Nunsuch ex rel. Nunsuch v. U.S.

• Decision Date: 13 July 2001
• Docket Number: No. CIV.97-618-PHX-ROX.,CIV.97-618-PHX-ROX.
• Citation: 221 F.Supp.2d 1027
• Parties: Mary Esther NUNSUCH, an incapacitated person, By and Through her husband and next friend, Troy NUNSUCH, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

Page 1027

221 F.Supp.2d 1027

Mary Esther NUNSUCH, an incapacitated person, By and Through her husband and next friend, Troy NUNSUCH, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. CIV.97-618-PHX-ROX.

United States District Court, D. Arizona.

July 13, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas P. McGovern, James J. Leonard, Jr., Kenneth P. Clancy, Tyrone Mitchell, Leonard Clancy & McGovern PC, for Plaintiffs.

James E. Howard, Jennifer A. Shah, U.S. Dept. of Justice Torts Branch Federal Tort Claims, Washington, DC, James C. Hair, Jr., U.S. Attorney's Office, Phoenix, AZ, for Defendants.

Wade Randall Causey, Koeller Nebeker Carlson & Haluck LLP, Phoenix, AZ, for Claimant.

Order

SILVER, District Judge.

BACKGROUND

This is a medical negligence action brought in March, 1997 by Troy Nunsuch ("Troy") on behalf of his wife, Mary Esther Nunsuch ("Mary Esther"), for himself, and on behalf of their three minor children, Mary Alice, Tyrone, and Tray Nunsuch against the United States Government (Defendant). Mary Esther is a Navajo who is permanently mentally and physically incapacitated. Since the commencement of the action, the Superior Court of Maricopa County has appointed as Mary Esther's Guardian/Conservator Gregory Dovico of Southwest Fiduciary, Inc., and the Superior Court of Navajo County has appointed Sherry Lynn Johnson as Guardian/Conservator for Mary Alice, Joanne Michele Johnson as Guardian/Conservator for Tyrone, and Charles Johnson as the responsible party representing the interests of Tray.

On September 2, 1994, Mary Esther underwent mitral valve replacement surgery at University Medical Center in Tucson ("UMC"), and was discharged home to Mesa on September 8, 1994. The surgery and post-surgical care of Mary Esther at UMC was arranged by cardiologist James M. Galloway, Director of the Southwest Native American Cardiology Program and an employee of the Indian Health Service ("IHS") of Department of Health and Human Services, an agency of the United States. Dr. Galloway had an office at, and directed the Program from UMC. On September 9 at 8:30 p.m., following late-morning laboratory studies at Phoenix Indian Medical Center ("PIMC"), she presented to the Emergency Room ("ER") at PIMC, and was treated for right side chest pain by Defendant's employees, physicians Dr. Eric W. Ossowski, Dr. David Gayton and nurses Maria Santiago and Patricia Linville. She was transferred from PIMC ER by AirEvac to UMC early September 10, where she suffered a cardiac arrest about 5:00 a.m. which caused brain injury, permanently incapacitating her.

Plaintiffs allege that the Defendant was negligent regarding the discharge of Mary Esther on September 8, 1994, her treatment at the PIMC ER, including her transport on September 9-10, 1994 to UMC, and her treatment upon her return to UMC September 10, 1994. They seek compensatory damages and damages for past and future medical costs, pain and suffering, and loss of earnings and earning capacity for Mary Esther and for loss of consortium for Troy and their three children.

A similar medical negligence action in the Superior Court of Maricopa County, which was brought in August 1995 by Troy against UMC, the Arizona Board of Regents which operates UMC, and University Physicians which staffs it has been settled. The United States, with this Court's approval, has designated as non-parties at fault in this action the defendants in the state action.

The Defendant denied that the discharge of Mary Esther from UMC on September 8, 1994, and her care at the PIMC ER including her transport to UMC, and her care at UMC on September 9-10, 1994, was below the standard of care or made more probable than not her cardiac arrest and resultant anoxic brain injury. Alternatively, the Defendant's position is that, if the Court finds that care and treatment of Mary Esther by Defendant's employees fell below the standard of care, the Court should nevertheless find the non-parties at fault and 100% responsible for liability and damages.

Jurisdiction of this action is conferred by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1) and 2671, et seq., and venue is conferred by 28 U.S.C. § 1402(b).

