United States District Court, D. Arizona
THUMBELINA HINSHAW, as conservator for JASON COOPER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.
ORDER AND OPINION [RE: MOTIONS AT DOCKETS 71 &
73]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTIONS PRESENTED
Before
the court are two summary judgment motions. At docket 71
plaintiff Thumbelina Hinshaw (“Hinshaw”) moves
for partial summary judgment on the issue of non-party fault
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
She supports the motion with a declaration of counsel at
docket 71-2 and a separate statement of facts at docket 72.
Defendant United States of America (“the United
States”) opposes at docket 75. The United States
submits a controverting statement of facts and statement of
additional material facts at docket 76. Hinshaw replies at
docket 80.
The
United States moves for summary judgment at docket 73 and
supports the motion with a statement of facts at docket 74.
Hinshaw opposes at docket 77 and submits a controverting
statement of facts and statement of additional material facts
at docket 78. The United States replies at docket 81.
Oral
argument was requested, but would not assist the court.
II.
BACKGROUND
This is
a medical negligence action that Hinshaw has brought against
the United States for failing to provide adequate care to
Jason Cooper (“Cooper”). At all relevant times
Hinshaw, a California resident, was Cooper's caregiver.
Cooper, who has a history of schizophrenia and psychotic
episodes, traveled from California to Phoenix, where the
events giving rise to this action took place.
On the
night of November 29, 2013, the Phoenix Police Department
received a report of a person acting
suspiciously.[1] Responding to the call, Officer Rodney
Lomibao (“Lomibao”) encountered Cooper in a
vacant lot.[2] Cooper informed Lomibao that he is a
veteran who suffers from schizophrenia.[3] After conducting
a records check, Lomibao discovered that Hinshaw had reported
Cooper as a missing person.[4] Lomibao then called Hinshaw, who
told him that Cooper was in need of his medications and
needed to go to the hospital.[5] Lomibao agreed to take Cooper to
the nearest VA Hospital (the Carl T. Hayden VA Medical
Center). Hinshaw told Lomibao that she would drive from
California to Arizona to retrieve Cooper there.[6]
Lomibao
arrived at the VA Hospital's emergency department at
approximately 8:50 pm, where he encountered Officer Patrick
Howard (“Howard”) of the VA Police Department.
Lomibao testified at his deposition that every time he goes
to the VA hospital he contacts the VA police officer there,
who always asks “for the person's information and
why they are there.”[7] Lomibao testified that he told Howard
that Cooper was reported as a missing person, was diagnosed
as schizophrenic, was in need of his medications, and his
caregiver, Hinshaw, was on her way to pick him
up.[8]Lomibao also testified that he gave
Hinshaw's name and number to Howard and told him that
they should contact Hinshaw with any questions.[9]
At his
deposition Howard denied that Lomibao informed him that
Cooper was schizophrenic and in need of medication, stating
that if Lomibao had done so he “would have handled this
whole situation differently” and relayed that
information to the medical staff in the emergency
department.[10] But Howard concedes that Lomibao told
him that Cooper was reported as a missing person and that
Hinshaw was on her way to pick him up.[11] Yet, Howard
did not pass on any information about Cooper to the emergency
department medical staff.[12] Instead, he merely told the
oncoming shift of VA police officers that Cooper was waiting
for Hinshaw to pick him up.[13]
According
to Howard's report, Howard asked Cooper if he felt like
harming himself or any other person and Cooper responded no,
“he just felt like he was going around in circle
[sic].”[14] Howard's report states he told
Cooper that if Cooper “agreed to obey all the rules and
regulation [sic] of the medical center and not cause any
problems that he was free to stay [there] until RN Hinshaw
arrived from San Diego.”[15] The report states that Howard
advised Cooper “that if he wished to speak with a
social worker he could check in with the Emergency Room and
