Opinion
Civil Action No. 18-cv-00873-CMA-KMT
08-26-2020
MICHAEL MARTINEZ, TRAVIS MARTINEZ, FABIAN MARTINEZ, ANGELINA MARTINEZ, and JOSHUA MARTINEZ, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on "Defendant's Motion for Summary Judgment" (Doc. No. 42 [Mot.], filed December 5, 2019). Plaintiffs responded in opposition (Doc. No. 53 [Resp.], filed February 4, 2020), and Defendant replied (Doc. No. 59 [Reply], filed February 18, 2020).
BACKGROUND
Plaintiffs brought this medical malpractice suit pursuant to the Federal Tort Claims Act ("FTCA"), alleging that the treatment provided to Sophia Martinez at Evans Army Community Hospital ("EACH") for her rare and aggressive type of cancer fell below the standard of care, contributing to her death. Plaintiffs claim that a delay in Ms. Martinez's treatment in the period from November 19, 2013 to February 5, 2014 fell below the standard of care.
PRELIMINARY MATTERS
Plaintiffs were represented by counsel at the time this suit was filed and well into the discovery phase, including through the disclosure of experts and responses to Defendant's discovery requests. On April 4, 2019, Plaintiffs' attorney filed a Motion to Withdraw, stating that, after he participated in conference call with Defendant's medical expert, he believed he could not continue to represent Plaintiffs consistent with his obligations under Federal Rule of Civil Procedure 11. (See Doc. No. 34, ¶ 1.) Along with the Motion to Withdraw, Plaintiffs' attorney sent Plaintiffs a letter in which he advised them that, once his Motion to Withdraw was granted, they had the burden of keeping the court and the other parties informed where notices, pleadings or other papers may be served; that if they failed or refused to comply with all court rules and orders, they may suffer possible dismissal, default or other sanctions; and that they were personally responsible for complying with all court orders and time limitations established by any applicable rules. (Doc. No. 34-1.) The Court granted the Motion to Withdraw and noted that "Plaintiffs have been notified by counsel of their obligation to prepare for any hearings or trial and respond to any motions or deadlines, or hire other counsel to prepare for any such hearings, trial, or motions." (Doc. No. 35.) Plaintiffs are now proceeding pro se.
In their response to the Motion, Plaintiffs suggest that the Court should deny the Motion for Summary Judgment because Plaintiffs' former attorney withdrew from representation. (Resp. at 7-8.) While Plaintiffs were represented, they retained an expert and had every opportunity to engage additional experts. After their attorney withdrew from this case, Plaintiffs received two extensions of time to allow them to locate new representation and to meet various deadlines. (Doc. Nos. 36, 38, 39 & 41.) After their attorney withdrew, Plaintiffs never specifically asked for extensions of the deadlines to disclose experts. Plaintiffs' failure to obtain new representation and to obtain additional expert is not grounds for denial of Defendant's Motion for Summary Judgment.
Plaintiffs also contend in their response that the Motion for Summary Judgment should be denied as to Plaintiff Fabian Martinez, who was substituted as a party in his own name after reaching the age of majority and after Defendant filed its Motion for Summary Judgment. (Doc. Nos. 49 & 50.) Plaintiffs argue Plaintiff Fabian Martinez "has not had his independent right to pursue his claim" and "should be able to pursue and advance his claim in his own right in a fresh and new manner." (Resp. at 2.) However, Plaintiffs failed to make this argument in their Motion to Substitute and Amend Caption (Doc. No. 49) or since that time, and Plaintiffs fail to provide support for this argument in their response to the Motion for Summary Judgment. The substitution of Plaintiff Fabian Martinez as a plaintiff once he reached the age of majority is not a basis to deny the Motion for Summary Judgment.
UNDISPUTED MATERIAL FACTS
Plaintiffs' Statement of Contested Facts in response to the Motion for Summary Judgment does not respond directly to Defendant's Statement of Undisputed Material Facts. Specifically, Plaintiffs' response does not address Defendant's Undisputed Material Facts numbers 1, 10-13, and 16-22. To the extent Plaintiffs did not respond to those Undisputed Material Facts, those facts are deemed undisputed for the purposes of this motion. See Fed. R. Civ. P. 56(e)(2); see also, e.g., Cox v. Zavislan, No. 11-cv-02554-RM-MEH, 2014 WL 5477794, at *4 (D. Colo. Oct. 23, 2014) (considering material facts identified in defendant's motion for summary judgment to be admitted where pro se plaintiff did not dispute them in his response to the motion).
