United States District Court, D. Arizona
Suhad Abdullah, as the personal representative for Mariam Abdullah, deceased, Plaintiff,
v.
Douglas Anthony Ducey, et al., Defendants.
ORDER
DAVID
G, CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff
Suhad Abdullah, as the personal representative for Mariam
Abdullah and who is represented by counsel, brought this
civil rights action pursuant to 42 U.S.C. § 1983. (Doc.
28.) Pending before the Court are Defendants Ducey, Ryan,
Frigo, and Lutz's Motion to Dismiss Plaintiff's First
Amended Complaint (Doc. 42) and Plaintiff's Motion for
Leave to Amend the Complaint (Doc. 71).
I.
Background
In the
First Amended Complaint, Plaintiff alleges as follows. Mariam
Abdullah, an 18-year-old inmate in the custody of the Arizona
Department of Corrections (ADC), was confined in the Lumley
Special Management Area at ASPC-Perryville. (Doc. 28 at 2.)
Mariam had a well-documented history of mental illness and
suicide attempts and was classified as Mental Health level 4
by the ADC. (Id.) On July 19, 2016, Mariam was
observed looking at family photos and crying. She requested a
consultation with psychology services, but did not receive
the consultation. (Id.) Mariam had been the victim
of a gang rape perpetrated by her then-boyfriend and his
friends, and discussed the rape with Defendant Lieutenant
Lutz. Lutz told Mariam “you suck at picking
boyfriends.” (Id.) Less than two hours later,
Mariam was found unresponsive, hanging in her cell by her
neck. (Id.) She was pronounced dead several hours
later. (Id.) Previously, when Mariam discussed her
rape, she would immediately be placed on suicide watch.
(Id.)
Defendant
Frigo created “unhealthy, and dangerous conditions for
SMA inmates” by failing to comply with maximum custody
measures stipulated in Parsons v. Ryan.
(Id. at 3.) By failing to provide adequate treatment
for Mariam's mental illness, Defendants discriminated
against her. (Id.)
Plaintiff
is Mariam's mother and the administrator of her estate.
(Id. at 4.) Defendant Ducey, the Governor of
Arizona, had a responsibility to ensure the Department of
Corrections was compliant with stipulations in Parsons v.
Ryan and the Americans with Disabilities Act (ADA).
(Id.) Defendant Ryan, the Director of the ADC, had
the power to order his staff and Defendant Corizon to comply
with the Parsons v. Ryan stipulations and the ADA,
but he did not, “leaving in place conditions that led
to Miss Abdullah's death.” (Id.) Defendant
Corizon, “by policy and practice . . . did not provide
on-site mental health services necessary to meet the needs of
someone with severe mental illnesses like [Mariam].”
(Id. at 4-5.) Defendant Frigo “had the power
to order her staff and Defendant Corizon Health to comply
with the Parsons v. Ryan stipulations, and the
Americans with Disabilities Act, but did not, leaving in
place conditions that led to [Mariam's] death.”
(Id. at 5.) Defendant Lutz was aware that Mariam was
suicidal, but allowed her to be placed in isolation
conditions and in a cell with hanging points. (Id.
at 5.)
Mental
Health Performance Measures agreed on by the Parties in
Parsons v. Ryan include: (1) “MH-5 prisoners
shall be seen by a mental health clinician for a 1:1 session
a minimum of every seven days”; (2) “MH-5
prisoners who are actively psychotic or actively suicidal
shall be seen by a mental health clinician or mental health
provider daily”; (3) “All prisoners on a suicide
or mental health watch shall be seen daily by a licensed
mental health clinician or on weekend or holidays, by a
registered nurse”; (4) “Only licensed mental
health staff may remove a prisoner from a suicide or mental
health watch. Any prisoner discontinued from a suicide or
mental health watch shall be seen by a mental health
provider, mental health clinician, or psychiatric registered
nurse between 24 and 72 hours after discontinuation, between
seven and ten days after discontinuation, and between 21 and
24 days after discontinuation of the watch.”
(Id. at 7.)
On June
7, 2016, an attorney in Parsons documented that
Mariam was not being treated in accordance with these
measures and wrote a letter to the Arizona Attorney
General's Office with this information. (Id. at
8-11.)
