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Talavera v. Wiley

United States Court of Appeals, Tenth Circuit

August 7, 2013

CARMEN TALAVERA, by and through her next friend, Jacob Prado Gonzalez, Consul of Mexico, Plaintiff-Appellant,
v.
JAMES WILEY, D.O.; NURSE HOCHU, (or Nurse Jane Doe); KATHRYN A. PHYFER, M.D.; ROBERT F. MCINTYRE, M.D.; LYONEL BENOIT-ROCK, M.D.; ASSADOLLAH ZAINALI, M.D.; A. ZAINALI, M.D. RADIOLOGY, P.A., JOHN AND/OR JANE DOE(S), Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 2:11-CV-02440-JWL)

Kathleen M. Hagen, Watson & Dameron, LLP, Kansas City, Missouri, for Appellant.

Lisa A. McPherson (Marcia A. Wood with her on the brief) Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., Wichita, Kansas, for Appellee James Wiley, and Adam S. Davis (Mark K. Erickson with him on the brief), Wagstaff and Cartmell, LLP, Kansas City, Missouri, for Appellee Kathryn A. Phyfer, M.D. (Matthew P. Sorochty and Anthony M. Singer, Woodard, Hernandez, Roth & Day, LLC, Wichita, Kansas, on the brief for Appellee Lyonel Benoit-Rock, M.D.; Randall H. Elam, Law Offices of Randall H. Elam, Wichita, Kansas, on the brief for Appellee Robert F. McIntrye, M.D.; Shannon L. Holmberg and Michael R. O'Neal, Gilliland & Hayes, P.A., Hutchinson, Kansas, on the brief for Appellee Assadollah Zainali, M.D. and A. Zainali, Radiology, P.A.) for Appellees.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Carmen Talavera suffered a stroke while visiting a store in November 2007 and incurred permanent disabilities that she attributes to the medical malpractice of personnel at the Southwest Medical Center (SWMC), where she was taken after her stroke. Talavera brought claims against a number of these medical personnel defendants under 28 U.S.C. § 1332, alleging that they should have diagnosed and immediately treated her stroke symptoms with blood-clotting therapy, or, absent that, proceeded with early surgical intervention to prevent damage caused by swelling in her brain.

The district court granted summary judgment, reasoning that—even assuming the medical personnel were negligent—Talavera had failed to demonstrate their negligence caused her injuries.

We hold that the district court did not err. Talavera has failed to: (1) establish a genuine dispute of material fact as to whether she would have qualified for blood-clotting therapy, or (2) show that any doctor owed her a duty of care when this therapy was still a viable treatment option. Further, Talavera cannot meet her burden of demonstrating she would have benefitted from receiving an earlier surgical intervention for symptoms related to her stroke. Finally, Talavera's argument that the defendants' alleged negligence deprived her of the chance of a better recovery fails because she did not adhere to the requirements of Kansas law in advancing a claim based on this theory.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

Around 10:30 p.m. on November 9, 2007, Talavera was found unconscious in a bathroom at a Walmart store in Liberal, Kansas. She soon regained consciousness and was taken by ambulance to the SWMC for what would be her first of three visits to the hospital.

Talavera, a non-citizen who speaks primarily Spanish, arrived at the SWMC around 11 p.m. Upon arrival, Talavera was seen by a nurse who reported Talavera complained of general weakness, a sore throat and ear, and a headache. But before a doctor could examine her, Talavera left the hospital (at about 12:10 a.m.).

A note from one of the on-call nurses reveals that Talavera left the hospital during this visit "AMA" or against medical advice. App. 914. The report explains that Talavera did so because she "doesn't know how to pay for [the] visit [and] feels good enough to go home." Id. At this time, Talavera signed a Spanish-language denial-of-treatment form, though Talavera disputes both whether the form is authentic and whether she knowingly signed it.

Talavera then returned to the SWMC about two hours later, around 2 a.m. This time, the nurse documenting her arrival noted that Talavera continued to complain about general weakness. But Talavera also reported having "tingling" in her fingers. Id. at 257. Dr. Wiley, the on-call emergency room physician, examined Talavera at around 2:30 a.m. and, as part of his differential diagnosis, considered a variety of possible causes of Talavera's symptoms, including stroke. After the examination, Dr. Wiley recommended that Talavera undergo a number of tests, including a CT scan of her head, which was performed at 4:02 a.m.