Also, contrary to District Judge Christine M. Arguello's practice standards, Plaintiffs did not identify the locations in the record of facts they contend establish the element Defendant identified as lacking in proof. See CMA Civ. Practice Standard 7.1E(b)(2)(C). In fact, Plaintiffs did not provide any citations to specific evidence in the record to support their allegations styled as "Statement of Contested Facts." (See Resp. at 3-5.) At the summary judgment stage, it is incumbent upon the responding party to identify "significant probative evidence" to support their claims; they may not rely solely on "unsupported allegations." White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995) (citation omitted).
The following are the undisputed material facts in this matter, which have been asserted by Defendant and are not disputed by Plaintiffs. See Fed. R. Civ. P. 56(e)(2); Cox, 2014 WL 5477794, at *4:
1. At all times relevant to the events alleged in the Complaint, EACH had a daily, active capacity of 44 patient beds, with the potential for that capacity to surge to a maximum of 76 beds under emergency conditions. (Doc. No. 42-1 [Movant's App.] at 2 - Lee Decl. ¶ 2.)
2. Sophia Martinez discovered a lump in her right breast in October 2013. (Doc. No. 42-1 [Movant's App.] at 169 - Martinez Depo. at 6:22-25.)
3. On November 19, 2013, at 6:04 a.m., Ms. Martinez contacted EACH, seeking an appointment regarding that lump. (Movant's App. at 2 - Lee Decl. ¶ 3; at 4-5, 7-8 - EACH Records.) Ms. Martinez obtained an appointment at 9:00 a.m. that same morning. (Id.) She was initially seen by Madelyn McKennan, a nurse practitioner. (Movant's App. at 7-16 - EACH Records.) Nurse Practitioner McKennan ordered a diagnostic mammogram and ultrasound for Ms. Martinez. (Movant's App. at 12, 14 - EACH Records.)
4. On December 17, 2013, Ms. Martinez underwent a diagnostic mammogram and ultrasound. (Movant's App. at 127-28 - EACH Records.) The mammogram indicated a "suspicious abnormality" in the form of a 2.8-by-2.1-centimeter mass in her right breast, and it was recommended that she undergo a biopsy. (Id.)
5. On January 3, 2014, Ms. Martinez met with Dr. Brandon Brown, a surgeon at EACH, to discuss her treatment options for the lump in her breast. (Movant's App. at 126-27 - EACH Records.) Dr. Brown palpated what he estimated to be a five-centimeter mass in Ms. Martinez's right breast. (Movant's App. at 127 - EACH Records.) Dr. Brown agreed with conducting the scheduled core needle biopsy, and he opined that "[r]egardless of the results the stoma mass will require surgical excision. If the results return as breast cancer, will discuss a followup surgical treatment options." (Movant's App. at 128 - EACH Records.)
6. On January 14, 2014, Ms. Martinez underwent a biopsy of the lump in her right breast. (Movant's App. at 124-25 - EACH Records.) The initial biopsy results were inconclusive but suggested that the mass was consistent with fibromatosis. (Id.) The biopsy was sent to the Joint Pathology Center for further expert pathological consultation. (Movant's App. at 133-34 - EACH Records.)
Fibromatosis is a condition associated with the growth of fibromas, a type of benign tumor. See Fibromatosis, Merriam-Webster Medical Dictionary, available at https://www.merriam webster.com/medical/fibromatosis.
7. On January 21, 2014, Ms. Martinez had a follow-up appointment with Dr. Brown. (Movant's App. at 123-25 - EACH Records.) Dr. Brown noted that the initial pathology results indicated "fibromatosis which is a likely aggressive tumor but not a malignancy." (Movant's App. at 125 - EACH Records.) He discussed with Ms. Martinez the diagnosis and his recommendation of "aggressive wide local excision with negative margins as primary treatment." (Id.) Dr. Brown indicated he was "[a]waiting the second opinion" on Ms. Martinez's pathology results, and that the surgical excision would be scheduled "after the pathology results have returned from the pathology specialists." (Id.)
