Nunsuch ex rel. Nunsuch v. United States (221 F. Supp. 2d 1027, 2001)

United States District Court for the District of Arizona 2001-07-13

Citations

Full opinion text

Order

SILVER, District Judge.

BACKGROUND

This is a medical negligence action brought in March, 1997 by Troy Nunsuch (“Troy”) on behalf of his wife, Mary Esther Nunsuch (“Mary Esther”), for himself, and on behalf of their three minor children, Mary Alice, Tyrone, and Tray Nunsuch against the United States Government (Defendant). Mary Esther is a Navajo who is permanently mentally and physically incapacitated. Since the commencement of the action, the Superior Court of Maricopa County has appointed as Mary Esther’s Guardian/Conservator Gregory Dovico of Southwest Fiduciary, Inc., and the Superior Court of Navajo County has appointed Sherry Lynn Johnson as Guardian/Conservator for Mary Alice, Joanne Michele Johnson as Guardian/Conservator for Tyrone, and Charles Johnson as the responsible party representing the interests of Tray.

On September 2, 1994, Mary Esther underwent mitral valve replacement surgery at University Medical Center in Tucson (“UMC”), and was discharged home to Mesa on September 8, 1994. The surgery and post-surgical care of Mary Esther at UMC was arranged by cardiologist James M. Galloway, Director of the Southwest Native American Cardiology Program and an employee of the Indian Health Service (“IHS”) of Department of Health and Human Services, an agency of the United States. Dr. Galloway had an office at, and directed the Program from UMC. On September 9 at 8:30 p.m., following late-morning laboratory studies at Phoenix Indian Medical Center (“PIMC”), she presented to the Emergency Room (“ER”) at PIMC, and was treated for right side chest pain by Defendant’s employees, physicians Dr. Eric W. Ossowski, Dr. David Gayton and nurses Maria Santiago and Patricia Lin-ville. She was transferred from PIMC ER by AirEvac to UMC early September 10, where she suffered a cardiac arrest about 5:00 a.m. which caused brain injury, permanently incapacitating her.

Plaintiffs allege that the Defendant was negligent regarding the discharge of Mary Esther on September 8, 1994, her treatment at the PIMC ER, including her transport on September 9-10, 1994 to UMC, and her treatment upon her return to UMC September 10, 1994. They seek compensatory damages and damages for past and future medical costs, pain and suffering, and loss of earnings and earning capacity for Mary Esther and for loss of consortium for Troy and their three children.

A similar medical negligence action in the Superior Court of Maricopa County, which was brought in August 1995 by Troy against UMC, the Arizona Board of Regents which operates UMC, and University Physicians which staffs it has been settled. The United States, with this Court’s approval, has designated as non-parties at fault in this action the defendants in the state action.

The Defendant denied that the discharge of Mary Esther from UMC on September 8, 1994, and her care at the PIMC ER including her transport to UMC, and her care at UMC on September 9-10, 1994, was below the standard of care or made more probable than not her cardiac arrest and resultant anoxic brain injury. Alternatively, the Defendant’s position is that, if the Court finds that care and treatment of Mary Esther by Defendant’s employees fell below the standard of care, the Court should nevertheless find the non-parties at fault and 100% responsible for liability and damages.

Jurisdiction of this action is conferred by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1) and 2671, et seq., and venue is conferred by 28 U.S.C. § 1402(b).

GOVERNING LEGAL AUTHORITY

“Suits against the United States and its agencies are barred by sovereign immunity unless permitted by an explicit waiver of immunity from suit.” Sigman v. United States, 217 F.3d 785, 792 (9th Cir.2000). By enacting the FTCA, “Congress waived the United States’ immunity from suits for money damages for traditional tort claims[.]” Id. The FTCA provides, in pertinent part: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” 28 U.S.C. § 2674. Although various limitations have been imposed on this “broad waiver of immunity,” see, e.g. Sigman, 217 F.3d at 792-93, none of those limitations are applicable in the case at bar.

In actions brought under the FTCA, the government’s liability is to be determined “in accordance with the law of the place where the [negligent] act or omission occurred.” 28 U.S.C. § 1346(b)(1); Taylor v. United States, 821 F.2d 1428, 1430 (9th Cir.1987), cert. denied, 485 U.S. 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988). Accordingly, “the substantive law of the place where the act or omission occurred” governs questions of liability. Valencia v. United States, 819 F.Supp. 1446, 1463 (D.Ariz.1993) (citing Aguilar v. United States, 920 F.2d 1475, 1477 (9th Cir.1990), and 28 U.S.C. § 1346); see also Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir.1986) (“The determination of liability under the FTCA is controlled by the law of the place where the allegedly tortuous acts occurred.”). Because the alleged medical negligence in this case occurred in the State of Arizona, Arizona substantive law controls. See Taylor, 821 F.2d at 1430; Valencia, 819 F.Supp. at 1463.

A. Medical Malpractice in Arizona

Medical malpractice claims in Atizona are governed by statute. See A.R.S. §§ 12-561, et seq. Pursuant to A.R.S. § 12-561(2):

“Medical malpractice action” or “cause of action for medical malpractice” means an action for injury or death against a licensed health care provider based upon such provider’s alleged negligence, misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health care, medical services, nursing services or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives.

“No medical malpractice action shall be brought against a licensed health care provider except upon the grounds set forth in § 12-561.” A.R.S. § 12-562(A).

A plaintiffs burden of proof in a medical malpractice action is prescribed by A.R.S. § 12-563, which provides:

Both of the following shall be necessary elements of proof that injury resulted from the failure of a health care provider to follow the accepted standard of care:

1. The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.

2. Such failure was a proximate cause of the injury.

“In order to satisfy the requirement of establishing a standard of care and a deviation from that standard, plaintiffs must present evidence that the health care provider failed to exercise the degree of care, skill and learning expected from a reasonable, prudent health care provider in the profession to which he or she belongs under the same or similar set of circumstances in the state of Arizona.” Valencia, 819 F.Supp. at 1463 (citing Bell v. Maricopa Medical Center, 157 Ariz. 192, 194-195, 755 P.2d 1180, 1182-1183 (1988)). Ordinarily, a plaintiff must “present expert evidence of the accepted conduct of the profession and the defendant’s deviation from that standard unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.” Valencia, 819 F.Supp. at 1463 (citing Peacock v. Samaritan Health Serv., 159 Ariz. 123, 765 P.2d 525 (1988)). In any ease, a plaintiff must present specific evidence of the standard of care. Valencia, 819 F.Supp. at 1463 (cites omitted).

