Lacombe v. Bullhead City Hospital Corp et al, No. 2:2006cv02037 - Document 60 (D. Ariz. 2008)
Court Description: AMENDED ORDER re 59 ORDER denying 49 Motion for Summary Judgment. FURTHER ORDERED that, in light of the somewhat unusual procedural posture of this case in which no effective scheduling order pursuant to Rule 16 has been entered, a status confere nce is hereby set for February 2, 2009 at 1:30 p.m. during which such orders as may be necessary, including a potential pre-trial conference and trial date, will be set. Status Conference set for 2/2/2009 01:30 PM before Judge Robert C Broomfield.. Signed by Judge Robert C Broomfield on 12/09/08. (DNH)
Download PDF
<![CDATA[
Lacombe v. Bullhead City Hospital Corp et al 1 Doc. 60 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 Carla M. Lacombe, individually) and as Administrator for the ) Estate of David Nichols, ) deceased; Donald A. Nichols, ) father of David Nichols; ) Nancy Nichols, mother of ) David Nichols, ) Plaintiffs ) vs. ) ) Bullhead City Hospital Corp., ) a Tennessee corporation doing ) business in Arizona as Western) Arizona Regional Medical ) Center, ) ) Defendant. ) No. CIV 06-2037-PHX-RCB AMENDED ORDER 19 20 Currently pending before the court in this medical malpractice 21 action is a motion for summary judgment pursuant to Fed. R. Civ. P. 22 56 by defendant, Bullhead City Hospital, a Tennessee corporation 23 doing business in Arizona as Western Arizona Regional Medical 24 Center (“WARMC”) (doc. 49).1 25 on the narrow issue of proximate cause, arguing that “no reasonable 26 jury could conclude that any act by [it] caused” the death of 27 plaintiffs’ decedent, David Nichols. 28 judgment is improper, plaintiffs respond, because they have 1 WARMC is moving for summary judgment Mot. (doc. 49) at 1. Summary Finding oral argument unnecessary, the court denies WARMC’s request for same. Dockets.Justia.com 1 produced expert opinion which contradicts WARMC’s theory as to the 2 cause of death. 3 genuine issue of material fact rendering summary judgment improper. 4 For the reasons set forth below, the court finds that WARMC has not 5 met its initial burden of showing the absence of a genuine issue of 6 material fact. 7 judgment motion. Thus, from plaintiffs’ standpoint, there is a Therefore, the court must deny WARMC’s summary 8 Background 9 Even though, as the SAC alleges, penicillin was 10 “contraindicat[ed]” given Mr. Nichols’s overall medical history, 11 including a “previous anaphylactic reaction to penicillin[,]” while 12 at WARMC, “physicians ordered I.V. administration of Primaxin.” 13 SAC (doc. 40) at 3, ¶¶ 11; 13; and 14. 14 Primaxin is a “broad spectrum antibiotic which is in the same 15 general class as penicillin.” 16 describes it, “Mr. Nichols’ condition deteriorated into full 17 respiratory decompensation, secondary to reaction from Primaxin, 18 and he died.” 19 administration of Primaxin to Mr. Nichols in the face of his prior 20 anaphylactic reaction to penicillin, his known allergy to 21 penicillin and his subsequent reaction to same, constituted medical 22 negligence[.]” Id. at 3, ¶ 17. 23 negligence, the SAC alleges that Mr. Nichols died on September 3, 24 2004. 25 Id. at 3, ¶ 15. Id. According to the SAC, at 3, ¶ 14. As the SAC The SAC further alleges that “[t]he “As a proximate result” of that See id. at 3, ¶15; and at 4, ¶ 22. Dr. Arthur DelRosario, a physician licensed in Nevada and 26 “board certified in clinical and endemic pathology,” with a sub- 27 specialty in cytopathology, performed an autopsy on Mr. Nichols on 28 September 5, 2004. WARMC’s Separate Statement of Facts Supporting -2- 1 its Motion for Summary Judgment (“Def. SOF”) (doc. 50) at 2, ¶¶ 5-7 2 (citations omitted). 