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i OF GUA4 2 2022 MAR —3 PM 12: 0
6 IN THE SUPERIOR COURT OF GUAM 7
$ DOUGLAS LUCAS, CIVIL CASE NO. CV1373-19
9 Plaintiff,
10 DECISION AND ORDER 11 vs.
12 GUAM MEMORIAL HOSPITAL 13 AUTHORITY, 14 Defendant.
15
16 INTRODUCTION 17 This matter came before the Honorable Vernon P. Perez on December 2, 2021, for 18 hearing on Defendant Guam Memorial Hospital Authority’s (“GMHA”) Motion for Summary 19 Judgment. Present remotely via Zoom were Attorney Jeffrey A. Cook on behalf of Plaintiff 20 Douglas Lucas (“Plaintiff’) and Deputy Attorney General James L. Canto II and Assistant 21 Attorney General Yusuke Haffeman-Udagawa on behalf of GMHA. Having reviewed the 22 pleadings, the arguments presented, and the record, the Court now issues the following Decision 23 and Order. 24 BACKGROUND 25 This matter stems from a routine colonoscopy procedure conducted by Dr. Ronald T. 26 Kobayashi on Plaintiff at Guam Memorial Hospital on June 23, 2016. Plaintiff alleges that 27 GMHA staff negligently and carelessly inflicted multiple rectal tears on Plaintiff during the 28 course of his recovery in the recovery room, by improperly removing a catheter from his rectum
Lucas vs. GMHA Case No. CV1373-19 Decision and Order
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1 that was used during the colonoscopy. While awakening from the anesthesia, Plaintiff heard 2 GMHA staff say they were not sure how to remove the instrument left in his rectum during the 3 colonoscopy. (Compi. ¶ 11). One of the nurses told Plaintiff to take a deep breath and pulled 4 the tube out quickly. Id. at ¶ 12; Decl. of Douglas Lucas ¶ 6, Oct. 28, 2021. Although Plaintiff 5 was still coming out of anesthesia, he felt pain when this occurred. (Deci. of Lucas ¶ 6). Jason 6 Ralston who was about ten feet away and was present to give Plaintiff a ride home, observed 7 two nurses acting chaotic around Plaintiff who was still on his side in a gown on the gurney. $ (Decl. of Jason Ralston ¶J 5-6, Oct. 28, 2021). Ralston saw a hand size blood stain on the sheet 9 next to Plaintiffs rectum. Id. at ¶ 6. Ralston observed the two nurses rushing around, talking to 10 each other and asking if the other did this, and they appeared to be in a hurry to get Plaintiff out ii of the hospital. Id. at ¶J 7-8. Plaintiff was pushed out of the hospital in a wheel chair and had 12 difficulty getting into the car, as he appeared to still be under the influence of anesthesia. Id. at 13 ¶ 9. On July 1, 2016, at a follow up appointment with Dr. Kobayashi, Plaintiff complained 14 about the pain he was having in his rectum. (Decl. of Lucas ¶ 13). According to Plaintiff, “Dr. is Kobayashi was surprised when he inspected [his] injury and immediately called Guam 16 Memorial Hospital Authority to ask how this injury happened.” Id. Several weeks prior to the 17 June 23, 2016 colonoscopy, Plaintiff saw Dr. Ramsey N. Chichakli, urologist at Guam Regional 18 Medical City, who found no problem with his rectum. Id. at ¶ 12. 19 Bench Trial was to commence on October 8, 2021. On September 28, 2021, Plaintiff 20 and GMHA filed their respective witness and exhibit lists. On September 30, 2021, at the 21 continued Pre-Thal Conference, Bench Trial was vacated in light of GMHA filing the instant 22 Motion for Summary Judgment. On October 28, 2021, Plaintiff filed his Opposition, and on 23 November 12, 2021, GMHA filed its Reply. 24 On December 2, 2021, the Court heard arguments on the Motion for Summary 25 Judgment, and subsequently placed the matter under advisement. 26 / 27 / 28 1/
Lticas vs. GMHA Case No. CV1373-19 Decision and Order . e DISCUSSION
2 I. Summary Judgment Standard 3 Summary judgment may be granted “if the pleadings, depositions, answers to 4 interrogatories, and admissions on file, together with affidavits, if any, show that there is no 5 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 6 matter of law.” Guam R. Civ. P. Rule 5 6(c). A genuine issue exists when “there is ‘sufficient 7 evidence’ which establishes a factual dispute requiring resolution by a fact-finder.” Izuka Corp. 8 v. Kawasho Int’l (Guam) Inc., 1997 Guam 10 ¶ 7. The factual dispute must concern a material 9 fact. Id. “A ‘material’ fact is one that is relevant to an element of a claim or defense and whose to existence might affect the outcome of the suit. .. [djisputes over irrelevant or unnecessary facts ii will not preclude a grant of summary judgment.” kL “[T]he Court must view the evidence and 12 draw inferences in the light most favorable to the non-movant.” Edwards v. FacUIc Financial 13 Corp., 2007 Guam 27 ¶ 7. “When a motion for summary judgment is made . . . an adverse 14 party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the 15 adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth 16 specific facts showing that there is a genuine issue for trial.” Guam R. Civ. P. Rule 56(e). 