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Nicholson v. Evangelical Lutheran Good Samaritan Society Inc.

United States District Court, D. New Mexico

July 21, 2017

NADA NICHOLSON, As Personal Representative of the Estate of TIA L. DARROW, Plaintiff,

          James P. Lyle Law Offices of James P. Lyle P.C. Albuquerque, New Mexico Attorney for the Plaintiff

          Emily Paige Chase-Sosnoff Jeremy K. Harrison Martha G. Brown Modrall Sperling Roehl Harris & Sisk, P.A. Albuquerque, New Mexico Attorneys for the Defendant


         THIS MATTER comes before the Court on: (i) the Motion and Brief for Summary Judgment on all Claims Asserted by Plaintiff, filed March 10, 2017 (Doc. 48)(“MSJ”); and (ii) Good Samaritan's Daubert Motion and Memorandum to Exclude Testimony of Dr. Jane Winston, filed March 10, 2017 (Doc. 49)(“Motion to Exclude”). The Court held a hearing on June 27, 2017. The primary issue is whether Defendant Evangelical Lutheran Good Samaritan Society, Inc. (“Good Samaritan”), is entitled to summary judgment as a matter of New Mexico law, because Plaintiff Nada Nicholson, personal representative for the Estate of Tia L. Darrow, fails to amass sufficient evidence proving that failing to timely call 911 emergency responders, or otherwise promptly respond when Darrow's tracheostomy tube became dislodged, caused Darrow's death. Because the Court concludes that Nicholson has met her burden in establishing a material factual dispute, the Court denies Good Samaritan's MSJ. Genuine factual issues exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 477 U.S. 242, 250 (1986).


         Darrow died subsequent to various events, beginning with the dislodgment of her tracheostomy tube at Good Samaritan's Four Corners Village facility. Nicholson purports to dispute a large number of Good Samaritan's assertions of fact provided in its MSJ. Accordingly, the Court will provide a brief synopsis of the background facts giving rise to this case for ease of readership and context.

         1. Background Facts Giving Rise to the Complaint.

         The Court will take its background facts from: (i) Nicholson's Complaint for Medical Negligence resulting in Wrongful death, filed March 7, 2016 (Doc. 1)(“Complaint”); and (ii) Plaintiff's Response to Defendant's Motion and Brief for Summary Judgment on all Claims Asserted by Plaintiff (Document No. 48), filed April 4, 2017 (Doc. 54)(“Response”). The Court realizes the background facts are largely Nicholson's version of events, and does not adopt them as the truth, but rather incorporates them into its opinion only to provide background for the Court's Resolution of Good Samaritan's MSJ.

         Decedent Darrow, a Colorado resident, was fifty-nine years old in September, 2014. See Complaint ¶¶ 1, 7 at 1-2. She suffered right-sided weakness from a prior stroke, chronic obstructive pulmonary disease, hyperlipidemia, obesity, gastroesophageal reflux, and hypertension. See Response at 2. San Juan Regional Medical Center admitted Darrow on June 12, 2014, with respiratory failure. See Response at 2. Upon admission, Darrow underwent a tracheostomy. See Response at 2. Darrow was then transferred to the San Juan Rehabilitation Hospital on July 17, 2014, where the tracheostomy tube was removed. See Response at 2. She subsequently developed cardiac arrest, but was resuscitated, and attending medical staff reinserted the tracheostomy tube. See Response at 2; Complaint ¶ 5, at 2. San Juan Rehabilitation Hospital readmitted Darrow on July 28, 2014, after she developed a blood clot in her lung. See Response at 2; Complaint ¶ 6, at 2.

         Darrow was next transferred to the Good Samaritan facility on August 14, 2014. See Response at 2. On September 9, 2014, her tracheostomy tube became dislodged while Good Samaritan staff were changing Darrow's clothes. See Response at 2. Darrow then experienced shortness of breath, and Good Samaritan staff members were unable to reinsert the tracheostomy tube. See Response at 2; Complaint ¶ 8, at 2. When non-emergency Emergency Medical Services personnel arrived, they attempted cardiopulmonary resuscitation, because at some point Darrow had stopped breathing. See Response at 2-3; Complaint ¶ 8, at 2. An advanced medical team was called, and Darrow was transported to San Juan Regional Medical Center upon becoming pulseless, blue, and anoxic. See Response at 3; Complaint ¶ 8, at 2. Darrow died on September 20, 2014, and her discharge summary lists the cause of death as severe anoxic brain damage and cardiopulmonary arrest. See Response at 3; Complaint ¶¶ 9-10, at 2-3.

