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Salzwedel v. United States

United States District Court, D. Arizona

January 18, 2018

Marisol Salzwedel, et al., Plaintiffs,
United States, Defendant.



         Pending before the Court are Plaintiffs' Motion in Limine Regarding Collateral Sources (Doc. 57) and Motion to Exceed Administrative Claim Demand (Doc. 58). The motions are fully briefed (Docs. 61, 64, 71).[1]

         I. Background

         On February 19, 2016, Plaintiffs filed this medical malpractice action in Pima County Superior Court, naming Marana Health Center (“MHC”) and two medical doctors as defendants. (Doc. 1-3 at 7.)[2] On July 29, 2016, the United States of America, on behalf of MHC and the two medical doctors, removed the action to this Court. (Doc. 1.) The Court substituted the United States of America as the sole defendant (Docs. 3, 4), because the individual defendants were acting within the scope of their employment at the time of the matters alleged in the Complaint, MHC is an entity that receives federal grant money from the United States Public Health Service, and the United States Department of Health and Human Services has deemed MHC and its physicians or other licensed or certified health care practitioners to be employees of the Public Health Service for purposes of coverage under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.

         On August 18, 2016, Plaintiffs filed their First Amended Complaint (“FAC”) alleging medical malpractice against the United States pursuant to the FTCA. (Doc. 5.) The FAC contains the following allegations:

         During mid- to late-2010, Plaintiff Marisol Salzwedel received medical care at MHC in connection with her first pregnancy. (Doc. 5, ¶¶ 18, 19.) During one of her hospital stays, MHC employees discovered that Mrs. Salzwedel has lipemia. (Id. ¶ 21.) None of MHC's employees informed Mrs. Salzwedel that she has lipemia. (Id. ¶ 23.)

         In 2013, Mrs. Salzwedel began receiving treatment at MHC after becoming pregnant with her second child. (Id. ¶ 24.) Medical records generated during that time indicate that Mrs. Salzwedel's medical care providers were aware that she had a problem related to hyperlipidemia and had a family history of the same. (Id. ¶ 25.) During the second pregnancy, Mrs. Salzwedel reported symptoms of nausea, abdominal pain, and tachycardia, which Mrs. Salzwedel believed to be connected to eating. (Id. ¶¶ 26, 27.)

         On February 21, 2014, Mrs. Salzwedel went to Northwest Medical Center with severe abdominal pain. (Id. ¶ 28.) When narcotics failed to relieve the pain, Mrs. Salzwedel was taken to an operating room to undergo a cesarean section. (Id. ¶¶ 28, 29.) Spinal anesthesia was ineffective, so Mrs. Salzwedel's doctors administered general anesthesia. (Id. ¶ 30.) The general anesthesia was only partially effective, and Mrs. Salzwedel felt the beginning of the operation, though she was unable to move. (Id. ¶ 31.) During the operation, a surgeon reported finding “very pink, creamy blood.” (Id. ¶ 32.)

         Mrs. Salzwedel continued to experience severe pain after the operation, despite her providers' attempts at pain control. (Id. ¶ 33.) Mrs. Salzwedel was admitted to the intensive care unit after tests showed that she was suffering from hypertriglyceridemia. (Id. ¶ 34.) Mrs. Salzwedel's hypertriglyceridemia caused severe pancreatitis. (Id. ¶ 35.) Mrs. Salzwedel's pulmonary condition worsened, and by February 24, she needed to be intubated. (Id. ¶ 36.) Mrs. Salzwedel suffered renal failure and had to undergo plasmapheresis to address the hypertriglyceridemia. (Id.) Mrs. Salzwedel was discharged on March 14, but was readmitted on March 25 with an infected pancreatic pseudocyst. (Id. ¶¶ 36, 37.) Mrs. Salzwedel presently suffers physical pain and weakness, nerve damage, and post-traumatic stress disorder, and she is unable to work. (Id. ¶ 38.)

         Based on the foregoing allegations, Plaintiffs allege a medical malpractice claim averring that Defendant (through its employees and contractors) breached the standard of care during Mrs. Salzwedel's second pregnancy by failing to monitor her lipids, quickly treat any dyslipidemia, and provide information concerning how to reduce the risk of dyslipidemia and pancreatitis. (Id. ¶¶ 41, 42.) Plaintiffs also assert a loss of consortium claim on behalf of Plaintiff Samuel Salzwedel. (Id. ¶ 45.)

         II. Motion in Limine Regarding Collateral Sources

         A. Motion Background

         In their Motion in Limine Regarding Collateral Sources, Plaintiffs ask the Court to preclude the parties from introducing evidence of payments from collateral sources or reductions in the amount that Mrs. Salzwedel's health care providers accepted as full satisfaction for medical treatment provided. Plaintiffs argue that the collateral source rule is well-established under Arizona and federal law and that it prevents the introduction of evidence of third-party payments to reduce the amount of recoverable medical expenses. Plaintiffs further argue that A.R.S. § 12-565, which allows for the introduction of collateral source evidence in medical malpractice actions, is inapplicable to cases brought under the FTCA because (1) the United States is not a “licensed health care provider” as defined in A.R.S. § 12-561, and § 12-565 applies only to medical malpractice actions brought against “licensed health care providers, ” and (2) § 12-565 is exclusively procedural in nature because it does not affect the amount of damages that a plaintiff may recover, and federal procedural law supersedes state procedural law in federal court.

         Defendant argues that A.R.S. § 12-565 applies to this action because it can be liable only to the same extent as a private individual under like circumstances. See 28 U.S.C. §§ 1346(b)(1), 2674. Defendant emphasizes that Plaintiffs' claims are predicated on the alleged negligence of two “licensed health care providers, ” both of whom would be allowed to introduce evidence of collateral benefits under § 12-565. Since Defendant's liability must be identical to those private individuals, Defendant contends it should be allowed to introduce evidence of collateral benefits as well.

         Defendant disputes that A.R.S. § 12-565 is exclusively a procedural rule. Defendant argues that Plaintiffs misunderstand the holding of Eastin v. Broomfield, 570 P.2d 744 (Ariz. 1977), which Plaintiffs cite for the proposition that “§ 12-565 is not substantive because it does not affect the measure of damages.” Defendant argues that the Eastin court held only that A.R.S. § 12-565 does not place a cap on recoverable damages, and that this does not mean the statute has no effect on damages. Defendant argues that A.R.S. § 12-565 does affect the damages recoverable under the Arizona Medical Malpractice Act (“AMMA”), which makes it substantive and applicable to this FTCA action.

         B. Discussion

         Section 12-565 of the AMMA relevantly provides:

A. In any medical malpractice action against a licensed health care provider, the defendant may introduce evidence of any amount or other benefit which is or will be payable as a benefit to the plaintiff as a result of the injury or death pursuant to the United States social security act, any state or federal workers' compensation act, any disability, health, sickness, life, income-disability or accident insurance that provides health benefits or income-disability coverage and any other contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of income-disability or medical, hospital, dental or other health care services to establish ...

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