LAVONNE E. SPEARS, individually, and as representative of the Estate of BILLY K. SPEARS, deceased, DAVID J. SPEARS, and BRIAN K. SPEARS, Plaintiffs,
THE UNITED STATES OF AMERICA, Defendant.
ORDER: (1) DENYING DEFENDANT'S MOTION TO STRIKE RAYMOND F. TOPP, M.D., AS PLAINTIFFS' EXPERT; (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
DAVID ALAN EZRA, Senior District Judge.
On January 6, 2014, the Court heard argument on Plaintiffs' Partial Motion for Summary Judgment ("MPSJ, " Dkt. # 15) and Defendant's Motion to Strike Raymond F. Topp, M.D., as Plaintiffs' expert (Dkt. # 20). Jeffrey C. Anderson, Esq., appeared on behalf of Plaintiffs; James F. Gilligan, Esq., appeared on behalf of Defendant United States. For the reasons that follow, the Court DENIES Defendant's Motion to Strike and GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Partial Summary Judgment.
On December 6, 2011, Billy K. Spears, an eighty-one-year-old man, underwent elective spinal surgery at the San Antonio Military Medical Center. ("Compl., " Dkt. # 1 ¶ 8.) During surgery doctors discovered a dural tear at the L1 left nerve root, which required additional attention and repairs. (Id.) At the end of surgery, Spears experienced hemodynamic instability, which was successfully treated with administration of blood or blood products. (Id.) He was then transferred to the Intensive Care Unit and placed on a ventilator. (Id.) Two days later, he was extubated. (Id.) On December 10, 2011, he experienced hypotension and tachycardia. (Id.)
On December 13, he was reintubated as a result of his partial respiratory failure. (Id.) Doctors performed a bronchoscopy and removed a gelatinous foreign body, thought to be a pill, in his right segmental bronchus. (Id.) During the retrieval, Spears became hemodynamically unstable and required resuscitation interventions. (Id.) At approximately 5:30 p.m., Dr. Markov, a surgery resident, verbally directed Michelle K. Head, a registered nurse, to administer 5mg of Phenylephrine Hydrochloride IV to Spears. (Id.)
Twenty minutes later, Spears suffered a cardio-pulmonary arrest. (Id.) Doctors administered Advanced Cardiovascular Life Support ("ACLS") medications. (Id.) Spears was pronounced dead at approximately 6:36 p.m. (Id.)
On January 17, 2013, Plaintiffs Lavonne E. Spears, individually and as representative of the Estate of Billy K. Spears, David J. Spears, and Brian K. Spears (collectively, "Plaintiffs") brought the instant wrongful death action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), alleging medical malpractice by the United States, acting by and through its agents, servants, and/or employees (collectively referred to as "Defendant") at Brooke Army Medical Center. (Id. ¶¶ 8-15.) Plaintiffs' Complaint alleges that Defendant negligently provided treatment to Spears during the following acts:
A. Administering 5mg of Phenylephrine IV, which was ten times the appropriate dosage for the administration of that drug resulting in cardio-pulmonary arrest;
B. Administering oral medication to a patient with a Parkinsonism like swallowing disorder, whom the healthcare providers knew or should have known was at a high risk of aspiration of such foreign bodies as a result of an abnormal swallowing disorder;
C. Performing elective spinal surgery on a patient known to have multiple underlying co-morbid conditions rendering him high risk for operative and post-operative complications, and
D. Failing to act as physicians and healthcare providers of ordinary prudence would have acted under the same or similar circumstances
(Id. ¶ 10.) Plaintiffs seek damages on their own behalf for pecuniary loss, loss of companionship, mental anguish, loss of income and inheritance, medical and funeral expenses, and on behalf of the Estate of Billy K. Spears for Spears's physical pain and mental anguish between the time of his surgery and his death. (Id. ¶¶ 12-13.)
On May 30, 2013, Plaintiffs filed the Motion for Partial Summary Judgment that is currently before the Court. (MPSJ) On July 2, 2013, Defendant filed a Response to Plaintiffs' Motion for Partial Summary Judgment (Dkt. # 18), and on that same day, Plaintiffs filed a Reply in further support of their Motion for Partial Summary Judgment (Dkt. # 19).
