Mutuk aka Mailos v. GMHA, Gov Gu

Opinion

Fl L E D SUPERIOR COURT OFGUAM l

2022 APR In nt110= 09 2

CLERK UF COURT 3

6 IN THE SUPERIOR COURT OF GUAM 7

8 MASAE MUTUK AKA MASAE MAILOS AND JACKSON MAILOS, clvlL CASE no. CVl030-19 9

10 Plaintiffs, DECISION AND ORDER II vs. 12

13 GUAM MEMORIAL HOSPITAL 14 AUTHORITY, an autonomous agency of the GOVERNMENT OF GUAM and DOES 1-10, 15 Defendants. 16

17 INTRODUCTION 18 This matter came before the Honorable Vernon p. Perez on January 13, 2022, for 19 hearing on Defendant Guam Memorial Hospital Authority's ("GMHA") Motion for Summary 20 Judgment. Present remotely via Zoom were Attorney Vincent Leon Guerrero on behalf of 21 Plaintiffs Masae Mutuk aka Masae Mailos and Jackson Mailos (collectively, "Plaintiffs") and 22 Deputy Attorney General James L. Canto II and Assistant Attorney General Yusuke Haffeman- 23 Udagawa on behalf of GMHA. Having reviewed the pleadings, the arguments presented, and 24 the record, the Court now issues the following Decision and Order. 25 BACKGROUND 26 Plaintiffs filed a Complaint on August 27, 2019, alleging GMHA was negligent in 27 treating Ms. Masae Mutual aka Masae Mailos ("Ms. Mutuk") "professionally and competently 28

Mailos vs. GMHA Case No. CVl030-I9 Decision and Order

Page 1 of f I with the requisite standard of care required by any medical provider." (Comal. 11 19). On

2 December 9, 2008, Ms. Mutuk had an operation performed at GMHA whereby a double-j spent

3 was placed in or around Ms. Mutuk's bladder. Id. 117. Ms. Mutuk was subsequently treated

4 numerous times at GMH after complaining of pain in her abdominal area and bleeding in her

5 vaginal region. Id. 118. On January 28, 2018, Ms. Mutuk was treated at GMHA for a urinary

6 tract infection, alter presenting herself at GMHA complaining of pain to her abdomen. Id. 119.

7 On March 6, 2018, Ms. Mutuk presented herself at GMHA complaining of vaginal bleeding and

8 was treated for a urinary tract infection. Id. at 1] 10. Six days later, on March 12, 2018, Ms.

9 Mutuk presented herself at GMHA and complained of abdominal pain. Id. at 11 ll. She was

10 treated and discharged. Id. On March 24, 2018, Ms. Mutuk again presented herself at GMHA

complaining of vaginal bleeding, was treated, and discharged. Id. at 1112. On March 20, 2018,

12 April 2, 2018, and April 11, 2018, x-rays or ultra sounds were taken at the Guam Radiology

13 Consultants and it was revealed remains of a catheter were let inside her pelvis region. Id. at 1]

14 13. On April 25, 2018, Ms. Mutuk was admitted to the Guam Regional Medical City to have

15 the catheter removed. Id. at 'll 15. Ms. Mutual now seeks damages from GMHA based on its

16 actions or omissions which caused her pain and suffering. Specifically, Ms. Mutuk alleges

17 GMHA was negligent because:

18 (1) GMH with complete access to Ms. Mutual's medical records failed to remove

19 the catheter as late as March, 2018, and

20 (2) GMH failed to properly diagnose that the cause of Ms. MutL1k's complaints

21 were caused by the catheter left by GMH's agents or employees.

