Kinney et al v. Siouxland Urology Associates P.C. et al
Filing
158
ORDER granting 150 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 2/22/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAVIER RODRIGUEZ,
Plaintiff,
vs.
SIOUXLAND UROLOGY
ASSOCIATES P.C., d/b/a Siouxland
Urology Center, a South Dakota
corporation;
SIOUXLAND UROLOGY CENTER,
L.L.C., a South Dakota corporation;
JOHN A. WOLPERT, M.D.,
individually;
DAVID D. HOWARD, M.D.,
individually;
PATRICK M. WALSH, M.D.,
individually;
KENNETH E. McCALLA, M.D.,
individually;
TIMOTHY G. KNEIB, M.D.,
individually;
CRAIG A. BLOCK, M.D.,
individually, and
THOMAS W. HEPPERLEN, M.D.,
individually,
Defendants.
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CIV. 09-4051-KES
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
Plaintiff, Javier Rodriguez, is the last remaining plaintiff in an action that
alleges claims against defendants for negligence, medical malpractice,
intentional infliction of emotional distress, negligent infliction of emotional
distress, battery, fraudulent concealment, fraudulent misrepresentation,
informed consent, unjust enrichment, and deceptive trade practices.
Defendants move for summary judgment on all claims. Defendants’ motion was
filed on October 2, 2012, and their revised statement of material facts was filed
on October 24, 2012. Rodriguez has not responded, and the time to respond
has passed. For the following reasons, defendants’ motion is granted.
BACKGROUND
Rodriguez had a cystoscopy performed on him at Siouxland Urology (SU)
on September 25, 2006. In January of 2009, the South Dakota Department of
Health conducted a re-certification survey at SU to determine whether SU was
in compliance with various state and federal rules. The survey found
deficiencies in SU’s cystoscopy procedures because SU used saline irrigation
solutions bags and portions of tubing on more than one patient during
cystoscopy procedures. Defendants sent Rodriguez a letter notifying him of
their lack of compliance.
Outside of the complaint and attachments to the complaint, Rodriguez
has put forth no facts to support his claims. Rodriguez has not shown that he
contracted any blood-borne illness as a result of the cystoscopy procedure
performed on him. Further, Rodriguez did not have physical symptoms related
to emotional distress; he did not cry, become physically ill, or miss any work,
and he did not seek counseling following his receipt of defendants’ letter. Also,
Rodriguez has not identified any expert witnesses to support his claims.
LEGAL STANDARD
Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party can meet this
burden by presenting evidence that there is no dispute of material fact or that
the nonmoving party has not presented evidence to support an element of his
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case on which he bears the ultimate burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). “The nonmoving party may not ‘rest on mere
allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial.’ ” Mosley v. City of
Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County
of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). If the nonmoving party fails to
properly address the moving party’s assertion of a fact, the court may “consider
the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e); see also
D.S.D. Civ. LR 56.1D (“All material facts set forth in the movant’s statement of
material facts will be deemed to be admitted unless controverted by the
opposing party’s statement of material facts.”). Additionally, the court may
“grant summary judgment if the motion and supporting materials—including
the facts considered undisputed—show that the movant is entitled to
[summary judgment].” Fed. R. Civ. P. 56(e).
Because this is a diversity action, the court applies the law of the state in
which it sits. Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.
2007). Thus, South Dakota law applies to Rodriguez’s claims.1
ANALYSIS
I.
Negligence and Medical Malpractice
Rodriguez pleaded claims for negligence and medical malpractice. “The
general rule in medical malpractice cases is that negligence must be
established by the testimony of medical experts.” Magbuhat v. Kovarik, 382
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The parties do not dispute that South Dakota law applies to all of
Rodriguez’s claims.
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N.W.2d 43, 46 (S.D. 1986). This is because “expert testimony is required to
establish the standard of care for a professional unless the issue is within the
common knowledge of the jury.” Luther v. City of Winner, 674 N.W.2d 339, 344
(S.D. 2004). Rodriguez’s claims for negligence and medical malpractice
necessitate a determination of the standard of care required when performing a
cystoscopy procedure. Specifically, his claims require an assessment of
whether the reuse of certain medical equipment during cystoscopy procedures
breach a specific standard of care. This is not an issue within the common
knowledge of lay people. See Kostel v. Schwartz, 756 N.W.2d 363, 383 (S.D.
