Tate et al v. United States of America et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
William Tate, et al. )
)
Plaintiffs, ) 3:14-cv-0242 JWS
)
vs. ) ORDER AND OPINION
)
United States of America, et al. ) [Re: Motion at docket 86]
)
)
Defendants. )
)
I. MOTION PRESENTED
At docket 86 defendants Advantage RN, LLC, Cheryl Chapman, and Sheryl
Snyder (collectively, “Advantage”) move for summary judgment under Federal Rule of
Civil Procedure 56. Defendant United States of America joins in Advantage’s motion at
docket 97. Plaintiffs William Tate, et al. (“Plaintiffs”) oppose the motion at docket 98,
supported by a memorandum at docket 99 and declarations at dockets 100 and 101.
Advantage replies at docket 104. Oral argument was heard on March 3, 2017.
II. BACKGROUND
This medical malpractice action arises from treatment that plaintiff Cynthia Tate
(“Tate”) received at the Maniilaq Health Center Emergency Room on October 19, 2013.
Tate’s medical records show that she presented at the Emergency Room at 5:36 p.m.
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that evening complaining of stomach pain and vomiting, with an acuity level of 4.1 She
was triaged by Mark Hrinko, RN (“Hrinko”),2 but was not put on a cardiac, blood
pressure, or pulse-oximetry monitor. Dr. Mary Gwai-Chore examined Tate and ordered
an IV and two IV medications.3 Hrinko then returned to complete Tate’s assessment.4
At 7:00 p.m. Sheryl Snyder RN (“Snyder”) and Cheryl Chapman RN (“Chapman”)
began their shift.5 Tate’s records show that Paul Moughamian RN (“Moughamian”)
started the IV line at 7:00 p.m.6 After administering the two IV medications,
Moughamian started Tate on 1,000 milliliters of saline.7 Dr. Gwai-Chore testified that
she returned to Tate’s room at 7:35 p.m. to reevaluate Tate.8
It is undisputed that by 7:50 p.m., when Snyder checked on Tate, Tate had gone
into cardiac arrest and was non-responsive.9 Snyder called out a code10 and CPR was
administered,11 but the record is unclear regarding whether it was Snyder or defendant
Doug Amis, P.A. (“Amis”) who started CPR. Snyder testified that she started CPR
1Doc. 86-3 at 1.
2Id.
3Id. at 3.
4Id. at 1.
5Doc. 86 at 8; doc. 99 at 12.
6Doc. 86-3 at 2.
7Id.
8Doc. 86-2 at 78.
9Doc 86-2 at 86-88; doc. 100-1 at 2. Tate’s “rhythm on the monitor was asystole.”
Doc. 100-1 at 2.
10Code is a “[t]erm used in hospitals to describe an emergency requiring
situation-trained members of the staff, such as a cardiopulmonary resuscitation team, or the
signal to summon such a team.” STEDMAN’S MEDICAL DICTIONARY (2014).
11Doc. 100-1 at 2.
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immediately after calling code12 and Amis ran into the room and took over while Snyder
retrieved the crash cart.13 Amis testified that after code was called he entered Tate’s
room and “initiated CPR.”14 He could not “definitively say” who else was in Tate’s room
when he arrived.15 Tate’s “code sheet” states that CPR was initiated by Amis.16
Moughamian testified that when he approached Tate’s room Amis was already
performing CPR and others were hooking Tate up to the crash cart.17 Moughamian
then began recording the code.18 Because the code records begin at 7:55 p.m.,19 Tate
contends that there was a 5-minute delay between when Snyder discovered Tate non-
responsive and when CPR was initiated.20 Advantage disputes this.21
Tate survived but she has “never regained consciousness and has since been in
a persistent vegetative state due to hypoxic encephalopathy,”22 which is brain damage
caused by the lack of adequate oxygenation of the brain.23 Plaintiffs sued defendants
for malpractice, alleging that they breached the standard of care for their respective
12Doc. 86-11 at 3 p.70:6–7.
13Id. at 5 p.73:20–25. A crash cart is a cart “carrying medicine and equipment for use in
emergency resuscitations.” OXFORD ENGLISH DICTIONARY,
https://en.oxforddictionaries.com/definition/crash_trolley.
