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Sullivan v. United States

United States District Court, D. Arizona

November 16, 2018

William Sullivan, et al., Plaintiffs,
v.
United States of America, Defendant.

          ORDER

          Honorable David C. Bury United Stales district Judge.

         The 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.

         Plaintiffs 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.

         Plaintiffs' 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.

         The 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.)

         On 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).

         The 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.

         The 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.

         This 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.

         The 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.

         Count One: Medical Malpractice

         Defendant 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).[1]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).

         Under 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 merely possible).

         A 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).

         Typically 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 injury.[2]

         Defendants 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.

         The 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)).

         Dr. 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, [3] id. ¶¶ 47, 56 (citing Hunter Depo. at 66 (explaining OSR patients do better long term).

         Defendant's 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.[4] 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.

         Contrarily, 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.[5] 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. ...


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