3 2004, Dr. DelRosario prepared an autopsy report, id., exh. 3 4 thereto, which pursuant to court order was filed under seal. 5 54. 6 “include pulmonary decongestion and edema, and cardiomegaly with 7 left ventricular hypertrophy.” 8 see also SOF (doc. 50) at 2, ¶ 8 (citation omitted). Following that autopsy, on September 30, Doc. “The major autopsy findings[,]” according to Dr. DelRosario, SOF (doc. 50), exh. 3 thereto at 4; 9 During his deposition, Dr. DelRosario opined that 10 “hypertension . . . caused the enlargement of [Mr. Nichols’] 11 heart[.]” Id. at 2, ¶ 9 (citing exh. 2 thereto at 24:2-4). 12 discounting the possibility that Mr. Nichols’ “death resulted in 13 something relating to his penicillin allergy[,]” Dr. DelRosario 14 further explained that in addition to containing “a lot of 15 fluid[,]” Mr. Nichols’ lungs had “a lot of pigment-latent 16 microphages[.]” 17 along with what Dr. DelRosario described as Mr. Nichols’ 18 “enlarged” heart contributed to the doctor’s opinion that, in lay 19 terms, heart failure was the cause of Mr. Nichols’ death. 20 DelRosario further opined that if Mr. Nichols had had anaphylactic 21 shock, there would have been “a so-called capillary leak[,]” making 22 “all parts of the body edematous[,]” which Dr. DelRosario testified 23 he did not “seem to have seen” in Mr. Nichols. 24 Id., exh. 2 thereto at 23:17-18. In Those factors, Dr. Id. at 27:11-17. Plaintiffs strongly disagree with Dr. DelRosario’s conclusion 25 as to the cause of Mr. Nichols’ death. 26 Nichols died as a result of an anaphylactic reaction to the 27 Primaxin. 28 at his deposition: They postulate that Mr. Dr. DelRosario was specifically asked about that theory “[H]ow much percentagewise [sic] would you give -3- 1 to saying that the cause of death was related to anaphylactic shock 2 based on your report . . . on a 1-to-100 scale?” 3 thereto at 27:1-4. 4 say, lower than less than one percent.” 5 He responded: Id., exh. 2 “It’s extremely low[;] I would Id. at 27:7-8. Contrary to the dictates of LRCiv 56.1(b), plaintiffs did not 6 file a controverting statement of facts. 7 requires, did plaintiffs file a statement setting forth “any 8 additional facts that establish a genuine issue of material fact or 9 otherwise preclude judgment in favor of the moving party.” Nor, as that Rule also Id. 10 Instead, along with their response to WARMC’s summary judgment 11 motion, plaintiffs filed an affidavit from Dr. Hugh E. Wilson, who 12 is board certified by the American Board of Pathology in Anatomical 13 and Clinical Pathology, and his curriculum vitae. 14 In his affidavit Dr. Wilson criticizes Dr. DelRosario’s autopsy 15 report, and concludes by opining that “the cause of death would 16 appear to be complete cardiorespiratory arrest secondary to 17 anaphylactic reaction.” 18 Plaintiffs argue Dr. Wilson’s opinions as set forth in his 19 affidavit create a genuine issue of material fact as to proximate 20 cause. 21 motion and allow this case to proceed to trial. 22 Doc. 56-2 at 1. Wilson Aff. (doc. 56-2), at 7, ¶ 17(6). Therefore, the court should deny WARMC’s summary judgment WARMC’s response is twofold. First, it counters that because 23 plaintiffs did not specifically controvert WARMC’s SOF, as LRCiv 24 56.1(b) requires, that SOF is deemed admitted, thus entitling WARMC 25 to summary judgment. 26 insufficient in any event to defeat summary judgment because it 27 merely “critiqu[es] Dr. DelRosario’s autopsy without specifically 28 controverting [WARMC’s] facts[.]” See Reply (doc. 57) at 3. Second, Dr. Wilson’s affidavit is -4- WARMC 1 further challenges Dr. Wilson’s affidavit as speculative because 2 although he avers that tissue and/or blood samples “might have been 3 helpful in establishing a diagnosis of anaphylaxis[,]” he did not 4 take or review any such samples from Mr. Nichols. 