Dixon v. Arizona Department of Corrections et al

Filing 177

ORDER - Defendants' motions for summary judgment, (Docs. 158 , 160 ), are GRANTED. The Clerk shall terminate all remaining motions, enter judgment accordingly, and terminate this case. Signed by Judge Douglas L Rayes on 03/11/2016. (ATD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sharon L. Dixon, No. CV-13-02529-PHX-DLR Plaintiff, 10 ORDER 11 v. 12 Arizona Department of Corrections, et al., 13 Defendants. 14 15 16 Before the Court are the summary judgment motions filed on behalf of Defendant 17 Wexford Health Sources, Inc. (“Wexford”) and Defendants State of Arizona (“State”), 18 Former Arizona Department of Corrections (“ADOC”) Health Services Division Director 19 Michael Adu-Tutu, ADOC Health Services Contract Monitoring Bureau Assistant 20 Director Arthur Gross, ADOC Inspector General Greg Lauchner, ADOC Health Services 21 Division Interim Director Richard Pratt, and ADOC Director Charles Ryan (collectively 22 “Named State Defendants”). (Docs. 158, 160.) The motions are fully briefed.1 For the 23 following reasons, the motions are granted. BACKGROUND 24 25 Gary Dixon was an inmate at the ADOC Eyman Facility. (Doc. 159, ¶ 2; Doc. 26 161, ¶ 1.) On January 13, 2010, upon intake screening and evaluation, it was noted that 27 1 28 The parties’ requests for oral argument are denied because the issues are adequately briefed and oral argument will not aid the Court’s resolution of the motions. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 1 Dixon had numerous health conditions, including hepatitis C, a supraumbilical hernia, 2 and cirrhosis. (Doc. 159, ¶¶ 2, 12; Doc. 161, ¶ 1.) Throughout his incarceration, Dixon 3 received medical treatment for his conditions—including blood tests, abdominal 4 sonograms and ultrasounds, and esophagogastroduodenoscopies—from both in-house 5 and outside medical providers. (Doc. 159, ¶ 37; Doc. 161, ¶¶ 2-10.) 6 Beginning July 1, 2012, ADOC contracted with Wexford to provide medical 7 services to state prison complexes. (Doc. 159, ¶ 32.) The contract required Wexford to 8 follow ADOC’s policies regarding inmate medical care. (Doc. 159, ¶¶ 33-34.) During 9 the relevant time period, it was ADOC’s policy to “consider organ transplantation as a 10 medical treatment option for inmates if it is determined to be medically necessary.” 11 (Doc. 159, ¶ 35; Doc. 161, ¶ 12.) Dixon’s in-house and outside medical providers were 12 responsible for determining whether organ transplantation was necessary, and none 13 recommended that he be evaluated for a liver transplant. (Doc. 159, ¶¶ 36-37; Doc. 161, 14 ¶ 11.) 15 On January 22, 2013, Dixon had a sudden decompensation from sepsis, likely 16 related to a urinary tract infection. (Doc. 161, ¶ 26.) He was admitted to the hospital, but 17 his condition deteriorated rapidly and he died on January 28, 2013. (Id.) 18 Plaintiff Sharon Dixon brought this action in her capacity as Dixon’s spouse and 19 personal representative of his estate, alleging violations of 42 U.S.C. § 1983 and 20 Arizona’s Adult Protective Services Act (“APSA”), A.R.S. § 46-451, et seq., and a claim 21 for wrongful death. (Doc. 159, ¶ 1; Doc. 55 at 16-18.) Plaintiff alleges that liver 22 transplantation was the only definitive treatment for Dixon’s end-stage liver disease, that 23 he died because he was not evaluated for and did not receive a liver transplant, and that 24 liver transplantation would have reduced the discomfort caused by Dixon’s hernias. 25 (Doc. 55, ¶¶ 70-72.) Defendants move for summary judgment on all counts. 26 LEGAL STANDARD 27 Summary judgment is appropriate if the evidence, viewed in the light most 28 favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to -2- 1 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 2 P. 56(a). “[A] party seeking summary judgment always bears the initial responsibility of 3 informing the district court of the basis for its motion, and identifying those portions of 4 [the record] which it believes demonstrate the absence of a genuine issue of material 5 fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 6 Substantive law determines which facts are material and “[o]nly disputes over 7 facts that might affect the outcome of the suit under the governing law will properly 8 preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 9 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury 10 could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 11 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the 12 nonmoving party must show that the genuine factual issues “‘can be resolved only by a 13 finder of fact because they may reasonably be resolved in favor of either party.’” Cal. 14 Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th 15 Cir. 1987) (quoting Anderson, 477 U.S. at 250). 