17 Further, 8 the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a 19 showing sufficient to establish the existence of an element essential to that party’s 20 case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete 21 failure of proof concerning an essential element of the nonmoving party’s case 22 necessarily renders all other facts immaterial. 23 Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986) (internal quotation marks omitted). 24 IL Medical Expert Testimony 25 GMHA moves the Court to grant summary judgment in its favor because “without 26 expert testimony, Lucas in unable to produce any admissible evidence as to show how this 27 accident occurred.” (Mot. Summary Judgment at 3, Sept. 30, 2021). Plaintiff opposes, arguing 2$ that his case is based on the doctrine of res zsa loquitor, and that “{b]ased on the facts of this
Lucas vs. GMHA CaseNo. CV1373-19 Decision and Order
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i particular case, a medical expert will not assist the trier of fact because the issue will be who 2 that trier of fact believes as to whether Plaintiff suffered a torn rectum in the recovery room.” 3 (Opp’n at 2, Oct. 28, 2021). Plaintiff asserts that “[alt most, all an expert could testify to is that 4 a torn rectum is not normal result of a colonoscopy. Since GMHA denies the torn rectum 5 occurred when Plaintiff was under its control, an expert would provide no other helpful 6 information.” Id. at 3. 7 In a cause of action for negligence, Plaintiff must prove the following elements to $ prevail: “a) that the tortfeaser had a duty to act in a manner that does not place others in an 9 unreasonable risk of harm; b) that duty was breached; c) as a result of that breach it is the cause; 10 d) of harm or damages suffered by a party.” Guerrero v. DLB Const. Co., 1999 Guam 9 ¶ 14 ii (citing Restatement (Second) Torts §sS 281 and 282 (1988)). Generally, medical malpractice 12 cases alleging negligence require Plaintiff to show a professional standard of care was breached, 13 and as a result of that breach, the party was injured. “[A] physician is required to possess and 14 exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which 15 is ordinarily possessed and exercised by other members of his profession in similar 16 circumstances.” Landeros v. Flood, 551 P.2d 389, 392-93 (Cal. 1976). “The standard of care 17 against which the acts of a physician are to be measured is a matter peculiarly within the 18 knowledge of experts; it presents the basic issue in a malpractice action and can only be proved 19 by their testimony, unless the conduct required by the particular circumstances is within the 20 common knowledge of the layman.” Id. at 394 (citations omitted). “[Q]ualified medical 21 experts may, with a proper foundation, testify on matters involving causation when the causal 22 issue is sufficiently beyond the realm of common experience that the expert’s opinion will assist 23 the trier of fact to assess the issue of causation.” Jennings v. Palomar Pomerado Health 24 Systems, Inc., 8 Cal.Rptr.3d 363, 368 (Cal. Ct. App. 2003). “In a medical malpractice action, a 25 plaintiff must prove the defendant’s negligence was a cause-in-fact injury.” Id. at 369. 26 To overcome GMHA’s Motion for Summary Judgment, Plaintiff must establish that 27 sufficient facts exist to support a prima facie case of negligence, as otherwise “there can be no 28 genuine issue as to any material fact, since a complete failure of proof concerning an essential
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1 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex 2 Corp., 477 U.S. at 323. To prove negligence, Plaintiff must show that (1) GMHA staff failed to 3 exercise a degree of care, skill, and learning expected of a reasonably prudent health care 4 provider at that time in the profession or class to which he or she belongs, acting in the same or 5 similar circumstances; and (2) GMHA staffs failure to exercise this degree of care was the 6 cause of Plaintiffs torn rectum. 7 At this time, without expert testimony, Plaintiff has not made a sufficient showing 8 supporting a breach of the requisite standard of care by GMHA and that GMHA’s staffs actions 9 were the cause of any injury to Plaintiff. Evidence must be sufficient to infer that in the absence 10 of the defendant’s negligence, there was a reasonable medical probability that the plaintiff ii would have obtained a better result. The Court finds that the proper use, placement, or removal 12 of a post-colonoscopy catheter under the facts of this matter requires medical expert testimony. 