United States District Court, N.D. Alabama, Southern Division
KARON OWEN BOWDRE, Chief District Judge.
This matter is before the court on "Defendant's Motion to Exclude Plaintiff's Medical Experts, Dr. Mary Jensen and Dr. William Harvey, and Motion for Summary Judgment." (Doc. 25). On June 21, 2013, Plaintiff Jessica Muniz brought a medical malpractice suit against the United States based on her allegation that Dr. Ahmed M. Kamel Abdel Aal, an interventional radiologist at the Veteran's Administration Hospital, negligently performed a medical procedure on her right leg. (Doc. 1). Ms. Muniz alleges that as a result of Dr. Kamel's negligence "she suffered severe injuries to her right leg and its internal structures, " eventually leading to the amputation of her leg. (Doc. 1, at 2). In support of her position, Ms. Muniz relies on the expert testimony of Dr. Mary Jensen, an interventional radiologist who Ms. Muniz retained as an expert witness, and Dr. William Harvey, Ms. Muniz's treating physician who performed the amputation.
In its motion for summary judgment, the United States contends that the testimonies of both Dr. Jensen and Dr. Harvey should be excluded and that it is entitled to summary judgment without their expert testimony. For the reasons discussed below, this court will grant the United States' motion to exclude Dr. Harvey's testimony only as to causation, but will deny the motion to exclude Dr. Jensen's testimony. Additionally, the court will deny the United States' motion for summary judgment.
I. Standard of Review
Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. When a district court reviews a motion for summary judgment, it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).
Once the moving party meets its burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not significant unless the disagreement presents a "genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks and citations omitted). This is because "the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) (citation and internal quotation marks omitted).
Furthermore, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). The evidence of the non-moving party "is to be believed and all justifiable inferences are to be drawn in [its] favor." Anderson, 477 U.S. at 255. After both parties have addressed the motion for summary judgment, the court must grant the motion only if no genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
The underlying complaint in this case stems from a cervico-cerebral angiogram,  performed by Dr. Kamel on Ms. Muniz's right leg. Prior to the procedure, Ms. Muniz had undergone numerous procedures on her right leg, including a diagnostic angiogram performed on August 27, 2007. During the diagnostic angiogram, Ms. Muniz suffered a dissection in her right femoral artery, resulting in the development of scar tissue in her right leg.
On July 20, 2009, Dr. Kamel saw Ms. Muniz at the Veteran's Administration Hospital to perform the cervico-cerebral angiogram on Ms. Muniz's leg. The pre-procedure notes indicated that the puncture site for the angiogram was to be in the left leg. Additionally, Ms. Muniz told Dr. Kamel prior to the procedure that she previously had issues in her right leg and that the angiogram needed to be done in her left leg. Nevertheless, Dr. Kamel elected to perform the procedure on Ms. Muniz's right leg.
Following the July 20, 2009 procedure, Ms. Muniz began experiencing pain in her right leg and received treatment from numerous physicians. In July 2011, Ms. Muniz sought treatment for her leg from Dr. Harvey, a vascular surgeon. Dr. Harvey determined that Ms. Muniz's pain was the result of restricted blood flow to her right leg, and he performed a series of arterial grafts to re-establish adequate circulation. The procedures, however, were unsuccessful. Eventually, Ms. Muniz's symptoms became so severe that Dr. Harvey concluded the only viable treatment for Ms. Muniz's condition was amputation. On May 22, 2013, Dr. Harvey amputated Ms. Muniz's right leg below the knee.
Based on his treatment of Ms. Muniz, Dr. Harvey concluded that multiple dissections to Ms. Muniz's right femoral artery caused the reduction in blood flow to Ms. Muniz's leg, which eventually led to the amputation. Dr. Harvey further concluded the dissections could only have been caused by Dr. Kamel's July 20, 2009 procedure based "on the fact that [Ms. Muniz] had no symptoms prior to that, but she did develop symptoms after that arteriogram." (Doc. 27-31, at 10).
Following Dr. Harvey's amputation of the leg, Ms. Muniz brought suit against the United States, alleging that Dr. Kamel negligently performed the 2009 procedure and that Dr. Kamel's negligence caused severe injuries to her right leg. In support of her claim, Ms. Muniz offers the testimony of Dr. Harvey to establish that Dr. Kamel's procedure caused her amputation. Ms. Muniz also offers the testimony of Dr. Jensen, a board certified interventional radiologist. Dr. Jensen reviewed Ms. Muniz medical records and offered testimony regarding the standard of care for a physician performing a cervico-cerebral angiogram in similar circumstances to those of the July 20, 2009 procedure. She also testified that Dr. Kamel breached that standard of care by performing the procedure on Ms. Muniz's right leg and that Dr. Kamel's breach harmed Ms. Muniz by causing a further dissection of her femoral artery.
Ms. Muniz brings her present claim for negligence against the United States pursuant to the Federal Tort Claims Act ("FTCA"). Liability under the FTCA for "personal injury caused by the negligent or wrongful act or omission of any employee of the Government, " should be determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001). Because Dr. Kamel treated Ms. Muniz in Alabama, Alabama substantive law, specifically Alabama's Medical Liability Act of 1987 ("AMLA"), governs Ms. Muniz's claim for medical malpractice. See Ala. Code §§ 6-5-540 to 6-5-552.
Under the AMLA, a plaintiff has "the burden of proving by substantial evidence that the health-care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health-care providers in the same general line of practice ordinarily have and exercise in a like case." Ala. Code § 6-5-548(a). To do so, a plaintiff must establish "(1) the appropriate standard of care, (2) the health-care provider's deviation from that standard, and (3) a proximate causal connection between the health-care provider's act or omission constituting the breach and the injury sustained by the plaintiff." Morgan v. Publix Super Markets, Inc., 138 So.3d 982, 986 (Ala. 2013). Further, to establish both the appropriate standard of care and that the health care provider breached that standard, a plaintiff must present expert testimony from a "similarly situated health-care provider." Ala. Code § 6-5-548; Morgan, 138 So.3d at 986.
In its motion for summary judgment, the United States contends that Ms. Muniz cannot establish her claim because the opinions of her experts, Dr. Jensen and Dr. Harvey, are either due to be excluded or are insufficient to establish the elements of an AMLA claim. For the reasons discussed below, the court concludes that Ms. Muniz may present Dr. Jensen's testimony but that Dr. Harvey's testimony only as to causation is due to be excluded. Nevertheless, the court finds that the United States' motion for summary judgment is due to be denied because Dr. Jensen's testimony sufficiently creates a genuine dispute of material fact as ...