         2. The Undisputed Facts as Good Samaritan's MSJ and the Record Establish.

         Darrow's tracheostomy tube was dislodged on the morning of September 9, 2014, and, prior to emergency medical personnel's arrival, “Tia Darrow was able to breathe through her nose and mouth or stoma even though her trach tube was not in place.” MSJ ¶ 1, at 3-4 (asserting this fact).[1] “On the morning of September 9, 2014, Tia Darrow was provided supplemental oxygen through her stoma and/or her mouth from the time that her trach tube was dislodged through the time of her collapse.” MSJ ¶ 2, at 4 (asserting this fact)(citing Deposition of Nurse Lara Greenamyer at 65:23-66:5 (taken February 13, 2017), filed March 10, 2016 (Doc. 48-1)(“Greenamyer Depo.”)(“She had supplemental oxygen the whole time.”)). See Response ¶ 2, at 3 (choosing not to admit or deny this fact). Greenamyer -- Darrow's nurse -- and another nurse unsuccessfully attempted to reinsert Darrow's tracheostomy tube, and “[a]t the time that RN Greenamyer was trying to reinsert Ms. Darrow's trach and attend[] to issues regarding insertion (including looking for a replacement trach and cleaning the dislodged trach for reinsertion), Ms. Darrow was not in respiratory distress, had normal coloration, [] and was able to communicate, ” MSJ ¶ 3, at 4 (asserting this fact).[2] “After determining that Ms. Darrow's trach could not be reinserted at Good Samaritan's facility, RN Greenamyer initiated a transfer to the hospital by calling 911 and requesting a nonemergent transport.” MSJ ¶ 4, at 4 (asserting this fact and asserting the call occurred at 7:42:59 a.m., see 911 Incident Report at 1-3 (dated September 26, 2016), filed March 10, 2017 (Doc. 48-3)(“ 911 Incident Report”). See Response ¶ 4, at 4 (not disputing these facts). “At the time that RN Greenamyer initiated a non-emergency transfer, Ms. Darrow was not in respiratory distress, was breathing normally, and was adequately oxygenated, ” and “[a]fter calling for non-emergent transport, RN Greenamyer again assessed Ms. Darrow and observed that she was still adequately oxygenating and [was] not in respiratory distress.” MSJ ¶¶ 5-6, at 4 (asserting these facts).[3] “After calling for a non-emergency transport, RN Greenamyer called Dr. Uche Obisike, Ms. Darrow's physician.” MSJ ¶ 7, at 5 (asserting this fact)(citing Greenamyer Depo. at 68:1-5; Deposition of Dr. Uche Obisike at 49:12-51:3 (taken October 21, 2016), filed March 10, 2017 (Doc. 48-2)(“Obisike Depo.”)). See Response ¶ 6, at 4 (not disputing this fact).[4] “Sometime after RN Greenamyer called for non-emergency transport, RN Greenamyer observed that Ms. Darrow was having some anxiety, ” and,

[a]t that time, Ms. Darrow was still breathing adequately, had pink coloration, and had normal oxygen saturation. . . . On account of Ms. Darrow's anxiety, RN Greenamyer called 911 and requested that the call be changed from nonemergent to emergent. . . . At the time that RN Greenamyer made her second 911 call, Ms. Darrow's oxygen saturation was still within normal limits.

MSJ ¶ 8, at 5 (asserting this fact).[5] After making her second call to 911, upgrading the non- emergency request, “RN Greenamyer returned to Ms. Darrow's room and observed that Ms. Darrow's breathing was adequate and that her oxygen saturation was normal.” MSJ ¶ 9, at 5 (asserting this fact).[6] “Approximately three minutes after RN Greenamyer requested that the EMS response be upgraded to emergent, three EMTs arrived.” MSJ ¶ 10, at 5 (asserting this fact). See Response ¶ 8, at 4 (not disputing this fact). Soon thereafter, the Basic Life Support (“BLS”), M10 team, EMTs -- but not the Advanced Life Support (“ALS”) team with paramedic EMTP Ryan Carey -- “arrived in Ms. Darrow's room, Ms. Darrow was alert, had normal color, and was not exhibiting any respiratory distress. . . . When the EMTs arrived in Ms. Darrow's room, Ms. Darrow's care was turned over to the EMTs.” MSJ ¶ 11, at 5-6 (asserting this fact)(citing Declaration of Nurse Callie Shriver ¶ 6, at 2; ¶ 4, at 1 (executed February 27, 2017), filed March 10, 2017 (Doc. 48-4)(“Shriver Decl.”); Declaration of Certified Nursing Assistant Sylvia Pontius ¶ 8, at 2 (executed March 8, 2017), filed March 10, 2017 (Doc. 48-5)(“Pontius Decl.”); Greenamyer Depo. at 95:18-96:13).[7] “Approximately one minute after the EMT[]s arrived in Ms. Darrow's room, Ms. Darrow's lips began to turn blue, Ms. Darrow stated that she could not breathe, and Ms. Darrow collapsed.” MSJ ¶ 12, at 6 (asserting this fact). See Response ¶ 9, at 4 (purporting to dispute this fact)(citing Emergency Medical Services Radio Report at 1-6 (dated September 9, 2014)(authored and signed by EMTP Ryan Carey, paramedic in second EMT Crew -- ALS team -- to arrive on scene), filed April 7, 2017 (Doc. 54-3)(“EMT Carey Report”); San Juan Regional Medical Center Departmental Report at 1-2 (dated September 9, 2014)(authored by both Dr. Patrick Martin and Dr. Jarrad Francis Maiers), filed April 7, 2017 (Doc. 54-4)(“San Juan Report”)).[8] “Prior to the arrival of the EMTs, RN Greenamyer and other Good Samaritan employees were constantly checking on Ms. Darrow's oxygen saturation on the morning of September 9, 2014.”[9] MSJ ¶ 13, at 6 (asserting this fact).[10]

         It cannot be determined “without speculating whether secretions or an airway obstruction or something else caused Tia Darrow to stop breathing.” MSJ ¶ 15, at 6 (asserting this fact).[11] Good Samaritan's “employees[, though, ] waited over twenty (20) minutes after describing Ms. Darrow's condition to EMS personnel as non-emergent, before deciding to upgrade it to an emergency situation.” Response ¶ 11, [12] at 5 (asserting this fact). See Reply ¶ AF 1, [13] at 12 (not disputing this fact).[14] A “lack of oxygen for four (4) to six (6) minutes can cause severe brain damage . . . .” Response ¶ 16, at 5 (asserting this fact)(citing Deposition of Dr. Jane Winston at 30 (taken December 1, 2016), filed March 10, 2017 (Doc. 48-6)(“Winston Depo.”)).[15] Regarding Darrow's eventual hypoxic state, the “most likely cause was inadequate airway and inadequate intake of oxygen which caused the cardia[c] arrest.” Response ¶ 17, at 5 (asserting this fact).[16] “[I]nadequate airway intake was the proximate cause of Ms. Darrow's unconsciousness and hypoxia.”[17] “Defendant's employee, Nurse Green[amyer], was not aware of any policy implemented by Defendant as to what should be done when a patient's trach was dislodged.”[18]


         Nicholson filed the Complaint in the United States District Court for the District of New Mexico on March 7, 2016. By the Complaint, Nicholson asserts a claim, pursuant to New Mexico's Wrongful Death Act, N.M. Stat. Ann. § 41-2-1 et seq, as the personal representative of her daughter's estate, and for “the medical negligence and other negligence which led to the death of Plaintiff's daughter, Tia L. Darrow.” Complaint at 1; id. ¶ 12, at 3. Nicholson asserts that Darrow's

death was a direct result of the negligence of Defendant, its agents, representatives and employees. These people and the Defendant failed to use appropriate procedures and care to ensure that Ms. Darrow could and would survive the conditions for which she was admitted to Defendant's Four Corner's Village facility. Specifically, the Defendant's Four Corner's Village staff failed to act promptly and appropriately when Ms. Darrow's trache[os]tomy tube was dislodged. This led to a prolonged period where Ms. Darrow was without oxygen which, in turn, led to anoxic encephalopathy, and ultimately her death.

