Bean v. USA

Filing 13

MEMORANDUM DECISION AND ORDER-granting 10 Motion for Summary Judgment. Signed by Judge Clark Waddoups on 8/22/11. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

JAMES S. BEAN,

MEMORANDUM DECISION
AND ORDER
Plaintiff,

v.

Case No. 2:09-cv-00949 CW

UNITED STATES OF AMERICA,

Judge Clark Waddoups

Defendant.

This matter is before the court on a summary judgment motion filed by Defendant the United
States of America. Plaintiff James S. Bean (“Bean”) has not opposed the motion. Bean contends
he suffered permanent and severe eye damage during a surgery at a Veterans Administration Hospital
due to the negligence of hospital employees. Since filing his complaint, Bean has not conducted any
fact discovery.1 Likewise, he has not identified any expert witness nor provided any expert report
to support that employees of the VA Hospital negligently performed two surgeries.
Under Utah law,2 to prove medical malpractice, a plaintiff must show “(1) the standard of
care by which the doctor’s conduct is to be measured, (2) breach of that standard by the doctor, and
(3) injury proximately caused by the doctor’s negligence.”3 Because of “the technical and complex

1

Memo in Supp. of Mot. for Sum. J., 2 (Dkt. No. 11).

2

Bean has filed suit under the Federal Tort Claims Act (“FTCA”). Under the FTC, liability
is determined “in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). Because Utah is the location where the alleged negligence occurred, Utah law
applies.
3

Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah Ct. App. 1988) (citation omitted).

nature of a medical doctor’s services, expert medical testimony must be presented at trial in order
to establish the standard of care and proximate cause—except in unusual circumstances.”4
Such unusual circumstances occur only when “the question of propriety of treatment . . . is a matter
of common knowledge of laymen or when a physician shows a gross neglect or want of care and skill
such as leaving medical supplies in the incision of a patient.”5
This case pertains to whether hospital employees committed medical malpractice during
surgery to remove an epiretinal membrane and a subsequent surgery to reattach a retina. The
propriety of such treatment is not within the common knowledge of laymen. Expert testimony is
therefore needed to prove Bean’s claim. Because Bean has not designated an expert, filed an expert
report, nor come forward with evidence to show gross neglect or want of care, Bean cannot prevail
on his claim at trial. The court therefore grants summary judgment in favor of the United States and
dismisses this action.
CONCLUSION
For the reasons stated above, the court GRANTS the United States Motion for Summary
Judgment.6

4

Id. (citations omitted); see also Dalley v. Utah Valley Regional Med. Ctr., 791 P.2d 193,
195–96 (Utah 1990) (stating “[t]o establish the standard of care required of a physician in a particular
field, breach of that standard, and proximate cause, the plaintiff is generally required to produce an
expert witness who is acquainted with the standards of care in the same or a similar field as the
defendant doctor”).
5

Marsh v. Pemberton, 347 P.2d 1108, 1110 (Utah 1959).

6

Docket No. 10.
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DATED this 22d day of August, 2011.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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