-MV-KBM
• Citation: 367 F.Supp.3d 1245
• Parties: Marjorie R. NEZ, Individually and as the Personal Representative of the Estate of Mary Tsosy, Deceased, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Mexico

367 F.Supp.3d 1245

Marjorie R. NEZ, Individually and as the Personal Representative of the Estate of Mary Tsosy, Deceased, Plaintiff,

v.The UNITED STATES of America, Defendant.

No. 16-CV-0527-MV-KBM

United States District Court, D. New Mexico.

Signed February 13, 2019

Felicia C. Weingartner, Law Offices of Felicia C., Weingartner, Albuquerque, New Mexico, Attorney for Plaintiff Nez.

Roberto D. Ortega, United States Attorney's Office, Albuquerque, New Mexico, Attorney for Defendants.

Cid Lopez, Law Office of Cid D Lopez, Albuquerque, New Mexico, Attorney for Plaintiff Nez.

Brandon Fyffe, United States Attorney's Office, Albuquerque, New Mexico, Attorney for Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Plaintiff's Memorandum of Law [Doc. 49], United States' Trial Brief [Doc. 50], Plaintiff's Requested Findings and Conclusions [Doc. 78], and Defendant's Requested Findings of Fact and Conclusions of Law [Doc. 81]. The Court, having considered the briefs, relevant law, trial testimony, exhibits, and being otherwise fully informed, finds that judgment must be entered in favor of Plaintiff and that Plaintiff is entitled to the relief requested, with the exception of damages for loss of consortium.

FINDINGS OF FACT

The Court is familiar with the facts of this case from pretrial motion practice, a three-day bench trial, and the exhaustive set of exhibits submitted by the parties. Both parties have also submitted proposed findings of fact. See generally Docs. 78, 81. The Court has reviewed both sets of proposed facts and accepts some of these facts, rejects some, and finds some facts that neither party brought to its attention. Accordingly, the Court finds as follows:

I. Mary Tsosy's Background and Medical History

1. Mary Tsosy was a Native American woman and a member of the Navajo Tribe. Trial Transcript ("Tr.") vol. 2, 24:23, July 10, 2018. She was 87 years of age at the time of her death. Pl. Ex. 4, Death Certificate of Mary Tsosy. Marjorie Nez, Ms. Tsosy's daughter, is the personal representative of Ms. Tsosy's estate in this wrongful death action. Id. at 4:12-13; Pl. Ex. 3, Order Appointing Personal Representative.

2. Ms. Tsosy lived with Ms. Nez and her husband, Tom Nez, from 1998 until the date of her death, on November 8, 2013. Id. at 110:14-16.

3. Ms. Tsosy remained active during this time by cooking, washing dishes, making her bed, sewing her own clothes, weaving, taking walks, caring for her livestock, and spending time with her family. Id. at 7:10-8:7, 11:9-21. She loved cooking, including Navajo corn mush and tortillas, walking her dogs, going for walks with her family, and playing with and feeding her animals. Tr. vol. 2, 110:23-111:12, 111:15-25. In addition to these hobbies at home, Ms. Tsosy enjoyed traveling out of state to visit her relatives. Id. at 113:17-24.

4. Marjorie Nez and her mother, Mary Tsosy, shared a close familial relationship. They would hug each morning, and in the evenings they would lay on their beds in a room they shared, talking until they fell asleep. Id. at 13:20-25.

5. Ms. Nez was Ms. Tsosy's caretaker, assisting her for approximately ten or 20 years prior to her death. Id. at 26:19-24; Pl.'s. Req.'d Findings and Conclusions, ¶ 21, 14, Aug. 24, 2018, ECF No. 78. She was responsible for administering her mother's prescribed medications, including Warfarin, the anticoagulation medication that is at the center of this dispute. Id. at 7:10-21, 8:9-19, 26:22-24, 27:2-28:16. Ms. Tsosy relied upon Ms. Nez to tell her which medications to take, and Ms. Nez would observe Ms. Tsosy take her medications to ensure that she was in fact taking them. Id. at 27:25-28:13.

6. Ms. Nez also assisted with Ms. Tsosy's bathing (helping so that Ms. Tsosy did not slip in the bathtub), hygiene (including cleaning her dentures and applying eye drops), and taking her to medical appointments.

Id. at 8:8-19, 27:3-16, 28:14-24, 13:20-23. Because Ms. Tsosy was monolingual, Ms. Nez was responsible for translating and providing important information at Ms. Tsosy's medical appointments. Tr. vol. 1, 235:4-25, July 9, 2018. Ms. Nez received care instructions for Ms. Tsosy at these appointments. Tr. vol. 2, 28:14-24.

7. Ms. Nez was paid by an organization called Ambercare to take care of her mother. Id. at 5:24-6:5; 27:21-24.

8. Ms. Nez testified at trial that she enjoyed taking care of her mother. Id. at 14:1-2.

II. March 28, 2013 Hospitalization at Lovelace Heart Hospital

9. On March 28, 2013, Ms. Tsosy was hospitalized at Lovelace Heart Hospital with symptoms of chest pain, shortness of breath, and palpitations. Ms. Tsosy was treated for atrial fibrillation and placed on heart medications and the anticoagulation medication, Warfarin (also referred to as Coumadin ) by cardiologist, Mel Peralta, M.D. Pl. Ex. 6 at 5-15; Tr. vol 1, 216:16-18.

