Johnson v. United States of America ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Berdie Johnson, No. CV-17-08218-PCT-DLR 10 Plaintiff, ORDER 11 v. 12 United States of America, et al., 13 Defendants. 14 15 16 Before the Court is Defendants’ motion for summary judgment, which is fully 17 briefed. (Docs. 99, 108, 111.) The Court will grant Defendants’ motion in part and deny 18 it in part for the following reasons.1 19 I. Background 20 This case stems from injuries suffered by Berdie Johnson allegedly due to a gall 21 bladder excision surgery performed by Dr. James Langevin and Dr. Moaz Abulfaraj (the 22 “Doctors”) at the Tsehootsoi Medical Center (“TMC”) in Fort Defiance, Arizona on 23 December 28, 2015. (Doc. 68.) The Doctors provided services at TMC pursuant to 24 Provider Service Agreements with Staff Care, Inc. (“Staff Care”) in which they agreed to 25 serve temporarily as locum tenens physicians. During the surgery, the Doctors discovered 26 and repaired two enterotomies—cuts caused during surgery—within Ms. Johnson’s bowel. 27 1 Defendants’ request for oral argument is denied because the issues are adequately briefed and oral argument will not help the Court resolve the motion. See Fed. R. Civ. P. 28 78(b); LRCiv. 7.2(f); Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 Post-operation, Ms. Johnson remained at TMC to recover. On January 1, 2016, TMC 2 nursing staff noted that Ms. Johnson was experiencing drainage from the incision site. 3 (Doc. 108-1 at 61.) Based on that development, TMC transferred Ms. Johnson to another 4 facility on January 2, 2016, where she underwent emergency surgery the same day. (Doc. 5 99-1 at 17, 20; Doc. 108-1 at 62.) During this surgery, Dr. Lisa Balduf discovered a third 6 through-and-through enterotomy in Ms. Johnson’s small intestine, which she opined had 7 been created during the gall bladder excision surgery but missed by the Doctors. (Doc. 99- 8 1 at 19; Doc. 108-1 at 67-69.) 9 On October 25, 2017, Ms. Johnson filed suit against, inter alia, the Doctors and 10 Staff Care. Ms. Johnson’s operative complaint asserts claims against the Doctors for 11 medical negligence and failure to obtain Ms. Johnson’s informed consent prior to surgery 12 and seeks to hold Staff Care vicariously liable for the Doctors’ malfeasance on a theory of 13 respondeat superior. (Doc. 68.) On January 12, 2021, Defendants moved for summary 14 judgment on all of Ms. Johnson’s claims. Defendants’ motion is now ripe. 15 II. Discussion 16 A. Vicarious Liability 17 Staff Care seeks summary judgment on Ms. Johnson’s vicarious liability claim, 18 arguing that respondeat superior liability cannot attach because the evidence indisputably 19 shows that the Doctors were independent contractors pursuant to their Provider Service 20 Agreements. (Doc. 99-1 at 23.) With some exceptions, an alleged employer cannot be 21 held vicariously liable for the negligence of an independent contractor. Pride of San Juan, 22 Inc. v. Pratt, 212 P.3d 29, 31 (Ariz. Ct. App. 2009). Ms. Johnson has neither disputed the 23 Doctors’ independent contractor status nor suggested than an exception to the general 24 independent contractor rule applies such that Staff Care may be held vicariously liable for 25 the Doctors’ actions. The Court will therefore grant summary judgment to Staff Care on 26 Ms. Johnson’s vicarious liability claim. 27 B. Informed Consent 28 In her complaint, Ms. Johnson alleges that, prior to surgery, the Doctors did not 1 obtain her informed consent. (Doc. 68 at 5, 9-11.) However, Ms. Johnson has produced 2 no evidence that the Doctors failed to meet the standards necessary such that Ms. Johnson 3 could not and did not provide informed consent prior to her surgery. Rather, she merely 4 notes she felt pressured to proceed with the December operation date, especially because 5 Dr. Langevin informed her employer that “otherwise she will need to be rebooked and 6 possibly to have an open cholecystectomy.” (Doc. 108 at 4; Doc. 108-1 at 65.) Ms. 7 Johnson has not explained how Dr. Langevin’s advice, or any other circumstances, 8 rendered her acquiescence to care uninformed or nonconsensual. Ms. Johnson has 9 therefore failed to create a genuine dispute of material fact as to whether she gave informed 10 consent prior to surgery and the Court will grant summary judgment to the Doctors on this 11 claim. 