“[A] negligence action may be maintained only if there is a duty or obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Markowitz v. Arizona Parks Board, 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Whether a duty of care exists is a question of law. Id. Although a duty of care may exist in a given situation, it alone does not prescribe the requisite standard of conduct. Id. at 355, 706 P.2d at 367.

Hospitals are “required to exercise the skill and knowledge normally possessed by like institutions in similar communities.” Faris v. Doctors Hosp., Inc., 18 Ariz.App. 264, 270, 501 P.2d 440, 446 (1972). In a hospital malpractice case, where a doctor’s negligence is “so grossly apparent that a layman would have no difficulty in recognizing it[J” the doctrine of res ipsa loquitur applies. Id. at 269-70, 501 P.2d at 445-46. Where the negligence is not “so grossly apparent,” expert medical testimony is required to assist the trier of fact. Id. at 270, 501 P.2d at 446.

Hospitals are not permitted to deny emergency medical care to patients who need such care. Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 602, 688 P.2d 605, 610 (1984). A patient in need of emergency medical treatment may not be transferred from one hospital to another “until all medically indicated emergency care has been completed.” Id. However, such a patient may be transferred for “reasonable cause,” the determination of which rests upon “medical considerations relevant to the welfare of the patient and not economic considerations relevant to the welfare of the hospital.” Id. at 603, 688 P.2d at 611. A hospital may possess one of three possible defenses to a charge that it has denied emergency medical care: “(1) that the hospital is not obligated (or capable) under its state license to provide the necessary emergency medical care, (2) there is a valid medical cause to refuse emergency care, (3) there is no true emergency requiring care and thus no emergency care which is medically indicated.” Id. Whether an emergency exists, and what constitutes the proper modalities of treatment for the emergency, present questions of fact. Id.

A physician’s duty of care to a patient is distinct from the duty of care owed by a hospital. Id. at 604, 688 P.2d at 612.

No statute requires the physician to provide services separate and apart from those which the hospital is required to provide. Thus, the duty of care owed by a physician is determined by common law principles which require reference to that which is usually done by members of the profession.

Id. “The burden is on a plaintiff to establish the applicable standard of care.” Katar v. MacCollum, 17 Ariz.App. 176, 178, 496 P.2d 602, 604 (1972). “A doctor is not liable in negligence for his mere mistakes in judgment in the treatment of his patient, but is only liable where his treatment falls below the recognized standards of good medical practice.” Id. “[U]nless the conduct complained of by the doctor is readily ascertainable by laymen, the standard of care must be established by medical testimony.” Id.; see also Gaston v. Hunter, 121 Ariz. 33, 49, 588 P.2d 326, 342 (1978) (requiring expert medical testimony to establish standard of care). “[N]o presumption of negligence arises from the mere fact of unsuccessful treatment[.]” Id. at 50, 588 P.2d at 343. Moreover, “absent negligence by the physician there is no malpractice when the plaintiff suffers an adverse result which is an inherent risk of the procedure performed[.]” Id.

“[A] doctor does not commit malpractice simply because he employs a method of diagnosis or a course of treatment some doctors do not find efficacious.” Borja v. Phoenix General Hosp., 151 Ariz. 302, 304-05, 727 P.2d 355, 357-58 (1986). A doctor’s use of such a method or course of treatment does not fall below the standard of care if “a respectable minority of physicians approve the disputed technique and so long as the defending doctor properly employed that technique[.]” Id. at 304, 727 P.2d at 357; see also Leech v. Bralliar, 275 F.Supp. 897, 902 (D.Ariz. 1967) (finding no malpractice as a matter of law where a “respectable minority of physicians in the United States” utilized the disputed treatment); but see A.R.S. § 12-563(1) (limiting standard of care to physicians within Arizona).

A plaintiff in a medical malpractice action must also show proximate causation. See A.R.S. § 12-563(2). A plaintiff “must present facts from which negligence and a causal relation between the injury and the defendant’s acts may be reasonably inferred.” Valencia, 819 F.Supp. at 1463 (citing Harvey v. Kellin, 115 Ariz. 496, 566 P.2d 297 (1977)). “The court ‘must find for the defendant unless [it] finds[s] a probability that defendant’s negligence was a cause of plaintiffs injury.’ ” Valencia, 819 F.Supp. at 1464 (citing Thompson, 141 Ariz. at 608, 688 P.2d at 616 (emphasis in original)). “Arizona law holds that cause-in-fact exists if the defendant’s act helped cause the final result and if that result would not have happened without the defendant’s act.” Ontiveros, 136 Ariz. at 505, 667 P.2d at 205. The “[d]e-fendant’s act need not have been a ‘large’ or ‘abundant’ cause of the final result; there is liability if the result would not have occurred but for defendant’s conduct, even if that conduct contributed ‘only a little’ to plaintiffs injuries.” Id.

B. Damages

If a court determines that a defendant is liable for medical malpractice, it must then determine the measure of damages in accordance with the law of the state where the malpractice occurred. Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir.1984) (citation omitted). However, the United States cannot be liable for punitive damages or interest prior to the judgment. 28 U.S.C. § 2674. There are three “basic steps for calculating pecuniary damages under the FTCA: (1) compute the value of the plaintiffs loss according to state law; (2) deduct federal and state taxes from the portion for lost earnings; and (3) discount the total award to present value.” Shaw, 741 F.2d at 1205.

1. Arizona Law

In Arizona, “[a]s a general rule, a plaintiff in a tort action is entitled to recover such sums as will reasonably compensate him for all damages sustained by him as the direct, natural and proximate result of such negligence, provided they are established with reasonable certainty.” Continental Life & Accident Co. v. Songer, 124 Ariz. 294, 304, 603 P.2d 921, 931 (1979). “Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity.” Wendelken v. Superior Court in and for Pima County, 137 Ariz. 455, 671 P.2d 896 (1983); see also Standard Oil Co. of California v. Shields, 58 Ariz. 239, 119 P.2d 116 (1941).

To recover future medical expenses, it is not required that the injured party be willing to undergo future medical treatment. Besch v. Triplett, 23 Ariz.App. 301, 303, 532 P.2d 876, 878 (1975). Nevertheless, it must be “reasonably probable” that the treatment will be given. Griffen v. Stevenson, 1 Ariz.App. 311, 312, 402 P.2d 432, 433 (1965). There must be evidence of permanent injury to recover future medical expenses, see id. at 305, 532 P.2d at 880, but “the mere fact of permanency does not in itself constitute a sufficient basis for the award of future medical expenses.” Valley Nat’l Bank of Arizona v. Haney, 27 Ariz.App. 692, 694, 558 P.2d 720, 722 (1976). Evidence of future medical expenses must be definite with respect to the duration, amount of treatment, and the cost in order to support an award of damages. Id.; Hirsh v. Manley, 81 Ariz. 94,103, 300 P.2d 588, 594 (1956).