8. On February 4, 2014, the Joint Pathology Center issued a final report, indicating that Ms. Martinez's biopsy specimen showed an atypical spindle cell neoplasm, and that a low-grade malignancy could not be excluded. (Movant's App. at 133 - EACH Records.) The pathology report indicated that a definitive diagnosis could not be rendered based on the biopsy. (Id.)
This refers to a tumor containing spindle cells, so called due to their particular shape. See Neoplasm, Merriam Webster Medical Dictionary, available at https://www.merriam-webster.com/dictionary/neoplasm; Spindle Cell Tumor, National Cancer Institute Dictionary of Cancer Terms, available at https://www.cancer.gov/publications/dictionaries/cancer-terms/def/spindle-cell-tumor.
9. Dr. Brown was informed of the Joint Pathology Center's findings on February 4, 2014. (Movant's App. at 134 - EACH Records.) The next day, he advised Ms. Martinez of those findings, including the possibility of malignant sarcoma. (Movant's App. at 142 - EACH Records.) He recommended that she undergo a mastectomy, rather than the lumpectomy that had previously been planned. (Id.)
10. Sarcomas are an especially rare type of malignant tumor, comprising less than 1% of all adult malignancies, and they can be particularly difficult to diagnose. (Movant's App. at 39 - Agulnik Report; at 81- Durand Report; at 27 - Stark Depo. at 27:5-13, 27:21-23.) Soft tissue sarcomas such as Ms. Martinez's grow at different rates depending on the tumor's aggressiveness. (Movant's App. at 40 - Agulnik Report.)
11. On February 5, 2014, Dr. Brown performed a complete mastectomy of Ms. Martinez's right breast. (Movant's App. at 143 - EACH Records.)
12. Following the mastectomy, pathology results revealed that Ms. Martinez had a stromal sarcoma, grade 2 on a scale of 4. (Movant's App. at 130 - EACH Records.) The sarcoma was five centimeters in its greatest dimension. (Movant's App. at 140 - MD Anderson Records.)
A stromal sarcoma is one arising in the connective tissue. See Stromal Tumor, National Cancer Institute Dictionary of Cancer Terms, available at https://www.cancer.gov/publications/dictionaries/cancer-terms/def/stromal-tumor.
13. After successful treatment of their primary sarcoma, approximately 25% of patients will develop distant metastatic disease. (Movant's App. at 40 - Agulnik Report.) That incidence increases to 40% to 50% for patients, like Ms. Martinez, who present with intermediate or high-grade sarcomas. (Id.)
14. The pathology findings following Ms. Martinez's mastectomy indicated a positive anterior margin; "positive margin" meaning that the excised area surrounding the sarcoma was not clear and that the excision had cut through the tumor, rather than completely around it to create a negative margin. (Movant's App. at 131 - EACH Records; at 38 - Agulnik Report; at 33 - Stark Depo. at 88:7-9.)
15. On March 18, 2014, Ms. Martinez underwent a re-excision for the positive anterior margin from her first surgery. (Movant's App. at 144 - EACH Records; at 39 - Agulnik Report.) Repeat pathology from this second surgery revealed no residual sarcoma, meaning the initial surgery would be considered to have negative margins. (Movant's App. at 144-45 - EACH Records; at 42 - Agulnik Report.)
16. On January 29, 2015, Ms. Martinez presented to EACH with low back pain. (Movant's App. at 112-13 - EACH Records.) Radiologic images of her back revealed moderately severe degenerative disc disease. (Id.)
17. On April 1, 2015, Ms. Martinez presented to EACH with a dry cough. (Movant's App. at 99, 103 - EACH Records.) An x-ray revealed bilateral metastases in her lungs, and a PET scan revealed innumerable mass legions in her chest, consistent with metastatic disease. (Movant's App. at 98, 105-06 - EACH Records.)
18. Ms. Martinez subsequently consulted with doctors at MD Anderson Cancer Center, who confirmed pathology findings of an intermediate to high grade spindle cell sarcoma. (Movant's App. at 135-37, 140 - MD Anderson Records.)
19. On June 26, 2015, Ms. Martinez died as a result of her highly aggressive metastatic sarcoma. (Movant's App. at 146 - Death Cert.; at 41 - Agulnik Report.)
