Garza et al v. Yuma County et al
ORDER AND OPINION that Piscoya's 212 Motion for Summary Judgment pursuant to Rule 56 is granted. Signed by Judge John W Sedwick on 11/10/11. (ESL)
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
M.M., et al.,
YUMA COUNTY, et al.,
ORDER AND OPINION
[Re: Motion at Docket 212]
I. MOTION PRESENTED
At docket 212, defendant Dr. Jose Piscoya (“Piscoya”) moves for summary
judgment pursuant to Rule 56. Other defendants (the “responding codefendants”)–among them, the Yuma County Jail District, Sheriff Ralph E. Ogden, and
numerous officers–filed a response in opposition to the motion at docket 236. Plaintiffs
M.M., Ashley Ingraham (“Ingraham”), and Alex Garza (collectively “plaintiffs”) oppose
the motion at docket 238. Piscoya’s replies are at dockets 242 and 243. Oral argument
would not assist the court.
This lawsuit arises out of the premature birth of M.M. Ingraham is M.M’s mother,
and Alex Garza is M.M’s father. Piscoya is a general practitioner who serves as the
Medical Director for Northend Health Associates (“Northend”). Northend contracted to
provide medical services at the Yuma County Detention Center.
Ingraham was taken into custody at the Yuma County Detention Center on
September 7, 2006. Ingraham was examined at intake by Elanor Snider (“Snider”).
She informed Snider that she was pregnant, suffered from bipolar disorder, and was
taking medication. Ingraham was given prenatal vitamins. The following day, at
10:39 a.m., Ingraham was examined by defendant Kindra Gonzales (“Gonzales”),
Northend’s Director of Nursing. Gonzales was informed that Ingraham had an outburst
at a court hearing that morning. She was unaware whether Ingraham would be in jail
for an extended period, but was told that Ingraham was pregnant, acknowledged the
need for Ingraham’s medical records, and ordered a vital sign check and a urinalysis to
confirm the pregnancy.
Ingraham was brought back to the medical department at 10:56 a.m. after she
complained that she was having contractions and needed her psychiatric medications.
Gonzales performed an abdominal exam and did not notice anything out of the ordinary.
Ingraham asked to be taken to the hospital and stated that her water broke. Gonzales
examined Ingraham’s underwear and found “a small amount of yellow fluid with urine
smell [and] no bloody show.”1 Gonzales reported that it did “not appear to be amniotic
fluid” and that she was “unable to test” it.2 Gonzales then contacted Piscoya. Piscoya
ordered that Ingraham be given Tylenol for pain and instructed that she not be sent to
Doc. 207-1 at 6.
Id. at 7.
the hospital at that time. Piscoya had no further involvement with Ingraham’s treatment
On September 9, 2006, it was reported that Ingraham was jumping on her belly
in an effort to harm her unborn child. Ingraham yelled from her cell that she was in
labor, was in pain, needed her medications, and that she had been experiencing vaginal
bleeding for hours. At around 1:00 a.m. on September 10, 2006, Ingraham gave birth to
M.M. in her cell.
Ingraham and Alex Garza, individually and on behalf of M.M., filed a lawsuit
against the Yuma County Jail District, various jail officers, and various employees of
Northend. Plaintiffs’ complaint alleges that all defendants deprived them of their civil
rights in violation of 42 U.S.C. § 1983 and that all defendants were negligent.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a matter of law.”3 The
materiality requirement ensures that “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”4 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”5 In resolving a motion
for summary judgment, a court must view the evidence in the light most favorable to the
Fed. R. Civ. P. 56(c)(2).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
non-moving party.6 The reviewing court may not weigh evidence or assess the
credibility of witnesses.7 The burden of persuasion is on the moving party.8
A. A.R.S. § 12-2604
In Arizona, “[i]n order for a plaintiff to establish the statutory elements to maintain
a malpractice claim, he must normally utilize medical testimony by qualified
physicians.”9 Expert medical testimony must be used unless “the negligence is so
grossly apparent that a layman would have no difficulty in recognizing it.”10
Piscoya argues that plaintiffs’ expert, Dr. Robert Greifinger (“Greifinger”) is
barred from offering expert testimony on the standard of care applicable to Piscoya by
A.R.S. § 12-2604(A)(3). Under that statute, in a medical malpractice action,
a person shall not give expert testimony on the appropriate standard of . . .
care unless the person is licensed as a health professional . . . and . . . [i]f
the defendant is a general practitioner, the witness has devoted a majority
of the witness’s professional time in the year preceding the occurrence
giving rise to the lawsuit to either . . . (a) Active clinical practice as a
general practitioner [or] (b) Instruction of students in an accredited health
professional school or accredited residency or clinical research program in
the same health profession as the defendant.11
Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).
Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Peacock v. Samaritan Health Svc., 765 P.2d 525, 528 (Ariz. Ct. App. 1988).
Id. (internal quotations omitted).
A.R.S. § 12-2604(A)(3).
The statute is substantive, not procedural.12
Piscoya maintains that Greifinger did not spend a majority of his professional
time in active clinical practice as a general practitioner or instructing students in general
practice in the year preceding M.M.’s birth. Plaintiffs do not respond to the merits of
Piscoya’s argument.13 Instead, plaintiffs list Greifinger’s expert qualifications
irrespective of § 12-2604. While there might be little doubt as to Greifinger’s capacity to
testify as an expert in the absence of § 12-2604, those qualifications are not germane to
the issues raised in Piscoya’s motion.
