Atcherian et al v. United States of America

Filing 60

ORDER Regarding Motion in Limine at Docket 26 . (Jan, Chambers Staf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSEPH J. ATCHERIAN, on his own
behalf and as the Personal Representative
of the ESTATE OF MARTHA JO
ATCHERIAN, Deceased; and MAX
YUNAK, Sr., as the Personal
Representative for the ESTATE OF
PAULA KAREN YUNAK,

Case No. 3:12-cv-0211-RRB
Order Re: Motion in Limine
Regarding Discretionary
Function Exception

Docket 26
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

I. Introduction
This is a wrongful death matter involving the estates of Paula Yunak and her infant daughter,
Martha Jo Atcherian. The estates are represented by the personal representatives, Max Yunak and
Joseph Atcherian.1 Joseph Atcherian also brings this case on his own behalf, as the husband and father
of the decedents. The case is brought pursuant to the Federal Tort Claims Act, (“FTCA”), 28 U.S.C.
§ 2674, following the final decision by Indian Health Services denying an administrative claim.
Docket 1 at 2.
1

For the sake of clarity, the first names of the decedents will be used throughout this order,
rather than last names or names of personal representatives of the estates.
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Plaintiffs allege negligence of employees of the Yukon Delta Regional Hospital (“YKDRH”),
which is operated by the Yukon Kuskokwim Health Corporation (YKHC), a contracting entity of
the Indian Health Services. Accordingly, health care provider employees at YKDRH are employees
of the United States for purposes of liability under the FTCA. The defendant is, therefore, the United
States of America.
Plaintiffs allege four causes of action: 1) Negligence, in the form of breach of the standard
of medical care; 2) Failure to provide informed consent; 3) Wrongful death and survival claim
(Paula); 4) Wrongful death and survival claim (Martha). Docket 1. This motion pertains only to
Count 1, Negligence. With respect to Count 1, Plaintiffs allege that YKDRH medical personnel
breached their obligation to provide medical care of a reasonable kind that conforms to the accepted
standard of care by: failure to timely diagnose Paula’s serious medical condition, discharge of Paula
from the hospital after assessing her with a serious medical condition, failure to ensure there was
adequate nursing staff on duty in the obstetrics (“OB”) department, failure to promptly induce labor,
failure to act with the necessary degree of urgency to ensure Paula was delivered by a skilled medical
team, and failure to promptly provide medical diagnostic tests. Docket 1 at 6.
II. Facts
The facts are largely undisputed. On November 9, 2009, Paula presented to the YKDRH for
a prenatal visit. She was over 38 weeks pregnant. Lab work and physical complaints of shortness of
breath resulted in Paula’s transfer to OB triage, where she was diagnosed with “pregnancy induced
hypertension versus pre-eclampsia.” Dr. Mary Boegel, a Locum tenens family practice physician for
YKHC, was concerned that Paula had “severe pre-eclampsia” and felt that Paula needed close
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monitoring and “induction as soon as possible.” Docket 46-2. But Dr. David Compton, an OB/Gyn,
sent Paula home at 3:55 p.m. with instructions to call the hospital at 7:30 the next morning for
induction of labor. Docket 1 at 3-4.
It is undisputed that induction was not available on November 9, 2010. Defendant explains
that due to the size of the hospital in Bethel, Alaska, only one patient may be induced at a time.
There was already a patient being induced when Paula arrived at the OB triage on November 9,
2010. Furthermore, the OB ward was at full capacity. Docket 27 at 4. Plaintiffs’ Complaint alleges
that induction was not available “due to inadequate nurse staffing.” Docket 1 at 4.
Paula returned to the hospital at 1:45 a.m. on November 10th with increased shortness of
breath. Docket 1 at 4. At 2:30 a.m. a chest x-ray was taken which showed “interstitial edema
consistent with pulmonary edema and organ failure.” Docket 1 at 5. At 7:15 a.m., Paula was loaded
into the LifeMed aircraft to be flown to Anchorage for induction of labor. Fifteen minutes later she
went into cardiac and respiratory arrest, the flight turned around, and she was brought back to the
emergency room in Bethel. At 8:16 a.m., infant Martha was delivered by Cesarian section. Paula was
pronounced dead five minutes later. Infant Martha was transferred to Alaska Native Medical Center
in Anchorage the same day, and died two days later. Id.
III. Motion in Limine
Defendant seeks to “exclude any expert opinion that the government had a duty to
immediately deliver Yunak on November 9, 2010, as a basis for liability.” Docket 27 at 11-12.