20. The opinions of Plaintiffs' expert, Dr. James Stark, regarding the proper timeframe for addressing a patient's complaint of a breast lump apply to hospitals in the United States of approximately 150 or more patient beds. (Movant's App. at 29, 31 - Stark Depo. at 64:22-65:1; 67:5-10; 72:19-25.) Dr. Stark does not opine that any individual treatment provider violated the standard of care in treating Ms. Martinez. (Movant's App. at 34 - Stark Depo. at 110:16-19.)
21. A study conducted by Dr. Karl Bilimoria, a surgical oncologist with expertise in sarcoma, found that the median wait time between diagnosis and surgery for breast cancer patients was 22 days, not accounting for the time period prior to diagnosis. (Movant's App. at 66 - Bilimoria Article; at 42 - Agulnik Report.) Another study found the average time between mammogram and treatment for cancer was just over 65 days. (Movant's App. at 72 - Selove Article; at 42 - Agulnik Report.)
22. Guidelines promulgated by the Center for Disease Control (CDC)'s National Breast and Cervical Cancer Early Detection Program state that practitioners should aspire to obtain a diagnosis within 60 days of an abnormal screening, and to initiate treatment within 60 days of diagnosis. (Movant's App. at 42-43 - Agulnik Report.) Under these guidelines, treatment should ideally occur within 120 days of presentation. (Id.)
STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. The following axioms have a bearing on summary judgment disposition—i.e., (1) that "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); (2) "the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue" id. at 256; and (3) "the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor." Id. at 257.
Moreover, because Plaintiffs are proceeding pro se, the court, "review[s] [their] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.
ANALYSIS
A. Burden of Proof and Elements of Negligence Claim
In cases brought against the United States pursuant to the FTCA, "state substantive law applies." Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004). Under Colorado law, to prevail on a negligence claim, a plaintiff bears the burden to prove the following elements: (1) a legal duty of care on the defendant's part, (2) breach of that duty, (3) injury to the plaintiff, and (4) that the defendant's breach caused the plaintiff's injury. Gallardo v. United States, 752 F.3d 865, 870 (10th Cir. 2014) (citation omitted).
In most cases, sufficient proof of the breach of duty of care requires expert opinion testimony:
To establish a breach of the duty of care in a medical malpractice action, the plaintiff must show that the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant. That standard of care is measured by whether a reasonably careful physician of the same school of medicine as the defendant would have acted in the same manner as did the defendant in treating and caring for the patient. Thus, the standard of care for medical malpractice is an objective one.
Unless the subject matter of a medical malpractice action lies within the ambit of common knowledge or experience of ordinary persons, the plaintiff must establish the controlling standard of care, as well as the defendant's failure to adhere to that standard, by expert opinion testimony. The reason for the requirement of expert opinion testimony in most medical malpractice cases is obvious: matters relating to medical diagnosis and treatment ordinarily involve a level of technical knowledge and skill beyond the realm of lay knowledge and experience. Without
expert opinion testimony in such cases, the trier of fact would be left with no standard at all against which to evaluate the defendant's conduct.Gallardo,752 F.3d at 871 (quoting Day v. Johnson, 255 P.3d 1064, 1068 (Colo.2011); Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990)) (internal citations and quotation marks omitted). B. Standard of Care and Delay in Treatment
Defendant argues that Plaintiffs cannot establish that purported delays in Ms. Martinez's treatment breached the standard of care because (1) the standard of care Plaintiffs allege Defendant breached is merely an aspirational goal for treatment; (2) the standard of care Plaintiffs allege would not apply to a hospital of EACH's size; and (3) Plaintiffs do not offer expert opinion that any individual treatment provider breached the standard of care. (Mot. at 9-18.)
1. Standard of Care Versus Aspirational Goal
Plaintiffs must establish that the defendant "failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by defendant." Gallardo, 752 F.3d at 871 (quoting Day, 255 P.3d at 1069 (Colo. 2011)) (emphasis added).