Plaintiff
asserts that Mariam's Eighth Amendment rights were
violated because Defendants knew or should have known that
she posed a serious risk of harm to herself, but failed to
act to abate the risk, placed her in isolation despite
knowledge that isolation would exacerbate her condition,
denied her psychiatric treatment, and placed her in a cell
that contained hanging points. (Id. at 15.)
Plaintiff asserts that despite Mariam's “known and
obvious disability-her severe mental illness, her repeated
attempts to self-harm, and her classification among a handful
of prisoners so mentally ill that they could not receive
proper care within the [ADC]-Defendants Ryan, Ducey, and
Frigo failed to reasonably accommodate Mariam's
disability by failing to provide her with access to human
contact, rehabilitation opportunities, group therapy, and
adequate mental health treatment.” (Id. at
17.)
II.
Plaintiff's Motion to Amend
Plaintiff
seeks to amend her First Amended Complaint to add a state law
claim for wrongful death against the Corizon Defendants and
to remove the claim for violations of the Americans with
Disabilities Act against the Corizon
Defendants.[1] (Doc. 71.)
In the
proposed Count Three for wrongful death, Plaintiff alleges
that Defendants Corizon and Ling were aware of both systemic
deficiencies in mental healthcare and deficiencies in
Mariam's mental healthcare specifically and failed to
take measures to abate the risk of harm to Mariam. Plaintiff
alleges that as a result of the negligence and gross
negligence of the Corizon Defendants, Mariam died.
Defendants
Corizon and Ling request that the Motion to Amend be denied
because expert testimony is required to prove the wrongful
death claim and Plaintiff did not consult an expert prior to
filing her proposed Second Amended Complaint or file the
required certification pursuant to Arizona Revised Statutes
§ 12-2603. Defendants Corizon and Ling assert that
Plaintiff's wrongful death claim requires expert
testimony to prove the allegations that Defendants Corizon
and Ling did not meet the applicable standard of care. In
reply, Plaintiff argues that expert testimony is unnecessary
because the alleged malpractice is grossly apparent.
Plaintiff argues that Corizon agreed to a standard of care
when it entered into a stipulation to provide certain
healthcare standards in Parsons, and although an
attorney representing Plaintiffs in the Parsons
litigation specifically identified Mariam's healthcare as
not meeting the standards in Parsons, nothing was
done to correct the treatment provided to Mariam. Plaintiff
also filed a Certificate under Arizona Revised Statutes
§ 12-2603 certifying that no expert testimony is
necessary to prove the healthcare professional's standard
of care or liability claim.
“‘Medical
malpractice action' or ‘cause of action for medical
malpractice' means an action for injury or death against
a licensed health care provider . . .” Ariz. Rev. Stat.
§ 12-561.
Both of the following shall be necessary elements of proof
that injury resulted from the failure of a health care
provider to follow the accepted standard of care:
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 acting in the same or similar
circumstances.
2. Such failure was a proximate cause of the injury.
Ariz.
Rev. Stat. § 12-563. Unless medical malpractice is
grossly apparent, the standard of care must be established by
expert medical testimony. Rasor v. Northwest Hosp.,
403 P.3d 572 (Ariz.Ct.App. 2017); Peacock v. Samaritan
Health Svc., 765 P.2d 525 (Ariz.Ct.App. 1988). “If
a claim against a health care professional is asserted in a
civil action, the claimant or the party designating a
nonparty at fault or its attorney shall certify in a written
statement that is filed and served with the claim or the
designation of nonparty at fault whether or not expert
opinion testimony is necessary to prove the health care
professional's standard of care or liability for the
claim.” Ariz. Rev. Stat. § 12-2603.
There
has not been adequate briefing on this issue and there is not
an adequate record for the Court to conclude that Plaintiff
should not be allowed to amend her First Amended Complaint
due to failure to disclose an expert under § 12-2603.
Defendants argue that Plaintiff should not be allowed to
amend because she does not have an expert and did not
disclose the expert prior to seeking to amend.[2] Plaintiff argues
that she does not need to disclose an expert when it is
grossly apparent that the standard of care was violated.
Defendants have not addressed this argument, but the
Court's own research has found some support for
Plaintiff's position. See Peacock, 765 P.2d at
526-30 (where psychiatric patient either jumped or fell out
of fourth floor window and the question was whether the
degree of restraint or seclusion was appropriate for the
patient and whether the care provided by the hospital met the
standard of care, and Plaintiff produced no expert testimony,
the Court concluded that testimony regarding the policies and
procedures in the ward ...