Tolbert v. Gallup Indian Med. Ctr., CIV 19-0830 JB/LF

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation555 F.Supp.3d 1207
Docket NumberCIV 19-0830 JB/LF
Parties Phillip TOLBERT and Thedore W. Barudin, Personal Representative for the Estate of Rose Sky Tolbert, Plaintiffs, v. GALLUP INDIAN MEDICAL CENTER; Department of Health and Human Services; The United States of America; Gienia Lynch; Janet M. Greenholz; Safia Rubaii; Gilberto Alvarez-Colon; Robert Leach; Terence H. Hamel and Regina Williams, Defendants.
Decision Date17 August 2021

Lisa K. Curtis, Julia Gabrielle Coulloudon, Laura Callanan, Curtis & Co. Law Firm, Albuquerque, New Mexico --and-- Brandon W. Vigil, Law Office of Brandon W. Vigil, Albuquerque, New Mexico, Attorneys for the Plaintiffs.

Fred Federici, Acting United States Attorney, Elizabeth M. Martinez, Kimberly N. Bell, Christine Hyojin Lyman, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Defendant.



THIS MATTER comes before the Court on PlaintiffsFirst Motion to Compel Regarding Defendant's Answers and Responses to the Estate of Rose Sky Tolbert's First Set of Interrogatories and Requests for Production and Memorandum of Law, filed November 20, 2020 (Doc. 84)("Motion"). The Court held a hearing on the Motion on June 15, 2021. See Clerk's Minutes at 1, filed July 1, 2021 (Doc. 168). The primary issue is whether the Court should order the Defendant United States of America to provide Plaintiffs Phillip Tolbert and Theodore W. Barudin, the personal representative for Rose Sky Tolbert's estate (collectively, "the Plaintiffs"), with information and documents regarding credentialing, privileging, personnel files, employment information, contracts or other documents establishing a relationship between Gallup Indian Medical Center ("Gallup Medical") and the named medical providers -- Defendants Gienia Lynch, Janet M. Greenholz, Safia Rubaii, Gilberto Alvarez-Colon, Robert Leach, Terence H. Hamel, and Regina Williams ("Medical Defendants") -- risk management files, and incident reports, where 28 U.S.C. § 1675(c) forbids disclosure of "[m]edical quality assurance records created by or for any Indian health program or a health program of an urban Indian organization as part of a medical quality assurance program ...." The Court orders the United States to provide a privilege log to the Plaintiffs describing the requested documents. If the parties cannot settle this issue following the privilege log's provision, the Plaintiffs may renew their request for an in-camera review. Accordingly, the Court grants in part and denies in part the Motion.


The Court takes its facts from the Complaint, filed September 9, 2019 (Doc. 1). The Court accepts the factual allegations as true for the purposes of the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012) (concluding that a court accepts "all facts pleaded by the non-moving party as true and grants all reasonable inferences from the pleadings in that party's favor"). The Court does not, however, accept as true the legal conclusions within the Complaint. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").

1. The Parties.

P. Tolbert and Suina are R. Tolbert's parents, and reside in Gallup, New Mexico. See Complaint ¶ 36, at 7. The United States "through the Indian Health Services, does business and operates a healthcare facility called "Gallup Indian Medical Center" ("Gallup Medical") in Gallup, New Mexico." Complaint ¶ 37, at 7. "The events giving rise to this complaint occurred at Gallup Indian Medical Center, which is part of the United States Health and Human Services Department and the Indian Health Service located in Gallup, New Mexico on September 9-10, 2017." Complaint ¶ 45, at 9. R. Tolbert's mother, Suina, had given birth to six children before giving birth to R. Tolbert. See Complaint ¶ 2, at 1. During her previous births, Suina experienced c-sections and placental abruption

. See Complaint ¶ 3, at 2.

Suina and Gallup Medical were aware that Suina had gestational diabetes1

and a positive anti-kell antibody.2 Complaint ¶ 2, at 1. Gallup Medical does not have a neonatal3 intensive care unit ("NICU"), nor does it have "any qualified specialized neonatal staff to care for a premature baby." Complaint ¶ 3, at 2.

2. The Delivery.

Suina arrived at Gallup Medical "at approximately 5:30 p.m. on September 9, 2017." Complaint ¶ 2, at 1. Suina was thirty-five weeks pregnant, about five weeks short of a full-term pregnancy4 See Complaint ¶ 2, at 1. Because Suina and R. Tolbert had high heart rates, Gallup Medical Obstetrician Dr. Gienia Lynch conducted a drug screen, which came back negative. See Complaint ¶ 3, at 2. Dr. Lynch was unable to diagnose "the cause of the abnormal condition of her patient," Suina. Complaint ¶ 9, at 3. At 7:20 p.m., Suina called P. Tolbert; P. Tolbert was a truck driver and "was driving a route out of state." Complaint ¶ 4, at 2. Suina informed P. Tolbert during the call that she and R. Tolbert had elevated heart rates. See Complaint ¶ 4, at 2. "Dr. Lynch came into the room at the time of the call and told the parents that an emergen[cy] cesarean section

would need to be consented to ...." Complaint ¶ 4, at 2. Suina consented to the emergency cesarean section. See Complaint ¶ 4, at 2.

