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Atcherian v. United States

United States District Court, D. Alaska

November 13, 2014

JOSEPH J. ATCHERIAN, on his own behalf and as the Personal Representative of the ESTATE OF MARTHA JO Order Re: Motion in Limine ATCHERIAN, Deceased; and MAX Regarding Discretionary YUNAK, Sr., as the Personal Function Exception Representative for the ESTATE OF PAULA KAREN YUNAK, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER RE: MOTION IN LIMINE REGARDING DISCRETIONARY FUNCTION EXCEPTION, DOCKET 26.

RALPH R. BEISTLINE, District Judge.

I. Introduction

This is a wrongful death matter involving the estates of Paula Yunak and her infant daughter, Martha Jo Atcherian. The estates are represented by the personal representatives, Max Yunak and Joseph Atcherian.[1] Joseph Atcherian also brings this case on his own behalf, as the husband and father of the decedents. The case is brought pursuant to the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. § 2674, following the final decision by Indian Health Services denying an administrative claim. Docket 1 at 2.

Plaintiffs allege negligence of employees of the Yukon Delta Regional Hospital ("YKDRH"), which is operated by the Yukon Kuskokwim Health Corporation (YKHC), a contracting entity of the Indian Health Services. Accordingly, health care provider employees at YKDRH are employees of the United States for purposes of liability under the FTCA. The defendant is, therefore, the United States of America.

Plaintiffs allege four causes of action: 1) Negligence, in the form of breach of the standard of medical care; 2) Failure to provide informed consent; 3) Wrongful death and survival claim (Paula); 4) Wrongful death and survival claim (Martha). Docket 1. This motion pertains only to Count 1, Negligence. With respect to Count 1, Plaintiffs allege that YKDRH medical personnel breached their obligation to provide medical care of a reasonable kind that conforms to the accepted standard of care by: failure to timely diagnose Paula's serious medical condition, discharge of Paula from the hospital after assessing her with a serious medical condition, failure to ensure there was adequate nursing staff on duty in the obstetrics ("OB") department, failure to promptly induce labor, failure to act with the necessary degree of urgency to ensure Paula was delivered by a skilled medical team, and failure to promptly provide medical diagnostic tests. Docket 1 at 6.

II. Facts

The facts are largely undisputed. On November 9, 2009, Paula presented to the YKDRH for a prenatal visit. She was over 38 weeks pregnant. Lab work and physical complaints of shortness of breath resulted in Paula's transfer to OB triage, where she was diagnosed with "pregnancy induced hypertension versus pre-eclampsia." Dr. Mary Boegel, a Locum tenens family practice physician for YKHC, was concerned that Paula had "severe pre-eclampsia" and felt that Paula needed close monitoring and "induction as soon as possible." Docket 46-2. But Dr. David Compton, an OB/Gyn, sent Paula home at 3:55 p.m. with instructions to call the hospital at 7:30 the next morning for induction of labor. Docket 1 at 3-4.

It is undisputed that induction was not available on November 9, 2010. Defendant explains that due to the size of the hospital in Bethel, Alaska, only one patient may be induced at a time. There was already a patient being induced when Paula arrived at the OB triage on November 9, 2010. Furthermore, the OB ward was at full capacity. Docket 27 at 4. Plaintiffs' Complaint alleges that induction was not available "due to inadequate nurse staffing." Docket 1 at 4.

Paula returned to the hospital at 1:45 a.m. on November 10th with increased shortness of breath. Docket 1 at 4. At 2:30 a.m. a chest x-ray was taken which showed "interstitial edema consistent with pulmonary edema and organ failure." Docket 1 at 5. At 7:15 a.m., Paula was loaded into the LifeMed aircraft to be flown to Anchorage for induction of labor. Fifteen minutes later she went into cardiac and respiratory arrest, the flight turned around, and she was brought back to the emergency room in Bethel. At 8:16 a.m., infant Martha was delivered by Cesarian section. Paula was pronounced dead five minutes later. Infant Martha was transferred to Alaska Native Medical Center in Anchorage the same day, and died two days later. Id.

III. Motion in Limine

Defendant seeks to "exclude any expert opinion that the government had a duty to immediately deliver Yunak on November 9, 2010, as a basis for liability." Docket 27 at 11-12.

A. The Discretionary Function Exception

The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of its employees acting within the scope of their employment. Gager v. United States, 149 F.3d 918, 920 (9th Cir. 1998). The exception provides that no liability shall lie for "[a]ny claim... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Conduct is not discretionary where a federal statute, regulation, or policy specifically prescribes a course of action for the employee or agency to follow. Myers v. United States, 652 F.3d 1021, 1028 (9th Cir. 2011). The Government suggests that the discretionary ...


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