Complaint ¶ 11, at 3. In light of her assertions of Good Samaritan's negligence, Nicholson

requests that the Court enter a judgment sufficient to compensate Plaintiff's Estate for all damages appropriate under the New Mexico Wrongful Death Act including but not limited to pain, suffering, emotional and mental distress, for lost earning and lost earning capacity, for loss of parental guidance and counseling, reasonable funeral expenses, medical and medically related expenses, enhanced damages as provided for by the New Mexico Wrongful Death Act due to aggravating circumstances related to Ms. Darrow's death, punitive damages against the Defendant, its agents and employees, costs of suit, pre- and post-judgment interest, and such further relief as the Court deems just and proper.

Complaint ¶ 12, at 3.

         1. The MSJ.

         The MSJ begins by explaining that Nicholson is seeking to hold Good Samaritan “liable for the death of Decedent Tia Darrow, [because] Good Samaritan caused Ms. Darrow's death by failing to timely call 911 when Darrow's tracheostomy became dislodged.” MSJ at 1. Good Samaritan argues, however, that “New Mexico law requires Plaintiff to prove that Good Samaritan's alleged omission was the cause of Ms. Darrow's demise, ” and that the “Plaintiff has no evidence to satisfy this essential element of her claim, and summary judgment should be entered.” MSJ at 1. Essentially, then, the MSJ previews its argument: the “Plaintiff has no evidence regarding Ms. Darrow's lapse in breathing on the day in question, and has no evidence that an earlier call to 911 would have made any difference in Ms. Darrow's outcome.” MSJ at 1.

Regarding the applicable law, Good Samaritan explains:
Under New Mexico law, a plaintiff must prove “the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause arid cause in fact of the plaintiff s damages” in order to establish a prima facie case of negligence. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181; see also Tafoya v. Seay Bros. Corp., 119 N.M. 350, 352, 890 P.2d 803, 805 (1995)(noting that negligence consists of “duty, breach, proximate cause, and damages”). While breach of a duty and proximate cause are generally questions of fact for the jury, the Court is permitted to enter summary judgment when reasonable minds cannot differ regarding a particular set of facts. See Tanuz v. Carlberg, 1996-NMCA-076, ¶ 14, 122 N.M. 113, 921 P.2d 309.

MSJ at 7. Accordingly, Good Samaritan contends that there “are no facts under which Good Samaritan could be found to have breached a duty to Decedent or to have negligently caused Decedent's death.” MSJ at 7. In support, Good Samaritan first avers that Nicholson cannot establish that Good Samaritan breached any duty it owed to Darrow. See MSJ at 7. In this medical malpractice resulting in wrongful death context, Good Samaritan provides Nicholson “must introduce expert testimony establishing Good Samaritan breached a duty, ” and that here Nicholson's theory is that “Good Samaritan had a duty to call for emergency transportation more quickly and that Good Samaritan breached this duty when it requested a non-emergency transport for Ms. Darrow (who was not in distress, breathing normally, and not in an emergency medical situation).” MSJ at 8. Good Samaritan then argues that Nicholson has not proffered

admissible expert testimony that establishes that Good Samaritan had, and breached, a duty to procure emergency transportation for a resident who was exhibiting no signs of respiratory distress. Whether 911 should have been called earlier is not a subject within the scope of the jury's knowledge. Tracheostomy care, and the appropriate response when a tracheostomy is accidentally dislodged, is not within the scope of a lay juror's ordinary knowledge. And, the notion that an emergency response is required (as claimed by Plaintiff) when a patient is breathing normally, in no distress, and has normal oxygenation is not the type of issue that the jury can resolve without the assistance of expert nursing testimony.

MSJ at 8 (emphasis omitted). Good Samaritan then references another motion it filed to exclude Nicholson's expert's testimony, because she is only a doctor who has no experience “with nursing standards of care, ” and thus Nicholson fails to proffer the requisite expert testimony for her case. MSJ at 8.

         Good Samaritan also argues that Nicholson cannot establish that Good Samaritan's alleged breach was the proximate cause of Darrow's death. See MSJ at 9. Here, Good Samaritan explains, while the

Plaintiff has asserted various theories of how Good Samaritan was negligent --supposed inadequate training, supposed inadequate response to the accidental removal of Tia Darrow's trach, and supposed lack of a proper care plan regarding how to respond to removal of the trach -- all of these theories boil down to an alleged failure by Good Samaritan to more quickly request an emergency response by EMS.

MSJ at 9-10. That is, Nicholson's “but-for causation theory is that Good Samaritan caused [Darrow's] death by not more quickly calling for emergency medical transportation to the hospital.” MSJ at 10.

Given that Plaintiff's claim centers entirely around Good Samaritan's alleged failure [to] call earlier for emergency transportation to the hospital, Plaintiff must introduce expert medical testimony that establishes to a reasonable medical probability that the alleged negligent acts of Good Samaritan caused Tia Darrow's death -- i.e., that if Good Samaritan had called earlier for emergency transportation to the hospital, Ms. Darrow would not have gone into respiratory distress and died.