14Doc. 86-12 at 4 p.56:9–14.
15Id. at 3 p.54:5–7.
16Doc. 86-3 at 4.
17Doc. 86-13 at 4–5 pp.78:6–8, 79:4–6.
18Id. at 5 p.79:7–25.
19Doc. 86-2 at 68 at p.68:12–16; doc. 86-3 at 4; doc. 86-14 at 1.
20Doc. 99 at 6.
21Doc. 104 at 7.
22Doc. 100-1 at 2.
23Id.
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fields or specialities by: (1) “failing to properly triage;” (2) “failing to properly monitor and
reassess;” (3) “failing to start immediate resuscitation efforts after Ms. Tate was found
unresponsive;” and (4) “failing to properly manage the code.”24 Chapman, Snyder, and
their employer, Advantage RN, LLC, presently move for summary judgment.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”25 The
materiality requirement ensures that “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”26 Ultimately, “summary judgment will not lie if the . . . evidence is such that
a reasonable jury could return a verdict for the nonmoving party.”27 However, summary
judgment is appropriate “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.”28
The moving party has the burden of showing that there is no genuine dispute as
to any material fact.29 Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, the moving party need not present evidence to show that
summary judgment is warranted; it need only point out the lack of any genuine dispute
as to material fact.30 Once the moving party has met this burden, the nonmoving party
24Doc. 36 at 5 ¶ 19.
25Fed. R. Civ. P. 56(a).
26Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
27Id.
28Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
29Id. at 323.
30Id. at 323–25.
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must set forth evidence of specific facts showing the existence of a genuine issue for
trial.31 All evidence presented by the non-movant must be believed for purposes of
summary judgment and all justifiable inferences must be drawn in favor of the
non-movant.32 However, the non-moving party may not rest upon mere allegations or
denials, but must show that there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.33
IV. DISCUSSION
A. Advantage Is Not Liable for Failing to Properly Triage or Manage the Code
Advantage argues that it cannot be held liable for failing to properly triage or
manage the code because Plaintiffs lack any evidence in support of either claim. By
expressly abandoning their failure to triage claim against the Advantage defendants34
and implicitly abandoning their failure to manage the code claim against the Advantage
defendants (by not coming forth with any evidence of code mismanagement), Plaintiffs
have abandoned both claims against Advantage.
B. Plaintiffs’ Failure to Promptly Resuscitate Claim Against Advantage Fails
As a Matter of Law
Plaintiffs allege that the Advantage defendants committed malpractice by waiting
five minutes before starting resuscitation.35 The only evidence Plaintiffs offer in support
of this claim is the fact that the first entry on Tate’s code sheet, from 7:55 p.m., states
that Tate had developed asystole and “compressions started.”36 Plaintiffs’ reliance on
31Anderson, 477 U.S. at 248–49.
32Id. at 255.
33Id. at 248–49.
34Doc. 99 at 12.
35Doc. 86-3 at 4; doc. 86-14 at 1.
36Doc. 86-3 at 4.
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this entry is misplaced because the record shows that CPR was already underway by
the time the code charting commenced. Moughamian testified that CPR was already
underway when he started recording the code. Thus, either Snyder or Amis began
CPR at some point before 7:55 p.m. Snyder testified that she began CPR immediately
after calling code, and Amis testified that he went straight to Tate’s room when he
heard the code and began CPR. Because no evidence supports Plaintiffs’ claim that
there was a five-minute delay between when Snyder discovered Tate non-responsive
and when CPR was commenced, Plaintiffs’ failure to promptly resuscitate claim against
the Advantage defendants fails as a matter of law.
C. Plaintiffs’ Failure to Monitor Claim Is Not Necessarily Barred by the Alaska
Supreme Court’s Likely Rejection of the Lost Chance Rule
Advantage argues that Plaintiffs’ remaining claim for failure to properly monitor
Tate lacks merit because (1) Plaintiffs cannot show by a preponderance of the evidence
that Advantage’s alleged negligence caused Tate’s injuries and (2) Plaintiffs cannot
recover under the lost chance rule because the rule is not recog nized in Alaska. The
court will address Advantage’s arguments in reverse order.
