United States District Court, D. New Mexico
NADA NICHOLSON, As Personal Representative of the Estate of TIA L. DARROW, Plaintiff,
THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, INC., d/b/a GOOD SAMARITAN - FOUR CORNERS VILLAGE, Defendant.
P. Lyle Law Offices of James P. Lyle P.C. Albuquerque, New
Mexico Attorney for the Plaintiff
Paige Chase-Sosnoff Jeremy K. Harrison Martha G. Brown
Modrall Sperling Roehl Harris & Sisk, P.A. Albuquerque,
New Mexico Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
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).
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.
Background Facts Giving Rise to 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
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.
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.
The Undisputed Facts as Good Samaritan's MSJ and the
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). “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). “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). “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). “Sometime
after RN Greenamyer called for non-emergency transport, RN
Greenamyer observed that Ms. Darrow was having some anxiety,
[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). 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). “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). “Approximately one
minute after the EMTs 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”)). “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.” MSJ ¶ 13, at
6 (asserting this fact).
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). 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,
at 5 (asserting this fact). See Reply ¶ AF 1,
at 12 (not disputing this fact). 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.”)). 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). “[I]nadequate airway intake was
the proximate cause of Ms. Darrow's unconsciousness and
hypoxia.” “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.”
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
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.
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
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
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.
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
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.
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
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.
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
MSJ at 14-15. Here, Good Samaritan identifies that
Nicholson's theory of causation is that she would not
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
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
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,
MSJ at 19-20.
The Motion to Exclude.
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,
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
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).
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
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.
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.
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.
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
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,
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
The Motion to Exclude Response.
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.
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).
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
Greenamyer. The most likely cause of Ms. Darrow's death
was inadequate airway and inadequate intake of oxygen which
led to cardiac arrest.
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,
[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.
to Exclude at 4.
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.
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
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
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.
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.
The Motion to Exclude Reply.
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
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.
to Exclude Reply at 10-11.