they could provide him with any assistance he may
need.”[16]
Cooper
proceeded to check in with the emergency room unaccompanied
by Howard.[17] In total, Cooper was treated by two
nurses, a physician, and a social worker. Each testified that
they were not informed that Cooper was reported as a missing
person, was schizophrenic, was in need of his medications, or
that Hinshaw was on her way to pick him up.[18] The emergency
department triage note states that Cooper asked to speak with
a social worker and did not have a medical
complaint.[19]
Cooper
was seen by a physician, who treated him for shoulder
pain.[20] The doctor's notes state that Cooper
“[did] note offer much history and seem[ed]
elusive.”[21]He was then counseled by a social worker,
who gave him information about local community
resources.[22] The social worker's notes state that
Cooper explained that he had come to the emergency room that
night “because he wanted a drink and some
food.”[23] They also state that Cooper “did
present with some bizzare [sic] behavior (eye contact and his
round about way of answering some questions)” but also
that Cooper “was able to answer questions logically and
demonstrated appreciation with assistance to
resources.”[24] The social worker observed that
Cooper's notes indicate he had “been documented as
being violent and having a history of
psychosis.”[25] But, she noted, Cooper self-reported
that he had his medications and had been taking
them.[26] The social worker concluded that Cooper
did not present with “any urgent needs aside from
housing and resource assistance.”[27]
The
hospital records show that at 11:15 pm there were “no
behavioral problems noted”[28] and Cooper was discharged
from the emergency department and allowed to wait in the
lobby until morning.[29] Instead, at some point between 12:25 and
1:30 am, Cooper left the waiting room.[30] At around
5:20 am he was found by the Phoenix Police Department lying
in the middle of the road, having been struck by a
hit-and-run driver.[31]
He was
then transported to a different hospital with
life-threatening injuries.[32] The police crash report
concludes that Cooper “was not in a crosswalk and
failed to yield right-of-way for a vehicle traveling in an
unknown direction of travel.”[33]
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[34] The materiality
requirement ensures that “only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary
judgment.”[35] Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[36] However, summary judgment is appropriate
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.”[37]
The
moving party has the burden of showing that there is no
genuine dispute as to any material fact.[38] Where the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence
to show that summary judgment is warranted; it need only
point out the lack of any genuine dispute as to material
fact.[39] Once the moving party has met this
burden, the nonmoving party must set forth evidence of
specific facts showing the existence of a genuine issue for
trial.[40] All evidence presented by the non-movant
must be believed for purposes of summary judgment and all
justifiable inferences must be drawn in favor of the
non-movant.[41] However, the non-moving party may not
rest upon mere allegations or denials, but must show that
there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties'
differing versions of the truth at trial.[42]
IV.
DISCUSSION
A.
Adequacy of Hinshaw's Complaint
The
United States' motion raises various arguments as to why
it cannot be found liable for medical negligence as a matter
of law.[43] First, the United States asserts that
Hinshaw lacks evidence showing that an individual health care
provider committed malpractice.[44] Hinshaw does not dispute
this in response; she asserts instead that she is alleging
negligence against the VA Hospital as an institution for
Howard's negligence. In reply, the United States argues
that Hinshaw's complaint does not adequately plead a
medical negligence claim against the hospital.[45] This argument
lacks merit. Hinshaw's complaint puts the United States
on notice that she was asserting a respondeat superior claim
based, in part, on the negligent acts and omissions of
unspecified VA Hospital employees and agents.[46]
B.
