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Brisbin v. United States

United States District Court, D. New Mexico

August 15, 2019

KYLE BRISBIN, Individually, and as Personal Representative of the Estate of ROBERT F. BRISBIN, Deceased, Plaintiff,



         Plaintiff Kyle Brisbin brings this medical malpractice action in connection with the death of her late husband, Robert Brisbin. Mr. Brisbin presented to the VA Medical Center in Albuquerque reporting stroke signs and symptoms. Mr. Brisbin was transferred to UNM Hospital a few hours later, unconscious and on ventilation. Approximately 18 days after this, he was transferred to hospice, where he passed away. Plaintiff brings this suit against the United States of America, arguing that the VA nurses and staff should have ensured a timelier transfer of Mr. Brisbin to UNM Hospital.

         After Plaintiff disclosed an expert witness who opined only on the negligence of contract doctors rather than on the negligence of any United States employee, the United States filed the present motion for summary judgment (Doc. 58), arguing that Plaintiff must have expert testimony to support her claims, and that summary judgment is appropriate where her expert did not offer any opinions that the VA nurses and staff were negligent. In response to the motion- well after the deadline to produce expert reports and after the close of discovery-Plaintiff disclosed a “supplemental” affidavit from her expert, this time opining that the VA nurses and staff were partially responsible for the delay in transfer and their conduct fell below the standard of care. In reply, the United States moved to strike the untimely supplemental affidavit and argued that the opinions therein are so conclusory that the supplemental affidavit is not competent evidence to defeat summary judgment. On surreply, Plaintiff did not contest the untimeliness of his supplemental affidavit but proposed a sanction less severe than striking the affidavit. For the reasons explained below, the Court will defer ruling on this motion until after a hearing.


         A. Procedural History

         Plaintiff filed her Complaint for Medical Negligence and Wrongful Death on February 7, 2018. Doc. 1. It contained five counts: (1) Medical Negligence of Defendant New Mexico VA Health Care System; (2) Professional Negligence of Defendant New Mexico VA Health Care System; (3) Wrongful Death; (4) Loss of Consortium; and (5) Negligent Hiring, Supervising And/Or Retention of Defendant New Mexico VA Health Care System. Id. Defendant United States filed its Answer on April 16, 2019. Doc. 12. On May 23, 2018, I entered an Order regarding a related case Plaintiff also filed in federal court, captioned Brisbin v. AB Staffing Solutions, LLC, Civ. No. 17-1183 WJ/SCY. See Doc. 18. I noted that, “[g]enerally speaking, both the present case and the companion case arise from allegations of negligent medical treatment received by Robert Brisbin at the Raymond G. Murphy VA Medical Center on the night of December 28, 2014.” Id. at 1. The defendants in No. 17-1183 WJ/SCY are Dr. Parmjit M. Singh and his employer, AB Staffing Solutions, whereas the defendant in the instant case is the United States, who runs the VA Medical Center and contracted with Dr. Singh to provide medical care at that facility.

         The defendants in No. 17-1183 WJ/SCY filed a motion to consolidate discovery, noting that Plaintiff did not oppose consolidation but that the United States, a party in No. 18-128 SCY/LF, did oppose consolidation. No. 17-1183 WJ/SCY, at doc. 28 (filed Apr. 18, 2018). The United States, however, later withdrew its opposition. Doc. 22.[2] I entered an order consolidating the cases for discovery purposes. Docs. 25 & 26. I then entered an Amended Scheduling Order applicable to both cases, setting Plaintiff's expert disclosure deadline for September 3, 2018; a discovery termination date of November 15, 2018; and a pretrial motions deadline of December 5, 2018. Doc. 27. On September 6, pursuant to a request by all parties in both cases, I entered an Order Granting Joint Motion To Extend Pretrial Deadlines. Doc. 34. I set the new deadline for Plaintiff's expert disclosure for October 3, 2018; the new discovery termination date for December 15, 2018; and the new pretrial motions deadline for January 17, 2018. Id. On October 3, 2018, I granted another joint motion to extend deadlines, setting Plaintiff's expert disclosure deadline for December 3, 2018; the discovery deadline for February 15, 2019; and the pretrial motions deadline for March 18, 2019. Doc. 38. Plaintiff filed a Certificate of Service of his Expert Witness Disclosure on December 3, 2018, disclosing Robert W. Derlet, MD and Kevin Yoo, MD, F.A.N.S., F.A.C.S. as expert witnesses. Doc. 43. Plaintiff filed an identical disclosure in No. 17-1183 WJ/SCY on the same date. See No. 17-1183 WJ/SCY, at doc. 52 (filed Dec. 3, 2018).

         After the cases were briefly stayed during the federal government shutdown in January 2019, Judge Fashing conducted a status conference on February 13, 2019. The parties in No. 17-1183 WJ/SCY informed her that they reached a negotiated settlement. Doc. 57. The parties in that case submitted closing documents and Judge Johnson granted the stipulated motion to dismiss. No. 17-1183 WJ/SCY, at doc. 61 (filed Mar. 7, 2019).

         Meanwhile, in the present case, Judge Fashing extended the discovery termination date to April 22 and the pretrial motions deadline to May 23. Doc. 51. The parties also jointly moved to vacate a settlement conference before Judge Fashing, preferring to instead obtain a decision on dispositive motions the United States planned to file. Docs. 53 & 55. On July 3, 2018, Plaintiff filed a notice of withdrawal of Counts II and IV of her Complaint, Doc. 29, and on May 15, 2019, filed another notice withdrawing Count V of her Complaint, Doc. 57.