MSJ at 10. Good Samaritan maintains that Nicholson has not identified expert medical testimony which establishes that “Darrow stopped breathing and died because of Good Samaritan's alleged negligence, ” because, first, Nicholson cannot “prove the cause of Ms. Darrow's lapse in breathing on the morning of September 9, 2014 and thus cannot prove that Good Samaritan caused that lapse or Ms. Darrow's subsequent death.” MSJ at 10-11.

According to Good Samaritan:

The causation questions in this case are . . . whether Good Samaritan's alleged negligence in not requesting an earlier emergency response caused Tia Darrow's cessation of breathing shortly after arrival of the EMTs and whether Good Samaritan's alleged negligence in not requesting an earlier emergency response caused Ms. Darrow's death. The answer to both of these questions is unequivocally no.

MSJ at 12.

         At this point in its argument, Good Samaritan concedes that something occurred which caused Darrow “to go from being able to breathe normally without her trach, with no respiratory distress, and able to communicate, to a situation in which she suddenly could not maintain an adequate oxygenation level and lost consciousness, ” but maintains that the “change occurred shortly after the 8:18 a.m. arrival of the EMTs on the morning of September 9 -- some time after Ms. Darrow's trach was dislodged and after Ms. Darrow had been breathing without incident for a period of time.” MSJ at 12. The issue, then, that Good Samaritan identifies, is:

In order for the jury to find that Good Samaritan's alleged negligence in not more quickly calling for emergency transportation was the cause of Ms. Darrow's sudden loss of the ability to breathe, Plaintiff must prove what caused Ms. Darrow's breathing loss. But Dr. Winston, Plaintiff's retained expert witness, was unable to identify what caused Ms. Darrow to stop breathing after having been able to breathe without any problem for a period of time following the accidental dislodgement of Ms. Darrow's trach. Instead, she testified only that Ms. Darrow had inadequate oxygenation.

MSJ at 12. As to the medical cause of that inadequate oxygenation, Good Samaritan argues that “Dr. Winston acknowledged that there were numerous things that could have caused Ms. Darrow's breathing loss and the EMTs inability to revive her with an ambu bag, but that she could not rule in or out any specific cause.” MSJ at 13. Good Samaritan thus asserts “Plaintiff has no evidence of what caused Ms. Darrow to stop breathing after the arrival of EMTs, ” and is thus “missing an essential element of her claims -- proximate cause . . . .” MSJ at 14.

         Good Samaritan also contends that Nicholson “has no evidence that an earlier call would have resulted in a different response by EMS, ” because it is undisputed

that after it became apparent the Good Samaritan's staff could not reinsert Ms. Darrow's trach at Good Samaritan, Good Samaritan called 911 and asked for non-emergency transportation. . . . The purpose of this transportation was to take Ms. Darrow, who was breathing normally, had normal oxygenation, and had normal color, to the hospital for reinsertion of the trach. . . . It is also undisputed that as soon as Ms. Darrow began to exhibit signs of anxiety, Good Samaritan called 911 and asked for an emergency transport rather than the non-emergency transport that was already on the way. . . . Thus, at the time the call was made for emergency transportation, EMTs were already on their way to Good Samaritan.

MSJ at 14-15. Here, Good Samaritan identifies that Nicholson's theory of causation is that she would not have died,

if, as we discussed and I stated earlier, 911 had been contacted at the time that the trach came out . . . and they responded within -- they responded in three minutes. If they had responded even within six or eight minutes, they would have arrived during the time where -- before she became anxious and experienced difficulty breathing.

MSJ at 15 (citing Winston Depo. at 182:11-21). Good Samaritan argues, alternatively, that,

for Plaintiff to prevail on a theory that Good Samaritan caused Ms. Darrow's death by not calling more quickly for emergency transportation, Plaintiff must introduce evidence that an emergency call would have resulted in a faster arrival and a difference in . . . Ms. Darrow's outcome. If an earlier call would not have resulted in a faster arrival and a different outcome, then Plaintiff cannot establish that the alleged failure to make an earlier call caused Ms. Darrow's death. Plaintiff has no such evidence.

MSJ at 15. Good Samaritan notes, then, that Dr. Winston has conceded that she cannot speculate whether emergency personnel response time would have resulted in a sooner arrival had emergency help been initially requested. See MSJ at 16. Nonetheless, Good Samaritan also notes that, in addition to Nicholson's lack of evidence that a quicker call would have yielded a quicker response, Nicholson also fails to provide evidence that an “earlier response time would have made a difference in Ms. Darrow's outcome, ” because “it is not genuinely disputed that the EMTs arrived before Ms. Darrow's loss of breathing, and were thus present to respond to the unidentified event that caused Ms. Darrow's inability to breathe.” MSJ at 16. Good Samaritan admits that Dr. Winston testified that, should the first call have been for an emergency response, the first responders may have been a crew with advanced life support capability, unlike the M10 EMT team (the first EMT team to arrive, responding to the nonemergency transport request, and incapable of ALS response). See MSJ at 16. Yet, Good Samaritan argues, that is speculation, because it is not evident that Greenamyer -- in alternatively requesting an emergency response --would have changed the substance of her description regarding Darrow's status. See MSJ at 16-17. That is, dispatch could have similarly concluded that advanced life support was unnecessary for the call. See MSJ at 17. Good Samaritan maintains that Dr. Winston's testimony as to the different speed, training, and capability of a hypothetically different first response team, should Greenamyer have made an emergency request initially, is speculative and does not prove the issue of proximate cause. See MSJ at 17-18. On that issue, Good Samaritan concludes that Nicholson fails to establish a proximate cause in Good Samaritan's failure to make an earlier emergency call, because there is no evidence suggesting that such a call would have altered Darrow's outcome. See MSJ at 19.

Good Samaritan also provides:
Plaintiff's claims are akin to a claim for lost chance -- a claim in which the “the injury is the loss of the patient's chance of survival, whatever that may be.” Baer v. Regents of University of California, 1999-NMCA-005, ¶ 14, 126 N.M. 508, 972 P.2d 9. Under such an analysis, the proximate causation question changes from “‘Did [d]efendant's negligence cause the death?' to ‘Did [d]efendant's negligence cause the loss of a measurable chance of survival?'” Id.