1. Crosby v. United States
The lost chance rule arises in cases where the plaintiff with a preexisting
condition cannot show by a preponderance of the evidence that the defendant’s
negligence, as opposed to the preexisting condition, caused the plaintiff’s ultimate
injury. This fact pattern commonly arises in the context of medical malpractice cases
where the plaintiff alleges untimely diagnosis or treatment.37 If the evidence shows, for
example, that “the patient might have had only a 40% chance of living” if “diagnosis and
treatment had been timely” and the defendant’s negligence completely deprived her of
that chance, the plaintiff cannot “prove by a preponderance of the evidence that the
37See Dan B. Dobbs, et al., THE LAW OF TORTS § 196 (2d ed. 2016).
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defendant caused the patient’s death.”38 To the contrary, “the probability is 60% that
the defendant did not cause the death in spite of his negligence.”39 Under these
circumstances, some courts allow the plaintiff to recover under what has become
known as the lost chance rule, which comes in two versions.40
Under one version, sometimes referred to as the “separate injury” version,41 the
lost opportunity itself is characterized as the plaintiff’s legally cognizable harm and
valued accordingly.42 “When the plaintiff provides evidence quantifying her chances for
survival, the easiest calculation is one that discounts total dam ages by the plaintiff’s
chance.”43 Using the above example, the defendant would be liable for 40% of the
plaintiff’s total damages.44 Although the defendant may not have caused the plaintiff’s
unfavorable outcome, the defendant is liable for causing the loss of the plaintiff’s
chance of avoiding that outcome.45 “This version does not actually affect the
substantive test of causation; it merely changes the definition of the injury. The plaintiff
can prove causation for that injury under the traditional ‘but for’ test.”46
38Id.
39Id. (emphasis in original).
40See RESTATEMENT (THIRD) OF TORTS § 4 reporter’s note to cmt. f (2000) (collecting
cases).
41See, e.g., Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 402 (Tex. 1993).
42See RESTATEMENT (THIRD) OF TORTS § 26 cmt. n (2010).
43Dan B. Dobbs, et al., THE LAW OF TORTS § 196 (2d ed. 2016).
44Id.
45Id.
46RESTATEMENT (THIRD) OF TORTS § 4 reporter’s note to cmt. f (2000). See also
RESTATEMENT (THIRD) OF TORTS § 26 cmt. n (2010) (“Once the harm is reconceptualized as the
lost opportunity, the factual-cause inquiry changes.”).
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The second version of the lost chance rule, sometimes referred to as the
“relaxed causation” version,47 “actually changes the standard for proving causation.”48 It
allows a plaintiff to recover an award for the entire loss if the defendant’s negligence
was a “substantial factor” in producing the harm, disregarding the fact that the harm
was likely to occur even if the defendant had not been negligent.49 “Not all the cases
that permit a full recovery are explicit about the reasoning,” but the general idea is that
full recovery is appropriate because the defendant’s negligence combined with the
preexisting condition to create a single indivisible injury.50
In 1999 this court, in Crosby v. United States, held that the Alaska Supreme
Court would likely decline to adopt either version of the lost chance rule.51 The court
provided five reasons for its holding. Two reasons were case-specific,52 but the
remaining three apply generally.
First, the court held that the lost chance rule “disrupts traditional causation
principles set forth” at AS 09.55.540, which “clearly and unambiguously requires
plaintiffs to establish that a defendant’s alleged negligence was more likely than not the
47See, e.g., Kramer, 858 S.W.2d at 401.
48RESTATEMENT (THIRD) OF TORTS § 4 reporter’s note to cmt. f (2000).
49See Dan B. Dobbs, et al., THE LAW OF TORTS § 196 (2d ed. 2016); RESTATEMENT
(THIRD) OF TORTS § 4 cmt. f (2000) (“In some jurisdictions, the lost-chance doctrine allows a
plaintiff to recover damages for the entire injury on a showing that the defendant substantially
increased the risk of that injury.”).
50Dan B. Dobbs, et al., THE LAW OF TORTS § 196 (2d ed. 2016).
