Garcia v. United States , 631 F. App'x 576 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 16, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
VERONICA GARCIA, on behalf of the
minor children, PCG, PCG, VCG, and
SCG; THE ESTATE OF JORGE
ALBERTO CARRERA ALVAREZ,
Plaintiffs - Appellants,
No. 14-2226
v. (D.C. No. 2:13-CV-00827-WJ-LAM)
(D. N.M.)
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
_________________________________
Veronica Garcia appeals the district court’s grant of summary judgment to the
government on her malpractice claims brought under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
I
Ms. Garcia filed this suit on behalf of her children and the estate of her
deceased husband, Jorge Alberto Carrera Alvarez,1 who died two days after he was
diagnosed with acute myeloid leukemia. On July 5, 2011, Mr. Carrera and
Ms. Garcia went to the Ben Archer Health Center (BAHC) in Las Cruces, New
Mexico.2 Mr. Carrera had headaches, fatigue, a fever, and a rash. He was examined
by a certified nurse practitioner, Lauri Greis, who noted that Mr. Carrera’s rash was a
condition known as “purpura” (purple blotches on the skin) of unknown etiology.
Ms. Greis ordered multiple blood tests, a urinalysis, and a chest x-ray. She instructed
Mr. Carrera to have the tests done that day, refrain from work, rest, and return to the
clinic in the morning.
Ms. Garcia and Mr. Carrera returned to BAHC at 10:00 a.m. on July 6. They
met with Ms. Greis, who testified that she told them he had leukemia and needed a
“swift eval[uation]” by a hematologist at the only facility in the state capable of
providing the level of care he required—the University of New Mexico Medical
Center (UNM) in Albuquerque. Aplt. App. at 147. After Ms. Greis conferred with
Dr. Robert Francis at UNM, she referred Mr. Carrera to Dr. Francis and Dr. William
1
We follow the parties’ lead and refer to Mr. Carrera Alvarez as
“Mr. Carrera.”
2
Mr. Carrera had been treated at BAHC on June 22, 2011, for pain and
bleeding from his gums, which was diagnosed as acute necrotizing ulcerative
gingivitis. Ms. Garcia agreed to dismiss her claims based on that treatment but
maintained that Mr. Carrera’s dental record remained relevant to BAHC’s evaluation
of him at later appointments.
2
Adler, and cautioned him that “delay could cause suffering, complications, [and]
even death.” Id.
Ms. Garcia and Mr. Carrera left the clinic, but by 2:00 p.m. they had not
arrived at UNM. This prompted calls from Ms. Greis’s colleague, Gloria Marmolejo,
who spoke to Ms. Garcia at 2:03 p.m. Ms. Marmolejo urged Ms. Garcia “to go to
Albuquerque right away” for an “urgent transfusion” or Mr. Carrera could die. Id. at
151-52. Ms. Garcia explained, however, that they could not go to Albuquerque
because they were undocumented aliens and could not travel with their daughters
through the border patrol checkpoint along the route to Albuquerque, in Truth or
Consequences, New Mexico. This information was relayed to Dr. Francis, who
instructed that Mr. Carrera go to an oncologist at the University Medical Center at
Thomason Hospital in El Paso, Texas. Mr. Carrera was admitted to Thomason later
that day, but he died on July 8.
Ms. Garcia filed this suit under the FTCA,3 alleging that BAHC negligently
mishandled his treatment.4 The district court granted summary judgment to the
government.
3
The FTCA authorizes persons to sue the United States “for injury or loss of
property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C. § 1346(b)(1). It is undisputed that BAHC
is a qualified entity subject to the FTCA.
(continued)
3
II
“We review the district court’s grant of summary judgment de novo[,] . . .
view[ing] the evidence and draw[ing] reasonable inferences in the light most
favorable to the nonmovant.” Seifert v. Unified Gov’t, 779 F.3d 1141, 1150
(10th Cir. 2015). 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). “To defeat a motion for summary judgment,
the nonmoving party must show specific evidence that creates a genuine issue as to a
material fact.” Rice v. Office of Servicemembers’ Grp. Life Ins., 260 F.3d 1240, 1249
(10th Cir. 2001).
One of the district court’s grounds for granting summary judgment was that
causation had to be proved by expert testimony but Ms. Garcia offered no such
testimony. See Miller v. United States, 463 F.3d 1122, 1123 (10th Cir. 2006) (FTCA
liability determined under law of state where act or omission occurred); Gerety v.
Demers, 589 P.2d 180, 191 (N.M. 1978) (“[I]n most medical malpractice suits expert
medical testimony must be adduced to establish a standard of care, to assess the
doctor’s performance in light of the standard, and to prove causation.”). On appeal
Ms. Garcia does not dispute the need for expert testimony on causation; and since
Mr. Carrera’s condition is outside the common experience of lay people, expert
4
Ms. Garcia asserted claims for loss of chance, negligence, loss of consortium,
prima facie tort, vicarious liability, medical malpractice, wrongful death, intentional
infliction of emotional distress, and negligent infliction of emotional distress.
4
testimony was clearly necessary, see Alberts v. Schultz, 975 P.2d 1279, 1284
(N.M. 1999). Yet Ms. Garcia does not point to any expert testimony to support
causation, and we have found none.
Ms. Garcia offered a report from Dr. Robert Gale in which he opined that
Mr. Carrera had acute myeloid leukemia, a condition that can probably be treated
successfully. But the report did not address whether his condition was still treatable
at the time he was seen at BAHC; and at Dr. Gale’s deposition, he explicitly testified
that he had no opinion on whether the care provided by Ms. Greis and others at
BAHC caused Mr. Carrera’s injuries and death. Ms. Garcia also offered a report
from certified nurse practitioner Christina Sanders. But the report addresses only
standard of care, not causation; and at her deposition she declined to offer an opinion
on causation, stating, “I don’t have a causation opinion. I think the earlier you have
access to care, the higher the likelihood that you can have a positive result at the end,
but it’s outside of my scope of practice to opine on causation in this matter,”
Aplt. App. at 108. In the absence of any evidence of causation, we must affirm.
Although Ms. Garcia argues that there are factual disputes, none are relevant to
causation because she has not presented any expert testimony supporting causation
under any version of the facts.
The judgment of the district court is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
5