Warren v. United States
| Decision Date | 10 March 2021 |
| Docket Number | Civ. No. 19-00232 JMS-WRP |
| Parties | John David WARREN, Jr., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Loretta A. Sheehan, Mark S. Davis, Amalia L. Fenton, James Blaine Rogers, III, Michael K. Livingston, Davis Levin Livingston Grande, Honolulu, HI, for Plaintiffs.
Harry Yee, Office of the United States Attorney, Honolulu, HI, John F. Lopez, U.S. Army Legal Services Agency, Litigation Division, Fort Belvoir, VA, for Defendant United States of America.
John Burke, Burke McPheeters Bordner & Estes, John S. Nishimoto, Michael J. Van Dyke, Ryan I. Inouye, Chong Nishimoto Sia Nakamura & Goya LLP, Honolulu, HI, Ralph F. Valitutti, Pro Hac Vice, Kitch Drutchas Wagner Valitutti & Sherbrook, Mt. Clemens, MI, Stephen Robert Brzezinski, Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit, MI, for Defendants Kapiolani Medical Specialists, Devin Puapong, M.D.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS HAWAII PACIFIC HEALTH, HAWAII PACIFIC HEALTH PARTNERS, INC., KAPIOLANI MEDICAL SPECIALISTS, AND DEVIN PUAPONG, M.D.'S MOTION FOR PARTIAL SUMMARY JUDGMENT, ECF NO. 123
This case arises from the alleged negligence of several Tripler Army Medical Center ("TAMC") and Kapiolani Medical Center for Women and Children ("KMCWC") medical professionals in the diagnosis and treatment of a one-month old infant, D.G.W., resulting in the child's permanent physical and mental disability
. On September 22, 2016, D.G.W.'s parents, John David Warren, Jr. and Laura Warren, filed suit on their own behalf and as guardians ad litem and next friends of D.G.W. and their other minor children, A.J.W., J.D.W. III, and A.A.W. (collectively "Plaintiffs"), against Defendants United States of America, Hawaii Pacific Health, Hawaii Pacific Health Partners, Inc., Kapiolani Medical Specialists, Devin Puapong, M.D., and a number of Doe Defendants. Plaintiffs seek relief for the following claims:
See Second Amended Complaint, ECF No. 104 at PageID ## 503-08.
Defendants Hawaii Pacific Health, Hawaii Pacific Health Partners, Inc., Kapiolani Medical Specialists, and Devin Puapong, M.D. ("Defendants"), now move for partial summary judgment as to: (1) all claims against Hawaii Pacific Health and Hawaii Pacific Health Partners, Inc.; and Plaintiff's claims against all these Defendants for (2) economic losses; (3) lack of informed consent; (4) siblings' loss of consortium; and (5) negligent infliction of emotional distress.
Based on the following, Defendants' Motion is GRANTED with respect to all claims against Hawaii Pacific Health and Hawaii Pacific Health Inc., the pure economic losses claim, the lack informed consent claim, and the sibling Plaintiffs' loss of consortium claim. But Defendants' Motion is DENIED with respect to the negligent infliction of emotional distress claim.
At this summary judgment stage, the court "must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference[s] in the nonmoving party's favor." Rookaird v. BNSF Ry. Co. , 908 F.3d 451, 459 (9th Cir. 2018) (citation and quotation marks omitted). Applying that standard, the court sets forth the following facts:
On September 22, 2016, one-month old Plaintiff D.G.W. was admitted to TAMC in an emergency condition. ECF No. 168-5. Her abdomen was distended and she was blue from the waist down. Id. at PageID # 2180; ECF No. 168-6 at PageID # 2185. Shortly after she was admitted, D.G.W. suffered cardiac arrest
and required resuscitation. ECF No. 168-5 at PageID # 2181; ECF No. 168-6 at PageID # 2184-85. After she was resuscitated, she remained in critical condition. ECF No. 168-5. Dr. Devin Puapong, a pediatric surgeon, was called to TAMC pursuant to a contract between his employer, Kapiolani Medical Specialists, and TAMC. ECF No. 124-6 at PageID ## 1225, 1229-30. Dr. Puapong performed an evaluation of D.G.W.—which included briefing on D.G.W.'s medical history, performance of a physical assessment, and evaluation of ultrasound, X-ray, and CT scan results, ECF No. 177-7 at PageID ## 2582, 2593—but was unable to diagnose D.G.W.'s specific condition. ECF No. 168-5 at PageID # 2181. Based on the testing done, although a midgut volvulus1 remained on D.G.W.'s differential diagnosis2 (along with a number of other conditions), ECF No. 168-6 at PageID # 2199, Dr. Puapong "reasonably excluded" a midgut volvulus as the cause of D.G.W.'s condition. See ECF No. 177-7 at PageID ## 2577-79, 2582, 2586-87, 2592.