2008) (“The complexity of neurosurgery does not pose that kind of self-evident
situation [where expert testimony is unnecessary].”); Luther, 674 N.W.2d at 346
(noting that the “typical lay person would have no idea how to design and
construct a sidewalk under the conditions on Winner’s Main Street”).
Because determining the standard of care in this case is not within the
common knowledge of lay people, expert testimony is required. Rodriguez has
failed to present any expert testimony. The deadline to disclose experts has
passed. Thus, defendants are entitled to summary judgment in their favor on
Rodriguez’s claims for negligence and medical malpractice. See Luther, 674
N.W.2d at 346 (“The trial court did not err in granting Britton’s summary
judgment motion on the basis of Luther’s failure to present expert testimony on
the engineer’s professional standard of care.”).
II.
Emotional Distress Claims
Rodriguez pleaded claims for intentional infliction of emotional distress
and negligent infliction of emotional distress. A claim for intentional infliction
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of emotional distress requires a showing that “the plaintiff suffered an extreme
disabling emotional response to defendant[s’] conduct.” Anderson v. First
Century Fed. Credit Union, 738 N.W.2d 40, 51-52 (S.D. 2007). A claim for
negligent infliction of emotional distress requires a “manifestation of physical
symptoms.” Maryott v. First Nat’l Bank of Eden, 624 N.W.2d 96, 104 (S.D.
2001).
Rodriguez has not put forth any facts to show that he suffered an
extreme disabling emotional response or that he had a manifestation of
physical symptoms. In fact, Rodriguez has had no physical symptoms related
to emotional distress. He did not cry, become physically ill, or miss work, and
he has not sought medical attention to help treat any alleged emotional
distress. Thus, defendants are entitled to summary judgment on Rodriguez’s
claims for emotional distress.
III.
Battery Claim
Rodriguez alleges that defendants committed a battery against him. To
establish a battery, Rodriguez must show (1) that defendants intended to cause
a harmful or offensive contact with Rodriguez’s person, and (2) that an
offensive contact directly or indirectly resulted. Stratmeyer v. Engberg, 649
N.W.2d 921, 925-26 (S.D. 2002). Defendants argue that no offensive contact
resulted because Rodriguez was not actually exposed to blood-borne
pathogens.
Rodriguez has not put forth any facts to show that he suffered an
offensive contact. The Fourth Amended Complaint alleges that defendants
“made a harmful or offensive contact with [Rodriguez’s] person by failing to
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sanitize and by reusing medical equipment.” Docket 106 at 19. This allegation
stems from the survey conducted by the South Dakota Department of Health in
January of 2009 that found SU was performing deficient cystoscopy
procedures. Other than this survey, Rodriguez has not put forth any other
evidence of an offensive contact. He has not specifically shown, or even created
an inference, that SU failed to sanitize equipment used during his cystoscopy
procedure, nor has he shown SU reused any medical equipment during his
cystoscopy procedure. He has not shown that he came into contact with or was
actually exposed to blood-borne pathogens. The mere fact that the South
Dakota Department of Health concluded that SU’s cystoscopy procedures were
deficient in 2009 is not enough, without more, to establish that an offensive
contact occurred on September 25, 2006, the date of Rodriguez’s cystoscopy
procedure. Therefore, defendants are entitled to summary judgment in their
favor on Rodriguez’s claim for battery.
IV.
Fraudulent Misrepresentation
Rodriguez pleaded a claim for fraudulent misrepresentation. “Fraud is a
representation made as a statement of fact, which was untrue and known to be
untrue by the party making it[.] Further, that it was made with the intent to
deceive and for the purpose of inducing the other party to act upon it.”
Brandriet v. Norwest Bank South Dakota, N.A., 499 N.W.2d 613, 616 (S.D.
1993). Similar to his battery claim, Rodriguez has failed to introduce specific
material facts to substantiate his claim for fraudulent misrepresentation. See
Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 498 (S.D. 1990) (“Allegations
of fraud and deceit without specific material facts to substantiate them will not
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prevent summary judgment.”). Rodriguez has not provided any of the following
facts to support his fraud claim: what representations were made prior to the
procedure; if representations were made, how they were false; whether
defendants knew or should have known they were false; defendants’ intent in
making the representations; or what representations Rodriguez relied on in
deciding to have the procedure. Conclusory allegations are insufficient to
support a claim for fraudulent misrepresentation. Id. Because Rodriguez only
asserts conclusory allegations in support of his claim, his fraudulent
misrepresentation claim does not survive summary judgment.
V.
