Opinion
7:00-CV-168-R.
August 6, 2001.
MEMORANDUM OPINION AND ORDER
On August 18, 2000, Plaintiff Renee DeWolfe; Individually and as Next Friend of Kaitlynd DeWolfe, A Minor, filed suit in this court against the United States of America for negligent provision of health care and treatment pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Now before this court is the Defendant's Motion for Summary Judgment, filed on July 23, 2001. For the reasons stated below, the Motion is DENIED.
Background
On June 21, 1998, Kaitlynd DeWolfe, then six years old, was treated in the Emergency Room of Sheppard Air Force Base hospital for dehydration. As part of the treatment, Air Force Captain Andrew Lee Reimund, R.N. administered an intramuscular injection into Kaitlynd's left thigh. Kaitlynd's mother, Renee DeWolfe, reports that upon receiving the injection Kaitlynd became very upset and started screaming and crying. Kaitlynd was unable to walk out of the emergency room unassisted due to pain and alleged loss of strength in her left leg. Kaitlynd's pain continued, resulting in neurological impairments, including a "foot drop." Kaitlynd was ultimately diagnosed as suffering from a probable sciatic nerve injury.The Plaintiffs contend that the intramuscular injection was administered in a manner that fell below the standard of care in the relevant medical community, and that the wrongly-administered injection was the proximate cause of the damage to Kaitlynd's sciatic nerve. A number of doctors examined Kailtlynd and a number of doctors and nurses examined Kaitlynd's records in order to render expert opinions in this case. Their opinions will be addressed in the discussion below.
Discussion
I The Applicable Law
Under the Federal Tort Claims Act (FTCA), the United States is liable for the tortious conduct of its employees "in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. To determine whether a private person would be liable, and thus whether the United States is liable in a given case, courts apply the law of the state "where the act or omission occurred." Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989) (quoting, 28 U.S.C. § 1346(b) (1982); citing, Rayonier Inc. v. United States, 352 U.S. 315, 318 (1957)). Accordingly, Texas principles of tort law will govern the question of the Defendant's liability in this case.
Under Texas law, to prevail on summary judgment, defendants in a medical malpractice case must establish the following: 1) the applicable standard of care; 2) the treatment and services provided the patient and the reason for that treatment; and 3) that the treatment and services complied with the standard of care used by other reasonably prudent health care providers in the same or similar circumstances. See Chopra v. Hawryluk, 892 S.W.2d 229, 231 (Tex.App.-El Paso 1995) (citing, Ceballos v. El Paso Health Care Systems, 881 S.W.2d 439, 440 (Tex.App. — El Paso 1994, writ denied); Davis v. Manning. 847 S.W.2d 446, 449 (Tex.App.-Houston [14th Dist.] 1993, no writ)). "The health care provider may also prove its right to summary judgment by establishing there was no causal connection between any breach of the standard of care and the plaintiff's injury."Chopra, 892 S.W.2d at 231 (citing, Ceballos, 881 S.W.2d at 440). Once the defendant has negated one or more of the essential elements of the plaintiff's claim, the burden then shifts to the plaintiff to produce controverting evidence raising a fact issue. Chopra, 892 S.W.2d at 231 (citing,Pinckley v. Gallegos, 740 S.W.2d 529, 534 (Tex.App. — San Antonio 1987, writ denied)).
Texas law also dictates the type of proof necessary to succeed on a motion for summary judgment in a medical malpractice case. At trial, Texas places the burden of proof on the plaintiff to establish by expert testimony that the act or omission of the health care provider fell below the appropriate standard of care and was negligent. See Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1020 (5th Cir. 1993:) (citing, Avers v. United States, 750 F.2d 449, 453 (5th Cir. 1985); Gonzalez v. United States 600 F. Supp. 1390, 1393 (W.D. Tex. 1985); Bowles v. Bourdon. 148 Tex. 1,219 S.W.2d 779, 782 (1949)). And, "[w]hen state law requires a plaintiff to prove negligence by expert testimony, summary judgment can be granted where the defendant presents expert affidavits and the plaintiff presents no such affidavits." Rodriguez. 980 F.2d at 1020 (citations omitted).
Thus, to prevail on its Motion for Summary Judgment, the Defendant must provide competent expert depositions or affidavits establishing: 1) the appropriate standard of care for administering intramuscular injections to six-year-old patients; 2) how Kaitlynd's injection was administered; and 3) that the administration of Kaitlynd's injection met the relevant standard of care. Alternatively, the Defendant must provide expert testimony or affidavits opining that there was no causal connection between the allegedly substandard injection and the resultant injury to Kaitlynd's sciatic nerve. Once the Defendant has met this burden, the Plaintiff must provide this court with competent expert depositions or affidavits contradicting the Defendant's evidence, thus raising a material issue of genuine fact. In considering the evidence before it, this court will be guided by the general rule that all reasonable doubts and inferences should be decided in the light most favorable to the nonmovant. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrouh v. Columbus Greenville R.R Co., 760 F.2d 633, 640 (5th Cir. 1985).
II Analysis
The Defendant argues that this court should dismiss the DeWolfe's claim because there is no genuine issue of material fact on the questions of standard of care or proximate cause. First, the Defendant argues that no genuine issue exists as to the standard of care because "none of the expert witnesses testified that any relevant action by the employees of the United States was performed below the appropriate standard of care." (Def. Mot. 4.) While this may be true, it is irrelevant, because the Defendant failed to meet its initial burden on summary judgment of providing expert testimony that the employee who administered Kaitlynd's injection performed at or above the appropriate standard of care. Under Texas law, merely pointing out the absence of the Plaintiff's evidence is not sufficient for summary judgment. Instead, the Defendant must provide its own expert testimony demonstrating what the standard of care is, and how it was met in this case. See Chopra, 892 S.W.2d at 231 (citations omitted). The Defendant did not even attempt to do this in its Motion, and a review of the evidence demonstrates that any such attempt would have failed, because such evidence does not exist. Therefore, summary judgment is not appropriate on the issue of standard of care.
Nor is summary judgment appropriate on the issue of proximate cause. First and foremost, the Defendant failed to meet its burden of producing an expert who opined that there was no causal connection between the allegedly wrongly-administered injection and the injury to Kaitlynd's sciatic nerve. Moreover, there are a number of expert opinions that support the existence of a causal connection. For example, an examining physician, Dr. William Young, testified that there was no cause more likely than the injection, and that "the most likely cause of the wasting away of the musculature of the lower leg is from the shot." (App. 24, 26.) In addition, Dr. Chudnow testified that it would be possible for an anterior injection to hit the sciatic nerve, if a larger needle was used in a small child. (App. 32.) A non-examining physician, Dr. McDonald, testified that the only cause he was left with for Kaitlynd's injury was some trauma to the sciatic nerve in the thigh area, and that based on the history, it was probably a result of the injection. (App. 64.) Lastly, Dr. Marks testified that there is probably no doubt that the injury occurred as a result of the injection because temporally, it followed the injection, although his opinion is that the injury was more likely a product of an irritation to the nerve from the medicine that was injected than an injury from the penetration of the needle itself. (App. 111.)
The Defendant has failed to meet its burden of demonstrating that no genuine issue of material fact exists as to the standard of care used in administering an injection to Kaitlynd DeWolfe. The Defendant also lacks sufficient evidence to prove that the alleged breach of the standard of care did not cause the resultant injury. Therefore, the Defendant's Motion for Summary judgment is DENIED.
Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment is hereby DENIED.It is so ORDERED.