Hinshaw's Claim Is Not Barred by the FTCA's
Misrepresentation Exception
The
United States next argues that Hinshaw's claim is barred
by the misrepresentation exception to the Federal Tort Claims
Act (“FTCA”). “Absent a waiver of sovereign
immunity, the Federal Government is immune from
suit.”[47] The FTCA provides a limited waiver of
sovereign immunity regarding “claims against the United
States, for money damages, . . . for injury or loss of
property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or
employment.”[48] Various claims are expressly exempted
from this waiver, including claims that arise out of
misrepresentation.[49] “Although state law governs the
scope of the United States' substantive tort liability,
we must look to federal statutory and common law to determine
whether a claim is . . . excluded under the
FTCA.”[50]
The
leading Supreme Court cases on this topic are
Neustadt[51] and Block.[52] In
Neustadt, the plaintiff had “been furnished a
statement reporting the results of an inaccurate [Federal
Housing Administration] inspection and appraisal, and . . .,
in reliance thereon, [was] induced by the seller to pay a
purchase price in excess of the property's fair market
value.”[53] The Fourth Circuit held that his claim
arose out of the government's negligence in performing
the inspection, not its misrepresentation of the value of the
property. The Supreme Court reversed, holding that courts
must “ascertain the real cause of the
complaint”-the reason the plaintiff's “loss
came about.”[54] And the reason for the plaintiff's
loss, the Court held, was the government's breach of its
duty to “use due care in obtaining and communicating
information upon which that party may reasonably be expected
to rely in the conduct of his economic affairs”-in
other words, it had committed the tort of “negligent
misrepresentation.”[55] In a relevant footnote, the
Court observed that although some negligence claims
“may be said to involve an element of
‘misrepresentation, '” the tort of
misrepresentation “‘has been identified with the
common law action of deceit, ' and has been confined
‘very largely to the invasion of interests of a
financial or commercial character, in the course of business
dealings.'”[56]In Block, the Court
encountered somewhat similar facts but reached a different
conclusion. The Block plaintiff alleged that the
Farmers Home Administration (“FmHA”) supervised
the construction of her home and issued a report stating that
“the construction accorded with the drawings and
specifications approved by FmHA.”[57] After she
moved in, the plaintiff discovered many serious defects in
the construction of the house. The Supreme Court held that
her negligence claim was not barred by the misrepresentation
exception, distinguishing the duty to use due care in
communicating information, which is barred by § 2680(h),
from the duty to perform some other task that is not barred
by § 2680(h). The duty at issue in the plaintiff's
negligence claim, the Court held, was of the latter variety:
the “duty to use due care to ensure that the builder
adhere[s] to previously approved plans and cure[s] all
defects before completing construction.”[58] The
plaintiff's alleged injuries were caused by FmHA's
breach of this duty because, but for that breach, the builder
would not have turned the house over to her in its defective
condition.[59] This was different than the situation
presented in Neustadt, where the plaintiff
“alleged no injury that he would have suffered
independently of his reliance on the erroneous
appraisal.”[60]
The
Ninth Circuit has observed that “[c]ourts have had
difficulty determining whether a claim is one for
misrepresentation. The concept is slippery; ‘any
misrepresentation involves some underlying negligence'
and ‘any negligence action can be characterized as one
for misrepresentation because any time a person does
something he explicitly or implicitly represents that he will
do the thing non-negligently.'”[61] That being
said, there are several guideposts that aid courts in making
this determination. Two are relevant here. First, in line
with Block, the Ninth Circuit has held that §
2680(h) does not apply if the plaintiff alleges injuries
caused not by the communication of information but rather by
the negligent performance of an “operational
task”-like rendering medical treatment, [62] designing a
dam and reservoir, [63] processing a security clearance,
[64]
or flying a fighter jet.[65] Second, the Ninth Circuit has held
that § 2680(h) applies “where the plaintiff
suffers economic loss as a result of a commercial
decision which was based on a misrepresentation by
government.”[66]
Both of
these guideposts point away from finding that § 2680(h)
applies here. Hinshaw alleges that Cooper's injuries were
caused by Howard's negligent performance of an
operational task: the “health-related service” of
obtaining and transmitting certain information about an
incoming patient. Ramirez is instructive. There, the
Ninth Circuit held that a negligence claim based on “a
government physician's failure to warn of risks attendant
to surgery” does not arise out of misrepresentation
because, even though it involved reliance on a communication,
the patient's injuries were caused by “negligent
conduct, not of an esoteric form of
misrepresentation.”[67] Similarly, the duty at issue
in Hinshaw's medical malpractice claim is not the generic
duty to use due care in communicating information, but rather
the separate duty to use due care when providing
health-related services.[68]
What is
more, Cooper's injuries do not flow from any commercial
decision.[69] The United States argues that Ninth
Circuit held in Lawrence v. United
States[70] that the misrepresentation exception
“is not limited to misrepresentations involving
commercial decisions.”[71] It is true that
Lawrence held that the plaintiff's negligence
claim, which was not based on a commercial decision, was
barred by § 2680(h). But the court did not mention any
of the cases that seem to limit the misrepresentation
exception's application to injures resulting from
commercial decisions.[72] Looking at the case law as a whole,
this court concludes that if a failure to communicate results
in personal injury, it “is classified as a tort of
negligence, not a tort of
misrepresentation.”[73]
C.