22 Id. at1]20.

23 Bench Trial in this matter was to commence on November 19, 2021. On November 3,

24 2021, GMHA tiled a Motion for Summary Judgment in light of Plaintiffs' intent to proceed to

25 trial without a medical expert. The Court subsequently determined that it would allow the

26 Motion for Summary Judgment to move fowvard in lieu of trial. (Order Vacating Status Hrg.

27 Set for Nov. 18, 2021 and Setting Matter for Mot. Hrg., Nov. 17, 2021). On December 15,

Mgjmv3_ GMHA Case No. CVl030-l9 Decision and Order

Page 2 of 9 1 2021, Plaintiffs filed their Opposition and a Declaration in Support of the Opposition,1 and on

2 December 29, 2021, GMHA filed its Reply.

3 On January 13, 2022, the Court heard oral arguments from the parties and subsequently

4 placed the matter under advisement.

5 DISCUSSION 6 1. Summary Judgment Standard 7 Summary judgment may be granted "if the pleadings, depositions, answers to

8 interrogatories, and admissions on file, together with affidavits, if any, show that there is no

9 genuine issue as to any material fact and that the moving party is entitled to a judgment as a

10 matter of law." Guam R. Civ. P. Rule 56(c). A genuine issue exists when "there is 'sufficient

evidence' which establishes a factual dispute requiring resolution by a fact-finder." Izuka Corp.

12 v. Kawasho Int'l (Guam) Inc., 1997 Guam 10 1] 7. The factual dispute must concern a material

13 fact. Id. "A 'material' fact is one that is relevant to an element of a claim or defense and whose

14 existence might affect the outcome of the suit ... [d]isputes over irrelevant or unnecessary facts

15 will not preclude a grant of summary judgment." Id. "[T]he Court must view the evidence and

16 draw inferences in the light most favorable to the non-rnovant." Edwards v. Pacific Financial

17 Corp., 2007 Guam 27 117. "When a motion for summary judgment is made ... an adverse

18 party may not rest upon the mere allegations or denials of the adverse party's pleading, but the

19 adverse party's response, by affidavits or as otherwise provided in this rule, must set forth

20 specific facts showing that there is a genuine issue for trial." Guam R. Civ. P. Rule 56(e).

21 Further,

22 the plain language of Rule 56(0) mandates the entry of summary judgment, airer adequate time for discovery and upon motion, against a party who fails to make a 23 showing sufficient to establish the existence of an element essential to that party's 24 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 25

l 27 The Court notes that the caption of the pleading is entitled "Declaration in Support of Entry of Default." The Court assumes this to be a clerical error as it was filed contemporaneously with Plaintiffs' Opposition and is cited 28 in said Opposition, and will therefore treat it as a declaration in support of their opposition.

Mailos vs. GMHA Case No. CV1030-l9 Decision and Order

Page 3 of 9 failure of proof concerning an essential element of the nonmoving party's ease 1 necessarily renders all other facts immaterial.

2 Celotex Corp. v. Catlett, 477 U.S. 317, 322-23 (1986) (internal quotation marks omitted). 3 II. Statute of Limitations 4 GMHA first moves for summary judgment in its favor because Plaintiffs' claim is time- 5 barred. See Mot. Summary Judgment at 5~6, Nov. 3, 2021. Plaintiffs oppose, arguing that the 6 principle of continuous negligent treatment doctrine should apply, and as Ms. Mutuk was last 7 treated at GMH in March 2018, the deadline to life the claim and action had not expired at the 8 time of filing. See Opp'n at 3, Dec. 15, 2021. 9 "Guam has a one-year discovery provision for malpractice actions, and a three-year 10 outer bar from the date of 'treatment, omission or operation."' Kennedy v. Sale, 2015 Guam 38