Greifinger gave up active clinical practice in 1985.14 There is no suggestion that
Greifinger was an instructor at an accredited health professional school the year prior to
M.M.’s birth.15 Consequently, under § 12-2604, Greifinger is barred from offering expert
testimony regarding the standard of care applicable to Piscoya. Greifinger’s testimony
is indispensable to plaintiffs’ claim unless Piscoya’s negligence would be apparent to a
Seisinger v. Siebel, 203 P.3d 483, 493–94 (Ariz. 2009).
See doc. 238 at 10–13. Plaintiffs argue that “[t]he statute relied on more particularly
addresses specialists.” Id. at 12. Plaintiffs are correct insofar as subpargaraphs (1) and
(2) apply to medical malpractice claims against specialists. See A.R.S. § 12-2604(A)(1), (2).
However, subparagraph (3) explicitly applies to claims against general practitioners. Id. § 122604(A)(3).
Doc. 212-4 at 3.
Plaintiffs do represent that Greifinger is an adjunct professor at the John Jay College of
Criminal Justice, but that is not a health professional school.
B. Piscoya’s Negligence Would Not Be Apparent to a Layperson
Plaintiffs argue that summary judgment is inappropriate because their claim is
not dependent on expert testimony. Plaintiffs cite Peacock v. Samaritan Health
Service.16 Peacock is distinguishable because it involved a hospital’s failure to follow its
own protocol.17 The Peacock court determined that summary judgment in the
defendant-hospital’s favor was inappropriate based on that failure coupled “with
reasonable inferences that [could] be drawn from the act of placing a reportedly suicidal
patient in a fourth floor room with an unsecured window.”18 Here, an unattended
childbirth at the Yuma County Detention Center may give rise to reasonable inferences
that a duty of care was breached. However, there is no evidence that Northend–or
more particularly, Piscoya–departed from its own policies. Without such evidence, there
is no proxy for Greifinger’s testimony regarding breach and consequently, Peacock
does not dictate the result here.
The question is whether Piscoya’s negligence would be apparent to a layperson.
Here, Piscoya was telephoned by Gonzales during or after Ingraham’s second visit to
the medical department on September 8, 2006. Although it is unclear precisely what
information was conveyed to Piscoya, the facts must be taken in the light most
favorable to the plaintiffs. It would be to plaintiffs’ advantage if Piscoya were informed
765 P.2d at 528.
Id. at 529
of all pertinent facts regarding Ingraham and her complaints. Therefore, the court will
assume that Gonzales reported to him that Ingraham was complaining about her lack of
psychiatric medication, that she was having contractions, and that her water had broke.
The court will also assume that Gonzales told Piscoya that she had observed “a small
amount of yellow fluid with urine smell [and] no bloody show”19 that did “not appear to be
amniotic fluid”20 on Ingraham’s underwear. Upon hearing this information, Piscoya
instructed Gonzales not to send Ingraham to the hospital at that time and to give her
Tylenol for pain.
It would not be apparent to a layperson that Piscoya was negligent. There is no
evidence–apart from Greifinger’s barred testimony–that Piscoya breached a duty owed
to plaintiffs by relying on the examinations performed by Gonzales. While Piscoya
could have traveled to the jail and examined Ingraham himself, or arranged for another
medical doctor or physician’s assistant to examine her, it is not evident that Piscoya
should have. The facts alone do not compel the conclusion that Piscoya was negligent
and, therefore, expert testimony establishing that Piscoya breached the applicable
standard of care is necessary. Because plaintiffs’ expert is not qualified under § 122604(A)(3), plaintiffs are unable to make the requisite showing.
C. County Defendants’ Duty Argument
The responding co-defendants devote considerable space in their brief to arguing
that Piscoya owed Ingraham a duty of care. As Piscoya notes in his reply brief, whether
Doc. 207-1 at 6.
Id. at 7.
Piscoya owed a duty is not at issue–it is evident that he did and he does not argue
otherwise. The dispute is over whether Piscoya breached that duty.
D. Plaintiffs’ § 1983 Claim
The responding co-defendants argue that summary judgment should not be
granted as to plaintiffs’ § 1983 claim against Piscoya. However, even though the
complaint states that a § 1983 claim is asserted “against all defendants,” it does not
identify a provision of the Constitution that was violated.21 Moreover, the substantive
paragraphs under the § 1983 heading deal with the elements of negligence.22 The court
therefore concludes that the complaint does not state a § 1983 claim against Piscoya.23
Even assuming that plaintiffs’ complaint stated a § 1983 claim against Piscoya based on
an alleged violation of the Eighth Amendment, plaintiffs have not presented any
evidence supporting the notion that Piscoya was deliberately indifferent.
For the reasons above, Piscoya’s motion at docket 212, for summary judgment
pursuant to Rule 56 is GRANTED.
DATED this 10th day of November 2011.
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
See 42 U.S.C. § 1983 (requiring a “deprivation of any rights, privileges, or immunities
secured by the Constitution”).
See, e.g., doc. 138-1 ¶¶ 62, 66, 67, 71.
Cf. Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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