“Loss of earnings is an item of special damage and must be specially pleaded and proved.” Mandelbaum v. Knutson, 11 Ariz.App. 148, 149, 462 P.2d 841, 842 (1969). In addition to loss of earnings, a plaintiff may recover for diminished earning capacity. Id. Impairment of earning capacity, however, “is an item of general damage, permitting recovery for loss or diminution of the power to earn in the future and is based upon such factors as plaintiffs age, life expectancy, health, habits, occupation, talents, skills, experience, training and industry.” Id. at 149-50, 462 P.2d at 842-43. To recover for diminished earning capacity, a plaintiff “must establish the fact of diminished capacity and the fact that it is permanent.” Id. at 150, 462 P.2d at 843. A plaintiff is not required to prove wages or prior employment in order to recover for diminished earning capacity, but she is required to prove that she has the capacity to acquire money. Id. at 150-51, 462 P.2d at 843-44.

“[Djamages for pain and suffering must be reasonably certain and cannot be predicated upon conjecture and speculation.” Allen v. Devereaux, 5 Ariz.App. 323, 326, 426 P.2d 659, 662 (1967). Rather, it is “necessary to show by the evidence either that the pain and suffering actually did exist, or that the injuries were of such a nature that it would presumably follow therefrom.” Olsen v. Mading, 45 Ariz. 423, 432, 45 P.2d 23, 26 (1935). Recently the Arizona Court of Appeals recognized the right of recovery for the loss of enjoyment of life, or hedonic damages, that is the participation in life’s activities to the quality and extent normally enjoyed before the injury. Ogden v. J.M Steel Erecting, Inc., 201 Ariz. 32, 31 P.3d 806, 2001 WL 579805 (2001). In the same opinion the court reaffirmed that damages for disability and disfigurement may be awarded where appropriate. Id.

Arizona also permits parties to recover for loss of consortium. A husband may recover for the loss of his wife’s consortium. See City of Glendale v. Bradshaw by and Through Bradshaw, 108 Ariz. 582, 583-84, 503 P.2d 803, 804-05 (1972). A definition incorporated in Bradshaw from a South Dakota case provides the essence of this marital interest shared by husband and wife:

... the society, companionship, conjugal affections and assistance of the other; the so-called sentimental elements of consortium, to which each has the right.

With respect to loss of consortium for children the Arizona Supreme Court allows recovery when a parent “suffers serious, permanent, disabling injury rendering the parent unable to provide love, care, companionship, and guidance to the child. The parent’s mental or physical impairment must be so overwhelming and severe that the parent-child relationship is destroyed or nearly destroyed.” Villareal v. State Dept. of Transp., 160 Ariz. 474, 774 P.2d 213, 219 (1989).

2. Federal Law

“[A]s a matter of federal law, income taxes should be deducted from FTCA award for lost compensation.” Shaw, 741 F.2d at 1206. The failure to deduct income taxes from an FTCA award is tantamount to an award of punitive damages against the United States, which is prohibited by the FTCA. Id.; see also 28 U.S.C. § 2674. However, where a lump sum is awarded in an FTCA action, the “award should correspondingly be increased by the amount of income tax that would have to be paid on the earnings of the total award.” Shaw, 741 F.2d at 1206; see also DeLucca v. United States, 670 F.2d 843, 845 (9th Cir.1982). The amount of income taxes which should be deducted will not necessarily equal the amount which should be added to the award. Shaw, 741 F.2d at 1206.

“The collateral source rule is well-established in Arizona tort law.” Siverson v. United States, 710 F.2d 557, 559 (9th Cir.1983). The collateral source rule “permits an injured party to recover medical expenses from a tortfeasor, notwithstanding reimbursement of such expenses by the injured party from a third party, if such reimbursement is from a ‘collateral source’ and not from a tortfeasor.” Id. When determining whether payments received by an injured party constitute a “collateral source,” a court must consider whether the injured party contributed to the fund which is making those payments. See id. at 559-60 (distinguishing Overton v. United States, 619 F.2d 1299 (8th Cir.1980) on the basis that the injured party in Overton had not made contributions to the fund). Where the fund is “supplied in part by the beneficiary or a relative upon whom the beneficiary is dependent[,]” the benefits paid from that fund are considered to come from a “collateral source” and may not be deducted. United States v. Harue Hayashi, 282 F.2d 599, 603-04 (9th Cir.1960).

Where a court awards an amount to cover residential care, that amount should not be deducted from an award for lost earnings. Yako v. United States, 891 F.2d 738, 747 (9th Cir.1989). The Yako court concluded that “separate awards for future medical and maintenance costs and for lost earnings” do not violate the FTCA’s prohibition against punitive damages, and it found that “the refusal to award separate costs for these items may interfere with the FTCA’s provision for recovery in accordance with local law.” Id. “Because [Arizona] permits recovery for future medical and maintenance costs and lost future earnings,” it is not improper for a district court to award separate amounts for these items. Id.

“[AJwards based on income streams spread over time are usually discounted to present value to account for the fact that a plaintiff, by receiving the money in a lump sum, ‘up front,’ will invest the sum and earn additional income from the investment.” Trevino v. United States, 804 F.2d 1512, 1517 (9th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). “The discount rate should be based on ‘the best and safest investments.’ ” Id. (internal quotes and cite omitted).

A net positive discount rate implies that the gains from safe investments exceed the losses induced by inflation — in other words, that the rate chosen to reflect the interest rate on the safest investments over a fixed period of time will be a larger number than the rate chosen to reflect the rate of inflation over the same period of time....

Obviously it is possible for the true rate of inflation to outstrip the return on the safest investments for some period of time. This would justify for that period of time a negative discount rate.

Id.

When selecting a discount rate, the Court must “select an accurate measure of historical inflation as the basis for its prediction of future inflation.” Id. at 1518. A court may adopt a discount rate greater than 3% or less than 1% if “credible expert testimony” supports it. Id. at 1519. The Court must be cautious, however, not to confer a “double benefit” on either the injured party or the government. Id. at 1519-20.

