Abdullah v. Ducey

          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 ...