MSJ at 19. Good Samaritan contends, however, that “to prevail on a lost chance claim regarding an alleged failure to more quickly request emergency transportation, Plaintiff must prove, through qualified medical expert testimony, the probability that Ms. Darrow would not have died if there had been an earlier call.” MSJ at 19 (citing Alberts v. Schultz, 1999 NMSC-015, ¶ 29, 974 P.2d 1279). Good Samaritan also contends that, in this case, Nicholson “cannot do that, because she has no evidence that an earlier response by EMTs would have resulted in any different outcome for Ms. Darrow.” MSJ at 19. In sum, Good Samaritan concludes:

It is not enough for Plaintiff to simply claim that Good Samaritan should have called 911 for an emergency transport sooner. Plaintiff was obligated to introduce evidence that an earlier call would have changed Ms. Darrow's outcome. Plaintiff cannot do so, as she lacks evidence of what caused Ms. Darrow's breathing loss, she lacks evidence of response times for emergency calls, and she lacks evidence that an earlier response by EMTs would have in any changed what happened to Ms. Darrow on the morning of September 9, 2014.

MSJ at 19-20.

         2. The Motion to Exclude.

         Good Samaritan also filed its Motion to Exclude on March 10, 2017. See Motion to Exclude at 1. In it, Good Samaritan extrapolates from its arguments in the MSJ that Nicholson has failed to proffer testimony from a competent expert “on the ground that Dr. Winston's opinions on nursing standard of care, and regarding causation, fail to meet reliability and relevance requirements of Rule 702.” Motion to Exclude at 1. Good Samaritan argues that Dr. Winston states: “It is my opinion, based on reviewing these records, that the Good Samaritan Society Four Corners staff failed to act promptly and appropriately when Ms. Darrow's tracheostomy tube was dislodged and she developed respiratory distress.” Motion to Exclude at 2 (citing Dr. Winston Report at 1-2). Good Samaritan takes issue with Dr. Winston's testimony, because at her deposition she criticized “several aspects of the nursing care” that Darrow received at Good Samaritan, amounting to an opinion that the “nursing staff . . . fell below the nursing standard of care in developing Ms. Darrow's care plan, training the nursing staff, and responding to the situation on September 9, 2014.” Motion to Exclude at 2-3. Yet, Good Samaritan explains, Dr. Winston made “clear at her deposition that she is unqualified to render opinions about the nursing standard of care. Dr. Winston is not a nurse, ” and Dr. Winston has not trained as a nurse, published nursing textbooks, or “read the entire code of ethics for nurses.” Motion to Exclude at 3 (citing Winston Depo. at 158:4-5, 21-22; 158:23-159:15). Further, Good Samaritan argues, Dr. Winston has not been directly involved in the administration and management of nursing staff at long-term care facilities, such as Good Samaritan. See Motion to Exclude at 3 (citing Winston Depo. at 162:19-165:12). Good Samaritan also provides: “Dr. Winston has never done tracheostomy care, training or supervision in a long-term care setting. . . . She has never performed day-to-day trach nursing care. . . . Dr. Winston testified that nursing is a separate profession from medicine.” Motion to Exclude at 4 (citing Winston Depo. at 160:20-167:22).

Good Samaritan then identifies rule 702 of the Federal Rules of Evidence and contends that, in its gatekeeper function, the
Court should exclude Dr. Winston from testifying to opinions regarding nursing care at the trial of this action. First, Dr. Winston is not a nurse, and New Mexico law plainly requires that a plaintiff establish nursing malpractice through the expert testimony of a nurse. Second, even if New Mexico did not require testimony by an expert in the same field of practice, Dr. Winston is unqualified to offer an expert opinion under Rule 702 because she does not have knowledge or experience regarding either tracheostomy care or general nursing practices in a long-term care facility.

Motion to Exclude at 5. Good Samaritan argues:

Dr. Winston is unqualified to render opinion testimony about nursing care because she does not have scientific, technical, or other specialized knowledge about nursing that will help the trier of fact to understand the evidence or determine a fact in issue in this case. See Fed. R. Evid. 702. Under New Mexico law, in order to prove that a health care provider breached a duty of care, the plaintiff must show that the provider did not observe the knowledge, skill and care of a reasonably well-qualified provider practicing in the same field, under similar circumstances, giving due consideration to the locality involved.

Motion to Exclude at 5. In support, Good Samaritan explains:

To be qualified to give opinion testimony about the standard of care and whether a defendant's actions met that standard, an expert witness must practice in the same field as the defendant. See, e.g. Pharmaseal Labs, 1977-NMSC-071, ¶ 15 (“Evidence of the standard of knowledge, skill and care owed by a physician to his patient can be provided by expert testimony of the knowledge, skill and care ordinarily used by reasonably well-qualified doctors of the same field of medicine practicing under similar circumstances.”).

Motion to Exclude at 6. This maxim, Good Samaritan suggests, is refined further by the “New Mexico jury instruction on the duty of a health care provider, ” which Good Samaritan -- having filled in the following bracketed information -- provides as being: “The only way in which you may decide whether the [nurses] in this case possessed and applied the knowledge and used the skill and care which the law required of [them] is from evidence presented in this trial by [nurses] testifying as expert witnesses.” Motion to Exclude at 6 (incorporating the language in the NMRA Civ. UJI). According to Good Samaritan, it filled in the bracketed words in accordance with the “Directions for Use, ” on the instruction, which state: “In the . . . blanks, the type of health care provider, such as doctor, nurse, or chiropractor, should be inserted.” Motion to Exclude at 6-7 (same).