From 7:20 p.m. to 10:00 p.m., Suina did not see Dr. Lynch and "became very distressed at the lack of attention to her or the baby." Complaint ¶ 5, at 2. Dr. Lynch then "activate[d] the c-section team" some time after 10:09 p.m. Complaint ¶ 5, at 2. Suina went into the operating room at 11:14 p.m. See Complaint ¶ 5, at 2. Dr. Janet Greenholz, a pediatrician, was present for R. Tolbert's birth. See Complaint ¶ 11, at 3. A nurse-midwife substituted for an assistant surgeon during the delivery, because there was no assistant surgeon available. See Complaint ¶ 6, at 2-3. R. Tolbert was delivered at 11:43 p.m. "over six hours after arrival." Complaint ¶ 5, at 2.

3. Gallup Medical's Post-Delivery Treatment of R. Tolbert and Suina and R. Tolbert's Death.

"The physicians, nurses and other Gallup Medical staff assessed, cared for, diagnosed and treated baby Rose as if she was a full-term baby, rather than the pre-term (premature) baby of a mother who had gestational diabetes

and other complications in her pregnancy." Complaint ¶ 10, at 3. "Dr. Greenholz did basic post-delivery checks that, while partially appropriate for a full-term baby, were wholly inappropriate for a pre-mature baby of a mother with gestational diabetes

and other pregnancy complications necessitating emergency c-section." Complaint ¶ 12, at 3. "Proper orders for lab and other studies and orders to the nurses for intensive monitoring and care for her patient were not made by Dr. Greenholz." Complaint ¶ 12, at 4. Following the birth, R. Tolbert's "cord blood" was "sent to the lab ... for analysis," but "was never analyzed. Complaint ¶ 12, at 3.

After the birth, Dr. Lynch performed surgery on Suina. See Complaint ¶ 20, at 5. Suina had consented to a tubal ligation

surgery. See Complaint ¶ 20, at 5. "Dr. Lynch destroyed the fallopian tubes during the surgery, rather than ‘tying her tubes’ as was the understood surgery." Complaint ¶ 20, at 5 (no citation for quotation). "This extension of the surgery meant that the surgery would never be reversible." Complaint ¶ 20, at 5. "There was no consent for the extended and irreversible surgery." Complaint ¶ 20, at 5. "The lack of consent and the extension of the surgery by Dr. Lynch ... caused Phillip Tolbert and Charlene Suina" to be "incapable of ever having a child together, now that baby Rose has died." Complaint ¶ 20, at 5.

R. Tolbert "was treated in every way as a normal term baby although she was not by the nursing and other health care staff at Gallup Medical." Complaint ¶ 14, at 4. Regina Williams, a Register Nurse ("R.N."), was caring for R. Tolbert, and did not "compress and expel the amniotic fluid from her system." Complaint ¶ 14, at 4. "There are no oxygen saturations

listed for baby Rose in her medical record." Complaint ¶ 16, at 5. "There are no arterial blood gas readings for baby Rose in her medical record." Complaint ¶ 17, at 5. "There were no medications given to baby Rose ...." Complaint ¶ 18, at 5. R. Tolbert's lungs were not fully matured after the birth. See Complaint ¶ 21, at 5.

R. Tolbert then "was handed to her grandmother in a room to hold." Complaint ¶ 15, at 5. R. Tolbert's grandmother "became terrified that suddenly" R. Tolbert "was not breathing." Complaint ¶ 19, at 5. R. Tolbert began "aspirating amniotic fluid" and went "into respiratory distress at approximately 1:40 a.m.," about two hours after the birth. Complaint ¶ 21, at 5. When R. Tolbert's "respirations decreased

... initially they were ignored." Complaint ¶ 22, at 5. A code "was eventually called," but "there is no code sheet for the code conducted by Gallup Medical physicians, nurses and staff." Complaint ¶ 24, at 6. Dr. Safia Rubaii, an Emergency Physician, "initiated an umbilical venous catheterization during the code event, but never checked the catheter's placement despite having an x-ray to review." Complaint ¶ 25, at 6. "[T]he catheter was wrongly placed into the artery of the umbilical cord, such that all medication delivered into the catheter traveled to the wrong part of" R. Tolbert's "body, and she did not receive the benefit of the medication given during the code ...." Complaint ¶ 25, at 6. Dr. Robert Leach, a Doctor of Osteopathic Medicine, then "attempted to place an endotracheal tube [("ETT")5 ] ... into baby Rose, which ‘came out.’ " Complaint ¶ 26,...

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