10. After her discharge from Lovelace Heart Hospital, Ms. Tsosy followed up with the Crownpoint anticoagulation clinic as instructed by Dr. Peralta. Pl. Ex. 6 at 15; Def. Ex. H. Ms. Tsosy attended 13 appointments at the Crownpoint anticoagulation clinic between April and October of 2013. At these appointments, her anticoagulation medication was monitored and adjustments were made by the pharmacy physician in order to maintain Ms. Tsosy's International Normalization Ratios ("INRs") within a therapeutic range. Pl. Ex. 6 at 15.

11. The INR is a ratio used for patients taking anticoagulants to measure how thin the patient's blood is, and whether the patient is compliant with his or her anticoagulation medication. Tr. vol. 1, 68:19-21. It measures how quickly the patient's blood clots. A higher INR value translates to thinner blood and a lower likelihood of blood clotting whereas a lower number translates to a higher likelihood of clotting. Id. at 7:19-25. The therapeutic range for patients like Ms. Tsosy with atrial fibrillation is between 2.0 and 3.0. Id. at 8:1-2.

12. Ms. Tsosy was not taken off Warfarin during any of these visits to the Crownpoint anticoagulation clinic despite INR values that were, at times, either sub-therapeutic (below 2.0) or supra-therapeutic (above 3.0). There is no documentation of any discussion about removing her from the medication, nor is there documentation of any concern that the risks of taking Warfarin outweighed the benefits of Warfarin. Pl. Ex. 6 at 15; Def. Ex. H; Tr. vol. 2, 108:6-9. Ms. Tsosy was seen by three separate specialists during this time, including two cardiologists, all of whom kept her on Warfarin. Tr. vol. 1, 213:8-9, 216:16-25, 217:10-13.

13. Lorenzo Nava, R.N., Ph.D., became Ms. Tsosy's primary care provider beginning on April 15, 2013. Tr. vol. 2, 80:6-15. Dr. Nava based his notes and understanding of Ms. Tsosy's medical history, lifestyle information, and medication compliance on information he received from her. Id. at 64:1-5, 68:22-69:2, 74:7-13, 88:16-89:25, 93:12-18. Over the course of his care of Ms. Tsosy, he assisted in treatment for her congestive heart failure, atrial fibrillation, diabetes, high blood pressure, high cholesterol, and osteoporosis. Id. at 80:23-83:2, 86:4-9, 96:14-17; Def. Ex. A; Def. Ex. A-1.

14. Dr. Nava testified that Ms. Tsosy was compliant in following up with her primary care provider, and that, to his knowledge, she was compliant with taking her Warfarin. Tr. vol. 2, 73:10-18.

15. On July 16, 2013, Ms. Tsosy's hemoglobin A1C level was quite high, indicating to Dr. Nava that her blood sugar had been elevated for a period of at least three months. He testified that this could have increased her risk of possible negative outcomes, including an increased risk of fall and uncontrolled bleed. Id. at 86:1-88:4. He also testified that it was a challenge to keep Ms. Tsosy's hemoglobin and glucose levels properly adjusted, and that her elevated A1C levels and sub-therapeutic INR readings could have been due to a lack of compliance with medications. Id. at 88:16-21, 90:1-4, 94:1-4; Def. Ex. A; Def. Ex. A-1.

16. However, between August and September of 2013, because he considered her blood sugars to be more stable, he changed the frequency of Ms. Tsosy's visits from every two weeks to once a month. Tr. vol. 2, 102:25-103:16. Ms. Tsosy was also considered stable on her Warfarin at that time. Id. at 77:16-22; Pl. Ex. 5 at 16.

17. On her last visit with Dr. Nava on September 20, 2013, he changed the frequency of her visits from once a month to once every three months because her blood sugar had shown significant improvement and because she was stable on Warfarin since her INR ratios were in the therapeutic range for three visits in a row.¹ Tr. vol. 2, 98:18-25, 104:1-13.

18. Between April and September of 2013, Ms. Tsosy attended appointments with Dr. Nava on a regular basis to follow up on her diabetes and atrial fibrillation. She was not taken off Warfarin during this time, nor was there any discussion about removing her from Warfarin, or documentation of any concern that the risks of taking Warfarin outweighed the benefits. Pl. Ex. 5 at 16-17, 18-21, 22-24, 31, 34, 37, 42, 45-51, 58, 62-67; Def. Ex. A-1; Def. Ex. G; Tr. vol. 2, 108:6-10. Dr. Nava testified that at no time during his visits with Ms. Tsosy did he have any reason to recommend that she discontinue Warfarin. Id. at 108:6-10.

III. August 6, 2013 Fall and Visit to Crownpoint Emergency Department.

19. On August 6, 2013, Ms. Tsosy was seen at Crownpoint Emergency Department after falling and hitting her knee. Although there was a small amount of bruising and swelling observed around her left knee, she was not taken off Warfarin, and there was no discussion of concern about bleeding in her knee. There was no discussion of removing her from Warfarin, and no documentation of any concern by the emergency room physician that the risks of taking Warfarin outweighed the benefits. Pl. Ex. 5 at 18-21; Tr. vol. 1, 86:21-87:3, 89:18-21. The medical records from that date reflect outpatient...