         Good Samaritan then surveys other jurisdictions with case law supporting the proposition that, “in a case involving the conduct of nurses, the only way for the plaintiff to prove negligence is by presenting testimony by a nurse testifying as an expert witness.” Motion to Exclude at 7-8. Good Samaritan cites:

Smith v. Pavlovich, 394 Ill.App.3d 458, 464 (2009)(“A pediatrician is not competent to testify to the standard of care applicable to advanced practice nurses, even if those nurses are working in pediatrics, any more than an advanced practice nurse working in pediatrics is competent to testify to the standard of care applicable to a pediatrician.”); Dolan v. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784 (App. Div. 2001)(directed verdict for the defendant was appropriate where the plaintiff failed to show a breach of the nursing standard of care because the only proffered expert testimony was from an anesthesiologist not qualified to tender such an opinion); Estate of Bradley v. Mariner Health, Inc., 315 F.Supp.2d 1190, 1196-97 (S.D. Ala. 2004)(a physician is not a “similarly situated healthcare provider” qualified to testify to the nursing standard of care where the physician “is not a nurse, has never practiced as a nurse, has no nursing education, training, or experience, ” and has never “made rounds in a nursing home or supervised the provision of care in a nursing home”).

Motion to Exclude at 7. Good Samaritan also highlights an opinion by the Supreme Court of Illinois which held that a physician could not be qualified to offer expert testimony as to the nursing standard of care, because the legislature had “set forth a unique licensing and regulatory scheme for the nursing profession through the Nursing and Advanced Practice Nursing Act.” Motion to Exclude at 7 (citing Sullivan v. Edward Hospital, 209 Ill.2d 100, 122 (2004); The American Association of Nurse Attorneys (TAANA), Position: Expert Testimony in Nursing Malpractice Actions, Approved June 27, 2007 (“The nurse is not a ‘junior doctor' nor is the nurse a mere ‘underling' of the physician. To so hold would negate the existence of nursing as a profession and would render the Nurse Practice Acts of every state, commonwealth and territory meaningless.”)). In that regard, Good Samaritan then calls the Court's attention to N.M. Stat. Ann. § 61-3-1, the New Mexico Nursing Practice Act, which Good Samaritan explains is the New Mexico equivalent of the Illinois Nursing and Advanced Practice Nursing Act referenced in Sullivan v. Edward Hospital. Motion to Exclude at 7-8. Good Samaritan thus argues that Dr. Winston has belied a lack of experience, knowledge, and qualification as to the distinct nursing standard of care in her own deposition testimony, and, accordingly, has rendered herself unqualified under New Mexico law to support Nicholson's medical negligence accusations with the requisite expert testimony. See Motion to Exclude at 8-9.

Good Samaritan then proceeds to argue that
New Mexico law requires Plaintiff to prove her claim for nursing negligence through expert testimony by a nurse. Even if New Mexico had not adopted this rule, however, Dr. Winston would still be unqualified to offer expert testimony on nursing care pursuant to Federal Rule 702 and the Daubert standard. Even in jurisdictions that do not strictly require expert witnesses to practice in the same field, a physician expert must show that she is qualified through experience to testify to the nursing standard of care. Dr. Winston cannot meet this requirement.

Motion to Exclude at 9. In that regard, Good Samaritan then surveys a variety of state cases wherein the state courts had excluded expert testimony as to a nursing standard of care where the proffered expert lacked specialized knowledge or experience in general nursing practices or the long-term care facility context, similar disqualifications to Good Samaritan's characterization of those of Dr. Winston's expertise -- a physician with only a few months experience in long-term care facilities. See Motion to Exclude at 9-13. Good Samaritan thus urges the Court, in its rule 702 gatekeeping role, to ensure that Dr. Winston has relevant “specialized knowledge that would aid the trier of fact, and her testimony on nursing standards of care” is reliable. Motion to Exclude at 12-13. Here, Good Samaritan argues, because Dr. Winston has “no training in the field of nursing, has never worked as a nurse, is not familiar with nursing practices in the long-term care setting, and has never done day to day trach nursing care or reinserted a trach.” Motion to Exclude at 12-13.

         Good Samaritan next requests that the Court exclude Dr. Winston's proffered testimony because she lacks “sufficient factual information to render opinions regarding Good Samaritan's actions or the cause of Ms. Darrow's death.” Motion to Exclude at 13. Essentially, Good Samaritan argues:

Dr. Winston conceded that she in fact could not recall ever having seen an emergency decannulation policy. . . . Having never seen Good Samaritan's policy or procedure regarding decannulation, Dr. Winston cannot give admissible testimony that Good Samaritan's policies or procedures were deficient. In order to reliably opine that Good Samaritan's policies were inadequate, Dr. Winston at a minimum needed to have actually reviewed Good Samaritan's policy. She did not, and her opinion is entirely speculative and thus inadmissible.

Motion to Exclude at 14 (citing Winston Depo. at 92:2-13). Further, Good Samaritan maintains that Dr. Winston similarly has no factual basis to testify as to the adequacy of Good Samaritan's training or its care plan for Darrow. See Motion to Exclude at 14-16. Last, Good Samaritan contends that Dr. Winston has no factual basis upon which to opine “that an earlier request for an emergency response would have resulted in an earlier response”; “that an earlier request for an emergency response would have resulted in a different EMS crew being dispatched”; or “that an earlier response by EMTs or by Paramedics would have changed Ms. Darrow's outcome.” Motion to Exclude at 16-18. In support, Good Samaritan explains that Dr. Winston testified that she had “no information about how long the response time would have been if a request for emergency transportation had been made sooner, ” “no information about the responding agency's staffing requests, ” and no “evidentiary basis to opine that less delay would have changed Ms. Darrow's outcome, ” because she has “no factual information regarding what caused Ms. Darrow to stop breathing.” Motion to Exclude at 16-18. Good Samaritan thus requests that the Court exclude Dr. Winston's testimony in totality, rendering Nicholson's arguments without the support of expert testimony. See Motion to Exclude at 18.

         3. The Response.

         Nicholson argues that the MSJ, “at most, challenges nothing more than the weight of the evidence which will be presented at trial.” Response at 1.