5 (doc. 56-2) at 4-5, ¶ 10. 6 “speculation of what the tissues and samples could have shown is 7 insufficient to prove causation[.]” 8 be seen, neither of these reasons justify granting summary judgment 9 on this record. 10 11 12 Wilson Aff. Therefore, WARMC reasons, Dr. Wilson’s Reply (doc. 57) at 4. As will Discussion I. Summary Judgment Standards Pursuant to Fed.R.Civ.P. 56(c), a party is entitled to 13 summary judgment “if the pleadings, depositions, answers to 14 interrogatories, and admissions on file, together with the 15 affidavits, if any, show that there is no genuine issue as to any 16 material fact and that the moving party is entitled to a judgment 17 as a matter of law.” 18 bears the initial burden to demonstrate the absence of any genuine 19 issue of material fact.” Horphag Research Ltd. v. Garcia, 475 F.3d 20 1029, 1035 (9th Cir. 2007) (citation omitted). 21 ‘genuineness' and materiality’ are distinct requirements.” Nidds v. 22 Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.1996 (citing 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The 24 requirement that an issue be ‘genuine relates to the quantum of 25 evidence the plaintiff must produce to defeat the defendant's 26 motion for summary judgment.” Id. “There must be sufficient 27 evidence ‘that a reasonable jury could return a verdict for the 28 nonmoving party.’” Id. It is beyond dispute that “[t]he moving party “The criteria of (quoting Anderson, 477 U.S. at 248). As to -5- 1 materiality, the substantive law will identify which facts are 2 material.” Anderson, 477 U.S. at 248. 3 law of Arizona is the substantive law. 4 Here, as will be seen, the “Once the moving party meets its initial burden, . . . , the 5 burden shifts to the nonmoving party to set forth, by affidavit or 6 as otherwise provided in Rule 56, specific facts showing that there 7 is a genuine issue for trial.” 8 citations omitted). 9 rely on ‘mere speculation, conjecture, or fantasy.’” Id. (internal quotation marks and This “[e]vidence must be concrete and cannot Bates v. 10 Clark County, 2006 WL 3308214, at * 2 (D.Nev. Nov. 13, 2006) 11 (quoting O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 12 (9th Cir.1986)). 13 not sufficient “to defeat a properly supported motion for summary 14 judgment; instead, the nonmoving party must introduce some 15 significant probative evidence tending to support the complaint.” 16 Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th 17 Cir.1997) (quoting Anderson, 477 U.S. at 249, 252). 18 opposing a summary judgment motion it is not enough to “simply show 19 that there is some metaphysical doubt as to the material facts.” 20 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 21 586 (1986)(citations omitted). 22 Similarly, “a mere ‘scintilla’ of evidence” is Thus, in By the same token though, when assessing the record to 23 determine whether there is a “genuine issue for trial the court 24 must “view the evidence in the light most favorable to the 25 nonmoving party, drawing all reasonable inferences in his favor.” 26 Horphag, 475 F.3d at 1035 (citation omitted). “Nevertheless, 27 inferences are not drawn out of the air, and it is the opposing 28 party's obligation to produce a factual predicate from which the -6- 1 inference may be drawn. Yang v. Peoples Benefit Ins. Co., 2007 WL 2 1555749, at *7 (E.D.Cal.2007) (citations omitted). 3 court may not make credibility determinations; nor may it weigh 4 conflicting evidence. See Anderson, 477 U.S. at 255. 5 principles firmly in mind, the court has carefully reviewed the 6 record before it on this motion. 7 II. 8 Finally, the With these LRCiv 56.1 LRCiv 56.1 expressly requires a party opposing summary 9 judgment to, among other things, provide: 10 11 12 13 a statement, . . . setting forth . . . for each paragraph of the moving party’s separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party’s position if the fact is disputed[.] 