16 summary judgment “may not rest upon mere allegations of denials of pleadings, but . . . 17 must set forth specific facts showing that there is a genuine issue for trial.” Brinson v. 18 Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); see also Fed. R. Civ. P. 19 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). 20 If the nonmoving party’s opposition fails to specifically cite to materials either in the 21 court’s record or not in the record, the court is not required to either search the entire 22 record for evidence establishing a genuine issue of material fact or obtain the missing 23 materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 24 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988). 25 Furthermore, the party opposing DISCUSSION 26 Preliminarily, Plaintiff’s response brief, separate statement of facts, and 27 controverting statement of facts do not comply with LRCiv 56.1. Plaintiff fails to support 28 many statements of fact with citations to admissible portions of the record. LRCiv -3- 1 56.1(a)-(b). Further, Plaintiff fails to support the vast majority of assertions made in her 2 response memorandum with citations to the specific paragraphs in her statement of facts. 3 LRCiv 56.1(e). Accordingly, for purposes of this order the Court deems admitted any 4 assertion not appropriately denied by Plaintiff, and disregards all assertions that are not 5 supported by citation to admissible portions of the record. See Szaley v. Pima Cty., 371 6 F. App’x 734, 735 (9th Cir. 2010). 7 I. Section 1983 8 Section 1983 provides a cause of action for those who have been deprived of their 9 constitutional rights by persons acting under color of law. 42 U.S.C. § 1983. It is a 10 mechanism “for vindicating federal rights elsewhere conferred,” and Ais not itself a 11 source of substantive rights.@ Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th 12 Cir. 2005) (internal quotations and citation omitted). To succeed on a claim under § 13 1983, a plaintiff must show “(1) that a right secured by the Constitution or the laws of the 14 United States was violated, and (2) that the alleged violation was committed by a person 15 acting under color of State law.” Long v. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 16 2006). 17 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, 18 an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 19 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 20 (1976)). This is a two-part inquiry: 21 22 23 24 25 26 First, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. This second prong . . . is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. Indifference “may appear when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” 27 Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991), overruled on 28 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). Deliberate -4- 1 indifference is a higher standard than mere negligence; “medical malpractice does not 2 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 3 U.S. at 106. 4 Plaintiff brings her § 1983 claim against Wexford and the Named State 5 Defendants. She alleges that the failure to evaluate Dixon for a liver transplant rises to 6 the level of deliberate indifference. 7 A. Named State Defendants 8 Plaintiff seeks to hold the Named State Defendants responsible in their individual, 9 supervisory capacities. (Doc. 169 at 8-9; Doc. 43 at 7-9.) “Respondeat superior or 10 vicarious liability will not attach under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 11 378, 385 (1989). 12 defendant, through the official’s own individual actions, has violated the Constitution.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A supervisory official may be held liable for 14 the acts of his subordinates by participating in or directing the violations, failing to 15 prevent violations of which the supervisor is aware, or by “set[ting] in motion a series of 16 acts by others which the actor knows or reasonably should know would cause others to 17 inflict constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) 18 (internal quotations and citations omitted). Instead, a plaintiff must show “that each Government-official 19 Plaintiff provides no evidence that any of the Named State Defendants had direct 20 involvement or knowledge of Dixon’s medical care, nor does she provide evidence that 21 any of the Named State Defendants set in motion a series of acts that they should have 22 known would cause those who were directly involved in Dixon’s care to engage in 23 unconstitutional behavior. Instead, Plaintiff’s claim rests on allegations that the Named 24 State Defendants had a policy, practice, or custom of providing inmates inadequate health 25 care. (See Doc. 169 at 10 (“The evidence disclosed and developed in discovery shows a 26 pattern and practice of not meeting the medical needs of inmates, including Mr. 27 Dixon.”).) 