[I]t is impermissible either (1) to exclude the effects of inflation in determining the size of the lost income stream and employ a discount rate equal to the market rate of interest, or (2) to include the effects of inflation in determining the size of the lost income stream and employ a discount rate measured by the difference between the market rate of interest and the rate of inflation. The former denies the injured party any adjustment for inflation while making available such adjustment to the party deemed responsible for the injury. The latter, on the other hand, provides to the injured party an adjustment for inflation in determining the size of the lost income stream and denies to the party deemed responsible for the injury any benefit of that adjustment in determining the proper discount rate. Put more succinctly, the former accords the party deemed responsible for the injury a “double benefit,” while in the latter the “double benefit” passes to the injured party. Neither party is entitled to a “double benefit.”

Id. (cite omitted).

“The present value of a lump sum award may be determined (1) by calculating the difference between the market rate of interest and the anticipated rate of inflation and then discounting by this real interest rate; (2) by including the effects of inflation and discounting by the market interest rate; and (3) by employing a zero discount rate (the total offset approach).” Colleen v. United States, 843 F.2d 329, 331 (9th Cir.1987). The total offset approach, however, “is unacceptable as a uniform method to calculate present value, although it may be stipulated to by the parties or applied by the trial court in an appropriate case.” Id.

The Court “has the inherent power to order the parties to place [a] money judgment into a fully reversionary trust if such an arrangement is in [the injured party’s] best interest.” Hull v. United States, 971 F.2d 1499, 1504 (10th Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1844, 123 L.Ed.2d 469 (1993). However, the Court “cannot subject the government to ongoing obligations” such as continuing payments. Id. at 1505. In addition, under a reversionary trust, only future medical expenses and not lost wages should revert to the government. Hill v. United States, 81 F.3d 118, 121 (10th Cir.), cert. denied, 519 U.S. 810, 117 S.Ct. 56, 136 L.Ed.2d 19 (1996).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All acts which gave rise to these claims occurred within the District of Arizona. This case was tried to the District Court seated without a jury as required by 28 U.S.C.A. § 2402. The Court has considered testimony of all the witnesses at trial, including experts, admitted deposition testimony, and all exhibits admitted at trial. After a careful review of the evidence in conjunction with the applicable law the Court makes the findings of fact and conclusions of law set forth below.

1. Liability

The following medical facts presented at trial were essentially uncontested:

a. All claims arose from injuries occasioned to Mary Esther during the time frame of September 8, 1994 through September 10,1994.

b. Mary Esther was 32 years old at the time of her injuries.

c. Mary Esther had been a long-term patient at PIMC prior to September 1994.

d. In her teenage years, Mary Esther developed rheumatic fever which resulted in a mitral valve problem.

e. In July 1994, Mary Esther was sent by Dr. Nathan Clifford, her cardiologist and an employee of the PIMC, to Dr. Galloway at the University of Arizona Health Sciences Center for evaluation.

f. During all of his care of Mary Esther, Dr. Galloway was a federal employee.

g. Based upon evaluations of Mary Esther an echo cardiogram was performed on August 31, 1994 and a cardiac catheterization was performed on September 1, 1994 at UMC.

h. Dr. Galloway performed the cardiac catheterization with another doctor at UMC.

i. Catheterization and echocardiogra-phy did not reveal any left ventricle dysfunction, but did confirm regurgitation at the mitral valve, pulmonary hypertension and the need for corrective surgery.

j. The decision was made to perform the mitral valve replacement on September 2,1994.

k. The mitral valve surgery was performed on September 2, 1994, by Dr. G.K. Sethi with Dr. Andrew Tsen and a resident, Dr. Susanna Gordon who was in attendance, all employees of UMC.

l. Plaintiffs have asserted no claims arising out of the mitral valve surgery performed on Mary Esther, and it appears to have been successful. Dr. Clifford sent Mary Esther to UMC because it was his “understanding [UMC] did it better than anyone else” and he “had had [UMC] repair valves before.” (Cliff, depo. 47). In Dr. Galloway’s September 9, 1994 letter to Dr. Clifford regarding the surgery, he remarked that Mary Esther “underwent mitral valve replacement” “without complications.” (Cliff, depo. Ex. 2).

m. Mary Esther received postoperative rehabilitative care at UMC. According to her chart, discharge was slated for September 9, 1994.

n. Mary Esther’s husband, Troy Nun-such, was never called or alerted that Mary Esther was coming home on the evening of the 8th. However, for reasons explained below the Court finds that contacting him would have been of little or no value in avoiding or diminishing the possibility of her cardiac arrest and injuries.

o. Mary Esther’s medical records contain certain “Cardiac Rehabilitation Guidelines.”

p. It was the team responsibility of the doctors at UMC and Dr. Galloway to properly discharge Mary Esther, but Dr. Galloway had, and gave, the final approval and authorization for her discharge.

q. Without objection from the UMC doctors, Dr. Galloway moved the discharge up to the evening of September 8, 1994. He directed her to get an INR test (anticoagulation test) the next morning at PIMC in Phoenix.

r. After discharge Mary Esther was driven to her home by three family members. All three family members lived in Navajo County. Mary Esther lived in Mesa (Maricopa County) with her husband and their three young children. (TT 604, 607, 609)

s. On September 9, 1994, Mary Esther left her home in Mesa to obtain the INR test. The records at PIMC ER indicate that she took a bus ride sometime that day. It was a hot day, and she was required to travel to and from Mesa and Phoenix, which was a long trip.

t. The temperature in Arizona on September 9, 1994, according to the National Climatic Data Center, reached highs between 101° and 104°.

u. When Troy Nunsuch returned home from work the evening of the 9th, he found Mary Esther laying in bed complaining of chest pain. A decision was made to seek medical attention and Mary Esther was taken to PIMC ER.

v. At 8:30 p.m. Mary Esther was admitted to and treated at PIMC ER with “right chest wall” pain. The admission was approximately 25 hours after her discharge from UMC in Tucson.

w. All of Mary Esther’s care at PIMC ER took place between 8:30 p.m. and 1:24 a.m. At 1:24 a.m. she was transferred by AirEvac to UMC in Tucson. That transfer was precipitated by a near midnight phone consult between Dr. Ossowski at PIMC ER and Dr. Galloway in Tucson regarding whether she should be transferred. The recollections of Drs. Galloway and Ossowski of the content of their conversation differ significantly.

x. By the time of her transport back to Tucson at 1:24 a.m. her blood pressure remained at 83/45, despite five hours of some treatment in the emergency room. Twenty six times her BP was abnormal at PIMC ER. On seven occasions, the systolic BP was in the 70’s, reaching a low of 70 at 9:45 p.m., and she received 12 mg. of morphine between 9:00 p.m. and 9:50 p.m. at PIMC ER.

