Robles v. United States of America et al

Filing 109

ORDER: IT IS ORDERED that Plaintiff's 85 Motion for Summary Judgment is DENIED. IT IS FURTHER ORDERED that Defendant's 78 Motion for Summary Judgment is GRANTED in part as to Claim 2 and DENIED in part as to Claim 1. Signed by Magistrate Judge D Thomas Ferraro on 1/15/15.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mario Gabriel Robles,

No. CV-13-00089-TUC-DTF

Plaintiff,

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v.

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ORDER

United States of America,

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Defendant.

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Pending before the Court are the parties’ cross-motions for summary judgment

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and accompanying statements of fact. (Docs. 78, 85, 86, 88-92, 97-101, 105, 106.) Oral

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argument was heard on January 8, 2015, and the matter was taken under advisement at

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that time. (Doc. 108.)
FACTUAL BACKGROUND

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Plaintiff Mario Robles filed a complaint under the Federal Torts Claim Act

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(FTCA), 28 U.S.C. ' 1346(b), against Vickie Clous, Marana Health Clinic and the United

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States. (Doc. 1.) After the United States certified that Clous was acting within the scope

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of her employment at the time of the acts and omissions alleged in the Complaint, the

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individual defendants were dismissed, leaving the United States as the sole defendant.

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(Docs. 25, 26.)

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In the Complaint, Robles alleges that, on April 23, 2012, Clous (working as a

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nurse at the Marana Health Clinic) submitted his blood for an HIV test without his

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knowledge or consent. Further, Robles alleges that Clous failed to provide him the

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information material to deciding whether to be tested for HIV and did not give him the
option to decline testing. Clous also is alleged to have submitted the entirety of Robles’s
medical file to the Pima County Health Department. After the Court ruled on a motion to
dismiss filed by Defendant, two claims remain. Claim 1 alleges that Clouse was negligent
in testing Robles for HIV without his consent, in violation of A.R.S. § 36-663. Claim 2
alleges that Clouse violated Robles’s right to patient confidentiality by producing his
entire medical file to the health department in violation of A.R.S. § 12-2292.

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SUMMARY JUDGMENT STANDARD
In deciding a motion for summary judgment, the Court views the evidence and all
reasonable inferences therefrom in the light most favorable to the party opposing the
motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Ins.
Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if
the pleadings and supporting documents “show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those
“that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S.
at 248. A genuine issue exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id.

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DISCUSSION
Robles seeks summary judgment solely on Claim 1. Defendant seeks summary
judgment on Claims 1 and 2.
Claim 1
Robles alleges that Clous conducted an HIV test on his blood without his informed
consent, in violation of A.R.S. § 36-663. “It is the prevailing rule, recognized in Arizona,
that a breach of a statute intended as a safety regulation is not merely evidence of
negligence but is negligence per se.” Brannigan v. Raybuck, 667 P.2d 213, 217, 136 Ariz.
513, 517 (1983) (citing Orlando v. Northcutt, 103 Ariz. 298, 300, 441 P.2d 58, 60 (1968);

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W. Prosser, Handbook of the Law of Torts § 36 at 197-200 (4th ed. 1971)). Although
violation of a statute establishes duty and breach, a plaintiff must still prove proximate
cause and damages. Resolution Trust Corp. v. Dean, 854 F. Supp. 626, 640 (D. Ariz.
1994) (citing Cobb v. Salt River Valley Water Users’ Ass’n, 114 P.2d 904, 57 Ariz. 451
(Ariz. 1941)).
Robles argues that Clous’s violation of A.R.S. § 36-663 constituted negligence per
se and caused him emotional harm. Based on the evidence presented by the parties, there
is a genuine issue of material fact regarding whether Robles gave informed consent to be
tested for HIV. (Doc. 89, Ex. C at 41-45, 62, 64-65.)
The issue of causation is ordinarily a question of fact for the jury, and the Court
finds that to be true in this case. Id.; Robertson v. Sixpence Inns of Am., Inc., 789 P.2d
1040, 1047, 163 Ariz. 539, 546 (1990). “The proximate cause of an injury is that which,
in a natural and continuous sequence, unbroken by any efficient intervening cause,
produces an injury, and without which the injury would not have occurred.” Id. In his
papers and at oral argument, Robles described his injury as arising from the timing and
manner in which he was advised of his diagnosis. Simply put, Robles argued he was
emotionally damaged because he was not prepared to receive the diagnosis at the time
Clouse gave it to him. (Doc. 99 at 8-9). Additionally, counsel asserted at argument that
Robles’s rights to privacy and autonomous medical treatment were violated. The parties
have cited some evidence to support both of these propositions (see, e.g., Doc. 88, ¶¶
138, 143, 153; Doc. 100, ¶146), although damages remain to be proven at trial.
“Defendant’s act need not have been a ‘large’ or ‘abundant’ cause of the final result;
there is liability if the result would not have occurred but for defendant’s conduct, even if
that conduct contributed ‘only a little’ to plaintiff’s injuries.” Ontiveros v. Borek, 667
P.2d , 200, 205, 136 Ariz. 500, 505 (1983) (citing Markiewicz v. Salt River Valley Water
Users’ Association, 576 P.2d 517, 526 n.6, 118 Ariz. 329, 338 n.6 (App.1978)). There is
a genuine issue of material fact regarding whether Clous was the proximate cause of

