Tate v. United States
| Decision Date | 06 March 2017 |
| Docket Number | 3:14-cv-0242 JWS |
| Parties | William Tate, et al. Plaintiffs, v. United States of America, et al. Defendants. |
| Court | U.S. District Court — District of Alaska |
[Re: Motion at docket 86]
I. MOTION PRESENTED
At docket 86 defendants Advantage RN, LLC, Cheryl Chapman, and Sheryl Snyder (collectively, "Advantage") move for summary judgment under Federal Rule of Civil Procedure 56. Defendant United States of America joins in Advantage's motion at docket 97. Plaintiffs William Tate, et al. ("Plaintiffs") oppose the motion at docket 98, supported by a memorandum at docket 99 and declarations at dockets 100 and 101. Advantage replies at docket 104. Oral argument was heard on March 3, 2017.
II. BACKGROUND
This medical malpractice action arises from treatment that plaintiff Cynthia Tate ("Tate") received at the Maniilaq Health Center Emergency Room on October 19, 2013. Tate's medical records show that she presented at the Emergency Room at 5:36 p.m. that evening complaining of stomach pain and vomiting, with an acuity level of 4.1 She was triaged by Mark Hrinko, RN ("Hrinko"),2 but was not put on a cardiac, blood pressure, or pulse-oximetry monitor. Dr. Mary Gwai-Chore examined Tate and ordered an IV and two IV medications.3 Hrinko then returned to complete Tate's assessment.4
At 7:00 p.m. Sheryl Snyder RN ("Snyder") and Cheryl Chapman RN ("Chapman") began their shift.5 Tate's records show that Paul Moughamian RN ("Moughamian") started the IV line at 7:00 p.m.6 After administering the two IV medications, Moughamian started Tate on 1,000 milliliters of saline.7 Dr. Gwai-Chore testified that she returned to Tate's room at 7:35 p.m. to reevaluate Tate.8
It is undisputed that by 7:50 p.m., when Snyder checked on Tate, Tate had gone into cardiac arrest and was non-responsive.9 Snyder called out a code10 and CPR was administered,11 but the record is unclear regarding whether it was Snyder or defendant Doug Amis, P.A. ("Amis") who started CPR. Snyder testified that she started CPRimmediately after calling code12 and Amis ran into the room and took over while Snyder retrieved the crash cart.13 Amis testified that after code was called he entered Tate's room and "initiated CPR."14 He could not "definitively say" who else was in Tate's room when he arrived.15 Tate's "code sheet" states that CPR was initiated by Amis.16
Moughamian testified that when he approached Tate's room Amis was already performing CPR and others were hooking Tate up to the crash cart.17 Moughamian then began recording the code.18 Because the code records begin at 7:55 p.m.,19 Tate contends that there was a 5-minute delay between when Snyder discovered Tate non-responsive and when CPR was initiated.20 Advantage disputes this.21
Tate survived but she has "never regained consciousness and has since been in a persistent vegetative state due to hypoxic encephalopathy,"22 which is brain damage caused by the lack of adequate oxygenation of the brain.23 Plaintiffs sued defendants for malpractice, alleging that they breached the standard of care for their respectivefields or specialities by: (1) "failing to properly triage;" (2) "failing to properly monitor and reassess;" (3) "failing to start immediate resuscitation efforts after Ms. Tate was found unresponsive;" and (4) "failing to properly manage the code."24 Chapman, Snyder, and their employer, Advantage RN, LLC, presently move for summary judgment.
III. STANDARD OF REVIEW
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."25 The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."26 Ultimately, "summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party."27 However, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."28
The moving party has the burden of showing that there is no genuine dispute as to any material fact.29 Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.30 Once the moving party has met this burden, the nonmoving partymust set forth evidence of specific facts showing the existence of a genuine issue for trial.31 All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant.32 However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.33
IV. DISCUSSION
Advantage argues that it cannot be held liable for failing to properly triage or manage the code because Plaintiffs lack any evidence in support of either claim. By expressly abandoning their failure to triage claim against the Advantage defendants34 and implicitly abandoning their failure to manage the code claim against the Advantage defendants (by not coming forth with any evidence of code mismanagement), Plaintiffs have abandoned both claims against Advantage.
Plaintiffs allege that the Advantage defendants committed malpractice by waiting five minutes before starting resuscitation.35 The only evidence Plaintiffs offer in support of this claim is the fact that the first entry on Tate's code sheet, from 7:55 p.m., states that Tate had developed asystole and "compressions started."36 Plaintiffs' reliance onthis entry is misplaced because the record shows that CPR was already underway by the time the code charting commenced. Moughamian testified that CPR was already underway when he started recording the code. Thus, either Snyder or Amis began CPR at some point before 7:55 p.m. Snyder testified that she began CPR immediately after calling code, and Amis testified that he went straight to Tate's room when he heard the code and began CPR. Because no evidence supports Plaintiffs' claim that there was a five-minute delay between when Snyder discovered Tate non-responsive and when CPR was commenced, Plaintiffs' failure to promptly resuscitate claim against the Advantage defendants fails as a matter of law.
Advantage argues that Plaintiffs' remaining claim for failure to properly monitor Tate lacks merit because (1) Plaintiffs cannot show by a preponderance of the evidence that Advantage's alleged negligence caused Tate's injuries and (2) Plaintiffs cannot recover under the lost chance rule because the rule is not recognized in Alaska. The court will address Advantage's arguments in reverse order.
The lost chance rule arises in cases where the plaintiff with a preexisting condition cannot show by a preponderance of the evidence that the defendant's negligence, as opposed to the preexisting condition, caused the plaintiff's ultimate injury. This fact pattern commonly arises in the context of medical malpractice cases where the plaintiff alleges untimely diagnosis or treatment.37 If the evidence shows, for example, that "the patient might have had only a 40% chance of living" if "diagnosis and treatment had been timely" and the defendant's negligence completely deprived her of that chance, the plaintiff cannot "prove by a preponderance of the evidence that thedefendant caused the patient's death."38 To the contrary, "the probability is 60% that the defendant did not cause the death in spite of his negligence."39 Under these circumstances, some courts allow the plaintiff to recover under what has become known as the lost chance rule, which comes in two versions.40
Under one version, sometimes referred to as the "separate injury" version,41 the lost opportunity itself is characterized as the plaintiff's legally cognizable harm and valued accordingly.42 "When the plaintiff provides evidence quantifying her chances for survival, the easiest calculation is one that discounts total dam ages by the plaintiff's chance."43 Using the above example, the defendant would be liable for 40% of the plaintiff's total damages.44 Although the defendant may not have caused the plaintiff's unfavorable outcome, the defendant is liable for causing the loss of the plaintiff's chance of avoiding that outcome.45 46
The second version of the lost chance rule, sometimes referred to as the "relaxed causation" version,47 "actually changes the standard for proving causation."48 It allows a plaintiff to recover an award for the entire loss if the defendant's negligence was a "substantial factor" in producing the harm, disregarding the fact that the harm was likely to occur even if the defendant had not been negligent.49 "Not all the cases that permit a full recovery are explicit about the reasoning," but the general idea is that full recovery is appropriate because the defendant's negligence combined with the preexisting condition to create a single indivisible injury.50
In 1999 this court, in Crosby v. United States, held that the Alaska Supreme Court would likely decline to adopt...
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