Estate of Sanders v. United States

900 F. Supp. 2d 730, 2012 WL 4473202, 2012 U.S. Dist. LEXIS 137876
CourtDistrict Court, S.D. Mississippi
DecidedSeptember 26, 2012
DocketCivil Action No. 4:10cv107-DPJ-FKB
StatusPublished

This text of 900 F. Supp. 2d 730 (Estate of Sanders v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Sanders v. United States, 900 F. Supp. 2d 730, 2012 WL 4473202, 2012 U.S. Dist. LEXIS 137876 (S.D. Miss. 2012).

Opinion

ORDER

DANIEL P. JORDAN III, District Judge.

This medical-malpractice case is before the Court on Defendant’s Motion for Summary Judgment [37], Defendant argues that Plaintiffs expert report falls short of establishing the applicable standard of care, that any government employee breached that standard, or that any such breach caused the death of Plaintiffs decedent. Although the Court is sympathetic to Plaintiffs loss, it concludes that Defendant’s motion should be granted.

I. Facts and Procedural History

Ira J. Sanders was a veteran who received medical treatment through the Department of Veterans’ Affairs. His primary care physicians worked at the Meridian Community Based Outpatient Clinic. In 2003, Sanders’s doctors referred him to the Jackson VA Medical Center (“VAMC”) for an esophagogastroduodenoscopy (“EGD”). Dr. Maher Azzouz, a board certified gastroenterologist, performed Sanders’s EGD on December 10, 2003, which revealed a mass in Sanders’s stomach. Plaintiff asserts that Sanders was never notified of the mass.

On January 26, 2004, Dr. Azzouz placed orders into Sanders’s computerized medical records for a repeat EGD scheduled to be conducted March 12, 2004. Sanders traveled to the VAMC on that date, but was “told by staff members of the VA[MC] that there was no EGD scheduled for [Sanders] that day and that since he had an EGD performed with[in] the past year that there was no necessity to repeat the test.” Pl.’s Resp. [39] Ex. 5, Sanders Aff. ¶ 2. No follow-up EGD was performed over the next four and a half years.

On July 8, 2008, Sanders was referred to the VAMC for admission and evaluation after complaining to his physicians in Meridian of problems with his appetite and weight loss, and of difficulties during and after eating a meal. A EGD was performed and revealed a stomach mass later determined to be cancerous. Sanders died shortly after his diagnosis of severe acidosis secondary to stomach cancer.

Ruther Sanders, in her capacity as administrator of the Estate of Ira J. Sanders, filed this Federal Tort Claims Act (“FTCA”) lawsuit against the United States on June 21, 2010, alleging that the Government, “acting through its agents, servants and or employees at the Department of Veterans Affairs Hospital in Jackson, Mississippi^] and also at the Meridian Community Based Outpatient Clinic” breached the applicable standard of care, proximately causing Sanders’s death. Compl. [1] HVIII. On September 29, 2011, the Court partially granted Defendant’s motion to dismiss, noting that the parties had “agreed that the Court should grant the government’s motion to dismiss all claims arising from the conduct of the Meridian Community Based Outpatient Clinic” and clarifying that “[t]he plaintiffs claims regarding Dr. Azzouz, an employee of the government, are not the subject of the motion to dismiss.” Order [29] at 1. Other than Dr. Azzouz, Plaintiff has identified no specific government employee whose negligence allegedly contributed to Sanders’s death.

Defendant now moves for summary judgment, asserting that Plaintiffs sole expert fails to satisfy Plaintiffs burden to prove the standard of care, that Dr. Azzouz or any other government employee breached the standard of care, or the necessary causal connection between any such [733]*733breach and Sanders’s death. The Court has fully considered the premises and possesses personal and subject-matter jurisdiction.

II. Standard

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (citation omitted). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when ... both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations omitted).

III. Analysis

Defendant argues that it is. entitled to summary judgment because Plaintiffs expert report is insufficient to establish Plaintiffs medical-malpractice claims. Under the FTCA, the Court applies Mississippi law to Defendant’s motion. See 28 U.S.C. § 1346(b)(1) (the substantive “law of the place where the act or omission occurred” governs FTCA claims). And under Mississippi law,

[t]o present a prima facie case of medical malpractice, a plaintiff, (1) after establishing the doctor-patient relationship and its attendant duty, is generally required to present expert testimony (2) identifying and articulating the requisite standard of care; and (3) establishing that the defendant physician failed to conform to the standard of care. In addition, (4) the plaintiff must prove the physician’s noncompliance with the standard of care caused the plaintiffs injury, as well as proving (5) the extent of the plaintiffs damages.

Cheeks v. Bio-Med. Applications, Inc., 908 So.2d 117, 120 (Miss.2005) (citation omitted).

The success of a plaintiff in establishing these essential elements “rests heavily on the shoulders of the plaintiffs selected medical expert,” because “[t]he expert must articulate an objective standard of care.” Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss.2009) (en banc).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Untitled Case
S.D. Mississippi, 2026

Cite This Page — Counsel Stack

Bluebook (online)
900 F. Supp. 2d 730, 2012 WL 4473202, 2012 U.S. Dist. LEXIS 137876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-sanders-v-united-states-mssd-2012.