28 officials acting in their official capacities. See Cortez v. Cty. of L.A., 294 F.3d 1186, Such allegations are relevant only to a claim against local government -5- 1 1188 (9th Cir. 2001) (“A municipality or other local government entity . . . may be sued 2 for constitutional torts committed by its officials according to an official policy, practice, 3 or custom.” (citing Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978)). 4 However, “a state and its officials sued in their official capacity are not considered 5 ‘persons’ within the meaning of § 1983, due to the sovereign immunity generally 6 afforded states by the Eleventh Amendment.” Id. Although there is an exception to this 7 general rule for claims seeking prospective injunctive relief, Will v. Michigan Dep’t of 8 State Police, 491 U.S. 58, 71 (1989), Plaintiff seeks only monetary damages for her 9 claims.2 Accordingly, the Named State Defendants are entitled to summary judgment on 10 Plaintiff’s § 1983 claim because Plaintiff has not supplied evidence that any of the 11 Named State Defendants had direct involvement in or knowledge of Dixon’s care. 12 B. Wexford 13 The liability of private entities acting under color of state law is assessed by the 14 same legal standards applicable to municipalities. See Tsao v. Desert Palace, Inc., 698 15 F.3d 1128, 1139 (9th Cir. 2012) (“[W]e see no basis in the reasoning underlying Monell 16 to distinguish between municipalities and private entities acting under color of state 17 law.”) Thus, to succeed on her § 1983 claim against Wexford, Plaintiff must show that 18 Wexford had a policy, practice, or custom that was the moving force behind the alleged 19 violation of Dixon’s Eighth Amendment rights. Dougherty v. City of Covina, 654 F.3d 20 892, 900 (9th Cir. 2011). Wexford cannot be liable under a respondeat superior theory. 21 See Tsao, 698 F.3d at 1139 (citing Monell, 436 U.S. at 691). 22 Wexford’s contract required it to follow ADOC’s policies regarding medical care. 23 During the relevant time period, ADOC’s official policy was to “consider organ 24 transplantation as a medical treatment option for inmates if it is determined to be 25 medically necessary.” (Doc. 159, ¶ 35.) Plaintiff does not argue that this policy is 26 27 28 2 To the extent Plaintiff is attempting to pursue a claim for monetary damages against the Named State Defendants in their official capacities based on an allegedly unconstitutional policy, practice, or custom, her claim is barred by the Eleventh Amendment. (See Doc. 139 at 4 n.3.) -6- 1 unconstitutional. 2 argues that Wexford “had a custom and practice of ignoring its own policy.” (Doc. 169 3 at 2.) Instead, without citing any factual support in the record, Plaintiff 4 Throughout his incarceration, Dixon was treated by both in-house and outside 5 medical providers, none of whom recommended that Dixon be evaluated for a liver 6 transplant. These medical providers were responsible for determining whether organ 7 transplantation was medically necessary. Plaintiff points to no ADOC or Wexford policy 8 that was the moving force behind these providers’ decisions. Instead, Plaintiff offers 9 slides prepared by Wexford for a meeting with ADOC in November 2012 in which 10 Wexford expressed concerns about the adequacy of inmate health care generally. (Doc. 11 168, ¶ 16.) In essence, Plaintiff argues that, because Wexford believed ADOC was not 12 providing constitutionally adequate inmate care, Dixon’s death must have been a direct 13 result of these deficiencies. But she offers no evidence connecting any particular policy, 14 practice, or custom to the decision of Dixon’s in-house and outside medical providers to 15 not recommend him for a liver transplant evaluation. Plaintiff might disagree with 16 Dixon’s medical providers about the medical necessity of a liver transplant, but it does 17 not follow that the decision not to recommend Dixon for a liver transplant was the result 18 of an unconstitutional policy, practice, or custom. See Jackson v. McIntosh, 90 F.3d 330, 19 332 (9th Cir. 1996) (“[A] difference of medical opinion as to the need to pursue one 20 course of treatment over another [is] insufficient, as a matter of law, to establish 21 deliberate indifference.” (internal quotations and citation omitted)). 