United States District Court, D. Arizona
Douglas L. Rayes, United States District Judge.
April 2015, Plaintiff Steven Trujillo, Jr., a resident of the
Navajo Indian Reservation, received care for an ingrown
toenail at the Chinle Comprehensive Health Care Facility
(“CCHCF”), a facility operated by Defendant the
United States of America. Plaintiff received care from
Physician Assistant (“PA”) Lancelot Lewis, who
directed an army medical specialist trainee to remove
Plaintiff's ingrown toenail. Plaintiff returned to CCHCF
several days later with pain and swelling in the same toe.
The treating doctor determined that Plaintiff had an
infection that required several surgical procedures,
ultimately leading Plaintiff to lose about half of his right
foot. Plaintiff thereafter brought this medical malpractice
action under the Federal Tort Claims Act
(“FTCA”). At issue are Defendant's Motion for
Summary Judgment (Doc. 75), and Plaintiff's Motion for
Partial Summary Judgment (Doc. 77), which are fully briefed.
For the following reasons, Defendant's motion is granted
and Plaintiff's motion is denied.
judgment is appropriate when there is no genuine dispute as
to any material fact and, viewing those facts in a light most
favorable to the nonmoving party, the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary
judgment may also be entered “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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material if it might affect the outcome of the
case, and a dispute is genuine if a reasonable jury could
find for the nonmoving party based on the competing evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 323. The burden then shifts to the non-movant to
establish the existence of material factual issues that
“can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250. When parties submit
cross-motions for summary judgment, the Court reviews
“each motion on its own merits” and
“consider[s] each party's evidentiary showing,
regardless of which motion the evidence was tendered
under.” Oakley, Inc. v. Nike, Inc., 988
F.Supp.2d 1130, 1134 (C.D. Cal. 2013) (citing Fair Hous.
Council of Riverside Cty., Inc. v. Riverside Two, 249
F.3d 1132, 1136 (9th Cir. 2001)).
the FTCA, a plaintiff may bring a claim in federal court
against the United States:
for injury or loss of property, or personal injury . . .
caused by the negligent . . . act or omission of any employee
of the Government while acting within the scope of his office
or employment, under the circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
28 U.S.C. § 1346(b). Here, Arizona law governs
Defendant's liability because Plaintiff received his
medical care in Arizona. See Mundt v. United States,
611 F.2d 1257, 1259 (9th Cir. 1980).
Arizona, medical malpractice claims are governed by statute.
To succeed on a medical malpractice claim, a claimant must
establish that: (1) “the health care provider failed to
exercise that degree of care, skill and learning expected of
a reasonable, prudent health care provider in the profession
or class to which he belongs within the state” and (2)
that “[s]uch failure was a proximate cause of the
injury.” A.R.S. § 12-563. Additionally,
“[u]nless malpractice is grossly apparent, the standard
of care must be established by expert medical
testimony.” Rasor v. Northwest Hosp., LLC,
403 P.3d 572, 575 (Ariz. 2017).
the requisite expert witness qualifications are governed by
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 ...