GOVERNING LEGAL AUTHORITY

"Suits against the United States and its agencies are barred by sovereign immunity unless permitted by an explicit waiver of immunity from suit." Sigman v. United States, 217 F.3d 785, 792 (9th Cir.2000). By enacting the FTCA, "Congress waived the United States' immunity from suits for money damages for traditional tort claims[.]" Id. The FTCA provides, in pertinent part: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. Although various limitations have been imposed on this "broad waiver of immunity," see, e.g. Sigman, 217 F.3d at 792-93, none of those limitations are applicable in the case at bar.

In actions brought under the FTCA, the government's liability is to be determined "in accordance with the law of the place where the [negligent] act or omission occurred." 28 U.S.C. § 1346(b)(1); Taylor v. United States, 821 F.2d 1428, 1430 (9th Cir.1987), cert. denied, 485 U.S. 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988). Accordingly, "the substantive law of the place where the act or omission occurred" governs questions of liability. Valencia v. United States, 819 F.Supp. 1446, 1463 (D.Ariz.1993) (citing Aguilar v. United States, 920 F.2d 1475, 1477 (9th Cir.1990), and 28 U.S.C. § 1346); see also Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir.1986) ("The determination of liability under the FTCA is controlled by the law of the place where the allegedly tortuous acts occurred."). Because the alleged medical negligence in this case occurred in the State of Arizona, Arizona substantive law controls. See Taylor, 821 F.2d at 1430; Valencia, 819 F.Supp. at 1463.

A. Medical Malpractice in Arizona

Medical malpractice claims in Arizona are governed by statute. See A.R.S. §§ 12-561, et seq. Pursuant to A.R.S. § 12-561(2):

"Medical malpractice action" or "cause of action for medical malpractice" means an action for injury or death against a licensed health care provider based upon such provider's alleged negligence,¹ misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health care, medical services, nursing services or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives.

"No medical malpractice action shall be brought against a licensed health care provider except upon the grounds set forth in § 12-561." A.R.S. § 12-562(A).

A plaintiff's burden of proof in a medical malpractice action is prescribed by A.R.S. § 12-563, which provides:

Both of the following shall be necessary elements of proof that injury resulted from the failure of a health care provider to follow the accepted standard of care:

1. The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.

2. Such failure was a proximate cause of the injury.

"In order to satisfy the requirement of establishing a standard of care and a deviation from that standard, plaintiffs must present evidence that the health care provider failed to exercise the degree of care, skill and learning expected from a reasonable, prudent health care provider in the profession to which he or she belongs under the same or similar set of circumstances in the state of Arizona." Valencia, 819 F.Supp. at 1463 (citing Bell v. Maricopa Medical Center, 157 Ariz. 192, 194-195, 755 P.2d 1180, 1182-1183 (1988)). Ordinarily, a plaintiff must "present expert evidence of the accepted conduct of the profession and the defendant's deviation from that standard unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it." Valencia, 819 F.Supp. at 1463 (citing Peacock v. Samaritan Health Serv., 159 Ariz. 123, 765 P.2d 525 (1988)). In any case, a plaintiff must present specific evidence of the standard of care. Valencia, 819 F.Supp. at 1463 (cites omitted).

"[A] negligence action may be maintained only if there is a duty or obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Markowitz v. Arizona Parks Board, 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Whether a duty of care exists is a question of law. Id. Although a duty of care may exist in a given situation, it alone does not prescribe the requisite standard of conduct. Id. at 355, 706 P.2d at 367.

Hospitals are "required to exercise the skill and knowledge normally possessed by like institutions in similar communities." Faris v. Doctors Hosp., Inc., 18 Ariz.App. 264, 270, 501 P.2d 440, 446 (1972). In a hospital malpractice case, where a doctor's negligence is "so grossly apparent that a layman would have no difficulty in recognizing it[,]" the doctrine of res ipsa loquitur applies. Id. at 269-70, 501 P.2d at 445-46. Where the negligence is not "so grossly apparent," expert medical testimony is required to assist the trier of fact. Id. at 270, 501 P.2d at 446.

Hospitals are not permitted to deny emergency medical care to patients who need such care. Thompson v. Sun City Community Hosp., Inc., 141 Ariz....