1] 24. "The short time limit on malpractice actions encourages the plaintiff to act and provides 12 the defendant notice and an opportunity to prepare a defense before evidence becomes stale." 13 Id. (citing Lamont v. WoW, 190 Cal. Rpt:r. 874, 877 (Ct. App. l983)). Title 7 G.C.A. § 11308 14 "provides 'a clear directive' that medical malpractice suits must be filed 'within one year from 15 the date that an injury is discovered or, at the outside, three years from the date of treatment." 16 Id. at1]28 (quoting Custody v. Boonprakong, 1999 Guam 5 1127). 17 "Under the discovery rule, a party is deemed aware of an injury not only when he has 18 actual knowledge but when he could have reasonably discovered both the injury and the 19 negligent cause through the exercise of reasonable diligence." Id. at 1128 (internal quotation 20 marks omitted). 21 The discovery period begins running when the injured party has suffered 22 appreciable harm and knows or suspects that professional blundering is its cause. Suspicion of wrongdoing starts die clock because ignorance of legally significant 23 facts does not toll the statute of limitations. Consequently, if a suspicion exists, 24 the plaintiff cannot sit back and wait for the facts to find him as the burden of 25 finding the facts falls upon his shoulders.

26 Id. at 1129 (internal citations, quotation marks, and alterations omitted). Here, Plaintiffs' lawsuit

27 was filed on August 27, 2019. The Complaint sets forth that a double-j spent was placed in or

28 around her bladder on December 9, 2008. (Comal. 117). GMHA argues that "[s]ince Plaintiffs

Page 4 of 9 1 are proceeding based upon a res ipso loquitur theory of a medical instrument left in [Ms.

2 Mutuk's] body, December 2008 must be the date from which the statute begins to run" and

3 therefore "the action was time-barred as of December 201 l ." (Mot. Summary Judgment at 5).

4 Plaintiffs do not appear to dispute this timeline, but argues that the continuous negligent

5 treatment exception should apply. (Opp'n at 3). Therefore, the Court must determine whether

6 the doctrine of continuous negligent treatment is applicable in this matter.

7 "The continued course of treatment exception is a limited one. Several courts have held

8 that the statute begins to run at the time the patient knew or should have known of his injury,

9 even if this occurs prior to the severance of the doctor-patient relationship." Sale, 2015 Guam

10 38 1] 46 (citing Ballinger v, Crowell, 247 S.E.2d 287, 294) (N.C. Ct. App. l978)). "The

purpose of this doctrine is to aid victims of medical malpractice who are unable to pinpoint the

12 exact date of their injury due to the continuing nature of their medical treatment." Id. (citing

13 Forshey v. Jackson, 671 S.E.2d 748, 756 (W. Va. 2008)).

14 The December 9, 2008 operation was conducted by Dr. Jaroslav Richter at GMH.

15 (Decl. Ex. l (Discharge Summary & Operative Report), Dec. 15, 2021). Ms. Muhik was seen

16 by Dr. Richer after Dr. Florencio Lizama diagnosed her with hydronephorosis. (Deal. Ex. 1

17 (Discharge Summary)). Dr. Lizama's Discharge Summary concludes with a note that Ms.

18 Mutuk is "to follow up with Dr. Richter in Public Health." Id. Although Plaintiffs set forth in

19 the Complaint that "Ms. MutL1k was subsequently treated numerous times at GMH after

20 complaining of pain in her abdominal area and bleeding in her vaginal region," see Con pl. 118,

21 no specific facts have been set forth indicating a mutual agreement or expectation for future

22 treatment between Ms. Mutuk and Dr. Lizama or Dr. Richter beyond any initial follow up set

23 forth in the discharge summary. See, e.g., Sure, 2015 Guam 38 1] 54 (noting that in Peters v.

24 Assyrian, 936 N.Y.S.2d 206, 208 (App. Div. 2011) "a single visit to plaintiffs plastic surgeon

25 nearly 19 months after her treatment was insufficient to establish a continuous course of

26 treatment to overcome a statute of limitations because there was no mutual agreement or

27 expectation for a future consultation" and in Adams v. Konan, 963 N.Y.S.2d 342, 343 (App.