12 C. Negligence 13 Defendants contend that summary judgment should be granted in their favor on Ms. 14 Johnson’s negligence claim because she has failed to produce evidence that creates a 15 genuine dispute of material fact as to whether the Doctors breached their duty to Ms. 16 Johnson performing the gall bladder excision surgery, thereby causing her harm. To the 17 contrary, Ms. Johnson’s expert, Dr. Thomas Gouge, opined that the standard of care 18 obligated the Doctors to “run the bowel”2 prior to closing Ms. Johnson’s abdomen, the 19 Doctors failed to run the bowel, and such failure caused the Doctors to miss the third 20 enterotomy, leading Ms. Johnson to suffer infection and extensive hospitalization. In 21 response, Defendants argue that Dr. Gouge’s opinion is insufficient to create a genuine 22 dispute of material fact as to breach for three reasons.3 23 First, Defendants suggest Dr. Gouge’s opinion that the Doctors did not run the 24 bowel is improperly speculative because it is based solely on the fact that the Doctors’ 25 operative note lacks a notation that they did so. To the contrary, Dr. Gouge’s opinion does 26 2 A bowel run is a systematic examination of the entire small intestine, which is 27 performed by holding the bowel between one’s fingers and examining both sides. (Doc. 99-1 at 44.) 28 3 Defendants have not filed a Daubert motion seeking to exclude Dr. Gouge’s opinion. 1 not stem only from guesswork or his review of the operative note in a vacuum; it relies on 2 his knowledge and experience in the field. Fed. R. Evid. 703. Particularly, while Dr. 3 Gouge opined that the standard of care does not require surgeons to include in their 4 operative report a notation that they ran the bowel, he explained that the Doctors’ failure 5 to do so strongly indicates that they did not, in fact, run the bowel, explaining, 6 [i]t would be unusual in my experience with this type of situation for a surgeon not to describe having [run the bowel], 7 having found two bowel injuries in a case where there really wasn’t reason to suspect those. So it’s beyond just the dictum 8 that if you didn’t write it down, it didn’t happen. 9 (Doc. 99-1 at 44.) While Defendants make much ado of Dr. Gouge’s admission that—had 10 the Doctors included a notation that they ran the bowel in their operative note—he would 11 have concluded that the Doctors had, in fact, run the bowel and had met the standard of 12 care, the Doctors did not include such a notation, and Dr. Gouge persists in opining that 13 the bowel-running was not performed. Defendants’ first argument is rejected. 14 Second, Defendants argue that Dr. Gouge’s opinions do not support of breach 15 finding, because Dr. Gouge agreed that a hypothetical surgeon could run the bowel in a 16 “diligent and systemic fashion” (Doc. 99-1 at 45)—as required by the standard of care— 17 yet miss an enterotomy under some circumstances, because the standard of care does not 18 require the discovery of all enterotomies. However, looking to this particular injury and 19 this particular patient—Dr. Gouge nevertheless opined that the Doctors did not run the 20 bowel, and therefore breached the standard of care, because had the Doctors run the bowel, 21 “there’s absolutely no way that they could have missed this injury.” (Id. at 44-45.) 22 Defendants’ second argument is rejected. 23 Third, Defendants argue that Dr. Gouge’s opinion that the Doctors did not run the 24 bowel lacks proper foundation, because he did not consider Dr. Albufaraj’s testimony that 25 the Doctors, in fact, ran the bowel. (Doc. 99-1 at 35.) Defendants provide no authority in 26 support of the proposition that Dr. Gouge was required to review the Doctors’ deposition 27 transcripts before rendering an opinion. Here, Dr. Gouge based his opinion on his review 28 of operative note and his knowledge of standard practice. Fed. R. Evid. 703. And, looking || to Dr. Gouge’s evidence, a reasonable juror could conclude that Dr. Albufaraj’s testimony || was not credible, determine that the Doctors did not run the bowel, and decide that the 3|| Doctors breached the standard of care. Defendants’ third argument is therefore rejected and the Court will deny Defendants’ motion as to Ms. Johnson’s negligence claim. || Accordingly, 6 IT IS ORDERED that Defendants’ motion for summary judgment is GRANTED 7\|| IN PART and DENIED IN PART as described herein. 8 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment 9|| in favor of Staff Care and terminate it as a party. 10 Dated this 6th day of July, 2021. 11 12 13 , {Z, 14 _- Ae 15 Usted States Dictric Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-