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these alleged injuries such that her actions increased the foreseeable risk of these harms.
Id. at 206, 136 Ariz. at 506; Ritchie v. Krasner, 211 P.3d 1272, 1281-82, 221 Ariz. 288,
297-98 (Ct. App. 2009).
Because the Court finds there is a genuine issue of material fact as to each element
of this claim, summary judgment must be denied.
Claim 2
Robles alleges Clous violated his right to patient confidentiality by disclosing the
entirety of his medical record to the health department. Defendant sought summary
judgment on this claim and Robles made no written response to that portion of the
motion. At oral argument, Robles conceded that he could not prove this claim based on
the current record. Review of the briefing and evidence before the Court confirms that
Defendant is entitled to summary judgment on this claim.
Health care providers in Arizona are precluded from disclosing information in
medical records except as authorized by law or written patient authorization. A.R.S. § 122292. When HIV is diagnosed in a patient, the health care provider must report it to the
local health agency. A.A.C. R9-6-202; see A.R.S. § 36-136(H)(1). Clouse’s medical
assistant, Veronica Velazquez, complied with this requirement by reporting Robles’s
diagnosis to the Pima County Health Department (PCHD) on May 2, 2012. (Doc. 89, Ex.
B at 3-4.) The local health agency is then required to conduct an epidemiological
investigation for each reported case. A.A.C. R9-6-341(A)(1)(a). In conducting its
investigation, the agency is allowed to inspect and copy the patient’s records related to
the diagnosis of HIV. A.R.S. § 36-662. Upon request of the agency, a person must
disclose records, even those protected under law, if the request is made for the detection,
prevention, or control of a communicable disease. A.A.C. R9-6-102(1). On May 11, a
registered nurse from PCHD presented a written request to Freedom Park, in person, to
review Robles’s medical records. (Doc. 89, Ex. B at 4-5.) Ms. Velazquez provided the
records and they were reviewed at Freedom Park. (Id. at 5.) Ms. Velazquez never mailed

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or faxed the records to the PCHD. (Id.) Clouse has no knowledge of what was sent to the
PCHD. (Id., Ex. C at 56.)
In his deposition, Robles testified that he did not know if Clouse sent his medical
record to the PCHD although someone at the PCHD told him they had received his whole
file from the health center on May 23, 2012. (Doc. 88, Ex. A at 25-29; Doc. 89, Ex. G at
4.) Robles obtained a copy of his medical records from PCHD. (Doc. 88, Ex. A at 88.)
There is no evidence before the Court that anyone improperly disclosed Robles’s
medical records. The PCHD properly requested the records and had the right to review
and duplicate them. Further, when a disclosure is made in good faith, a health care
provider is immune from civil liability; good faith is presumed but may be rebutted with
clear and convincing evidence. A.R.S. § 12-2296. Robles has provided no evidence to
rebut the presumption that any disclosure was made in good faith. Defendant is entitled to
summary judgment on this claim.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 85) is
DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 78) is GRANTED in part as to Claim 2 and DENIED in part as to Claim 1.
Dated this 15th day of January, 2015.

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