5148 F.Supp.2d at 924, 931–32 (D. Alaska 1999). The court also discussed a third
version of the lost chance rule that is based on the Restatement (Second) of Torts § 323. Id. at
926. But, as the court noted, § 323 does not support the rule because that section addresses
duty, not causation. Id. at 927 n.12. See also RESTATEMENT (THIRD) OF TORTS § 26 reporter’s
note to cmt. n (2010) (courts’ “reliance on § 323 is misplaced.”).
5248 F. Supp. 2d at 931–32 (the plaintiff had not identified which version of the lost
chance rule she wanted the court to apply and her cause of action was for wrongful death, not
general negligence).
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cause of injury.”53 “Recognizing a ‘loss of chance’ theory,” the court reasoned, “would
enable [a] plaintiff to recover even when her injury was not proximately caused by the
defendant.”54 Because the “separate injury” version does not affect the causation
requirement, this reason applies only to the “relaxed causation” version of the lost
chance rule.
Second, the court held that “the ‘loss of chance’ doctrine in medical malpractice
cases involves significant and far-reaching policy concerns affecting the quality and
cost of health care which are best left to the Alaska State Legislature to address and
resolve.”55 And third, if the Alaska Legislature were to consider whether to adopt the
lost chance rule, it would likely be persuaded by the arguments against adopting the
rule, in part because the rule is ill-suited to the realities of medical care in rural Alaska
where providers “cannot make all potentially beneficial tests and procedures available
at anything approaching a reasonable cost.”56
2. Post-Crosby developments
In the almost eighteen years since Crosby was decided, neither the Alaska
Supreme Court nor the Alaska Legislature has definitively resolved whether the lost
5348 F. Supp. 2d at 931.
54Id.
55Id. See also Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1241 (Alaska
2003) (“These policy choices are for the legislature. Our job here is to determine what choice
the legislature made.”); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1054 (Alaska 2002)
(quoting Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d
447, 452 (Alaska 1974)) (“The plaintiffs ask us to delve into questions of policy formulation that
are best left to the legislature. As we have noted previously, ‘[i]t is not a court’s role to decide
whether a particular statute or ordinance is a wise one; the choice between competing notions
of public policy is to be made by elected representatives of the people.’”); Universal Motors, Inc.
v. Neary, 984 P.2d 515, 517 (Alaska 1999) (“Whether the benefit from the additional incentive
for joining all potentially liable actors supplied by the one-action rule is outweighed by the
detriment resulting from the complications of multi-party litigation is a policy question best left to
the legislature.”).
56Crosby, 48 F. Supp. 2d at 932.
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chance rule is good law in Alaska.57 The Alaska Supreme Court came close to doing so
in 2012 when it granted a petition for review that addressed the issue, but the court
dismissed the petition as improvidently granted because it was split “on the question
whether the loss-of-chance doctrine is consistent with Alaska law.”58 In the absence of
a definitive resolution to this question, plaintiffs continue to bring lost chance claims in
Alaska courts.59 Nevertheless, there have been no developments indicating that
Crosby was wrongly decided, and the court stands by its prediction that the Alaska
Supreme Court will not recognize the lost chance rule.
3. Advantage has not established that Plaintiffs must rely on the lost
chance rule
Plaintiffs’ failure to monitor claim is only extinguished by Crosby if Plaintiffs
cannot show by a preponderance of the evidence that defendants’ negligence caused
Tate to suffer her ultimate injury. Advantage argues that Plaintiffs cannot do so here
57Two post-Crosby courts appear to conclude that the Alaska Supreme Court has
generally recognized the lost chance rule. Wright v. St. Mary’s Med. Ctr. of Evansville, Inc., 59
F. Supp. 2d 794, 801 n.2 (S.D. Ind. 1999) (“Some courts have viewed chances as interests
worthy of protection in their own right . . . .”) (citing, inter alia, Van Gulik v. Resource Dev.
