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Mann v. United States

United States District Court, D. Arizona

August 27, 2014

BOBBY JOE MANN, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

ORDER

CINDY K. JORGENSON, District Judge.

Plaintiff Bobby Joe Mann ("Mann") filed this pro se action[1] against the United States of America ("USA" or "the government"), Gary L. Henderson ("Henderson"), Gary L. Henderson, MD PC ("GLH PC"), and Northwestern Hospital ("NH").[2] NH has filed a Motion to Compel and Motion to Stay Action (Doc. 22) seeking an order by the Court requiring Mann to obtain and serve a preliminary expert opinion affidavit pursuant to AR.S. § 12-2603 and staying the action until such time as Mann produces a preliminary expert affidavit. Defendants Henderson, GLH PC, and USA have filed Joinders in this motion (Docs. 23 and 28). No response to the motion has been filed.

I. Factual and Procedural Background [3]

Mann alleges he was transferred to the United States Penitentiary in Tucson, Arizona, for follow-up medical care and the repair of a ventral hernia. Defendant USA contracted with Henderson, NH, and GLH PC to provide medical evaluation, care, and surgical repair of the ventral hernia. In May 2011, Henderson advised Mann that it was medically necessary to correct the ventral hernia, that it could only be corrected surgically, that the surgery could be performed safely in the operating room at NH, and that the procedure was minor and did not have any inherent or attendant risks to Mann.

In December 2011, Mann underwent surgery to repair the ventral hernia and was under the care of Henderson, GLH PC, NH, and other employees of NH. Henderson inserted a subfacial mesh during the surgery and stated that he had repaired the ventral hernia. Mann was discharged from NH four days later and was returned to the custody of the Bureau of Prisons ("BOP"). Two days later, Mann "incurred a catastrophic failure at the site of the abdominal surgery, including but not limited to a delamination and detachment of the subfacial mesh, and the opening of the wound site." FAC, Doc. 13, p. 7.

In Count One, Mann asserts the government, through its employees, was negligent and guilty of malpractice because it failed to "ensure adequate precautions and adopt proper hospital, surgical, after-care, and contract medical services" and failed to properly treat or provide acceptable medical care after the catastrophic failure at the surgical site.

In Count Two, Mann contends Henderson was negligent and guilty of malpractice because he failed to exercise the care and precautions required to prevent Mann's injuries, lacked the required knowledge and surgical skill, failed to consult with others to acquire the knowledge necessary to avoid Mann's injuries, failed to adequately inform Plaintiff of the dangers of the surgery, and "in general[, ] acted with negligence, imprudence, and a lack of expertise under the circumstances." FAC, Doc. 13, p. 7.

In Count Three, Mann alleges NH was negligent and guilty of malpractice because it failed to "ensure adequate precautions and adopt proper hospital, surgical and operating procedures[.]" FAC, Doc. 13, p. 8.

In Count Four, Mann asserts GLH PC was negligent and guilty of malpractice because it failed to "ensure adequate protections and adopt proper practices in the employment, retention, qualification and operation of a medical corporation[.]" FAC, Doc. 13, p. 8.

Mann alleges that as a result of Defendants' negligence, he is "left with serious and permanent diastasis of the abdominal wall, " has severe damage to his abdominal area, and his motor function has been critically impaired. Mann claims he has suffered permanent disfigurement, has been totally impeded in the enjoyment of normal pursuits and activities, and has suffered mental anguish.

Answers have been filed by Defendants. Docs. 19, 20, and 27.

NH filed a Motion to Compel and Motion to Stay Action (Doc. 22) seeking an order by the Court requiring Mann to obtain and serve a preliminary expert opinion affidavit pursuant to A.R.S. § 12-2603 and staying the action until such time as Mann produces a preliminary expert affidavit. Defendants Henderson, GLH PC, and USA have filed Joinders to this motion. No response to the motion has been filed.

II. Failure to File a Response

Mann has not responded to the Motion to Compel. This failure alone may be deemed consent to the granting of the motion. LRCiv. 7.2(i).

III. Motion to Compel (Doc. 22)

As an initial matter, this Court must determine whether the Erie[4] doctrine and subsequent United States Supreme Court precedent bar reliance on ...


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