Plaintiffs offer the testimony of one expert, Dr. Stark, to support their claim that EACH breached the applicable standard of care. Dr. Stark opined that there were unreasonable delays in Ms. Martinez's care. (Movant's App. at 17, 19-20 - Stark Reports.) Specifically, he testified that the time from when a patient (or her doctor, if the patient contacts the doctor in the first instance) first contacts a hospital-based cancer program with a complaint of a breast lump until the patient receives a biopsy (or until the biopsy results are returned, or until the patient's "team is assembled") should be no more than two weeks. (Movant's App. at 30-32 - Stark Depo. at 69:1-20, 70:14-21, 71:12-23, 73:1-6, 74:4-11, 78:3-79:2.) Plaintiffs' expert, Dr. Stark opined that the time that passed between when Ms. Martinez complained of a breast lump on November 19, 2013, when she had her mammogram on December 17, 2013, and when she had a biopsy on January 14, 2014, constituted an unacceptable delay. (Movant's App. at 32 - Stark Depo. at 76:24-77:6.) Defendant argues that the two-week timeframe Dr. Stark identified for a treatment provider to take action after a patient complains of a breast lump does not reflect the care that a reasonably careful provider would ordinarily exercise. Rather, according to Dr. Stark's own testimony, this two-week timeframe is merely a "goal," a "benchmark," or a "realistic ideal." (Movant's App. at 31 - Stark Depo. at 74:16-20 ["[I]t's a goal. In other words, it's a benchmark, also. In other words, you try to get it - The goal is to get it done by two weeks, and how often you meet that goal is a measure of your success as a program."]; id. at 75:6-8 ["[I]t's what you strive for and what you should accomplish a preponderance of the time."]). An aspirational "goal" for treatment is materially different from the minimum standard of care, which is measured based on how any reasonably careful physician would have acted in the same situation. Gallardo, 752 F.3d at 871. (See also Movant's App. at 80 - Durand Report ["[T]he standard of care is supposed to be a prevailing standard informed by reality; it is not the same as an aspirational goal for a quality metric set by professional societies or health systems, and it is not a set of idealized parameters created using knowledge that was only available retrospectively."].)
Underscoring the fact that the two-week timeframe does not constitute the standard of care, Dr. Mark Agulnik, a physician who is board-certified in medical oncology and specializes in the care of patients with sarcoma, observed that he had never seen such a timeframe utilized in his practice or the medical literature. (Movant's App. at 37, 42 - Agulnik Report.)
Moreover, the undisputed evidence shows that the speed of Ms. Martinez's treatment was equal to or better than national averages and benchmarks established by federal guidelines. Dr. Stark testified that, while a provider's treatment need not exceed the treatment that other practitioners, on average, would provide, the standard of care is met where the care in a particular case approximately equaled (or was better than) the average. (Movant's App. at 26 - Stark Depo. at 23:1-12.) As shown in Dr. Bilimoria's study, the median wait time between diagnosis to cancer surgery was 22 days. (Movant's App. at 66 - Bilimoria Article; at 42 - Agulnik Report.) Another study indicated that the average time between mammogram and treatment for cancer was 65 days. (Movant's App. at 72 - Selove Article; at 42 - Agulnik Report.) Additionally, CDC guidelines establish a benchmark that practitioners should aspire to obtain a diagnosis within 60 days of an abnormal screening and initiate treatment within 60 days of diagnosis, meaning that treatment should ideally occur within 120 days of presentation. (Movant's App. at 42-43 - Agulnik Report.)
Dr. Stark acknowledged that CDC guidelines could be relevant to determining the applicable standard of care for the treatment of cancer. (Movant's App. at 26 - Stark Depo. at 22:3-15.)
Here, it is undisputed that the total time between when Ms. Martinez first presented at EACH with a complaint of a lump in her breast on November 19, 2013, and when she received definitive treatment in the form of mastectomy surgery on February 5, 2014, was 78 days—42 days faster than the timeframe recommended by the CDC. (Movant's App., p. 41-43 - Agulnik Report.) The time between when she received a diagnostic mammogram on December 17, 2013 and the February 5, 2014 surgery was 51 days, 14 days fewer than the average identified in the above-mentioned study. (Id.) And, after the Joint Pathology Center issued its final report on February 4, 2014, indicating that Ms. Martinez's biopsy was an atypical spindle cell neoplasm—even though it was not possible to render a definitive diagnosis at that time—Ms. Martinez received surgery the next day, February 5, 2014. (Movant's App. at 130, 133, 143 - EACH Records.)
