United States District Court, D. Arizona
Russel Holland United States District Judge
for Summary Judgment
Arnaldo Trabucco, M.D., and the Institute of Urology, L.L.C.
move for summary judgment on all of plaintiffs'
claims. This motion is opposed. Oral argument was
not requested and is not deemed necessary.
are Helen Scharf, the surviving spouse and personal
representative of the estate of Gerald Scharf; and Karen
Bright and Randall Scharf, the adult children of Gerald
Scharf, deceased. Defendants are Arnaldo Trabucco, M.D., and
the Institute of Urology, LLC.
July 13, 2012, ... Dr. Trabucco evaluated Gerald Scharf at
the Institute of Urology in Fort Mohave,
Arizona.” Dr. Trabucco confirmed that Mr. Scharf had
a “left upper pole renal mass....” On September 11,
2012, Mr. and Mrs. Scharf and two of Mrs. Scharf's
daughters met with Dr. Trabucco to discuss surgery to remove
the mass. At that time, Dr. Trabucco explained various
complications and risks associated with such a surgery. Mrs.
Scharf and her daughters aver that Dr. Trabucco did not tell
Mr. Scharf “about the risks of paralysis or
death” associated with the surgery. Mrs. Scharf and
her daughters also aver that Dr. Trabucco did not tell Mr.
Scharf “of the alternatives of not doing surgery or
doing an ablation procedure.” Mrs. Scharf avers that Dr.
Trabucco told Mr. Scharf that “he had to have all or
part of [his] kidney removed either by a laparoscopic or open
procedure.” However, one of plaintiffs' expert,
Dr. Danoff, testified that Mr. Scharf could have possibly
lived for 5-10 years even if the mass were not
September 24, 2012, Dr. Trabucco performed a hand-assisted
laparoscopic nephrectomy (removal of the kidney) on Mr.
Scharf at the Valley View Medical Center. Mrs. Scharf avers
that “[w]hen [she] first saw [Mr.] Scharf in the ICU
post-operatively he could not move or feel his
legs.” At 3:00 a.m. on September 25, 2012, Dr.
Trabucco was informed that Mr. Scharf had no movement or
sensation in his legs or feet. Dr. Trabucco arrived at VVMC
around 7:00 a.m.
Scharf was transferred to Sunrise Hospital around 4 p.m. on
September 25, 2012. Upon his arrival at Sunrise, an abdominal
aortogram was done and the impression was that Mr. Scharf had
total occlusion of the abdominal aorta. Mr. Scharf
then underwent a second surgery, but on September 27, 2012,
Mr. Scharf died. Mr. Scharf's autopsy showed that he had
“severe calcific aortic atherosclorosis, primarily at
the aortic arch and abdominal aorta at the level of the
branching of the renal arteries with small adherent
thrombus.”Defendants' expert, Dr. Treiman,
opined “that Mr. Scharf's outcome was attributable
to his underlying atherosclerosis....”
September 23, 2014, plaintiffs commenced this action, in
which they assert medical malpractice and wrongful death
claims against defendants. Plaintiffs allege that there was a
lack of informed consent, that Dr. Trabucco negligently
performed the surgery, and that Dr. Trabucco provided
negligent post-operative care.
now move for summary judgment on all of plaintiffs'
claims against them.
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on
the moving party to show that there is an absence of genuine
issues of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If the moving party meets its
initial burden, then the non-moving party must set forth
specific facts showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). In deciding a motion for summary
judgment, the court views the evidence of the non-movant in
the light most favorable to that party, and all justifiable
inferences are also to be drawn in its favor. Id. at
255. “[T]he court's ultimate inquiry is to
determine whether the ‘specific facts' set forth by
the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury
might return a verdict in its favor based on that
evidence.” T.W. Elec. Service, Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
initial matter, plaintiffs argue that defendants' motion
for summary judgment should be denied because defendants did
not file a separate statement of facts as required by Local
Rule 56.1. This argument is not well-taken as the scheduling
and planning order in this case expressly provides that the
parties are “not [to] file a separate statement of
facts” and that separate statement of facts “will
plaintiffs concede that they have abandoned their claims
based on allegations that Dr. Trabucco negligently performed
the surgery. Thus, defendants are entitled to summary
judgment on plaintiffs' claims that are based on
allegations that Dr. Trabucco negligently performed Mr.