Hinshaw Has Submitted Sufficient Evidence of Proximate
Causation
Hinshaw's
evidence shows Howard knew that: (1) Cooper was found
“wandering the streets, ”[74] (2) Hinshaw,
a registered nurse with the San Diego VA Health Care System,
had reported Cooper as a missing person;[75] (3) Cooper
was diagnosed as a schizophrenic;[76] (4) Cooper was in need of
his medications;[77] (5) Lomibao took Cooper to the Phoenix
VA Hospital at Hinshaw's direction;[78] (6) Hinshaw
was on her way to Arizona to pick Cooper up;[79] (7) it would
take Hinshaw about six hours to get there;[80]and (8) the VA
medical staff could call Hinshaw with any questions at the
phone number that Lomibao gave him.[81] The United States
concedes that Hinshaw's evidence raises issues of
material fact regarding the existence of Howard's duty to
relay this information to the medical staff.[82] Hinshaw
alleges that Howard breached this duty by not conveying to
the VA medical staff this basic information about why Cooper
was at the emergency department and the steps that were in
motion to ensure his safety.[83]The United States argues that
even if Hinshaw could establish this breach, she cannot
establish causation.
The
parties do not dispute that, because Hinshaw's claim
relates to services provided in an emergency department,
A.R.S. § 12-572(B) applies and Hinshaw must therefore
establish the necessary elements of proof set out at A.R.S.
§ 12-563 by clear and convincing evidence. One such
element is that the breach of the duty of care “was a
proximate cause of the injury.”[84] To establish
proximate cause, a plaintiff must show both that the injury
would not have occurred “but for” the
defendant's negligent conduct
(cause-in-fact)
and that the resulting injury was foreseeable (legal
causation).[85] The United States argues that
Hinshaw's evidence fails to raise questions of material
fact with regard to both components of proximate causation.
“Causation is generally a question of fact for the jury
unless reasonable persons could not conclude that a plaintiff
had proved this element.”[86]
1.
There is a genuine dispute as to whether Howard's breach
was a but- for cause of Cooper's
injury
The
United States first argues that Hinshaw's evidence fails
to establish but-for causation as a matter of law. To create
a jury question on this issue, Hinshaw must show that a
reasonable person could conclude that her evidence clearly
and convincingly shows that Cooper's injury would not
have occurred but for Howard's conduct.[87]
Hinshaw's
evidence is sufficient. The triage nurse testified that had
she known that Cooper was reported as a missing person she
would have “taken [Cooper] back to a room
immediately” so that the emergency department staff
could try to figure out whether he was dangerous and why
someone reported him as a missing person.[88] She also
testified that if she had known that Cooper was schizophrenic
and off his medications, she would have changed how she
classified him with regard to whether he was a danger to
himself or others.[89] The social worker testified that had she
known the information that Howard did not relay she would
have tried to convince Cooper to stay at the hospital until
Hinshaw arrived.[90] This testimony is supported by
Hinshaw's expert, who testified that the staff would have
provided Cooper with “ongoing reinforcement that the
best course of action for him would have been to sit in the
Emergency Department bed, eat and drink until he got a ride
home.”[91] This evidence would support a reasonable
jury finding that Cooper clearly would have remained safe at
the hospital but for Howard's breach.