y. Mary Esther’s condition prior to and upon transfer was described as “unstable” by all involved in her care at PIMC ER. Dr. Klein, Defendant’s expert witness, who was not in attendance at PIMC ER, but reviewed the records and deposition testimony of the medical personnel in attendance, testified that she was “critically ill” when she arrived at PIMC ER and she was “critically ill” when she was transferred from PIMC ER. (TT 1422)

z. After her landing at the UMC, Mary Esther was admitted to the UMC/ ICU between 2:30 and 2:40 a.m. She remained there past 5:00 a.m.

aa. At 5:00 a.m. she had a cardiac arrest. A code resuscitation began and she was noted to be resuscitated by 5:15 a.m.

bb. CT scans were accomplished on September 11 and September 14, 1994. They depicted profound generalized hypoxic damage of Mary Esther’s brain.

cc. Both sides agreed that the cardiac arrest resulted in hypoxic, permanent brain damage to Mary Esther,

dd. Mary Esther was discharged from UMC on October 3, 1994. Since then she has been transferred to various care and treatment facilities, eventually resulting in her permanent and current placement at the Winslow Campus of Care.

2. The Four Standard Of Care Time Periods

Plaintiffs have divided the alleged liability of the Defendant for medical malpractice into four time periods: (1) the discharge of Mary Esther from UMC on September 8, 1994, (2) the emergency room care of her at PIMC ER late September 9 until early morning September 10, 1994, (3) the arrangements for, and her transport back to UMC on September 10, 1994, and (4) her care at UMC on September 10, 1994 when the cardiac arrest occurred. The Defendant has not adopted this division and claims it is designed only to facilitate Plaintiffs’ adversarial purposes. The Court finds it useful because it provides ease of reference for addressing all of Plaintiffs’ claims.

a. The 6-Day Discharge Decision of 9/8/94

1. The “first” standard of care time frame involves the allegation that Defendant’s employee Dr. James Galloway fell below the applicable standard of care by discharging Mary Esther at 7:45 p.m. on September 8, 1994, six days after her mitral valve replacement surgery. It is the Defendant’s position, based upon the testimony of its expert cardiologist, Dr. Klein, that such care did not fall below the standard of care. It is also the position of the Defendant that the UMC doctors were primarily responsible for the post-operative care including Mary Esther’s discharge; and that the early discharge was not the proximate cause of her injuries.

2. The Court finds that Dr. Galloway fell below the standard of care in discharging her too early. The Court also finds that the doctors at UMC fell below the standard of care in their participation or failure to participate in Mary Esther’s early discharge. The Court finds, however, that Dr. Galloway’s responsibility was greater than that of the UMC doctors because he had the final responsibility to ensure that the essential regimen for her care was understood by her, and would be followed after discharge.

3. Mary Esther was admitted to UMC on September 1, 1994 by Dr. Galloway. Dr. Clifford, Mary Esther’s cardiologist for many years, had referred her to Dr. Galloway because Dr. Clifford believed Dr. Galloway had a “systematic way” of caring for Indian heart patients and “following them up.” (Cliff, depo. 35-36). According to Dr. Clifford, Galloway’s program was designed to ensure the continuity of care for cardiac Native Americans which was previously unavailable. Dr. Clifford testified that in the past the Indians would be “farm[ed] out” and we would “tend to lose the patients, lose track of them, so we couldn’t follow them up very well.” (Cliff, depo. 35-36) Dr. Clifford also testified that Mary Esther’s case was a risky one: “There wasn’t any doubt about it. It was a risky case.” (Cliff, depo. 48) Dr. Clifford explained that this was primarily because Mary Esther had abused alcohol and had liver disease, and consequently she “would have to take anticoagulants, which adds a significant risk to somebody, particularly if they have a liver disease.” (Cliff, depo. 48) Significantly, Dr. Clifford testified that he communicated his concerns to Dr. Galloway: “I would let [Dr. Galloway] know everything I knew and my ideas on the situation.” (Cliff, depo. 50) Thus, Dr. Galloway was made aware of the risk factors involving Mary Esther’s case, and significantly how important it was to ensure that the INR tests for determining blood coagulation were carefully planned for and completed after discharge. No evidence presented demonstrated that the UMC doctors were made specifically aware of this particular history of Mary Esther’s case, provided directly by Dr. Clifford to Dr. Galloway.

4.On admission at 7:45 a.m. a “Patient Plan of Care” was completed. Question 16 on that Plan indicated that the patient “expected to be in the hospital two weeks”. Nursing notes elsewhere in that “Plan of Care” repeated that the discharge date was “two weeks from now”.

5. On postoperative day number one Mary Esther was transferred to the 6 East Ward in “stable” condition. A discharge summary noted: “... she will require follow up anticoagu-lation clinic ... in Mesa”

6. Dr. Galloway, followed Mary Esther throughout her entire stay at UMC. Dr. Galloway admitted that the INR test planned for September 9 was the “main reason” for keeping Mary Esther overnight at the hospital until September 9. The INR test could have been performed on the 9th at UMC. Dr. Galloway, however, moved the discharge up to the evening of September 8,1994.

7. “Cardiac Rehab Phase I Activity Guidelines” were kept to track Mary Esther’s post operative rehabilitation progress. These protocols listed “Six Steps” which the patient was supposed to meet prior to discharge. In comparing the nursing notes at pages 44-62 with these Guidelines on page 35 (of the pertinent records) Mary Esther had not accomplished these Six Steps before discharge. Dr. Galloway had also ordered a “stat renal” on 9/8/94 and an echo-cardiogram for 9/7/94, but they were not done before discharge.

8. On September 4, 1994, Mary Esther walked 200 ft. twice. On September 5, 1994 it appears she walked 200 ft. once! On September 6 at 2:00 p.m. she walked 500 feet once. On September 7 at 1:48 p.m. she walked 500 feet once (MR 58). On September 8, the morning of her discharge, there was no entry for any distances walked. Step Six in the “Cardiac Rehab Phase 1 Guidelines” reads: “Ambulate 1000-2000 feet [before] discharge instructions.”

9. The nursing notes established that when Mary Esther did ambulate 500 feet she had “dyspnea on exertion” [shortness of breath] (MR 35, TT 236-37). She never went 1000 feet without shortness of breath. (TT 237)

10. At trial, Dr. Galloway acknowledged that Mary Esther’s medical records contained these the cardiac rehab guidelines (TT 130, MR 35). Dr. Galloway did not know whether Mary Esther met these “Guidelines” on the evening he discharged her and at trial he continued to be unaware of whether she met them. (TT 130-132, MR 58).