then to plaintiffs' claims based on allegations of a lack
of informed consent and allegations that Dr. Trabucco
provided negligent post-operative care. “Medical
malpractice is established by showing a breach of
the applicable standard of care and that the breach caused
the plaintiff's injuries.” Rice v. Brakel,
310 P.3d 16, 22 (Ariz.Ct.App. 2013). “The medical
standard of care must be established by expert medical
testimony unless the conduct complained of is readily
ascertainable by a layman.” Evans v. Bernhard,
533 P.2d 721, 724 (Ariz.Ct.App. 1975).
medical procedure performed without informed consent does
not, in itself, proximately cause an actionable injury to a
plaintiff; rather, a plaintiff must show he or she has
suffered some injury as a result of the undisclosed
risk.” Gorney v. Meaney, 150 P.3d 799, 804
(Ariz.Ct.App. 2007). “[P]laintiffs alleging lack of
informed consent must show two types of causation: 1)
adequate disclosure would have caused the plaintiff to
decline the treatment, and 2) the treatment proximately
caused injury to the plaintiff.” Id.
“Expert testimony is not required for the first type of
causation because it is plainly a matter to which plaintiffs
themselves could testify and is within the knowledge of the
average layperson.” Id. “ Expert
testimony is required, however, to demonstrate that the
treatment proximately caused injury to the plaintiff.”
allege that there was a lack of informed consent here
because, as Mrs. Scharf and her daughters aver, Mr. Scharf
was not advised that paralysis or death were possible risks
of the surgery nor was he advised that there were
alternatives to surgery. Dr. Danoff avers that
“[a]ccepted standards of care require the urologist to
tell the patient the risks of death and paralysis, regardless
of how small the risk” and that “[a]ccepted
standards of care require that the urologist tell his patient
of the alternatives to kidney removal.” Dr. Danoff
also avers that “[a]ccepted standards of care require
that the urologist tell his patient the alternatives of not
doing the procedure and periodically observing the progress
of the tumor growth. The urologist is also required to tell
the patient of the ablation procedure.”And Dr. Danoff
avers that “[f]ailure to advise the patient of the[se]
risks and alternatives is negligent.” Mrs. Scharf
avers that Mr. Scharf “would have chosen not to have
any surgery had he been given [a] choice” and her
daughters aver that “[h]ad the options of not removing
the kidney and periodically monitoring the condition of the
small tumor [been given], [we] know [Mr. Scharf] would have
chosen that option” and that had Mr. Scharf been given
“the option of ablation of the tumor, ” they
believed he “would have asked for a second opinion
regarding that option.” Plaintiffs argue that this
evidence is sufficient to create genuine issues of material
fact as to their lack of informed consent claims.
first argue that Dr. Danoff is not qualified to render
standard of care opinions. A.R.S. § 12-2604 sets out the
expert witness qualifications for Arizona medical malpractice
cases. A.R.S. § 12-2604(A) provides, in
In an action alleging medical malpractice, a person shall not
give expert testimony on the appropriate standard of practice
or care unless the person is licensed as a health
professional in this state or another state and the person
meets the following criteria:
1. If the party against whom or on whose behalf the testimony
is offered is or claims to be a specialist, specializes at
the time of the occurrence that is the basis for the action
in the same specialty or claimed specialty as the party
against whom or on whose behalf the testimony is offered. If
the party against whom or on whose behalf the testimony is
offered is or claims to be a specialist who is board
certified, the expert witness shall be a specialist who is
board certified in that specialty or claimed specialty.
2. During the year immediately preceding the occurrence
giving rise to the lawsuit, devoted a majority of the
person's professional time to ...