Plaintiffs fail to substantively address this argument in their response. It is the Plaintiffs' burden to establish the controlling standard of care through expert testimony. See Gallardo, 752 F.3d at 871. Plaintiffs have failed to meet this burden. Their expert, Dr. Stark, testified that the timeframe he identified for treatment of Ms. Martinez's sarcoma was merely an aspirational benchmark that hospitals should strive to achieve a preponderance of the time. This is not a standard of care for the particular circumstances confronted with Ms. Martinez's unique cancer. Moreover, the undisputed evidence shows that Ms. Martinez's treatment was faster than average timeframes identified in multiple studies, as well as benchmarks laid out in CDC guidelines.
As a result, summary judgment should be granted to Defendant.
2. Standard of Care at a Hospital the Size of EACH
Dr. Stark testified that his opinions about the proper timeframe for addressing a patient's complaint of a breast lump apply to hospitals in the United States of "substantial size," meaning approximately 150 or more patient beds. (Movant's App. at 17 - Stark Report; at 28, 31 - Stark Depo. at 64:22-65:1, 67:5-10, 72:19-25.) Defendant presents undisputed evidence at, at the times relevant to the Complaint, EACH had far fewer than 150 patient beds: its daily active bed capacity was just 44 beds, with the potential to expand to 76 beds in an emergency situation. (Movant's App. at 2 - Lee Declaration ¶ 2.)
By Plaintiffs' expert's own, undisputed testimony, his purported "standard of care" that was allegedly breached in this case would not apply to EACH because it had far fewer than 150 patient beds. Plaintiffs have provided no evidence as to what standard of care would apply to a facility of EACH's size and have failed to respond to Defendant's argument. Defendant is entitled to summary judgment on this basis as well.
3. FTCA Liability
Liability under the FTCA must be premised on acts or omissions of federal employees. See Haceesa v. United States, 309 F.3d 722, 729 (10th Cir. 2002). The jurisdictional grant and waiver of sovereign immunity afforded by the FTCA allows for claims against the United States for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government" acting within the scope of his employment. 28 U.S.C. § 1346(b)(1) (emphasis added). This waiver of immunity does not include injury caused by the government itself or any agency or entity of the government. Rather, the language "unmistakably is couched in the language of an employer's respondeat superior liability"—i.e., liability for the wrongful acts and omissions of its employees. Haceesa, 309 F.3d at 728 (citing 28 U.S.C. § 1346(b)); see also Johnson v. Sawyer, 47 F.3d 716, 730 (5th Cir. 1995) ("All FTCA liability is respondeat superior liability.") As the Tenth Circuit recognized, the waiver of sovereign immunity must be strictly construed in favor of the sovereign with any ambiguity construed against enlargement of the waiver. See Haceesa, 309 F.3d at 728.
Plaintiffs' expert Dr. Stark testified he does not opine that any individual treatment provider violated the standard of care in treating Ms. Martinez. (Movant's App. at 34 - Stark Depo. at 110:16-19 ["Q: Just so I understand, you're not opining that any particular individuals violated the standard of care; is that correct? A: That is correct."].) Rather, he focuses on what he contends is breach of the standard of care by EACH (the hospital) in the treatment it provided. (Movant's App. at 17 - Stark Report ["For EACH to have subjected Ms. Martinez to the delays described above is beneath the applicable standard of care and contributed materially to her poor outcome."].)
Plaintiffs' response appears to suggest that Dr. Brown should be held accountable as a physician who treated Ms. Martinez. (See Resp. at 7.) But this contention is not supported by any citation to record evidence or, more importantly, to the expert testimony that Colorado law requires.
Because FTCA liability can only be premised on acts or omissions of federal employees, and Plaintiffs' expert has not identified the standard care for any employee of the United States, nor opined that any such employee breached the standard of care, the United States is entitled to summary judgment. C. Care Provided by Non-Specialists
Accordingly, the court need not address Defendant's argument that, under Colorado law, there is no standard of care applicable to hospitals for treatment and diagnosis. (See Mot. at 15-18.)