11. Dr. Galloway did ask the rehab professionals at UMC to increase her daily “activity challenges” the day before her discharge on the 7th. He admitted at trial, however, that he did not know if his instruction was ever carried out or what her response was if she ever was challenged (TT 150).

12. In response to questions by the Court, Dr. Galloway stated that it was not essential that Mary Esther follow the rehabilitation protocol because she could do what “we expect of a patient to be able to go home.” (TT 208). The Court finds Dr. Galloway’s opinion unpersuasive. First, Dr. Galloway did not offer alternative recognized objective and acceptable medical criteria for the discharge of a patient other than can she “walk around the hallway”; is she “able to care for herself’; is she able to “you know, dress herself,” and “do things that are stable for a patient to go home.” (TT 208) Second, applying his own criteria he ignored or failed to notice that when she “walked around the hallway” she had “dysp-nea on exertion” [shortness of breath] the day before her discharge. (TT 237) Further, Dr. Galloway had specific knowledge of Mary Esther’s history, in particular the risky nature of this operation for her, which necessitated that she obtain the INR test on September 9 and 10, 1994 to ensure she had no complications. Dr. Galloway testified that it was “very important” that she obtain the test on September 9, but he failed to establish a plan for her to accomplish his directive. (TT 209)

13.Dr. Galloway testified that his decision for early discharge was influenced by Mary Esther’s desire to go home early, but the record shows that he failed to ensure that there was an adequate plan for her to obtain transportation for the administration of the “very important” INR test, and that she had adequate care at home after discharge. (TT 209) When asked what assurances he obtained from Mary Esther regarding getting her lab work taken care of, he repeatedly responded that “she had her family with her” and “she had transportation,” and he “trusted that.” (TT 99-100; 101; 143; 146; 173) He explained that he did not believe Mary Esther deceived him in this regard, (TT 143) but he admitted, if he had known that she had to travel by bus on a hot day in Phoenix for perhaps three to four hours to get the “very important” INR test, he would not have released her. (TT 209) There is nothing in the records nor did any witness corroborate Dr. Galloway’s opinion that it was reasonable under the circumstances to expect Mary Esther would be safely transported to the clinic for her labs on September 9 and 10. He never identified who assured him that he/ she would take full responsibility for transporting her, and how that person would transport her for the tests. Dr. Galloway never inquired of the family members if they were going to stay at her home and care for her into the weekend. (TT 144). He did not seek “assurances” from the family members: “I did not. I talked to Mary Esther instead,” the patient who was sick, and whose capacity for objective judgment was impaired by her intense desire to go home. (TT 191— 192).

14. When the three family members arrived at UMC in Tucson, Mary Esther informed them that she was going home “the following day”(the 9th), but that she did not want her husband to take her home. (Nelson video depo.)

15. They decided to take Mary Esther home but, Rena Nelson told Mary ■ Esther that she needed to go back to Winslow because she had to be at work the next morning. (Nelson video depó. 15-25, 35-36)

16. Dr. Galloway admitted that he knew that all three family members present when she was discharged “were family at a distance, yes.” “I knew they lived up in the northern part of the state, I believe” (TT 172) Nelson, the driver, said she went to get her car and did not hear or see any final communications with Dr. Galloway or any medical personnel if any occurred.

17. Dr. Galloway also admitted he made a conscious decision to exclude the social services professionals at UMC from the discharge decision and plan for Mary Esther on September 8. He explained that he knew from past experience that UMC social services “didn’t have a clue” how to deal with Native Americans. He avoided their involvement because “they weren’t very helpful.” But Dr. Galloway agreed that any perceived inadequacy of the social services department should have resulted in more involvement on his part, not less, to ensure Mary Esther was transported to get the INR test, and for her care throughout the weekend. (TT 322, 325-32)

18. Jana Bosse, a qualified nurse who at the time she testified was operations manager for a critical care unit which included progressive care and cardiovascular ICU, explained that discharge decisions are not left to the patient, that it is a team effort with the physician discussing with the family what must be accomplished once she gets home, and who is going to be there to help out. (TT 239) For Mary Esther, it was important to have taken account of the ages of her children, how they would be cared for, and the establishment of a specific plan of how transportation for the INR tests would be arranged. (TT 240-41) Dr. Galloway failed to accomplish this for Mary Esther with any reliable family members, present or not present, at the time of her discharge.

19. It was even more imperative for Dr. Galloway to effectively establish with the family members present at the time of discharge a clear plan for Mary Esther’s care and transportation, because Dr. Galloway did not communicate with her husband, Troy Nunsueh, because he apparently did not have confidence that Mr. Nunsueh would accept and assume responsibility as her care giver. Dr. Galloway testified that “there had been some issues between her and her spouse.” Dr. Klein referred to it as “marital discord.” (TT 1410) Dr. Galloway said Troy was only “around intermittently” and he did not even participate in the decision for her to have the surgery. (TT 121-2) Dr. Galloway’s impression about Troy Nunsueh, and Mary Esther’s relationship with him, was corroborated by other evidence. Dr. Clifford testified that her husband was only around “some of the time” during his treatment of Mary Esther and, when Mary Esther returned home on September 8 after surgery, according to Rena Nelson, Mary Esther slept on a sofa and Troy Nunsueh slept in a bedroom. (Nelson video depo.) The next morning Troy Nunsueh took the family’s only vehicle, left Mary Esther alone with very young children, without a care giver, and to take a bus from Mesa to Phoenix and back on a hot day for the essential INR test. (Nelson video dep.; See DAMAGES at 50.)