Pursuant to the detailed expert opinions of Dr. Jane Winston, it is clear that the Defendant's staff was not adequately trained to deal with the emergency situation which arose when Plaintiff's daughter, Tia Darrow, had her tracheostomy tube . . . dislodged and they were not able to reinsert it. It is clear the staff did not take prompt action to prevent the brain damage Ms. Darrow suffered and ultimately died from because of inadequate oxygen supply to her brain. Ms. Darrow was absolutely reliant on the trach to keep her alive. When the trach tube was dislodged and the Defendant's staff realized they could not replace it, an emergency response was needed as soon as possible. It is well recognized by multiple medical institutions such as the United States National Library of Medicine that lack of oxygen to the brain will cause permanent brain damage in as little as four (4) minutes. Another four to six minutes without the brain receiving adequate oxygen will result in increased brain damage, coma and then death. Dr. Jane Winston, Plaintiff's expert, is eminently qualified to testify on the specific issues of negligence and causation. After considering the response to Defendant's statement of facts and Plaintiff's statement of additional facts, this Court may consider entering summary judgment sua sponte for Plaintiff on the issue of causation.

         Response at 1-2 (emphasis in original). Specifically, Nicholson asserts that Good Samaritan has doctored its facts, because the “concept that Ms. Darrow was breathing ‘just fine' without the trach, and that the only reason to change the 911 call from non-emergent to emergent was because Darrow was ‘anxious' is incredulous.” Response at 6. Instead, Nicholson maintains, “the true facts are that the Defendant's employees failed to realize the gravity of the situation until it was way too late. Ms. Darrow would have survived with prompt medical attention.” Response at 6.

         In support, Nicholson argues that the jury “will be instructed that any ‘healthcare provider . . . treating [or] caring for a patient . . . is under the duty to possess and apply and use the skill ordinarily used by reasonably well-qualified . . . healthcare providers.'” Response at 6 (quoting Civil Uniform Jury Instruction 13-1101 NMRA). The crux, Nicholson suggests, is that “here, viewing the facts in the light most favorable to Plaintiff, there was a serious failure by Defendant's employees to possess and apply the knowledge and to use the skill ordinarily used by reasonably well qualified . . . healthcare providers.” Response at 6 (internal quotation marks omitted). Nicholson asserts that, by the time the M10 EMT team arrived in Darrow's room, she was “in bad condition . . . was cyanotic, blue and pulseless.” Response at 7. Nicholson's conception of the facts, then, is as follows:

Viewing the facts in the light most favorable to the Plaintiff . . . Ms. Darrow was in respiratory distress when the trach came out. Dr. Obisike has testified that the trach should have been in Ms. Darrow to ensure proper oxygenation. By the time the first non-emergent EMS team arrived, Ms. Darrow was cyanotic, blue and pulseless. This was confirmed when the advanced EMS team arrived three (3) minutes later. Ms. Darrow's cause of death has never been disputed by any credible expert testimony or medical records presented by Defendant.

         Response at 8. In Nicholson's estimation, Good Samaritan “employees inexplicabl[y] waited for twenty (20) minutes before recognizing this was an emergency situation. It is undisputed that permanent brain damage occurs from lack of adequate oxygenation within four (4) to six (6) minutes.” Response at 8-9. Nicholson also suggests that “it took the advanced life support team only three (3) minutes to arrive once they were called and notified of the gravity of the situation.” Response at 9. In sum, Nicholson concludes:

The liability facts asserted against Defendant and its employees are in serious dispute. There is no serious dispute regarding the facts showing that Ms. Darrow died because she did not have enough oxygen supplied to her brain after her trach was dislodged and after nursing staff was not able to replace the trach. Once again, Plaintiff asks that the Court enter summary judgment in her favor on causation. Otherwise, Plaintiff requests that the Defendant's motion be denied and that the Court grant such further relief as it deems just and proper.

         Response at 9.

         4. The Motion to Exclude Response.

         Nicholson then filed the Plaintiff's Response to Defendant's Daubert Motion and Memorandum to Exclude Testimony of Dr. Jane Winston (Doc. No. 49), filed April 7, 2017 (Doc. 56)(“Motion to Exclude Response”). In it, Nicholson primarily argues:

Dr. Winston's CV . . . establishes that she is more than eminently qualified to offer opinions in this case. She is board certified with the American Board of Family Medicine, Geriatric Medicine, and is a medical director with the Medical Director's Association for post-acute and long-term care medicine. She had been recertified in advance cardiac life support, trauma life support and respecting choices regarding advanced care planning facilitation. . . . [And w]hen this case goes to trial, the jury will be instructed to measure the level of care provided by Defendant's staff according to NMRA 13-1101. Specifically, the jury will be instructed to decide whether or not Defendant's employees applied and used the knowledge, skill and care “ordinarily used by reasonably well qualified . . . healthcare providers.” The only way the jury can decide this issue is based upon the testimony of a licensed physician.

         Motion to Exclude Response at 1-2. In support, Nicholson contends that Good Samaritan's argument

[f]lies in the face of the specific requirements of NMRA 13-1101 and established medical case law that medical doctors can offer opinions outside of their specialized area of medicine so long as they are qualified based upon their education and experience to offer reliable opinions. See, Fed.R.Evid. 702; see, also, Quintana v. Acosta, 2014-NMCA-015 (an emergency room physician can testify regarding the cause of injury for failure to administer appropriate antibiotics).

         Motion to Exclude Response at 2. Nicholson then turns to Good Samaritan's contentions regarding a factual basis for Dr. Winston's testimony, stating:

Dr. Winston clear[ly] testified and opined that Ms. Darrow's death was the direct result of the inability of Defendant's staff to reinsert the trach. This lack of adequate, or any, training was confirmed by Nurse Greenam[]yer. The most likely cause of Ms. Darrow's death was inadequate airway and inadequate intake of oxygen which led to cardiac arrest.