Informed Consent
Rodriguez alleges that defendants failed to disclose the fact that “certain
disposable medical equipment would be reused in the course of the cystoscopy
procedure and other medical equipment was not properly sanitized,” and thus,
defendants failed to obtain the required informed consent. Docket 106 at 22.
While alleging an informed consent claim, “[e]stablishing a breach of the
physician’s duty to disclose is only a predicate to the imposition of liability.
Plaintiff must also demonstrate that the undisclosed risk manifested itself,
causing the complained-of injury.” Wheeldon v. Madison, 374 N.W.2d 367, 376
(S.D. 1985). For Rodriguez to be successful on his informed consent claim, he
must demonstrate that the allegedly un-sanitized equipment caused him
injury. Rodriguez has not put forth such facts. Rodriguez has not shown that
he contracted some virus, disease, or infection, or established that he came
into contact with any blood-borne pathogen because of the un-sanitized
equipment. Thus, Rodriguez has not demonstrated on the record the existence
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of specific facts that create a genuine issue for trial with respect to his informed
consent claim. Summary judgment is granted to defendants on this claim.
VI.
Unjust Enrichment
Rodriguez also alleges a claim for unjust enrichment because
defendants, allegedly, wrongfully received a benefit when it failed to adequately
sanitize medical equipment during the course of Rodriguez’s cystoscopy
procedure. “Unjust enrichment occurs when one confers a benefit upon
another who accepts or acquiesces in that benefit, making it inequitable to
retain that benefit without paying.” Hofeldt v. Mehling, 658 N.W.2d 783, 788
(S.D. 2003) (internal quotations omitted). Rodriguez has failed to show why the
equities require defendants to reimburse him. Rodriguez had a cystoscopy
procedure performed on him on September 25, 2006. The court assumes he
paid for this procedure. Rodriguez has not put forth facts to show that his
procedure was anything less than what was bargained for. There are no facts
on the record that suggest Rodriguez was harmed by the procedure itself or
that the procedure itself was unsatisfactory. Again, Rodriguez relies solely on a
survey conducted nearly two-and-a-half years after his procedure. Thus,
Rodriguez has not met his burden of putting forth sufficient facts to elude
summary judgment on his unjust enrichment claim.
VII.
Deceptive Trade Practices
Rodriguez alleges that defendants used “deceptive acts or practices in
connection with the cystoscopy procedures performed on [Rodriguez]” in
violation of the South Dakota Deceptive Trade Practices and Consumer
Protection Act. Docket 106 at 24. SDCL 37-24-31 governs civil actions under
the Consumer Protection Act:
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Any person who claims to have been adversely affected by any act
or a practice declared to be unlawful by § 37-24-6 shall be
permitted to bring a civil action for the recovery of actual damages
suffered as a result of such act or practice.
Thus, to establish a civil claim under SDCL 37-24-31, Rodriguez must show
that his damages “were proximately caused by” the alleged violations of the
Consumer Protection Act. Nygaard v. Sioux Valley Hospitals & Health System,
731 N.W.2d 184, 197 (S.D. 2007). Moreover, Rodriguez must show that
defendants intentionally used deceptive acts or practices. SDCL 37-24-6 (“It is
a deceptive act or practice for any person to: Knowingly and intentionally act,
use, or employ any deceptive act or practice[.]”) (emphasis added).
Rodriguez has not put forth any facts to suggest that defendants
intentionally deceived him. In fact, Rodriguez admitted in his deposition
testimony that defendants did not act “maliciously, intentionally, willfully, or
purposefully[.]” Docket 152-1 at 5. Rodriguez’s claim is just that defendants
should have done the procedure differently. Id. Thus, Rodriguez has not shown
that a question of material fact exists as to defendants’ required state of mind
to support his claim for deceptive trade practices.
VIII. Fraudulent Concealment and Exemplary Damages
Lastly, Rodriguez pleaded claims for fraudulent concealment and
exemplary damages. “Fraudulent concealment is not a cause of action, but a
mechanism to toll a statute of limitations.” Bruske v. Hille, 567 N.W.2d 872,
875 n.1 (S.D. 1997). Exemplary damages are only allowed when there is some
tortious conduct. SDCL 21-3-2. Because Rodriguez has no remaining claims,
the court need not address his allegations of fraudulent concealment and
exemplary damages.
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CONCLUSION
Rodriguez has failed to demonstrate the existence of disputed material
facts that create a genuine issue for trial on any of his claims. Accordingly, it is
ORDERED that defendants’ motion for summary judgment (Document
150) is granted.
Dated February 22, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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