Dr. Puapong and Dr. Christopher Naun, the Pediatric Intensive Care Unit ("PICU") physician on duty when D.G.W. was admitted to TAMC, discussed D.G.W.'s medical treatment plan and decided not to perform any additional diagnostics, including an exploratory laparotomy
or a upper gastrointestinal contrast study ("UGI"). See ECF No. 168-6 at PageID ## 2199-200; ECF No. 177-7 at PageID # 2580-81, 2583. The doctors were concerned that a laparotomy—an invasive surgical procedure used to diagnose a variety of abdominal conditions—would be too dangerous to perform given D.G.W.'s critical condition. ECF No. 168-6 at PageID # 2195; ECF No. 177-7 at PageID # 2561. And Dr. Puapong believed that a UGI—which is primarily used to diagnose intestinal malrotations, such as the midgut volvulus—was unnecessary because they had "reasonably excluded a midgut volvulus" and D.G.W. was not stable enough to undergo a UGI. See, e.g. , ECF No. 177-7 at PageID # 2583, 2592.
Instead, Dr. Puapong and Dr. Naun decided to admit D.G.W. to TAMC's PICU and continue to monitor her condition. Id. at PageID # 2584. At that point, Dr. Naun accepted primary responsibility for D.G.W., and numerous TAMC residents monitored her overnight. ECF No. 168-6 at PageID ## 2199-200. But Dr. Puapong anticipated that he would be contacted if D.G.W.'s condition deteriorated. ECF No. 177-7 at PageID # 2596. D.G.W. remained critically-ill throughout the night. ECF No. 177-11 at PageID # 2618. By the morning of September 23, D.G.W. was experiencing increased signs and symptoms of organ failure, and her kidney function deteriorated to the point that she likely would require dialysis. Id. at PageID # 2620. Despite D.G.W.'s clinical deterioration, Dr. Puapong did not return to TAMC to further attend to D.G.W. in person. ECF No. 177-7 at PageID # 2596.
On the morning of September 23, 2016, Dr. Naun discussed D.G.W.'s deteriorating condition with Dr. Xoinis at KMCWC and asked to transfer her to KMCWC because she required a higher level of care than TAMC could provide. ECF No. 177-11 at PageID ## 2619-20. D.G.W. was transferred to KMCWC and upon arrival, an emergency exploratory laparotomy
was performed which revealed D.G.W. had a volvulus with necrotic bowel. ECF No. 177-7 at PageID # 2571; ECF No. 168-7 at PageID # 2216-17. Several emergency remedial procedures were performed, and ultimately, D.G.W. lost approximately 70% of her small bowel. ECF No. 168-7 at PageID ## 2219-34. As a result of this medical episode, D.G.W., the youngest of four siblings, was hospitalized for four months, underwent twelve surgeries, and was subsequently readmitted numerous times. Id. She is permanently physically and mentally disabled and requires constant medical care. ECF Nos. 168-3 at PageID ## 2170-73; 168-8 at PageID # 2266.
Defendants filed their Motion for Partial Summary Judgment on November 3, 2020, seeking summary judgment on the following:
ECF No. 123 at PageID # 1086.
On January 11, 2021, Plaintiffs filed their Opposition, ECF No. 167, and on January 13, 2021, Defendant United States of America filed a Statement of no position, ECF No. 170. Defendants filed their Reply on January 19, 2021. ECF No. 176. A hearing was conducted via video teleconference on February 1, 2021. ECF No. 193.
Summary judgment is proper where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also, e.g., Sandoval v. Cnty. of San Diego , 985 F.3d 657, 665 (9th Cir. 2021). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc. , 210 F.3d 1099, 1103 (9th Cir. 2000).
"The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact." Olivier v. Baca , 913 F.3d 852, 857 (9th Cir. 2019) (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). Where, as here, the moving party does not have the ultimate burden of persuasion at trial, they bear both the initial burden of production and the ultimate burden of persuasion on their motion for summary judgment. Friedman v. Live Nation Merch., Inc. , 833 F.3d 1180, 1188 (9th Cir. 2016) (citing Nissan Fire , 210 F.3d at 1102 ). " ‘[W]hen the moving party has carried its burden under Rule 56 [(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts,’ " but must come forward with specific facts showing that there is a genuine...
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