United States District Court, D. Alaska
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
SHARON L. GLEASON, District Judge.
Before the Court at Docket 49 is Defendant United States' Motion for Summary Judgment and to Dismiss Plaintiff's Action for Lack of Jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 56. At Docket 56, Plaintiff Richard Helms opposed the motion. At Docket 59, the United States replied. At Docket 62, Mr. Helms submitted supplemental materials. On May 15, 2014, the Court heard oral argument on the motion. At oral argument, the United States reserved its right to object to the supplemental materials filed by Mr. Helms.
Also before the Court at Docket 64 is Mr. Helms's Motion for Leave to Supplement Oral Argument. The United States opposed the motion, and Mr. Helms replied.
Having considered the documents filed with the Court, the law, and the arguments of the parties, the Court will grant the motion to supplement and will grant the motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Mr. Helms suffers a stroke in Nome, Alaska and files suit against the doctor and hospital.
On August 29, 2008, in Nome, Alaska, Mr. Helms suffered an ischemic stroke. Beginning around 5:45 a.m., he experienced symptoms including headache, vision loss, pain in his eye and face, and dizziness. Mr. Helms sought treatment at the Norton Sound Regional Hospital ("NSRH"). By 6:25 a.m., Mr. Helms was seen by a nurse. He was then seen by Bradley Logan, M.D. Mr. Helms informed Dr. Logan of his symptoms as described above, and also informed Dr. Logan that he was nauseous. Dr. Logan's notes state that Mr. Helms was experiencing an "[a]typical headache, likely due to diabetes, stress, GI disturbance." Dr. Logan discharged Mr. Helms with instructions to go home and sleep, and return if his eye pain continued. Dr. Logan's notes do not indicate that Mr. Helms may have had a stroke, although Dr. Logan testified that he "thought it was possible that [Mr. Helms] had had a stroke. And a stroke is, by definition, a progressive event."
Later in the day on August 29, Mr. Helms traveled by plane to Anchorage. The next evening, on August 30, Mr. Helms went to Providence Hospital Medical Center for further treatment. Mr. Helms was triaged at Providence at approximately 9:28 p.m. Doctors at Providence diagnosed an ischemic stroke. At that time, Mr. Helms learned that he could not receive tissue plasminogen activator ("tPA") treatment-a treatment that offers the possibility of stroke symptom reversal-because, as will be discussed in more detail below, tPA treatment must be administered within a short window after the stroke event.
Mr. Helms filed a Complaint against Dr. Logan and Norton South Health Corporation in Alaska Superior Court in August 2010 alleging that Dr. Logan and the hospital were negligent because Dr. Logan failed to diagnose and appropriately treat Mr. Helms's stroke. Mr. Helms asserts that the "misdiagnosis and failure to document and medevac [Mr. Helms to a hospital for a higher level of care] is the injury, which was proximately caused by Dr. Logan's conduct." As a result of the stroke, Mr. Helms continues to suffer from vision loss, as well as "stress and strain and severe headaches."
In September 2011, the United States removed the litigation to federal court pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450 et seq. and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., which gives this Court jurisdiction. Thereafter, the United States' motion to substitute itself as the defendant was granted.
II. Evidence concerning treatment for a stroke and the treatment available in Nome.
In 2008, the treatment for a stroke would have been a diagnostic CT or MRI scan, followed by a discussion with the patient of the pros and cons of the use of the drug tPA, followed by the administration of the drug if the patient so chose. At that time, the standard of care was to offer the patient tPA only if it could be administered within three hours of the onset of symptoms.
In August 2008, NSRH did not have a CT scanner or MRI for diagnostic purposes. Dr. Logan testified that on occasion NSRH would medevac patients to hospitals in Anchorage or Fairbanks, but that NSRH had a policy not to medevac patients from Nome to Bethel. The parties seem to disagree concerning the length of time it takes to medevac a patient from Nome to Anchorage or Fairbanks.
Mr. Helms's medical expert, Bruce Wapen, M.D., has provided an expert report and deposition testimony. Dr. Wapen opined that Mr. Helms had known risk factors for stroke when he presented at the emergency room at NSRH. The standard of emergency medicine care would have required Mr. Helms to have had a thorough physical examination with specific attention given to the eyes and neurologic systems. Dr. Wapen opined that Dr. Logan failed to conduct a good examination, and thereby failed to tentatively diagnose the stroke in progress, and then failed to arrange to transfer Mr. Helms to a facility with a higher level of care where the stroke could have been diagnosed and treated. Dr. Wapen also testified concerning the pros and cons of tPA treatment. Some patients' symptoms will improve or resolve without tPA treatment. He explained that tPA improves or completely resolves the symptoms of about 12% of stroke patients. But Dr. Wapen also testified that 6% of people that have tPA treatment experience intracranial bleeding, which can be catastrophic or deadly. Dr. Wapen opined that "[e]ven under the best of circumstances, using tPA offers only the possibility of stroke symptom reversal, not the probability." And he testified that a doctor cannot predict ahead of time on a more-likely-than-not ...