28 Div. 2013) that "two phone calls between plaintiff and defendant physician did not demonstrate

Yi/Iailos vs. GMHA Case No. CV1030-19 Decision and Order

Page 5 of 9 I that plaintiff was undergoing an actual course of treatment, or that plaintiff and defendant

2 physician contemplated future treatment."). The Complaint next sets forth that on January 28,

3 2018, almost ten years later "Ms. Mu presented herself at GMH complaining of pain to her

4 abdomen. She was treated for a urinary tract infection." (Compo. 119). Further, the next GMH

5 medical record included for the Court's review is a Radiology Report indicating the results of an

6 abdominal ultrasound occurring on March 12, 2015 ordered by Dr. Johnny Kim. (Decl. Ex. 2,

7 Dec. 15, 2021). As GMHA sets forth in its Reply, "[t]his long gap in treatment, as well as the

8 discontinuity in the actual physicians, suggests the complete lack of continuity of treatment."

9 (Reply at 4, Dec. 29, 2021). Although Plaintiffs seek the Court to follow Housman v. Kirsch, 57

10 P.2d 908 (Cal. 1936), the Court declines to do so, noting Mat California's medical malpractice

statute, unlike Guam's, specifically enumerates three circumstances that can toll the three-year

12 repose provision See Sale, 2015 Guam 38 1152. The Court is inclined to agree with GMH and

13 finds that the doctrine of continuous negligent treatment is not applicable in this matter and

14 Plaintiffs' claims as to negligence based upon GMH's failing to remove a spent placed in 2008

15 is therefore time-barred.

16 III. Medical Expert Testimony

17 GMHA also moves the Court to grant summary judgment in its favor because Plaintiffs

18 cannot establish that GMHA negligently misdiagnosed the cause of Ms. Mutual's pain and failed

19 to remove a medical device without an expert witness. (Mot. Summary Judgment at 6-12). In

20 Opposition, Plaintiffs argue that they have identified her treating physician as a witness who

21 may testify as to what she did and why she did what she did, and because die facts of this case

22 speak for themselves. (Opp'n at 3-4).

23 In a cause of action for negligence, Plaintiffs must prove the following elements to

24 prevail: "a) that the tortfeaser had a duty to act in a manner that does not place others in an

25 unreasonable risk of harm, b) that duty was breached, c) as a result of that breach it is the cause,

2 27 In California, the three-year repose provision can be tolled only in three circumstances: (1) upon proof of fraud; (2) upon proof of intentional concealment, and (3) if the treatment results in the presence of a foreign body that 28 provides no therapeutic or diagnostic purpose or effect. See Cal. Civ. Proc. Code §340.5.

Page 6of 9 l d) of harm or damages suffered by a party." Guerrero v. DLB Const. Co., 1999 Guam 9 11 14

2 (citing Restatement (Second) Torts §§ 281 and 282 (l988)). Generally, medical malpractice

3 cases alleging negligence require Plaintiff to show a professional standard of care was breached,

4 and as a result of that breach, the party was injured. "[A] physician is required to possess and

5 exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which

6 is ordinarily possessed and exercised by other members of his profession in similar

7 circumstances." Landeros v. Flood, 551 P.2d 389, 392-93 (Cal. 1976). "The standard of care

8 against which the acts of a physician are to be measured is a matter peculiarly within the

9 knowledge of experts, it presents the basic issue in a malpractice action and can only be proved

10 by their testimony, unless the conduct required by the particular circumstances is within the

common knowledge of the layman." Id. at 394 (citations omitted). "[Q]ualitied medical

12 experts may, with a proper foundation, testify on matters involving causation when the causal

13 issue is sufficiently beyond the realm of common experience that the expert's opinion will assist

14 the trier of fact to assess the issue of causation." Jennings v, Palomar Pomerado Health

15 Systems, Inc., 8 Cal.Rptr.3d 363, 368 (Cal. Ct. App. 2003). "In a medical malpractice action, a

16 plaintiff must prove the defendant's negligence was a cause-in-fact injury." Id. at 369.