14 15 LRCiv 56.1(b). That Rule further provides that “[e]ach numbered 16 paragraph of the statement of facts set forth in the moving party’s 17 separate statement of facts shall, unless otherwise ordered, be 18 deemed admitted for purposes of the motion for summary judgment if 19 not specifically controverted by a correspondingly numbered 20 paragraph in the opposing party’s separate statement of facts.” 21 Id. (emphasis added). 22 As earlier noted, plaintiffs did not comply with Local Rule 23 56.1(b) in any respect. 24 WARMC’s entire SOF. The court therefore could deem admitted “However, given the phrase, ‘unless otherwise 25 ordered,’ the court finds that it has the discretion, but is not 26 required, to deem the uncontroverted facts admitted.” See Huynh v. 27 J.P. Morgan Chase & Co., 2008 WL 2789532, at *5 (D.Ariz. July 17, 28 2008) (internal quotation marks and citation omitted). -7- In the 1 exercise of that discretion, because the issue as WARMC frames it 2 is so narrow - proximate cause - as will soon become evident, the 3 court had no difficulty discerning the disputed facts. 4 Accordingly, it will not deem any of WARMC’s facts admitted due to 5 plaintiffs’ failure to comply with LRCiv 56.1(b). 6 Obviously it would have been preferable for plaintiff to have 7 fully complied with LRCiv 56.1(b); and the court hastens to add 8 that in the future in this case it will not be so lenient. As just 9 stated, however, the disputed facts are easily discernible. 10 Furthermore, proceeding in this way is in keeping with the Ninth 11 Circuit’s stated preference for resolving summary judgment motions 12 on the merits, rather than “turn[ing] the summary judgment rule 13 into a mere sanction for noncompliance with local rules.” See 14 Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). 15 III. 16 Medical Malpractice Under the Erie doctrine, this court sitting in diversity 17 jurisdiction must apply state substantive law and federal 18 procedural law. 19 415, 427 (1996). Gasperini v. Ctr. for Humanities, Inc., 518 U.S. Therefore, the court must look to the law of 20 Arizona to determine the elements of plaintiffs’ medical 21 malpractice cause of action. Pursuant to A.R.S. § 12-563 the 22 “[n]ecessary elements of proof” for such a cause of action are a 23 showing that: 24 25 26 1. [t]he 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[;] [and] 27 2. [s]uch failure was a proximate cause of the injury. 28 -8- 1 A.R.S. § 12-563(1)-(2) (West 2003). Only the second element - 2 proximate cause - is at issue on this motion. As is readily 3 apparent by now, WARMC maintains that the cause of death was heart 4 failure, whereas plaintiffs assert that it was an anaphylactic 5 reaction to Primaxin. 6 In challenging the sufficiency of plaintiffs’ evidence on this 7 motion, the court agrees with WARMC that if Dr. Wilson’s affidavit 8 was limited to criticizing Dr. DelRosario’s methodology in 9 performing the autopsy, and hence the conclusions he reached, in 10 all likelihood, it would be insufficient to survive this summary 11 judgment motion on the issue of causation. WARMC overlooks the 12 fact, however, that in his opposing affidavit Dr. Wilson went one 13 step farther - a critical step, as it turns out, in terms of this 14 motion. Not only does Dr. Wilson outline the reasons why the 15 autopsy does not support a diagnosis of heart failure, but he goes 16 on to explain why he “concur[s] with Drs. Russo and Budny that to a 17 reasonable degree of medical certainty, the cause of death would 18 appear to be complete cardiorespiratory arrest secondary to 19 anaphylactic reaction.” 