Council for Alaska, Inc., 695 P.2d 1071, 1073–74 (Alaska 1985) (plaintiff could recover
damages proportional to lost chance of winning lottery under Restatement (Second) of
Contracts § 348(3)); Milam v. Dominick’s Finer Foods, Inc., 588 F.3d 955, 958 (7th Cir. 2009)
(“Loss of a chance—a probabilistic injury—is a proper damages theory.”) (citing, inter alia,
DeNardo v. GCI Commc’n Corp., 983 P.2d 1288, 1290–92 and n.9 (Alaska 1999) (plaintiff could
have recovered damages under Van Gulik based on lost chance of winning sweepstakes
prizes)). Van Gulik and DeNardo are inapposite, however, because they involve contract law
and a lost chance to win, which is simply not the factual situation presented in medical
malpractice cases. Compare, e.g., Miller v. Allstate Ins. Co., 573 So. 2d 24, 29 (Fla. Dist. Ct.
App. 1990) (recognizing lost chance rule in contract case), with Gooding v. Univ. Hosp. Bldg.,
Inc., 445 So. 2d 1015, 1020 (Fla. 1984) (rejecting lost chance rule in medical malpractice case).
58Dobbins v. Providence Alaska Med. Ctr., No. S-13334 (Alaska Jan. 27, 2012) (order
dismissing petition).
59See, e.g., Hagen v. Strobel, 353 P.3d 799, 801 (Alaska 2015) (estate claimed that
cardiologists’ failure to relay radiologist’s recommendations to patient “failed to meet prevailing
standards of medical care, resulting in a lost chance of survival” for patient with lung cancer).
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because Plaintiffs’ expert, Dr. Diane Sixsmith, cited a study published in The Lancet60
that found that only 15.4% of all patients who experience in-hospital cardiac arrest
survive to discharge,61 and a portion of the surviving patients suffer either severe
disability, coma or vegetative state, or brain death.62 Advantage argues that the Lancet
study shows that once Tate went into cardiac arrest she had less than a 15% chance of
avoiding death or severe disability, and therefore Plaintiffs cannot show that
Advantage’s negligence was the likely cause of her injury.63
The Lancet study and the various other studies that Advantage cites64 might
seem to support a verdict in Advantage’s favor. But, because these general studies do
not definitively establish Tate’s own probability of suffering injury, and Plaintiffs have set
forth sufficient contrary evidence, a genuine dispute as to material fact precludes
summary judgment.
As Plaintiffs point out, Advantage’s studies do not take into consideration all of
the variables that are in play in this case, including the alleged provider negligence and
Tate’s individualized risk factors given her relatively young age and otherwise good
health.65 According to Dr. Sixsmith, “most” of the patients in the Lancet study were
“considerably more ill and [had] significant pre-existing pathology compared to
Ms. Tate.”66 Indeed, the fact that Tate was among the 15% who survived in-hospital
60Doc. 100-2 at 2.
61Doc. 86-4 at 5.
62Id. at 2 (defining a “favourable [sic] neurological status” as either “no major disability”
or “moderate disability,” as opposed to “severe disability, coma or vegetative state, and brain
death”); doc. 86-4 at 5 (stating that 80.6% of patients “who survived to discharge and had
assessments of cerebral performance category had a favourable [sic] neurological status.”).
63Doc. 86 at 7.
64Id. at 6.
65Doc. 99 at 21-22.
66Doc. 100-2 at 2.
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cardiac arrest provides some support for Dr. Sixsmith’s assertion that Tate’s
circumstances were anomalous. On top of that, Dr. Sixsmith has offered her opinion
that Tate’s injury “was caused by circumstances surrounding her resuscitation;”67 it is
“more likely than not” that Tate’s injury would not have occurred had she “been
appropriately monitored and observed;”68 and it is likely that Tate would have survived
the cardiac arrest “with her brain intact, meaning without lasting hypoxic injury or
damage,” but for defendants’ negligence.69 This evidence is sufficient to create a
genuine dispute as to material fact.
V. CONCLUSION
For the reasons set forth above, Advantage’s motion at docket 86 is GRANTED
IN PART and DENIED IN PART as follows: judgment will be entered in Advantage’s
favor on Plaintiffs’ claims against the Advantage defendants for failure to triage, failure
to manage the code, and failure to promptly resuscitate. In all other respects,
Advantage’s motion is denied. This order does not resolve any of Plaintiffs’ claims
against any of the remaining defendants.
DATED this 6th day of March 2017.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
67Doc. 100-1 at 2.
68Id. at 3.
69Doc. 100 at 2 ¶ 7.
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