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A. The Discretionary Function Exception
The FTCA waives the government’s sovereign immunity for tort claims arising out of
negligent conduct of its employees acting within the scope of their employment. Gager v. United
States, 149 F.3d 918, 920 (9th Cir. 1998). The exception provides that no liability shall lie for “[a]ny
claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the Government, whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a). Conduct is not discretionary where a federal
statute, regulation, or policy specifically prescribes a course of action for the employee or agency
to follow. Myers v. United States, 652 F.3d 1021, 1028 (9th Cir. 2011). The Government suggests
that the discretionary function exception shields it from any liability for failure to induce pursuant to
the hospital’s policy, or failure to staff or have facilities available to the Plaintiff when she presented
for treatment.
B. The Experts
Plaintiffs’ experts, two obstetrics and gynecology physicians, both opine that based on Paula’s
symptoms, the treating physician should have taken an x-ray, that the x-ray would have shown
pulmonary edema, and that this additional finding would have changed the diagnosis from mild
preeclampsia to severe preeclampsia. They further opined that the only appropriate treatment for
severe preeclampsia at 38 weeks and 6 days is immediate delivery. Docket 27-4 (Opinion of
Dr. Matthew Brennan); Docket 27-5 (Opinion of Dr. Goldberg). Dr Brennan further opined that
“there is no role for outpatient management of severe preeclampsia at term,” and that Paula “should
have been sent at that time to the [labor and delivery] unit for immediate delivery. Due to inadequate

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nursing availability at that time she was instead sent home and asked to return in the morning for
induction. . . Her death and the death of her child could have been prevented if she would have been
admitted and delivered when she presented with severe preeclampsia on 11/09/2010.” Docket 27-4.
C. Analysis
The parties generally agree that Plaintiffs cannot recover damages against the government for
failure to induce and deliver Paula at the Bethel hospital, as the level of staffing and available
facilities are economic decisions protected by the discretionary function exception. Docket 55 at 4.
Plaintiffs concede that “nursing staffing had nothing to do with [their] claim.” Docket 46 at 9.
Furthermore, the parties agree that the claims of wrongful diagnosis and other medical malpractice
claims are not protected by the discretionary function exception. Docket 46 at 15; Docket 55 at 2.
Defendant concedes that had Paula presented with severe preeclampsia, rather than mild
preeclampsia, the treatment policy in Bethel is to medevac to Anchorage. Defendant’s concern is that
the expert opinions that Paula should have been “immediately admitted for delivery” should not be
admitted because the government was incapable of meeting such a standard, and that failure is
protected by the discretionary function exception. Docket 27 at 10-11.
The motion currently before the Court addresses a very narrow issue: Whether this Court
should “exclude any expert opinion that the government had a duty to immediately deliver Yunak
on November 9, 2010, as a basis for liability.” Docket 27 at 11-12. Indeed, both experts have opined
that the only appropriate treatment for severe preeclampsia at late pregnancy is “immediate

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delivery.”2 The hospital’s inability to provide “immediate delivery” on site for discretionary reasons
does not change the fact that expert opinions regarding the standard of care call for “immediate
delivery.” What constitutes “immediate delivery” in Bethel is for the parties the define. The parties
are in agreement that the protocol for “immediate delivery”with staff and/or bed shortages in Bethel
would have included prompt medevac to Anchorage. This FTCA matter will be a bench trial, not a
jury trial. The Court is confident that it can discern the hospital’s responsibility under the “immediate
delivery” standard of care, as explained by expert testimony and as executed pursuant to hospital
policy.
Accordingly, the Motion in Limine at Docket 26 is DENIED. However, as the parties appear
to agree that the level of nursing staff is not a basis for liability, the Court will sua sponte DISMISS
the portion of the First Cause of Action which seeks liability for “failing to ensure there was adequate
nursing staff on duty in the obstetrics department.” Docket 1, ¶ 35.
IT IS SO ORDERED this 13th day of November, 2014.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

2

With respect to the expert reference to a nursing staff shortage, the Court finds that such
statement is merely a factual observation, the accuracy of which is not in dispute.
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