20. Dr. Wohlgelernter, a very qualified cardiologist, testifying for the Plaintiffs said that it was below the standard of care to discharge Mary Esther from UMC on September 8, 1994 (TT 1465). He stated that even if she assured Dr. Galloway that she had a ride or could get a ride for her INR test, the discharge would still have been inappropriate because it placed an “excessive burden” on her to travel, even by car, just six days after her open heart surgery. (TT 1478) “[E]ven if there was an assurance that transportation was available to take her from home all the way ... to Phoenix Indian Medical Center, that’s still an unacceptable situation for a patient who has just ... had open heart surgery a few days before. I would never allow my patient to be put in that predicament, of having to travel great distances to get a blood test. I would either have a situation where a visiting nurse can draw the blood sample at the patient’s home, or if there is a nearby laboratory station where the blood can be obtained without any kind of lengthy travel, that’s acceptable.” (TT 1478)

21. Defendant’s expert on standard of care, Dr. Neil Klein, also a very qualified cardiologist, issued a report on July 30, 1998 and concluded “[t]he patient’s discharge instructions and arrangement for follow up care at the Phoenix Indian Medical Center (PIMC) was appropriate, as were the discharge medications.” (EX 202) He provided little elaboration at trial for this opinion, other than to state that in his practice patients who have heart surgery, whether bypass or valve replacements, are in the hospital only between five to seven days. (TT 1343) He also testified that he was not concerned that she had not completed all six steps of the cardiac rehab guidelines, though he admitted that these guidelines were similar to the ones used at St. Joseph’s hospital where he admits his cardiac patients. (TT 1406) It is also significant that Dr. Klein did not recall the longest distance completed by Mary Esther before discharge, which was only 500 feet, (TT 1404) and that one day prior to her discharge walking 500 feet produced “dyspnea on exertion.” (TT 1407) He testified “That I don’t remember.” (TT 1407)

22.The UMC cardiac surgeons did not deny involvement in, and at least some responsibility for the decision to discharge Mary Esther. Dr. Tsen testified that the decision was made by a team including Dr. Se-thi, Dr. Tsen, Dr. Gordon and Dr. Galloway. (Tsen depo. 6). Dr. Gordon testified that discharge was always a team effort “but as residents, we understood that if Dr. Galloway made the recommendation we were to follow it” and the “follow-up was clearly dictated by Dr. Galloway.” (Gordon depo. 87, 99). Dr. Sethi, whose testimony was remarkable for its inconsistencies, did testify that it was customary to obtain approval from Dr. Galloway for the medical center’s patients and that the medical record read “Plan discharge Friday, if ok with Dr. Galloway.” (Sethi depo. 36-37). As a team, the surgeons performing this surgery, which was risky for Mary Esther, had the responsibility to discharge her only when she was ready. As such, it was their joint responsibility with Dr. Galloway to ensure that she met the cardio rehab guidelines, or other medically objective and acceptable guidelines for appropriate discharge. They had, however, good and sufficient reason to rely on Dr. Galloway for an appropriate and effective plan for her care upon discharge and for her transportation to PIMC for the INR test. Dr. Galloway admitted that the UMC doctors had agreed to an “early” discharge of Mary Esther on the condition that it was approved by him, and that it was his final responsibility to plan the discharge of her, because of the “follow-up issues that he was responsible for before discharge.” (TT 139-40) Moreover, it is undisputed that Dr. Clifford specifically referred Mary Esther to Dr. Galloway because of what Dr. Clifford understood was Dr. Galloway’s capacity to provide the bridge for Indian heart patients with Anglo-American medicine, which required “systematic care” for them and “follow up.” (Cliff, depo. 35-37)

23. The Defendant, through its employee Dr. Galloway, and the UMC cardiac surgeons fell below the standard of care by discharging Mary Esther on September 8, 1994 before ensuring that Mary Esther had met the cardiac rehab activity guidelines before her release, or other objective medical guidelines applicable to the discharge of cardiac patients after surgery.

24. Additionally, the Defendant independently, through its employee Dr. Galloway, fell below the standard of care by discharging Mary Esther on September 8, 1994 in that (1) his plan for discharge required her to travel by car for a required medical test, six days after open heart surgery, which placed an excessive burden on her; (2) by being unduly influenced in his discharge decision by Mary Esther, a sick patient, whose judgment was compromised because she was desperate to return home; (3) by failing to establish with reliable family members an effective and adequate plan for her care at home after discharge, and for her transportation to get the necessary medical test, when he chose not to rely on UMC social services, or her husband to ensure that she would be cared for and transported.

25. Plaintiffs have established her injuries would have been avoided if Mary Esther had not been discharged on September 8, 1994. (TT 1478-79; 328-29) The Court finds that if Dr. Galloway and the UMC doctors had not failed to meet the standard of care in discharging Mary Esther, her injuries could have been prevented and their failure was a proximate cause of Mary Esther’s injuries occurring on September 10,1994.

b. The Care at PIMC ER

1. This second standard of care time frame addresses whether the PIMC ER nurses and physicians who provided care to Mary Esther between 8:30 p.m. and approximately 1:30 a.m. on September 9 and 10 met the standard of care.

2. The Plaintiffs claim, in part, a “failure to act and react” breach of the standard of care rather than a failure to diagnose. The Plaintiffs have focused on a variety of features of the care given, or which PIMC ER failed to give, including (1) failure to adequately take basic vitals and re-administer appropriate testing, (2) failure to obtain proper urine evaluations, (3) the low amount of fluids given and treatment for volume depletion, (4) the failure of the physicians to appropriately engage in differential diagnosis, and (5) the improper administration of medications, that is, morphine sulfate and dopamine. The Defendant disputed whether the care fell below the required standard arguing that the treatment was appropriate.

3. The Court finds that Defendant, through its employees, fell below the standard of care in its treatment and failure to treat Mary Esther on September 9 and 10, 1994 at PIMC ER.

4. It is undisputed that upon her arrival the care givers at PIMC ER ascertained that Mary Esther was critically ill, whatever the cause. The care givers also quickly discerned that she had very low blood pressure; she needed more fluids and she was given some. They knew she had recent heart surgery and pain which was determined to be, and was recorded as “incisional pain”. Although not recorded in any of the medical records, both Dr. Gayton and Dr. Ossowski testified that they agreed an appropriate diagnosis for Mary Esther might have been hypovolema (inadequate fluids). Doctors Gayton and Ossowski also testified that they thought much more serious possibilities were also present such as cardiac tamponade (excess pericardial fluid causing compression of the heart, limiting the filling of the heart so cardiac output falls and blood pressure falls); pulmonary embolism (a blood clot in the lungs), sepsis (infection throughout the blood system). (TT 909; 920; 923-24; 1473-75).

5. Plaintiffs’ expert, Dr. Wohlgelernter agreed that at the outset these more serious possible diagnoses, other than hypovolema, had some viability. His criticism of the physicians was that after they identified these potentials they failed to actively engage in testing and analysis to rule them in or out, and if they had they would have concluded she was hypo-volemic and properly treated her, which would have obviated the cardiac arrest. Instead, after the initial diagnosis, testing was conducted, pain was treated with morphine sulfate, and then she received dopamine, but there was never a positive response to her very low blood pressure. Again, rather than change the plan and course of treatment, retest, and re-evaluate, the physicians allowed Mary Esther to languish in ER for five hours and her condition deteriorated. Her blood pressure became dangerously low, and her last recorded pulse rate before she was transported was 139 “which is an alarmingly and frighteningly high number.” (TT 331)

6. The fundamental breach of the standard of care was not that they failed to diagnose hypovolemia, because they did diagnose it. It was that they failed in so many respects to properly care for and treat Mary Esther, as a critically ill patient. She went to PIMC ER because it was an emergency room. “It is called an emergency room for a reason.” (TT 334) Care givers in an emergency room must respond with a sense of urgency. PIMC ER did not, and their mistakes and omissions in violation of the,standard of care are specifically addressed below.