On July 3, 2013, Defendant filed a Motion to Strike Raymond F. Topp, M.D., as Plaintiffs' Testifying Expert, or alternatively, to Strike all Topp's Expert Opinions Regarding Standard of Care, Proximate Cause, and Damages in Plaintiffs' Motion for Partial Summary Judgment and to Prohibit All Anticipated Future Testimony at Future Deposition or Trial. (Dkt. # 20.) Defendant asserts that Topp's testimony must be stricken because 32 C.F.R. § 516.49 and Army Regulation 27-40 ¶ 7-10 preclude a former Army physician's expert testimony against the Government.
Summary judgment is proper under Federal Rule of Civil Procedure 56 when "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); see also Cannata v. Catholic Diocese of Austin , 700 F.3d 169, 172 (5th Cir. 2012). The main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986).
The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Id. at 323. If the moving party meets this burden, the non-moving party must come forward with specific facts that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc. , 699 F.3d 832, 839 (5th Cir. 2012). In deciding whether a fact issue has been created, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000). However, "[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment." Brown v. City of Hous. , 337 F.3d 539, 541 (5th Cir. 2003).
"Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsuhita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 289 (1968)).
Plaintiffs' Motion seeks summary judgment on their medical negligence claim against Defendant United States of America. According to Plaintiffs, there is no genuine dispute of material fact that Defendant had a duty to act according to a certain standard of care, that Defendant breached that standard of care, and that Spears was injured as a result of Defendant's breach. (MPSJ ¶ 5.) In response, Defendant does not deny that it owed Spears a certain standard of care or that Spears was injured. (Dkt. # 18 at 8.) Defendant concedes that the 5mg "overdose" of Phenylephrine breached the requisite standard of care owed to Spears. (Id.; Dkt. # 18, Ex. A.) However, Defendant maintains that there is a genuine issue of material fact as to whether the overdose caused Spears's death. (Dkt. # 18 at 8.)
As part of its response to Plaintiffs' Motion, Defendant moved to strike the expert report filed by Raymond F. Topp, M.D., submitted by Plaintiffs in support of their Motion. (Dkt. # 20.) The Court will address this preliminary matter before moving on to the substance of Plaintiffs' Motion.
I. Defendant's Motion to Strike
Plaintiffs seek to utilize the expert report furnished by Dr. Raymond F. Topp to demonstrate that Defendant breached the requisite standard of care and that this breach caused Spears's death. (MPSJ at 4-5.) Spears was an orthopedic patient of Dr. Topp. (Dkt. # 15-1 at 19.) When Spears was experiencing severe back and lower extremity pain, Dr. Topp recommended surgical correction of his spinal stenosis, degenerative scoliosis, and radiculopathy. (Id. at 20.) On December 6, 2011, Dr. Topp performed a laterally based lumbar spine fusion. (Id.) According to Dr. Topp, Spears's surgery was "uneventful"; Spears did not suffer intraoperative hypotension or experience any other complications. (Id.) In his letter to Plaintiffs, Dr. Topp stated:
Over the next week until his death on the 14th of December 2011, Mr. Spears's condition seemed to improve at times but did require some medical interventions throughout his stay in the surgical intensive care unit. Periodically, Mr. Spears's blood pressure would drop and this would recover with the use of fluid administration and intermittent chemical assistance. During one of these resuscitative efforts, as you know, Mr. Spears was given an inappropriate dose of medication to increase his blood pressure and this was followed by the administration of another medication to bring his blood pressure down. As it has been explained to me by the Intensivist working at the San Antonio Military Medical Center at the time, this rapid rise in his blood pressure followed by the rapid fall in his blood pressure within the few minutes led to his death.
Dr. Topp then explained that during his eight years as an orthopaedic surgeon and five years performing spinal surgery, Spears was the only patient to die. (Id.) Dr. Topp affirmed that although Spears was elderly and had some medical comorbidities, his case was very similar to many other cases ...