20 Wilson Aff. (doc. 56-2), at 7, ¶ 17(6). Based upon his review of certain medical records, the autopsy 21 report prepared by Dr. DelRosario and his deposition, in his 22 opposing affidavit Dr. Wilson explicates the reasons why “[i]t is 23 far more probable than not, that [Mr. Nichols’] died of something 24 other than heart failure.” Id. at 7, ¶ 17(1). Among those reasons 25 is that “[n]either the autopsy on Mr. Nichols nor his clinical 26 course during his terminal admission support a diagnosis of heart 27 failure.” Id. Second, “[t]he enlargement of Mr. Nichols’ heart is 28 not striking and is consistent with his past medical history of -9- 1 hypertension.” Id. at 7, ¶ 17(2). Additionally, “[t]he congestion 2 and edema of the lungs at the time of autopsy and the severe 3 reactive airways disease noted by Dr. Patel [the Nichols’ family 4 doctor] are consistent with a diagnosis of anaphylaxis.” 5 ¶ 17(5). Id. at 7, Lastly, before rendering his ultimate conclusion on the 6 cause of death, Dr. Wilson averred that “[g]iven the lack of a 7 specific anatomical cause of death at autopsy, the cause of Mr. 8 Nichols’ death is best determined on clinical grounds.” 9 ¶ 17(6). Id. at 7, Dr. Wilson continued: “The clinical history is most 10 consistent with an anaphylactic reaction to beta lactam antibiotic 11 and is also supported by the wet heavy lungs described at autopsy.” 12 Id. 13 The court starts its assessment of this record from the well- 14 settled proposition that “[g]enerally, proximate cause is a 15 question of fact for the jury.” Petolicchio v. Santa Cruz County 16 Fair & Rodeo Ass’n, Inc., 177 Ariz. 256, 262, 866 P.2d 1343, 1348 17 (1994) (citation omitted). The court relies on a related and 18 equally well-settled proposition that “[a] plaintiff need only 19 present probable facts from which the causal relationship may be 20 inferred.” Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 21 253, 955 P.2d 3, 9 (1997) (internal quotation marks and citation 22 omitted). By the same token though, the court “may properly decide 23 proximate cause if, after reviewing the facts, there is no 24 reasonable chance or likelihood that the conclusions of reasonable 25 persons would differ.” Petolicchio, 177 Ariz. at 262, 866 P.2d at 26 1348 (internal quotation marks and citation omitted) (emphasis 27 added). 28 Applying these principles, as well as the Supreme Court’s - 10 - 1 summary judgment framework set forth above, to the record as 2 presently constituted, persuades the court that WARMC is not 3 entitled to summary judgment on the issue of proximate cause. 4 Through Dr. Wilson’s affidavit, and drawing as it must all 5 reasonable inferences therefrom in plaintiffs’ favor, the court 6 finds a genuine issue of material fact as to causation here. 7 Succinctly put, the evidence now before the court “presents a 8 sufficient disagreement to require submission to a jury[.]” See 9 Anderson, 477 U.S. at 251-52. It is not “so one-sided that one 10 party must prevail as a matter of law.” Id. 11 Accordingly, for the reasons set forth herein, 12 IT IS ORDERED denying the motion for summary judgment by 13 defendant Bullhead City Hospital, a Tennessee corporation doing 14 business in Arizona as Western Arizona Regional Medical Center 15 (doc. 49). 16 IT IS FURTHER ORDERED that, in light of the somewhat unusual 17 procedural posture of this case in which no effective scheduling 18 order pursuant to Rule 16 has been entered, a status conference is 19 hereby set for February 2, 2009 at 1:30 p.m. during which such 20 orders as may be necessary, including a potential pre-trial 21 conference and trial date, will be set. 22 DATED this 9th day of December, 2008. 23 24 25 26 27 28 - 11 - 1 Copies to counsel of record 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