         On May 22, the United States filed the instant Motion for Summary Judgment And/Or To Dismiss. Doc. 58. In its motion, the United States argues that it is entitled to summary judgment in this medical malpractice case because Plaintiff's claims require expert testimony, and Plaintiff did not disclose any expert opinions on the subject of the United States' negligence. Plaintiff did disclose expert witnesses under Fed.R.Civ.P. 26(a)(2) in accordance with the Court's Scheduling Order. Doc. 43. But, according to the United States, the expert reports only disclosed opinions regarding the negligence of a contract doctor, Dr. Singh, for whom the United States is not liable. Doc. 58 at 9. Therefore, the United States argues, Plaintiff has no expert testimony to establish any negligence by the United States. Id.

         In her response in opposition to the Motion, filed June 12, 2019, Plaintiff attaches an affidavit from Dr. Derlet offering opinions regarding the United States' alleged negligence and argues that these opinions meet her burden to provide expert testimony in support of her claims. Docs. 63 & 63-1. The United States filed its reply on June 26, 2019. Doc. 64. In reply, the United States observes that these opinions were not contained in the original disclosure, and argues the affidavit attached to Plaintiff's response is therefore an untimely expert disclosure under this Court's Scheduling Order, Doc. 38, and Federal Rule of Civil Procedure 26(a)(2)(D). Doc. 64 at 4-7. The United States moves to strike the supplemental affidavit of Plaintiff's expert. Id. The United States also argues that Dr. Derlet's supplemental affidavit does not meet Plaintiff's burden to establish medical malpractice because it offers conclusions with no explanations. Doc. 64 at 7-10.

         Because Plaintiff attached Dr. Derlet's supplemental affidavit to her response brief, the arguments the United States raised in reply concerning that affidavit were new (not presented in the United States' original motion). On that basis, the Court invited Plaintiff to file a surreply to address the new arguments raised in the United States' reply brief. Doc. 68. Plaintiff filed her surreply on July 17, 2019. Doc. 69. In her surreply, Plaintiff argues that the United States should have been on notice of Dr. Derlet's opinion that the United States was negligent because Dr. Derlet's original affidavit “made it clear that the delay in transport was negligent” and “did not say that all the fault lay with Dr. Singh.” Doc. 69 at 2. Plaintiff also argues that there is no prejudice to the United States from the supplemental affidavit, because there is no trial setting. Id. at 3. Plaintiff offers to have Dr. Derlet deposed at Plaintiff's expense. Id. Plaintiff does not respond to the United States' argument that Dr. Derlet's supplemental affidavit does not meet Plaintiff's burden to show medical malpractice because it offers conclusions with no explanations.

         B. Defendant's Statement of Material Facts

         Robert Brisbin presented to the Veterans Administration (“VA”) Hospital's Emergency Department on December 28, 2014 after a reported fall and reported stroke signs and symptoms. Doc. 58 ¶ 1; Doc. 63 at 2. Dr. Parmjit M. Singh was an emergency medical physician employed by AB Staffing Solutions, LLC, working as an independent contractor at the VA on December 28, 2014. Doc. 58 ¶ 2; Doc. 63 at 2. Mr. Brisbin was evaluated by Dr. Singh and sent for a CT scan without intravenous contrast. Doc. 58 ¶ 3; Doc. 63 at 2. The CT scan revealed Mr. Brisbin was suffering a left thalamic hemorrhage approximately 3 x 3.6 cm in size, with associated intraventricular hemorrhage predominantly on left side; 2.3mm left to right midline shift. Doc. 58 ¶ 4; Doc. 63 at 2. Dr. Singh consulted with the VA's attending neurosurgeon, Dr. Suguna Pappu. Dr. Pappu recommended Mr. Brisbin be transferred to UNM Hospital (“UNMH”) for higher level care. Doc. 58 ¶ 5; Doc. 63 at 2. Before Mr. Brisbin was transported to UNMH, he became unstable, unresponsive to verbal cues and lost consciousness, requiring he be intubated. Doc. 58 ¶ 6; Doc. 63 at 2. Mr. Brisbin was transported to UNM Hospital unconscious and on ventilation, where he stayed for approximately 18 days, before being transferred to hospice, where Mr. Brisbin died on January 25, 2015. Doc. 58 ¶ 7; Doc. 63 at 2.

         In accordance with the Court's scheduling order, Plaintiff disclosed his expert witness under Rule 26(a) on December 3, 2018. See Doc. 43; see also Doc. 38 (order extending deadline for expert witness disclosure to December 3, 2018). Plaintiff disclosed an emergency medicine expert, Dr. Robert W. Derlet, who opined in his report that “Dr. Singh failed to take appropriate action to stabilize Mr. Brisbin prior to transfer.” Doc. 58 ¶ 8; Doc. 63 at 2; Doc. 58-4 at 2. According to Dr. Derlet, in the absence of the immediate availability of prothrombin complex concentrate, known as the brand name Kcentra, “Dr. Singh should have administered Fresh Frozen Plasma.” Doc. 58 ¶ 9; Doc. 63 at 2; Doc. 58-4 at 2. “Either agent would rapidly reverse the anticoagulation, and stop the bleeding into [Mr. Brisbin's] brain.” Doc. 58-4 at 2. Dr. Derlet opines that Dr. Singh's failure to do so falls below the standard of care. Id. at 2-3.

         “The delay in transfer is also below the standard of care.” Id. at 3. “Dr. Singh had the primary responsibility to ensure timely transfer of Mr. Brisbin to UNMH. It is below the standard of care for an ED physician to hand off a patient to an administrative employee to ensure timely transfer.” Doc. 58 ¶ 10; Doc. 58-4 at 3. Dr. Derlet concludes that “Dr. Singh had full responsibility for care of the patient until he departed from the ED.” Doc. 58 ¶ 11; Doc. 58-4 at 3. Plaintiff concedes that this is an accurate ...

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