22 Wexford is entitled to summary judgment on Plaintiff’s § 1983 claim because Plaintiff 23 has not offered evidence that the treatment recommendations of Dixon’s health care 24 providers were the result of an unconstitutional policy, practice, or custom of Wexford. 25 II. Wrongful Death Accordingly, 26 Pursuant to A.R.S. § 12-611, Plaintiff brings her wrongful death claim against the 27 State and Wexford based on a theory of medical negligence. To succeed, Plaintiff must 28 prove: -7- 1 2 3 1. The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances. 2. Such failure was a proximate cause of the injury. 4 5 A.R.S. § 12-563. The State and Wexford are not, themselves, health care providers. 6 Instead, they employed the clinicians responsible for Dixon’s health care. Thus, Plaintiff 7 must demonstrate that the State and Wexford are vicariously liable for the alleged 8 medical negligence of their employee health care providers. See A.R.S. § 12-2604(B) 9 (“If the defendant is a health care institution that employs a health professional against 10 whom or on whose behalf the [standard of care] testimony is offered, the provisions 11 [A.R.S. § 12-2604(A)] apply as if the health professional were the party or defendant 12 against whom or on whose behalf the testimony is offered.”) 13 However, Plaintiff identifies no specific clinician(s) whose care allegedly fell 14 below acceptable medical standards. Her Second Amended Complaint names “John and 15 Jane Doe Health Care Providers” and states that she will replace the fictional defendants 16 “once such names and identities are known to Plaintiff.” (Doc. 55, ¶ 15.) Despite 17 possessing medical records disclosing the identities of forty-one of Dixon’s medical 18 providers, Plaintiff never amended her complaint to add the names of the allegedly 19 negligent medical providers, nor has she provided this information in her response to 20 Defendants’ summary judgment motions. (Doc. 159, ¶ 10.) 21 Plaintiff’s omission is problematic for many reasons. For example, her failure to 22 identify specific clinicians whose treatment she believes fell below the standard of care 23 makes it impossible to determine whether Dr. Leff is qualified to offer standard of care 24 opinions. Under Arizona law: 25 26 27 28 In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria: 1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the -8- 1 2 3 4 5 6 7 8 9 10 party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty. 2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following: (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty. (b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty. 12 3. If 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 or both of the following: 13 (a) Active clinical practice as a general practitioner. 14 (b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health care profession as the defendant. 11 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.R.S. § 12-2604(A) (emphasis added). Defendants and the Court cannot evaluate whether Dr. Leff shares the same profession, specialty, or board certification(s) as the clinicians who Plaintiff claims provided substandard medical care because Plaintiff has not identified them. More importantly, however, Plaintiff’s omission is fatal to her claim because she is required to prove that Dixon’s health care provider(s) “failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs . . . acting in the same or similar circumstances.” A.R.S. § 12-563 (emphasis added). Plaintiff cannot establish this element without identifying the profession or class of the allegedly negligent health care provider(s), or the circumstances under which the provider(s) administered care. Further, and on a more fundamental level, Plaintiff has not identified specific tortfeasors for whose alleged negligence either the State or Wexford may be vicariously liable. Accordingly, the State -9- 1 and Wexford are entitled to summary judgment on Plaintiff’s wrongful death claim. 