         Motion to Exclude Response at 3. Nicholson then maintains that “the time delay in recognizing the immediate need for advanced life support services when Ms. Darrow's trach could not be replaced is well documented, ” and, accordingly,

[a]ll of the Defendant's argument go to the weight, not the admissibility, of Dr. Winston's opinions. As the Court can see, Dr. Winston has devoted most of her professional life to the evaluation and treatment of long term care patients in nursing homes, such as Tia Darrow. Defendant's challenges should be utterly denied. At the very least, the Court should schedule a Daubert hearing if the Court has any questions to ask Dr. Winston regarding the reliability of her testimony.

         Motion to Exclude at 4.

         5. The Reply.

         Good Samaritan's Reply begins by arguing that the “Plaintiff was required to show a genuine evidentiary dispute[, and s]he has failed to do so.” Reply at 1. Essentially, Good Samaritan provides, the

Plaintiff cannot refute the actual evidence establishing that Tia Darrow was conscious, breathing and adequately oxygenated when her care was transferred to EMTs on the morning of September 9, 2014, and Plaintiff thus cannot establish that any act or omission on the part of Good Samaritan resulted in Ms. Darrow's sudden and unexplained loss of consciousness and ability to breathe shortly after that transfer of care.

         Reply at 1. Specifically, Good Samaritan argues, Nicholson has not identified admissible evidence that proves specific facts showing a genuine issue for trial as to the dispositive causation issue in this case. See Reply at 2. First, Good Samaritan maintains that Nicholson “ignores the undisputed evidence and contends that Ms. Darrow was not breathing when the EMTs arrived.” Reply at 15. Accordingly, Good Samaritan argues that Nicholson “failed to address how Good Samaritan could have caused Darrow's death given that she was still conscious and breathing when the EMTs arrived and took over her care.” Reply at 15. Next, Good Samaritan maintains that Nicholson “has failed to address what caused Ms. Darrow to stop breathing, ” which it argues is necessary to address, because “it is not genuinely disputed that Ms. Darrow was able to breathe for a significant period of time without her trach in place.” Reply at 16. According to Good Samaritan, for Nicholson to prove it is liable for Ms. Darrow's sudden loss of the ability to breathe and loss of consciousness, the “Plaintiff must show why that sudden event occurred.” Reply at 16. That is, Good Samaritan provides,

Plaintiff confuses the result of the loss of breathing -- inadequate oxygenation and death -- with the cause of the loss of breathing. . . . But Good Samaritan does not dispute that Ms. Darrow stopped breathing on September 9, 2014, and died as a result. What is at issue in the Motion is how Good Samaritan can be held liable for Ms. Darrow's loss of breathing when Plaintiff cannot establish why Ms. Darrow stopped breathing, and thus, whether anything done by Good Samaritan or the EMT's could have prevented or rectified it. Neither Plaintiff nor her expert have identified anything that Good Samaritan supposedly did or did not do that resulted in Ms. Darrow's sudden loss of the ability to breathe, or anything that the EMTs could have done to prevent the sudden loss, and Plaintiff thus cannot move forward to trial.

         Reply at 16. Essentially, according to Good Samaritan, Nicholson has shown only that Darrow lost oxygen, and not how Good Samaritan supposedly caused and is responsible for that loss of oxygen. See Reply at 16-17.

         Finally, Good Samaritan maintains that Nicholson does not “refute the absence of evidence that an earlier call to 911 would have made a difference.” Reply at 17. In that regard, Good Samaritan first identifies the error in Nicholson's Response that “an ALS paramedic arrived within three minutes of Good Samaritan's call for an emergency response, ” and suggests that “it was in fact actually 11 minutes.” Reply at 17-18 (citing 911 Incident Report at 2). In light of that error, Good Samaritan maintains that there is no evidence to suggest that there would have been a quicker or equivalent advanced life support response had Greenamyer made the emergency call sooner. See Reply at 18. Good Samaritan, further, then reiterates for the Court that, because Nicholson cannot establish that Darrow was cyanotic and pulseless when the M10 EMT team arrived, she “cannot show that the same event would not have occurred if paramedics had arrived ten minutes earlier, twenty minutes earlier, or even if Ms. Darrow had already been at the hospital when she stopped breathing.” Reply at 18.

         6. The Motion to Exclude Reply.

         Good Samaritan supported its Motion to Exclude with the Defendant's Reply on Motion to Exclude Testimony of Dr. Jane Winston, filed April 19, 2017 (Doc. 63)(“Motion to Exclude Reply”). Good Samaritan argues that Nicholson has “failed to meet her burden of establishing that Dr. Winston is qualified or has admissible opinions, ” because she “does not offer the Court any evidence that Dr. Winston has the proper qualifications.” Motion to Exclude Reply at 1 (emphasis in original). Good Samaritan then reiterates that “Dr. Winston cannot testify about nursing standards of care, ” because Nicholson has not established that Dr. Winston has “nursing training or experience” which qualifies her as an expert at New Mexico medical negligence law. Motion to Exclude Reply at 3. Good Samaritan argues that the NMRA Civ. UJI 13-1101 “specifically requires: ‘In the . . . blanks, the type of health care provider, such as doctor, nurse, or chiropractor, should be inserted.'” Motion to Exclude Reply (quoting Use Note to NMRA Civ. UJI 13-1101). According to Good Samaritan, then, “Dr. Winston is the wrong expert for this case.” Motion to Exclude Reply at 5. Good Samaritan then restates its arguments that Dr. Winston lacks a sufficient factual basis on the record upon which to opine, asserting acquiescence on Nicholson's behalf, because she did not meaningfully respond in the Motion to Exclude Response. See Motion to Exclude Reply at 5-10. Good Samaritan concludes:

Plaintiff failed to meet her burden to establish that Dr. Winston can offer admissible testimony. Dr. Winston is not qualified to opine about nursing issues, and lacks the factual basis necessary to render opinions about the topics on which she intends to opine. The Court should exercise its gatekeeping function by closing the gate to Dr. Winston and precluding her from testifying at trial.

         Motion to Exclude Reply at 10-11.

         7. ...

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