Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Joseph A. Kendhammer, SBN 009156 Jeanne E. Varner Powell, SBN 017535 Kendhammer & Colburn, L.L.P. 394 North Third Avenue Phoenix, Arizona 85003 (602) 340-9900 Attorneys for Defendant Mesa General Hospital, L.P. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Wyvonna M. Barnett, Plaintiff, vs. Bashas, Inc., et al., Defendants. ) ) ) Case No. CV-03-2566-PHX-ROS ) ) DEFENDANT MESA GENERAL ) HOSPITAL'S REPLY IN SUPPORT OF ) MOTION FOR SUMMARY JUDGMENT ) ) ) ) ) ) )

Plaintiff's Response to Mesa General Hospital's Motion for Summary Judgment only underscores the fact that she cannot establish a prima facie case of medical negligence. Given the woefully inadequate response, this Court should grant the Motion for Summary Judgment without further delay. Plaintiff concedes that she will not offer expert testimony in this case. Without expert testimony, she cannot meet her burden to establish the standard of care, prove a breach of the standard of care and demonstrate how any breach caused her damage. Moreover, Plaintiff has not presented any evidence to show that any Mesa General Hospital employee was negligent while caring for Ms. Barnett. Rather, Plaintiff relies solely on medical records which contradict her claims that she suffered an injury as a result of substandard nursing care. MEMORANDUM OF POINTS AND AUTHORITIES I. Expert Medical Testimony
-1-

Case 2:03-cv-02566-ROS

Document 85

Filed 09/13/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Plaintiff concedes that she will not offer the required expert testimony in support of her medical negligence claims. In an attempt to avoid summary judgment, she now argues that is a res ipsa loquitur case. Her argument lacks merit because this is not one of the handful of cases to which the res ipsa loquitur doctrine can be applied. "The res ipsa doctrine will only be applied when it is a matter of common knowledge among laymen or medical men, or both, that the injury would not ordinarily have occurred if due care had been exercised." See McWain v. Tucson General Hospital, 137 Ariz. 356, 359, 670 P.2d 1180, 1183 (Ct. App. 1983); see also RAJI (Civil) 4th Negligence 7. In the case at bar, Plaintiff has not offered any evidence to support her claim that an arteriovenous (AV) fistula results from medical negligence. In fact, she has not disclosed any medical testimony, research or literature on fistulas. Laypeople on a jury likely will not even know what an AV fistula is, let alone what causes one. Plaintiff is not prepared to explain whether a fistula develops during surgery or postoperatively. In short, she cannot dispute that a fistula is a normal risk of multiple angioplasty procedures involving placement of sheaths in the groin area. Given the total lack of medical evidence, Plaintiff should not be allowed to proceed to the jury with her unfounded accusations about who and what caused her to develop an AV fistula. II. Vicarious Liability Plaintiff's response virtually ignores the vicarious liability issues raised by MGH's Motion for Summary Judgment. MGH is only responsible for the negligent conduct of its employees. Plaintiff has not disclosed any evidence to establish that Advanced Cardiac Specialists' physicians and cath lab personnel are agents or employees of MGH. Yet her claims of medical negligence focus almost entirely on what occurred in the cath lab and during the third surgery by Dr. Eckhauser. To avoid summary judgment, Plaintiff is obligated to come forward and present evidence to create a factual dispute about whether MGH employed the healthcare providers at issue. Plaintiff's response utterly fails to do this. In fact, her response does not

-2-

Case 2:03-cv-02566-ROS

Document 85

Filed 09/13/2005

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

refute or even address (a) the ACS-MGH agreement establishing that the cath lab is owned, managed, and separately licensed by ACS, or (b) the affidavit submitted by Cathy Stevens that confirms that none of the ACS physicians or cath lab personnel are MGH employees. Given Plaintiff's inability to establish that MGH would be vicariously liable for any negligent acts committed by ACS personnel and physicians, it is appropriate for this Court to summarily dismiss Plaintiff's claims.

DATED this 13th day of September, 2005.

KENDHAMMER & COLBURN, L.L.P.

s/_________________________________ Joseph A. Kendhammer Jeanne E. Varner Powell Attorneys for Defendant Mesa General Hospital, L.P. ORIGINAL filed this same date with: Clerk of Court U.S. District Court for District of Arizona Honorable Roslyn O. Silver COPIES mailed this same date to: Wyvonna M. Barnett 506 East McKamey Payson, AZ 85541 Plaintiff Pro Per Rachel M. Bacalzo Sherman & Howard 1850 North Central Avenue Suite 500

-3-

Case 2:03-cv-02566-ROS

Document 85

Filed 09/13/2005

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Phoenix, Arizona 85004 Attorney for Defendant Bashas

______________________________________

-4-

Case 2:03-cv-02566-ROS

Document 85

Filed 09/13/2005

Page 4 of 4