While a specialist physician's performance is measured against the national standards of his or her specialty, a non-specialist's performance is measured against the standards of the local medical community in which he or she practices. See Jordan v. Bogner, 844 P.2d 664, 666-67 (Colo. 1993) (en banc). Where performance is to be assessed based on the norms of local practice, it must be established that the testifying expert is familiar with the standards of practice and techniques employed in that locality. See Murphy v. Dyer, 409 F.2d 747, 749 (10th Cir. 1969).
Ms. Martinez was initially treated by a nurse practitioner—a non-specialist whose performance must be measured under the standard of the locality, specifically the area around Fort Carson, where EACH is located. Cf. Jordan, 844 P.2d at 666 (a specialist is a practitioner who "holds himself or herself out as a specialist in a particular field of medicine"). However, the record does not include any competent expert testimony regarding the treatment Ms. Martinez received from the nurse practitioner, before she began treating with specialists in oncology and surgery. Plaintiffs' expert formerly practiced in the field of medical oncology, a subspecialty of internal medicine dealing with the diagnosis and treatment of cancer. (Movant's App. at 23 - Stark Depo. at 6:23-7:12.) Other than two years in the distant past practicing in the public health service, he never practiced primary care medicine, and he acknowledged that he is not competent to provide expert testimony as to "who needs a breast biopsy based on how a lump feels." (Movant's App. at 26 - Stark Depo. at 26:16-22.) Nor did he ever practice in Colorado. (Movant's App. at 24 - Stark Depo. at 9:13-14.) Dr. Stark is not familiar with the local standard of care applicable to the nurse practitioner that Ms. Martinez initially saw, and Plaintiffs have offered no other expert testimony on this point. Though Plaintiffs mention the standard for assessing the care provided by the nurse practitioner who initially treated Ms. Martinez in their response (see Resp. at 8), they offer no citation to competent record evidence to show that the nurse practitioner breached the standard of care.
Defendant is entitled to summary judgment as to the care provided by the nurse practitioner who initially saw Ms. Martinez on November 19, 2013. See, e.g., Miller v. Krahl, No. 11-cv-02331-KMT, 2013 WL 511920, at *1 & n.1, *3 (D. Colo. Feb. 12, 2013) (granting summary judgment for defendant, in a case where plaintiff's counsel withdrew prior to the filing of defendant's motion, because plaintiffs failed to provide expert testimony to support their medical malpractice claim). D. Other Alleged Breaches of Standard of Care
Defendant argues that, to the extent Plaintiffs allege other aspects of Ms. Martinez's treatment between November 19, 2013 through February 5, 2014, breached the standard of care, it is entitled to summary judgment. These alleged breaches include failure to properly diagnose the biopsy results, failure to obtain a "clear margin" in Ms. Martinez's first surgery, her provider being unsure until the day of surgery whether a lumpectomy or mastectomy would be performed, and not ordering x-rays based on Ms. Martinez's January 2015 complaints of upper back and chest pains until April 2015. (Movant's App. at 160 - Discovery Responses; at 170 - Martinez Depo. at 62:2-25.) However, Plaintiffs acknowledge there is no expert testimony in the record to support these claims. (Movant's App. at 170 - Martinez Depo. at 63:1-65:23; see also id. at 33 - Stark Depo at 91:14-18 [opining that the purported failure to achieve a negative margin in Ms. Martinez's first surgery "is not malpractice"].)
Finally, in their response, Plaintiffs identify several theories as to how they believe Defendant breached the standard of care—pointing to a purported misdiagnosis of Ms. Martinez as "having a non-malignant fibromatosis tumor"; a supposed failure to achieve negative margins in Ms. Martinez's first surgery; medical providers giving Ms. Martinez a choice of procedures on the day she was scheduled for surgery; and certain statements and visits Ms. Martinez made to her treating physicians. (See Resp. at 9.) But Plaintiffs do not explain how these allegations establish a breach of the applicable standard of care, nor do they point to any specific record evidence to support their contentions.
Because Plaintiffs have not offered expert testimony to establish either the controlling standard of care with respect to these additional claims, or Defendant's alleged failure to adhere to that standard, Defendant is entitled to summary judgment as to those claims. See, e.g., Gallardo, 752 F.3d at 871; Miller, 2013 WL 511920, at *3.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "Defendant's Motion for Summary Judgment" (Doc. No. 42) be GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
Dated this 26th day of August, 2020.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge