United States District Court, D. Arizona
Honorable David C. Bury United Stales district
Court denies the Defendant's Motion for Summary Judgment,
except for Count Two, and denies Plaintiffs' Cross motion
for Summary Judgment on causation. The case shall proceed to
trial on Counts One and Three, with the Joint Pretrial Order
to be filed with the Court within 30 days of the filing date
of this Order.
allege that on December 16, 2013, Glenn Hunter, MD, a
vascular surgeon, provided medical treatment at the Southern
Arizona Veterans Affairs Health Care System
(“SAVAHCS”) in Tucson, Arizona, to Plaintiff
William Sullivan (Mr. Sullivan) related to an abdominal
aortic aneurism (“AAA”) repair. Plaintiffs allege
Dr. Hunter breached the standard of care by recommending and
performing an open surgery repair (OSR) of the AAA rather
than an endovascular repair (EVAR) of the AAA. An OSR of an
AAA involves an incision in the abdomen to expose the aorta,
clamping the iliac arteries and the aorta, opening the
aneurysm, and sewing in a graft. EVAR involves making an
incision and passing catheters and wires through the iliac
arteries into the aorta, and deploying a device in the
location of the aneurysm. The Plaintiffs allege that the Dr.
Hunter negligently chose to do the more dangerous and
invasive OSR procedure instead of EVAR, and this proximately
caused Mr. Sullivan's paraplegia and Plaintiff Cindy
Sullivan's loss of consortium.
First Amended Complaint against the United States alleges
counts of medical negligence, negligence-lack of informed
consent, and battery under the Federal Tort Claims Act
(FTCA). The United States can be sued only to the extent that
it has waived its sovereign immunity, and the FTCA provides a
limited waiver of the federal government's sovereign
immunity for the common law torts of its officers and
employees. United States v. Orleans, 425 U.S. 807,
813-14 (1976). The United States is liable under the FTCA
under circumstances where, as a private person, it would be
liable under “the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b);
Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538,
543 (9th Cir. 1987). Arizona law governs the existence and
extent of Defendant's liability, if any, in this action.
Defendant seeks summary judgment because spinal cord
ischemia, the paralysis at issue here, is an inherent risk of
both an OSR and EVAR. Prior to the procedure, Plaintiffs had
been informed of this risk. “Summary judgment is
warranted because Plaintiffs have failed to come forth with
competent admissible expert testimony as to two independent
essential elements of their medical malpractice and informed
consent claims - breach of the standard of care and proximate
causation. As to the medical battery claim, Plaintiffs have
failed to plead the elements of battery, and failed to
produce admissible evidence of battery. Because Mr.
Sullivan's claims fail, Cynthia Sullivan's derivative
claim for loss of consortium also fails.” (Ds MSJ (Doc.
115) at 2.)
summary judgment, the moving party is entitled to judgment as
a matter of law if the Court determines that in the record
before it there exists “no genuine issue as to material
fact.” Fed.R.Civ.P. 56(a). The moving party bears the
initial burden of demonstrating the absence of a genuine
issue of material fact, but is not required to support its
motion with affidavits or other similar materials negating
the opponent's claim. Celotex Corp. v. Catrett,
477 U.S. 317, 323-325 (1986). In determining whether to grant
summary judgment, the Court views the facts and inferences
from these facts in the light most favorable to the
non-moving party. Matsushita Elec. Co. v. Zenith Radio
Corp., 475 U.S. 574, 577 (1986).
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material
fact is any factual dispute that might affect the outcome of
the case under the governing substantive law. Id. at
248. A factual dispute is genuine if the evidence is such
that a reasonable jury could resolve the dispute in favor of
the non-moving party. Id.
moving party is under no obligation to negate or disprove
matters on which the non-moving party bears the burden of
proof at trial. Id. at 325. Rather, the moving party
need only demonstrate that there is an absence of evidence to
support the non-moving party's case. Id. If the
moving party meets its burden, it then shifts to the
non-moving party to ‘designate 'specific facts
showing that there is a genuine issue for trial.”
Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry
this burden, the party opposing a motion for summary judgment
cannot rest upon mere allegations or denials in the pleadings
or papers. Anderson, 477 U.S. at 252. The non-moving
party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586. “The mere
existence of a scintilla of evidence ... will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252.
trilogy of 1986 cases opened the door for the district courts
to rely on summary judgment to weed out frivolous lawsuits
and avoid wasteful trials. Rand v. Rowland, 154 F.3d
952, 956-957 (9th Cir. 1998); 10A Charles A Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice & Procedure
§ 2727, at 468 (1998). As explained in Celotex:
“the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, 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, 477
U.S. at 322.
Judge's role on a motion for summary judgment is not to
determine the truth of the matter or to weigh the evidence,
or determine credibility, but to determine whether there is a
genuine issue for trial. Anderson, 477 U.S. at 252.
One: Medical Malpractice
seeks summary judgment on Count One, the medical malpractice
claim, as a matter of law because Plaintiffs have failed to
support the claim with any evidence. Medical malpractice
claims are governed by Arizona statute, A.R.S. §
12-561(2).Bailey-Null v. ValueOptions, 209
P.3d 1059, 1066 (Ariz. App. 2009). “A health care
provider bears the duty ‘to exercise that degree of
care, skill and learning expected of a reasonable, prudent
health care provider' in the same profession or class and
under similar circumstances.” (Ds MSJ (Doc. 115) at 5
(quoting A.R.S. § 12-563(1)). In a medical malpractice
case this is known as the standard of care. Smethers v.