13 Without expert testimony, it is not clear whether post-colonoscopy catheter use is a common 14 procedure, whether the nurse’s rapid removal of the catheter is the standard practice, whether 15 the risk of injury or pain to a rectum caused by rapid removal is within the acceptable standard 16 of care for the procedure, or whether Plaintiffs reaction to the catheter being removed was 17 typical. Although it may be possible for a layman to conclude that Plaintiff experienced pain 18 and other adverse outcomes because of the rapid removal of the catheter, it does not necessarily 19 follow that the care he received was substandard in any way. The Court therefore does not find 20 that Plaintiffs situation falls within the narrow exception to the general rule that a plaintiff 21 camot establish a prima facie case of negligence without expert testimony. 22 The Court also does not find that Plaintiff can rely on the doctrine of res zsa loqttitur 23 without any expert testimony. “Res tpsa loquitur literally means ‘the thing speaks for itself.” 24 Rahmani v. Park, 2011 Guam 7 ¶ 37 (quoting Restatement (Second) of Torts § 328D, cmt. a 25 (1965)). Under the doctrine of res ipsa loquituri, “it may be inferred that harm suffered by the 26 plaintiff is caused by negligence of the defendant when (1) the event is of a kind which 27 ordinarily does not occur in the absence of negligence; (b) other responsible causes, including 28 the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
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i (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Id. 2 (citing Restatement (Second) of Torts § 32$D(1)). “The concept of res ipsa loquitur deals with 3 circumstantial evidence and the presence of probabilities.” Elcome v. Chin, 1 Cal.Rptr. 3d 631, 4 640 (Cal. Ct. App. 2003). The “use of the res ipsa loquitur doctrine is especially suited to a 5 medical or dental malpractice setting in which the unwitting and often unconscious or 6 semiconscious patient is at an evidentiary disadvantage because of his or her inability to 7 demonstrate what occurred in the hospital or surgical room setting.” Id. (citation omitted). 8 Without expert testimony, Plaintiff cannot meet the elements of res zpsa toquitur. See 9 Park, 2011 Guam 7 ¶ 37. Although Plaintiff alleges that a GMHA nurse improperly removed 10 the catheter from Plaintiff while he was in the recovery room, it is not clear without a medical 11 expert what specifically an outcome indicative of negligence would be. Without expert 12 testimony, it would be difficult to rule out other possibilities as to the possible causes of any 13 rectal bleeding and Plaintiffs injury, plain and discomfort. As GMHA points out, such injury, 14 pain and discomfort “could be from the catheter removal, from the colonoscopy performed by 15 Dr. Kobayashi just prior to the catheter removal, from a pre-existing condition, or from a later, 16 naturally-occurring condition. . . . all are equally probable and reasonable as explanations for 17 the alleged injury” to a layman. (Mot. Summary Judgment at 7). Additionally, as GMHA 18 argues, “without the benefit of expert medical testimony, Lucas cannot sufficiently show that 19 the accident could not have been due to any voluntary action or contribution on his part.” Id. 20 Accordingly, as Plaintiff cannot establish his negligence claim at trial without expert 21 testimony, the Court grants GMHA’s Motion for Summary Judgment. The Court will, however, 22 give Plaintiff opportunity to seek an expert witness. Should Plaintiff choose to utilize an expert 23 witness, an Amended Witness List shall be filed by April 22, 2022, and any relevant disclosures 24 with respect to such proposed expert witness shall be made to GMHA prior to this date. 25 CONCLUSION 26 for the foregoing reasons, the Court hereby GRANTS GMHA’s Motion for Summary 27 Judgment. The Court will, however, give Plaintiff an opportunity to seek an expert witness. 28
Lucas vs. GMHA Case No. CV1373-19 Decision and Order
Plaintiff may proffer an Amended Witness List and any disclosures related to the expert witness 2 by April 22, 2022. A Status Hearing is set for May 12, 2022 at 2:00 p.m. via Zoom. 3 IT IS SO ORDERED this ‘/ day of March, 2022.
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7 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 8
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17 Joseph Bamba, Jr.
Deputy Clerk, Superior Court of Guam 18
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Lucas vs. GMHA Case No. CV1373-19 Decision and Order