2.
There is a genuine dispute as to whether Cooper's injury
was a foreseeable consequence of
Howard's breach
The
United States next argues that there is no genuine dispute as
to legal causation because no reasonable person could
conclude that Hinshaw's evidence clearly and convincingly
shows that Cooper's injury was “within the scope of
the risk”[92] created by Howard's alleged
negligence. A plaintiff proves legal causation “by
demonstrating a natural and continuous sequence of events
stemming from the defendant's act or omission, unbroken
by any efficient intervening cause, that produces an injury,
in whole or in part, and without which the injury would not
have occurred.”[93]
“An
‘efficient intervening cause” is an independent
cause that occurs between the original act or omission and
the final harm and is necessary in bringing about that
harm.”[94] It negates the defendant's liability
if it “‘was unforeseeable and may be described,
with the benefit of hindsight, as
extraordinary.'”[95] Thus, the court must analyze
Hinshaw's evidence in the light most favorable to her and
decide whether a jury could reasonably find that it clearly
and convincingly shows that Howard could have foreseen that
failing to relay Cooper's information to the emergency
department staff could set into motion a natural and
continuous sequence of events that caused Cooper's
injury.
Critical
to this inquiry are facts showing Howard's knowledge of
the risk of harm at the time of the alleged breach. For
example, in Robertson the plaintiff brought a
negligent failure-to-warn action against the motel where her
police officer husband was shot and killed.[96] The motel
manager had been notified before the shooting that the
eventual shooter had entered a guest's room and robbed
two men at gunpoint. The manager “testified at trial
that after viewing the room where the robbery occurred, he
ran outside to the west and north sides of the motel looking
for” the police officer, but when he could not find him
“he returned to his apartment and watched television
for a moment until he heard” the fatal
shot.[97] The Arizona Supreme Court held that this
evidence raised a legal causation question for the jury
because the manager “knew an armed robbery had taken
place, indicating other violence might
occur.”[98] The court contrasted the situation with
the situation presented in Herbert, where the
Arizona Court of Appeals held that a tavern owner was not
liable for selling alcohol to a patron who shot and killed
another patron because there was no evidence showing that the
owner knew that the patron had a propensity for
violence.[99]
In the
case at bar, the United States argues that Hinshaw lacks
sufficient evidence indicating that Howard could have known
that his alleged breach would result in Cooper (1) leaving
the VA Hospital before Hinshaw arrived (given that he had a
safe place to wait in the hospital lobby) and (2) negligently
entering the street.[100] The court disagrees. Howard
testified that he knew Cooper was found “wandering the
streets” in “a disheveled state” without
any shoes on[101] and “looked like he had been on
the streets for several days.”[102] Cooper
told Howard he “felt like he was going around in a
circle, ” leading Howard to conclude that Cooper was
“a little confused, ” “not fully aware of
[his] surroundings, ” and
“disoriented.”[103] The jury could reasonably
find that Howard knew that the registered nurse who reported
Cooper missing was very concerned about Cooper's
behavioral health because she asked the police to take him to
a hospital.[104]And that Cooper was schizophrenic and
off his medications.
This
evidence, taken together, could reasonably be found to show
that Howard clearly knew that Cooper was predisposed to
making erratic, poor decisions.[105] From this
predisposition, the jury could reasonably infer that it was
foreseeable to Howard that the emergency room staff would
need to help Cooper make the safest available decision:
staying at the hospital until his ride arrived. Thus, the
jury could reasonably find that, by failing to inform the
medical staff of all of Cooper's risk factors and the
existence of this safe option, it was foreseeable to Howard
that Cooper, left to his own devices, would make erratic,
poor decisions like leaving the hospital lobby before his
ride came and entering the street negligently. In sum, these
intervening acts were not so unforeseeable that the court can
declare as a matter of law that any fault on Howard's
part was not the proximate cause of Cooper's injuries.
D.
