Wright v. United States, : 2:15-CV-0305-TOR
| Decision Date | 14 June 2017 |
| Docket Number | NO: 2:15-CV-0305-TOR,: 2:15-CV-0305-TOR |
| Court | U.S. District Court — District of Washington |
| Parties | ERIC WRIGHT, individually and in his capacity as personal representative of the ESTATE OF STEVEN O. WRIGHT; and AMY SHARP, individually, Plaintiffs, v. UNITED STATES OF AMERICA; MEDFORD CASHION, M.D.; STAFF CARE, INC., Defendants. |
BEFORE THE COURT is Defendant United States of America's Motion for Summary Judgment (ECF No. 94), Motion to Exclude (ECF No. 107) and corresponding Motion to Expedite (ECF No. 108). These matters were submitted without oral argument. The Court has reviewed all the briefing and files herein, and is fully informed.
For the reasons discussed below, Defendant's Motion for Summary Judgment (ECF No. 94) is GRANTED; Defendant's Motion to Exclude (ECF No. 107) and Expedite (ECF No. 108) are DENIED AS MOOT.
Eric Wright visited the Emergency Department at the VA medical center and hospital in Spokane, Washington on August 2, 2014. Mr. Wright came to the hospital complaining of knee pain resulting from a fall approximately one week earlier. ECF No. 84 at ¶¶ 3.1-3.2. Mr. Wright came to the hospital using a crutch and was further able to ambulate without other assistance during his stay at the hospital. See ECF No. 100 at ¶¶ 6, 9. After a series of tests lasting most of the day, Mr. Wright was discharged from the hospital. ECF No. 100 at ¶ 9.
While Mr. Wright was waiting in the hospital for his ride home, Karla Linton, LPN, despite seeing Mr. Wright was ambulating on his own accord, informed Mr. Wright that she would escort him out of the hospital via wheelchair when his friend arrived to take him home. ECF No. 95-2 at 118. While Mr. Wright was leaving the hospital, Nurse Linton twice repeated her offer to helpescort Mr. Wright via wheelchair, which he refused.2 ECF No. 95-2 at 118. Upon leaving the hospital, Mr. Wright fell and hit his head. ECF No. 84 at ¶¶ 3.7-3.8.
Mr. Wright was readmitted and Dr. Cashion examined his head injury. Elizabeth Ford, RN, was the charge nurse and assisted Dr. Cashion with Mr. Wright's further examination. ECF No. 84 at ¶ 3.9. Nurse Linton became aware of Mr. Wright's fall and injury and, worried about blood thinning medication given to Mr. Wright, Nurse Linton told Nurse Ford that she believed Mr. Wright should be given a CT scan and should remain at the hospital overnight for observations. ECF No. 84 at ¶¶ 3.11-12. Nurse Ford also believed Mr. Wright needed a CT scan and that he should remain at the hospital, and she discussed this option with Dr. Cashion. ECF No. 84 at ¶¶ 3.13. Dr. Cashion reviewed the file and chose to discharge Mr. Wright. ECF No. 84 at ¶ 3.6.
Plaintiffs contend that nurses Linton and Ford did not do enough to meet the standard of care and that Defendant United States of America is liable for their conduct under the Federal Tort Claims Act.
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The Court may grant summary judgment in favor of a moving party who demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. An issue is "genuine" where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The Court views the facts, and all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "where the ultimate fact in dispute is destined for decision by the court rather than by a jury, there is no reason why the court and the partiesshould go through the motions of a trial if the court will eventually end up deciding on the same record." TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 684 (9th Cir. 1990).
Plaintiffs' medical negligence claim against Defendant is based on two arguments: (1) Nurse Linton did not meet the standard of care when she offered Mr. Wright assistance, contending Nurse Linton had a duty to "insist" and try to "convince" Mr. Wright that he should accept wheelchair assistance and (2) Nurse Ford did not meet the standard of care when she discussed the possibility of giving Mr. Wright a CT scan with Dr. Cashion, contending she should have done more. Compare ECF Nos. 94; 104, with ECF Nos. 97; 106.
A cause for medical negligence generally requires expert testimony to establish the standard of care and causation. Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wash. 2d 438, 449 (1983); Frausto v. Yakima HMA, LLC, 393 P.3d 776, 779 (2017). The crux of Defendant's request for summary judgment is that Plaintiffs' expert testimony is inadequate and is not sufficient to survive summary judgment. Defendants reason that the testimony rests on the ipse dixit of the expert; is devoid of any support or explanation; and that the testimony is not a product of reliable principles or methods.
// Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony. Per Rule 702, a "witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion" only if:
Defendant is correct—Nurse O'Neill's declaration states that her opinion is based on her training, experience, and knowledge, but otherwise does not provide a basis for the proposed standard of care or any explanation other than a bald conclusion that nurses Linton and Ford's conduct fell below the standard of care by failing to do more. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) ( ); see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ( ); see also Johnson v. Kelly, 2017 WL 1838140, at *4 (W.D. Wash. May 8, 2017) (). Without an adequate expert opinion on this point, Defendant is entitled to summary judgment.
Even accepting Nurse Linton had a duty to insist and attempt to persuade, as Plaintiffs' expert baldly asserts, ECF No. 101 at ¶¶ 11-13, Nurse Linton met this duty. Nurse O'Neill's declaration fails to note that Nurse Linton offered wheelchair assistance to Mr. Wright not once, but three times, and fails to explain why this was not enough. ECF No. 97-2 at ¶ 6. Nurse Linton's conduct is tantamount to an insistence and a reasonable attempt to persuade Mr. Wright, especially in light of the uncontroverted fact that Mr. Wright was able to successfully ambulate the week before visiting the hospital and during his visit of the hospital. The opinion that a reasonable nurse would have done more is completely unsupported. Nurse O'Neill's assertion that Mr. Wright would be amenable to persuasion is further outside of Nurse O'Neill's area of expertise.
As for Nurse Ford, Nurse O'Neill opines that a nurse has a duty to advocate for appropriate care and must go up the chain of command to ensure the patient's care where the nurse believes the patient's safety may be in jeopardy. ECF No.101 at ¶ 14. Even accepting Nurse O'Neill's opinion that a nurse has a duty to advocate for proper care, Nurse Ford met this standard by discussing additional testing with Dr. Cashion, who determined neither were necessary. Nurse O'Neill's opinion, if counted as true, would render a nurse liable because she disagreed with the doctor and did not go above the doctor for a second opinion. This is not the law in Washington:
Like pharmacists, nurses do not owe a duty to patients that would place them in a position to second-guess the physician or otherwise substitute their judgment in place of that provided by the physician.
Duty of nurses, 16 Wash. Prac. Tort Law And Practice § 16:21 (4th ed.) (citations omitted); see also Silves v. King, 93 Wash. App. 873, 883-84 (1999) ( ...
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