Campion M.D., 108 P.3d 946, 949 (Ariz. App. 2005).
Arizona law, a plaintiff must establish this standard by
expert medical testimony, unless “grossly
apparent” to the layman. Harvey v. Kellin, 115
Ariz. 496, 499, 566 P.2d 297, 300 (1977). He must also prove
through expert medical testimony that the provider's
failure to discharge this duty constituted the proximate
cause of injury, A.R.S. § 12-563(2), unless the
connection is “readily apparent” to the trier of
fact. Barrett v. Harris, 86 P.3d 954, 958 (Ariz.
App. 2004); cf. Kreisman v. Thomas, 469 P.2d 107,
110 (Ariz. App. 1970) (causation must be probable and not
plaintiff must prove “causation-in-fact, ” i.e.,
prove that his injury “would not have occurred
‘but for' the defendant's conduct.”
Ontiveros v. Borak, 667 P.2d 200, 205 (Ariz. 1983)
(en banc). A plaintiff must also prove proximate cause:
“that which, in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces an
injury, and without which the injury would not have
occurred.” Saucedo ex rel. Sinaloa v. Salvation
Army, 24 P.3d 1274, 1278 (Ariz. App. 2001).
breach and causation are questions of fact, Fehribach v.
Smith, 22 P.3d 508, 512 (Ariz. App. 2001), but when
evidence does not establish a causal connection beyond mere
speculation or where reasonable persons could not differ on
the inference derived from the evidence, then the Court may
properly rule by directed verdict or summary judgment,
Robertson v. Sixpence Inns of Am., Inc., 789 P.2d
1040, 1047 (Ariz. 1990). Here, Defendant urges that the Court
rule on summary judgment because Plaintiffs fail to offer
evidence to prove any breach in the standard of care or that
the breach proximately caused Mr. Sullivan's spinal cord
argue that the only evidence that Dr. Hunter breached the
standard of care was disclosed late during the deposition of
Plaintiffs' standard of care expert, Dr. Hirschfeld.
Defendant asserts Dr. Hirschfeld's testimony regarding
the extent of thrombus is precluded from being used on
summary judgment or at trial. Fed. R. Civ. P.37(c)(1).
“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or harmless.” Id.
Plaintiffs respond that their standard of care expert, Dr.
Hirschfeld, opined in his original report that there were no
contraindications for EVAR. (PSOF (Doc. 123) ¶58.) The
Plaintiffs submit that by 2013, EVAR was recognized as
superior and preferred to open AAA surgery. Id.
¶22 (citing Hirschfeld Depo. (Ex. 13) at 19:10- 20:14).
but see (D Resp. SOF (Doc. 133) ¶ 22
(countering that Plaintiffs SOFs omit qualification by Dr.
Hirschfeld that EVAR is preferred absent contradictions) and
(citing Hunter Depo. (PSOF Ex. 1) at 23:4-11 (noting some
surgeons do only EVAR and others are more selective because
there are problems associated with EVAR), (citing Kraiss
Depo. (DSOF Ex. 9(A) at 13 (describing OSR as required for
anatomical issues at proximal neck that might result in loss
of seal, Type 1 endoleak and rupture)).
Hunter decided on OSR for the following reasons: 1) excessive
thrombus and/or atheromatous debris in Mr. Sullivan's
aorta, (PSOF (Doc. 123) ¶ 47 (citing Hunter Depo. at 29,
52, 66), and left renal artery, id. ¶ 51
(citing Hunter Depo. at 66), and 2) Mr. Sullivan's young
age of 72,  id. ¶¶ 47, 56 (citing
Hunter Depo. at 66 (explaining OSR patients do better long
standard of care witness, Dr. Kraiss, also a vascular
surgeon, believes there were two EVAR contraindications: 1)
excessive atheroma/thrombus in Sullivan's aorta, and 2)
the proximal neck of Sullivan's aorta was
“marginal” for endografting and EVAR would have
increased risk for graft migration and possible loss of seal.
(DSOF (Doc. 119) ¶¶ 73-74.) The Plaintiff objects
to Dr. Kraiss' second position because there is no
evidence that this was a contradiction considered by Dr.
Hunter. To be exact, Dr. Hunter simply did not
include this “marginal” reason as a contradiction
for EVAR. This is not the same as an admission that the
shortness of the proximal neck of Mr. Sullivan's aorta
was not considered in deciding against EVAR.
the Plaintiff's expert, Dr. Hirschfeld, in his deposition
testified that in his opinion there was no significant
problem with the proximal neck of the aorta and no absolute
or relative contradiction for Dr. Hunter to exclude Mr.
Sullivan for EVAR. Relying on reported measures by Endologix
and measurements in his head, Dr. Hirschfeld testified the
aortal neck was “at least 3 centimeters” not 15.2
millimeters long as Defendant's experts' posited.
(DSOF (Doc. 133) ¶ 66.) Defendant objects to Dr.
Hirschfeld's deposition testimony as a new opinion and
complains that the basis for this allegedly new opinion was
not timely disclosed. The Court finds that Dr.
Hirschfeld's opinion is offered in rebuttal to
Defendant's experts' opinions that Mr. Sullivan's
proximal aortal neck was marginally acceptable for EVAR. This
opinion is not precluded, except for testimony at trial of
the exact measurements supporting this opinion are not
admissible because they were not timely disclosed in any
report, at his deposition otherwise. Likewise, the Society for
Vascular Surgery Practice Guidelines (SVS Guidelines) are
precluded in the Plaintiffs' case in chief, Fed. R. Civ.
P 37(c)(1), but are sufficient for Dr. ...