17 To overcome GMHA's Motion for Summary Judgment, Plaintiffs must establish that

18 sufficient facts exist to support a prima facie case of negligence, as otherwise "there can be no

19 genuine issue as to any material fact, since a complete failure of proof concerning an essential

20 element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex

21 Corp., 477 U.S. at 323. To prove negligence, Plaintiffs must show that (1) GMHA staff failed

22 to exercise a degree of care, skill, and learning expected of a reasonably prudent health care

23 provider at that time in the profession or class to which he or she belongs, acting in the same or

24 similar circumstances, and (2) GMHA staffs failure to exercise this degree of care was the

25 cause of Ms. Mutuk's pain and suffering.

26 Here, it is not clear whether it is expected that a doctor should check to see whether a

27 double-J spent placed in a patient ten years prior is still present. Further, an expert is required to

28 testify as to when the retrieval of the spent becomes medically necessary, as well as what is the

A!ailos vs. GMHA Case No. CVl030-I9 Decision and Order

Page 7 of 9 1 medical protocol for patient care in its removal, as the double-j spent was intentionally placed

2 and left in Ms. Mutuk after the operating procedure in 2008. See Deal. Ex. l (Discharge

3 Summary indicating the "patient was ambulatory with no problems and no complaints and after

4 her spent placement was felt appropriate for discharge and is discharged to home on

5 12/10/2008" and Operative Report indicating the operation performed was the "placement of

6 double-J spent on the right, fluoroscopy and cystoscopy.").

7 The Court also does not find that Plaintiffs can rely on the doctrine of res ipso loquitur

8 without any expert testimony. "Res ipso Ioquitur literally means 'the thing speaks for itself."'

9 Rahmani v. Park, 2011 Guam 7 1137 (quoting Restatement (Second) of Torts § 32ND, cut. a

10 (l 965)). Under the doctrine of res ipso loquituri, "it may be inferred that harm suffered by the

plaintiff is caused by negligence of the defendant when (1) the event is of a kind which

12 ordinarily does not occur in the absence of negligence, (b) other responsible causes, including

13 the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence, and

14 (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff" Id.

15 (citing Restatement (Second) of Torts § 328D(l)). "The concept of res ipso loquitur deals with

16 circumstantial evidence and the presence of probabilities." Encore v, Chin, l Cal.Rptr. ad 63 l,

17 640 (Cal. Ct. App. 2003). The "use of the res ipso loquitur doctrine is especially suited to a

18 medical or dental malpractice setting in which the unwitting and often unconscious or

19 semiconscious patient is at an evidentiary disadvantage because of his or her inability to

20 demonstrate what occurred in the hospital or surgical room setting." Id. (citation omitted) .

21 Without expert testimony, Plaintiffs cannot meet the elements of res ipso loquitur. See

22 Park, 2011 Guam 7 11 37. Although Plaintiffs allege GMHA staff was negligent in not

23 removing the double-j spent and in not properly diagnosing Ms. Mutual's symptoms, the

24 potential for other responsible causes, including the conduct of Ms. Mutual and/or other third

25 persons has not been eliminated. As noted earlier, the discharge summary indicates that Ms.

26 Mutiuk was to follow up with Dr. Lizama at public health, however, no additional facts have

27 been set forth in either medical records or a declaration indicating whether this actually

Page 8 of 9 1 happened. Accordingly, as Plaintiffs cannot establish the negligence claim at trial without

2 expert testimony, the Count GRANTS GMHA's Motion for Summary Judgment.

3 CONCLUSION 4 For the foregoing reasons, the Court hereby GRANTS GMHA's Motion for Summary

5 Judgment.

6 IT IS S0 ORDERED this N * day of April, 2022. 7

10 HONORABLE VERNON p. PEREZ Judge, Superior Court of Guam SERVICE VIA E-MAIL I acknowledge that an electronic co yo! the original was mailed to; 12 I h L( 7 Vf rf lrV,

13 /m- CID/ Date:'I-/'I.12 Time:/0$/60h 14

15 Deputy Clerk, Superior Court01 Guam

Mailos vs. GmEIZ . Case No. CVI030-19 Decision and Order

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