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Scharf v. Trabucco

United States District Court, D. Arizona

January 11, 2017

HELEN SCHARF, et al., Plaintiffs,
v.
ARNALDO TRABUCCO, M.D., et al., Defendants.

         (Prescott Division)

          ORDER

          H. Russel Holland United States District Judge

         Motion for Summary Judgment

         Defendants Arnaldo Trabucco, M.D., and the Institute of Urology, L.L.C. move for summary judgment on all of plaintiffs' claims.[1] This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.

         Facts

         Plaintiffs 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.[3]

         “On July 13, 2012, ... Dr. Trabucco evaluated Gerald Scharf at the Institute of Urology in Fort Mohave, Arizona.”[4] Dr. Trabucco confirmed that Mr. Scharf had a “left upper pole renal mass....”[5] 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.[6] 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.”[7] 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.”[8] 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 removed.[9]

         On 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.”[10] 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.

         Mr. 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.[11] 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.”[12]Defendants' expert, Dr. Treiman, opined “that Mr. Scharf's outcome was attributable to his underlying atherosclerosis....”[13]

         On 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.

         Defendants now move for summary judgment on all of plaintiffs' claims against them.

         Discussion

         Summary 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. 1987).

         As an 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 be stricken.”[14]

         Secondly, plaintiffs concede that they have abandoned their claims based on allegations that Dr. Trabucco negligently performed the surgery.[15] Thus, defendants are entitled to summary judgment on plaintiffs' claims that are based on allegations that Dr. Trabucco negligently performed Mr. Scharf's surgery.

         We turn 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[16] is established by showing a breach of the applicable standard of care and that the breach caused the plaintiff's injuries.”[17] 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).

         “[A] 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.” Id.

         Plaintiffs 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.”[18] 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.”[19]And Dr. Danoff avers that “[f]ailure to advise the patient of the[se] risks and alternatives is negligent.”[20] Mrs. Scharf avers that Mr. Scharf “would have chosen not to have any surgery had he been given [a] choice”[21] 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.”[22] Plaintiffs argue that this evidence is sufficient to create genuine issues of material fact as to their lack of informed consent claims.

         Defendants 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.[23] A.R.S. § 12-2604(A) provides, in pertinent part:

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 ...

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