The Initial History and Treatment Plan of Dr. Gayton Followed by Dr. Ossowski.

7. Dr. Gayton saw Mary Esther initially and obtained data via a chest x-ray, an EKG, an ABG, and a blood chemistry study and started the morphine medication. (TT 413-414).

8. Dr. Ossowski agreed that PIMC ER first contacted him to come see Mary Esther around 10:00 p.m., (TT 399, MR 66) but his arrival and/or involvement in Mary Esther’s care did not begin until 11:55 p.m. (TT 394, MR 69) There was no acceptable explanation for the almost two hour delay between the call to Dr. Ossowski and his arrival on the scene. (TT 917) He speculated that he was treating another patient. (TT 916 918) Mary Esther’s vitals demonstrated she was in critical condition when she arrived at the ER, and they had not improved when Dr. Ossowski was called. Dr. Ossowski should have arrived to care for her immediately, or found a competent substitute to attend to her on an urgent basis.

9. Moreover, when Ossowski arrived he should have been alarmed by what he found. The blood chemistry studies warned of a borderline C02 from 8:55 p.m. These were never repeated; there had been no urinalysis; no foley catheter had been placed; no orthostatic blood pressures had been obtained; there was no history of fluid intake or output. (TT 414-423) Dr. Ossowski even had to add significant findings into the emergency room record which, prior to his arrival at midnight, had been missing. He wrote “hypotension” next to low pressure; he wrote “recent mitral valve replacement;” he wrote “anemia” (TT 397. MR 66). He ordered the “foley catheter.” He stopped the morphine sulfate. He ordered an increase in the rate of supplemental oxygen. He initiated the calls to Dr. Galloway. He called for a helicopter. (TT 398, MR 66-71) Finally, AirEvae put her on 100% oxygen by mask during her transport to UMC. (MR 82)

10. Dr. Ossowski did not write the ER entry about the long bus ride (TT 396, MR 66). He did not know at trial who did. (TT 399^400) Dr. Ossowski could not recall if the “lengthy bus ride” notation was added to the emergency room record after his arrival at 11:55 p.m. (TT 423) and the recorded history reflected no inquiry directed to Mary Esther about consumption of fluids that day.

11. An accurate history should have been taken under the appropriate standard of care and the standard of care history should have resulted in a more professional, timely, and an adequate plan of treatment throughout the time she was at PIMC ER.

The Importance of Urine Evaluation.

12. A urinalysis is extremely important in determining an etiology for low blood pressure (TT 1471). Measuring specific gravity in the urine determines if a patient is hypovolemic.

13. There was a four and one-half hour delay in placing a foley catheter to capture and test urine characteristics and output (TT 256). No urine was ever captured or tested at PIMC ER. (MR 70)

14. Nurse Santiago said a urinalysis was supposed to be done (TT 528-529). In fact, she agreed without objection that the “standard of care” in 1994 at PIMC ER required a urinalysis which would include a specific gravity (TT 547).

15. Measuring urine output and obtaining a urinalysis is so “basic” in clinical settings such as this, that it is one of the earliest things taught in nursing school for assessing a patient in the ER (TT 255).

16. A table for volume depletion’s key findings in Saunders Manual of Medical Practice, 2nd Edition was admitted and listed “tachycardia, orthostatic changes, urine electrolytes ... and specific gravity” as the “most reliable signs of volume depletion.” If diagnosis is not conclusive, the textbook required serial hematocrits and urine studies. Neither was undertaken in this case. Under the heading entitled “Warning” that same text further stated that the most common treatment mistakes are: (1) “inadequate rate and volume” of fluid replacement; (2) failure to repeat evaluations and lab work frequently enough; and (3) failure to anticipate changes in electrolyte status.

17. Dr. Gayton responded to these criticisms by minimizing the relevance of urine, urine output, or a urinalysis in the overall work-up. None of the Defendants’ other employees; their expert; or a medical text or resource supported Dr. Gayton’s dismissal of urine evaluation.

18. Dr. Ossowski said urine was important enough to be monitored and evaluated and he ordered the foley catheter. Dr. Klein admitted that he was unaware that no urinalysis had been performed and this fact was relevant to his opinion. (TT 1401-1402). Dr. Klein conceded that he testified at the time of his deposition: “I did recognize that a urinalysis would be the make or break decision of the volume status of the patient.” (Klein deposition, pg. 65; TT 1401-1402)

19. At PIMC ER there was no monitoring of urinary output, or urinalysis, and the failure to do so fell below the standard of care. (TT 1471).

The Basics of Vital Signs, Lab Work, Serial Testing.

20. There was a failure at PIMC ER to obtain orthostatic blood pressures (TT 252); a failure to obtain or monitor complete vital signs; a failure to initiate or repeat certain blood gas or blood chemistry studies. (TT 258)

21. The rule at PIMC ER, as conceded by its nurses, was to obtain “ort-hostatic” pressures meaning serial blood pressures, and they were to be taken within a prescribed period of time. Orthostatics are very basic medicine, and taking orthostatic readings required no special equipment. (TT 577-582)

22. The Court agrees with Plaintiffs’ expert that obtaining orthostatic blood pressures was “mandatory” under the circumstances presented by Mary Esther’s health status, and that they would have been very-helpful in determining her volume status. (TT 1472)

23. The administration of supplemental oxygen to Mary Esther who was pale and dehydrated with a very low hematocrit and hemoglobin, demonstrated confusion, lack of teamwork and a failure of communication. Dr. Gayton’s initial order was written for 4 L/min. (MR 66). Within minutes, Nurse Lin-ville started oxygen at 3 L/min. (MR 67) Within five to ten minutes later, and without explanation or rationale, Nurse Santiago changed the supplemental oxygen to 2 L/min. Dr. Ossowski then changed it back. (MR 66, 71)

24. The care givers also failed to reevaluate and investigate her significantly elevating pulse rate. (TT 335-336) Her pulse rate went from 108 at 8:30 p.m. to