2 III. APSA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Plaintiff alleges that Wexford violated APSA, which creates a civil cause of action for: [a] vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation . . . against any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such vulnerable adult . . . . A.R.S. § 46-455(B). A vulnerable adult is someone “who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment,” or who is incapacitated “by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause . . . to the extent that he lack sufficient understanding or capacity to make or communicate responsible decisions concerning his person.” A.R.S. §§ 46-451(A)(9), 14-5101(1). [T]o be actionable abuse under APSA, the negligent act or acts (1) must arise from the relationship of caregiver and recipient, (2) must be closely connected to that relationship, (3) must be linked to the service the caregiver undertook because of the recipient’s incapacity, and (4) must be related to the problem or problems that caused the incapacity. 19 Estate of McGill ex rel. McGill v. Albrecht, 57 P.3d 384, 389 (Ariz. 2002). In enacting 20 APSA, “the legislature’s obvious intent to protect a class of mostly elderly or mentally ill 21 citizens from harm caused by those who have undertaken to give them the care they 22 cannot provide for themselves.” Id. at 388. 23 Although it is undisputed that Dixon had many physical impairments,3 (Doc. 159, 24 ¶ 12), Plaintiff provides no evidence that these impairments rendered him incapable of 25 protecting himself from abuse, neglect, or exploitation, or that he lacked the 26 understanding or capacity to communicate regarding his medical care. Indeed, Dixon’s 27 28 3 Plaintiff argues that Dixon was mentally impaired, but it is undisputed that Dixon required no mental health services while incarcerated. (Doc. 159, ¶¶ 13-16.) - 10 - 1 cellmate, Darren Stanely, testified that Dixon was coherent and able to communicate 2 effectively until the day he died. (Id., ¶ 16.) Plaintiff argues that Dixon was incapable of 3 making his own medical decisions because “he was totally dependent on Defendants for 4 his daily needs and medical care and, as such, was physically impaired to such an extent 5 that he was unable to protect himself from abuse and neglect.”4 (Doc. 169 at 13.) But 6 incarceration is not synonymous with incapacitation as described in A.R.S. § 14-5101(1). 7 Nor does the fact that a person might rely on prison officials for daily needs and medical 8 care mean that he is unable to protect himself due to physical or mental impairments as 9 required by A.R.S. § 46-451(A)(9). Wexford is entitled to summary judgment on 10 Plaintiff’s APSA claim because Plaintiff has not offered evidence that Dixon was a 11 vulnerable adult as defined by Arizona law. 12 IV. Causation 13 In addition to the reasons explained above, Defendants are entitled to summary 14 judgement on all claims because Plaintiff will be unable to prove that Defendants’ actions 15 or inaction caused Dixon’s death. Proximate causation is an element of all of Plaintiff’s 16 claims. See City of Canton, 489 U.S. at 385 (“The first inquiry in any case alleging 17 municipal liability under § 1983 is the question whether there is a direct causal link 18 between a municipal policy or custom and the alleged constitutional deprivation.”); 19 A.R.S. § 12-563 (stating that proximate cause is a required element of a medical 20 negligence claim); A.R.S. § 46-455(B) (creating cause of action against caregiver who 21 causes endangerment or injury). The crux of Plaintiff’s case is that Defendants should 22 have evaluated Dixon for a liver transplant. However, it is undisputed that Dixon was not 23 eligible to receive a cadaveric liver transplant. (Doc. 159, ¶¶ 19-23.) 24 Dr. Leff opined that Dixon should have had the opportunity to be assessed by a 25 transplant team for a partial liver transplant from a living donor. (Doc. 161-12 at 40.) 26 Plaintiff’s causation expert, Dr. Mario Chojkier, opined that Dixon theoretically could 27 4 28 Plaintiff uses the plural “Defendants,” but her APSA claim is against Wexford only. There is no evidence that Wexford contracted to provide ADOC inmates with their “daily needs.” - 11 - 1 have had a living donor transplant. (Doc. 159, ¶ 24.) However, the only known and 2 potentially willing living donor identified by Plaintiff is herself. (Doc. 159, ¶ 29.) None 3 of Plaintiff’s medical experts examined her or reviewed her medical history to determine 4 whether she was a suitable donor. (Id., ¶ 30.) Although Dr. Chojkier testified that a 5 living donor could be “friends, relatives, neighbors, and good Samaritans,” (Doc. 168 at 6 12, ¶ 26), Plaintiff offers no evidence of any known friends, relatives, neighbors, or good 7 Samaritans willing and suitable to donate part of their liver to Dixon. Accordingly, 8 Plaintiff will be unable to show at trial that Dixon would have received a partial liver 9 from a living donor had he been evaluated for one. 10 Plaintiff argues that the evidence is sufficient to have a jury determine causation 11 based on a “loss of chance theory.” (Doc. 169 at 14-15.) She relies on Thompson v. Sun 12 City Community Hospital, in which the Arizona Supreme Court adopted the rule from the 13 Restatement (Second) of Torts § 323 that: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 One who undertakes, . . . to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm . . . . 688 P.2d 605, 616 (Ariz. 1984). Plaintiff contends that Defendants increased Dixon’s risk of harm by failing to evaluate him for a partial liver transplant from a living donor. Thompson involved delayed treatment. In that case, the plaintiff suffered a transected femoral artery and was taken to the emergency room, where it was determined that he required surgery. Id. at 607-08. The plaintiff’s insurance did not satisfy the hospital’s financial requirements for admission, so he was transferred to a different hospital when his condition stabilized. Id. at 608. Although he underwent and survived surgery, he experienced residual impairment in his left leg. Id. He sued the transferor hospital for medical negligence, and appealed the trial court’s refusal to instruct that jury that causation could be established by proof that the defendant’s acts or omissions had increased his risk of harm. Id. at 613. The Arizona Supreme Court reversed the trial court, concluding that causation is a - 12 - 1 jury question “[e]ven if the evidence permits only a finding that the defendant’s 2 negligence increased the risk of harm or deprived plaintiff of some significant chance of 3 survival or better recovery . . . .” Id. at 614-16 (emphasis added). However, the court 4 noted that its decision applies to a “limited class of cases in which [a] defendant 5 undertook to protect [a] plaintiff from a particular harm and negligently interrupted the 6 chain of events, thus increasing the risk of that harm,” and cautioned that “this rule fits 7 only in those situations where the courts traditionally have allowed juries to deal more 8 loosely with causation . . . .” Id. at 616. The Arizona Court of Appeals later interpreted 9 Thompson to require evidence that a defendant deprived a plaintiff of a substantial 10 chance of survival or a better outcome. Lohse v. Faultner, 860 P.2d 1306, 1316 (Ariz. 11 Ct. App. 1992). 12 Here, Plaintiff has not shown that “loss of chance” causation is applicable to this 13 case. This is not a situation in which Defendants “negligently interrupted the chain of 14 events, thus increasing the risk of . . . harm” to Dixon. Thompson, 688 P.2d at 616. 15 Instead, Plaintiff and Dr. Leff merely disagree with the conservative treatment provided 16 to Dixon by his medical providers. 17 Thompson applies outside the medical malpractice context. Nor has Plaintiff provided any authority that 18 Moreover, assuming Thompson applies, Plaintiff has not provided evidence 19 “ris[ing] to the level of substantiality.” Lohse, 860 P.2d at 1316. There is no evidence 20 that any suitable living donors would have been willing to donate part of their liver to 21 Dixon had he been evaluated for a transplant. Dr. Chojkier does not opine to any degree 22 of probability that Dixon would have found a suitable donor and received a partial liver 23 transplant. It is undisputed that less than 10 percent of liver transplants are from living 24 donors, and that most people who are willing to donate cannot be donors because of 25 health issues, psychosocial factors, or other technical issues unique to live donation. 26 (Doc. 161, ¶ 27; Doc. 170, ¶ 29.) On this issue, Plaintiff’s medical experts offer only 27 speculation, and no reasonable jury could conclude that Defendants deprived Dixon of a 28 substantial possibility of survival. See Lohse, 860 P.2d at 1316 (upholding summary - 13 - 1 judgment where “it was wholly speculative” whether harm could have been prevented 2 absent alleged medical negligence). 3 4 5 CONCLUSION For the foregoing reasons, Plaintiff will be unable to carry her burden of proof at trial for any of her claims. Accordingly, 6 IT IS ORDERED that Defendants’ motions for summary judgment, (Docs. 158, 7 160), are GRANTED. The Clerk shall terminate all remaining motions, enter judgment 8 accordingly, and terminate this case. 9 Dated this 11th day of March, 2016. 10 11 12 13 14 Douglas L. Rayes United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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