Dr. Wiley ultimately ruled out a stroke because the scan "was negative." Id. at 615.[1] Instead of stroke, Dr. Wiley concluded Talavera was suffering from hypothyroidism and a muscle sprain in her neck. He based this conclusion on his review of Talavera's lab work, which revealed elevated thyroid hormone, and on his examination of Talavera, whom he observed to have an enlarged thyroid. As a result of this diagnosis, Dr. Wiley prescribed medication to treat hypothyroidism and made arrangements for Talavera to see her primary care physician. Talavera was discharged from the SWMC at 5:49 a.m.

A few hours later, at approximately 10:30 a.m. on November 10, Dr. Assadollah Zainali, a radiologist at the SWMC, reviewed Talavera's CT scan. He initially interpreted the scan to show "no cerebral infarction or hemorrhage" and noted that the scan was "unremarkable." Id. at 921. Dr. Zainali later conceded that his initial analysis was erroneous: the CT scan in fact revealed that Talavera had suffered an "ischemic infarct, " which is a type of brain injury caused by stroke. Id. at 659.

Talavera's third and final visit to the SWMC began around 3:45 p.m. on November 10, when paramedics brought her to the emergency room after they received a call that Talavera had passed out at her home. A nurse who examined Talavera at the beginning of this third visit noted Talavera had hypothyroidism and was moaning and complaining of constant pain in her head.

Shortly after the nurse's examination, Talavera was seen by Dr. Kathryn Phyfer, the on-duty emergency-room physician. Like Dr. Wiley, Dr. Phyfer ultimately concluded that Talavera was suffering from hypothyroidism. She recommended Talavera follow up with her primary care physician and start taking thyroid medication. Dr. Phyfer then attempted to have Talavera discharged. During the discharge process, however, Talavera exhibited a number of unusual behaviors, which prompted SWMC personnel to perform a mental health screening.

Dr. Laura Noblejas, a clinical psychologist, attempted to administer the screening. Although Dr. Noblejas was unable to perform a complete analysis on Talavera, Dr. Noblejas noted Talavera had been engaging in bizarre behaviors during her three visits to SWMC and identified Talavera as presenting a number of psychological problems that made her a potential danger to herself and others. Based on the recommendations in the mental health screening, Talavera was transferred to the hospital psychiatric ward, where she was placed under the care of Dr. Robert McIntyre, a psychiatrist.

Dr. McIntyre first examined Talavera on the morning of November 11, and she remained under his care and the care of Dr. Lyonel Benoit-Rock, another psychiatrist, for the next two days. Neither psychiatrist was successful at treating or substantially communicating with Talavera. Further, Talavera spent most of her time in the psychiatric ward in bed, where she had become unresponsive to a number of stimuli and had trouble communicating even in Spanish.

On November 14, Talavera was transferred back to the SWMC intensive care unit, this time under the care of Dr. Sharon Mitchell. That same day an MRI of Talavera's brain was performed, which was then interpreted on November 15 and revealed "a massive cerebral infarction noted with massive mass effect, " which had caused "total occlusion of the middle cerebral artery." Id. at 761.

After determining Talavera had in fact suffered a stroke, Dr. Mitchell initially decided not to transfer Talavera to a larger specialty hospital for treatment and instead prescribed a number of drugs to combat the stroke's effects. After Talavera's clinical picture had deteriorated, however, Dr. Mitchell opted to transfer Talavera to a hospital in Wichita, where it was recommended that Talavera undergo a "large right decompressive hemicraniectomy with durotomy, " id. at 664, a procedure designed "[t]o relieve pressure inside the skull so that when the brain is swelling[, ] . . . the swollen part is not going to press on other parts of the brain and cause neurologic dysfunction and possibly damage, " id. at 1174. Dr. Nazih Moufarrij, a neurosurgeon, performed the hemicraniectomy on November 16. Talavera was discharged on December 19, 2007, and transferred to a rehabilitation facility. Nonetheless, she suffers from permanent physical and mental disabilities as a result of the stroke.

II. Analysis

Talavera contends the district court erred in granting summary judgment on all of her claims. We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to Talavera and drawing all reasonable inferences in her favor. See Daniels v. UPS, Inc., 701 F.3d 620, 627 (10th Cir. 2012).

A. Preliminary Matters

Before turning to the merits, we must resolve several disagreements about the weight to give certain evidence and the requirements for satisfying elements of the burden of proof under Kansas law.

1. Expert Report

The parties disagree about the weight we can give a report submitted by Dr. Helgason, Talavera's expert neurologist. In the report, Dr. Helgason offered opinions as to how she believed the defendants had caused Talavera's injuries. The defendants argue we cannot rely on Dr. Helgason's report because it is inadmissible hearsay and because only sworn expert affidavits or declarations may be used to oppose a summary judgement motion. But the defendants did not move to strike Dr. Helgason's expert report from consideration below, and we see no reason ...


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