Hinshaw Has Submitted Sufficient Evidence of Unreasonable
Risk
Under
Arizona law, a defendant may be found liable of negligence
only if he or she subjected another to an unreasonable
risk.[106] Whether a risk was unreasonable is
“an evaluative judgment ordinarily left to the
jury.”[107] Yet, courts “set outer
limits” on the jury's discretion, meaning that
“[a] jury will not be permitted to require a party to
take a precaution that is clearly
unreasonable.”[108] For example, no defendant is
required to protect against “general risks” of
harm faced by members of society at large.[109] But,
where the defendant had reason to know of an elevated risk of
harm, as where he or she gives car keys to an
unlicensed[110] or drunk driver, [111] a jury
may properly judge the risk unreasonable.
The
United States argues that Hinshaw lacks evidence showing that
the risk that Cooper would be struck by a vehicle was any
greater than the general risk that all pedestrians
face.[112] This argument is unpersuasive for the
reasons identified in the legal causation discussion above.
The jury could reasonably find that the evidence clearly and
convincingly shows that Cooper's characteristics made it
especially likely that he would be harmed if he were to
resume wandering the streets in the middle of the night.
E.
The United States Has Submitted Sufficient Evidence of
Non-Party Fault.
At
docket 29 the United States designated the driver as a
nonparty at fault pursuant to A.R.S. §
12-2506(B).[113] “Because an allegation of
comparative fault relating to nonparties is an affirmative
defense, the defendant must prove the nonparty is actually at
fault. As such, the defendant must offer evidence that the
nonparty owed a duty to the plaintiff, that the duty was
breached, and that the breach caused injury to the
plaintiff.”[114] Hinshaw moves for partial summary
judgment on this issue, arguing that the United States lacks
any evidence showing that the driver was negligent. The
United States responds by pointing to two pieces of evidence
that, it argues, defeat Hinshaw's motion.
First,
the United States points to the fact that the driver fled the
scene of the collision without aiding Cooper or calling 911.
This evidence pertains not to the duty of care the driver
owed Cooper when he was driving, but rather his duty that
arose after the collision to render Cooper reasonable
assistance. As Hinshaw points out in reply, however, the
United States fails to identify any evidence showing
causation. The United States asserts that it was not
obligated to come forth with such evidence because Hinshaw
“limited her challenge to the issue of whether the
hit-and-run driver negligently struck Mr.
Cooper.”[115] This is incorrect. Hinshaw's
motion asserts broadly that “there is no evidence that
the driver was negligent”[116] and her motion seeks
an order ruling “as a matter of law that the driver is
not a non-party at fault in this case.”[117]This
triggered the United States' burden to set forth evidence
of specific facts showing that the driver was negligent under
any theory. By not setting forth any evidence of causation or
damages, the United States failed to meet its burden with
regard to its failure-to-render-post-collision-assistance
theory of negligence.
Second,
the United States asserts that the following facts show that
the driver was negligent in striking Cooper: (1) Cooper was
“either walking or standing in the road at the point of
impact, i.e., he was not darting out into the road;”
(2) the road is “wide open with no physical
restrictions on view;” (3) “although the incident
happened at night, the street lights would have illuminated
the spot of the accident;” (4) “there were no
weather restrictions on the driver's ability to
see;” (5) the road's “posted speed limit is
35 mph;” (6) the road was dry; and (7) the driver fled
the scene of the accident.[118] In reply, Hinshaw argues
that this evidence is insufficient to show the driver's
breach. The court disagrees. The United States'
circumstantial evidence is sufficient to support a reasonable
jury finding that the driver should have seen Cooper in the
road and avoided striking him. The question of the
driver's negligence in striking Cooper will be submitted
to the jury.
V.
CONCLUSION
Based
on the preceding discussion, Plaintiff's motion at docket
71 is GRANTED IN PART and DENIED IN PART as follows: no fault
will be apportioned to the driver for failing to render
assistance to Cooper after the collision, but whether the
driver was at fault for negligently striking ...