Verdicts

For FTCA Claim, Navajo and Arizona Laws Require Expert Testimony

The U.S. Court of Appeals for the Tenth Circuit has affirmed the dismissal of a medical malpractice claim after concluding that it does not matter whether the claim falls under Arizona or Navajo law; in either case, expert testimony is necessary to show that the federal government is liable for the plaintiff's injuries, and the plaintiff failed to provide such evidence. Harvey v. U.S., 2012 U.S. App. LEXIS 14436 (10th Cir. 7/13/12).

The plaintiff is a member of the Navajo Tribe. He lives on the Navajo Reservation in New Mexico, where the Fort Defiance Indian Hospital (FDIH) is located. Indian Health Services is a federal government agency that operates FDIH pursuant to a lease with the Navajo Nation. The plaintiff went to the clinic at FDIH on Feb. 6, 2004 after falling and hurting his hand. There, X-rays were taken and the radiology report stated that the plaintiff had suffered a fracture. Despite this, his medical records stated that his X-rays were “ok.” He was treated only with Motrin and told to return if his condition did not improve. The plaintiff did return a month later; again, his medical records say that his X-rays are “ok,” and he was told to take Motrin. When the plaintiff returned a month after that, the fracture was finally noted in his medical records. He eventually underwent surgery, which left him in continuing pain. In March 2005 the cause of that pain was diagnosed at FDIH as being due to nerve entrapment.

The plaintiff filed an administrative claim in accordance with the Federal Tort Claims ACT (FTCA) on May 1, 2006, asserting “[f]ailure to diagnose broken bone in right hand. Surgery to repair fell below the standard of care. All took place at [FDIH] ' during February, March, April, and May of 2004.” In the box marked “Date and Day of Accident,” the plaintiff wrote, “May 2004.” The administrative claim was denied as untimely, prompting the plaintiff to file suit in federal district court.

The district court granted the government's request for summary judgment due to untimely filing, but it also found that the claim was deficient because the plaintiff did not offer the testimony of a medical expert to establish a breach of the standard of care. That court rejected the plaintiff's assertion that because he was demanding nalyeeh (under Navajo law, a form of reparations for a wrong done), expert testimony was not required. The court said that “it strongly appears that expert medical testimony is necessary to establish the diagnosis and treatment of a medical condition under Navajo law.” In addition, stated the district court, “[T]o the extent that Navajo law is silent,” the Navajo Nation Code “provides that the issue may be decided according to comity with reference to the laws of the state in which the matter in dispute may have arisen.” The state in question, Arizona, requires the proffer of expert testimony to establish the standard of care.

The Tenth Circuit agreed with the district court, noting that the plaintiff had not argued that nalyeeh required no showing of injury. In fact, his own Navajo-law expert had stated that nalyeeh constituted a demand that the victim be made whole for an injury. Thus, in order for payment of reparations under nalyeeh to be appropriate, an injury must be proven.

The court went on to observe that an expert must be produced to prove a medical injury, as laypersons are not qualified to reliably judge whether an injury exists, or if it was caused by a medical practitioner's tortious act. And where laypersons are not qualified to reliably analyze the evidence, the Navajo Nation Supreme Court has recognized the need for expert testimony. See Baldwin v. Chinle Family Court, No. SC-CV-37-08, 5 (Nav. Nat. Sup. Ct. Oct. 30, 2008) (family court ruling reversed where no medical evidence produced of mother's inability to care for children). Therefore, even under Navajo law, a medical expert qualified to analyze the medical evidence would be required in this case, to prove that the plaintiff suffered an injury at the hands of the defendants. Further, concluded the court, “[A]lthough we understand Navajo Nation Supreme Court precedent to require expert proof in cases like this one, even if [the plaintiff] were correct that his nalyeeh claim does not require proof of causation, negligence, or fault, the FTCA requires proof of those elements, and such proof calls for expert evidence here.”

For FTCA Claim, Navajo and Arizona Laws Require Expert Testimony

The U.S. Court of Appeals for the Tenth Circuit has affirmed the dismissal of a medical malpractice claim after concluding that it does not matter whether the claim falls under Arizona or Navajo law; in either case, expert testimony is necessary to show that the federal government is liable for the plaintiff's injuries, and the plaintiff failed to provide such evidence. Harvey v. U.S., 2012 U.S. App. LEXIS 14436 (10th Cir. 7/13/12).

The plaintiff is a member of the Navajo Tribe. He lives on the Navajo Reservation in New Mexico, where the Fort Defiance Indian Hospital (FDIH) is located. Indian Health Services is a federal government agency that operates FDIH pursuant to a lease with the Navajo Nation. The plaintiff went to the clinic at FDIH on Feb. 6, 2004 after falling and hurting his hand. There, X-rays were taken and the radiology report stated that the plaintiff had suffered a fracture. Despite this, his medical records stated that his X-rays were “ok.” He was treated only with Motrin and told to return if his condition did not improve. The plaintiff did return a month later; again, his medical records say that his X-rays are “ok,” and he was told to take Motrin. When the plaintiff returned a month after that, the fracture was finally noted in his medical records. He eventually underwent surgery, which left him in continuing pain. In March 2005 the cause of that pain was diagnosed at FDIH as being due to nerve entrapment.

The plaintiff filed an administrative claim in accordance with the Federal Tort Claims ACT (FTCA) on May 1, 2006, asserting “[f]ailure to diagnose broken bone in right hand. Surgery to repair fell below the standard of care. All took place at [FDIH] ' during February, March, April, and May of 2004.” In the box marked “Date and Day of Accident,” the plaintiff wrote, “May 2004.” The administrative claim was denied as untimely, prompting the plaintiff to file suit in federal district court.

The district court granted the government's request for summary judgment due to untimely filing, but it also found that the claim was deficient because the plaintiff did not offer the testimony of a medical expert to establish a breach of the standard of care. That court rejected the plaintiff's assertion that because he was demanding nalyeeh (under Navajo law, a form of reparations for a wrong done), expert testimony was not required. The court said that “it strongly appears that expert medical testimony is necessary to establish the diagnosis and treatment of a medical condition under Navajo law.” In addition, stated the district court, “[T]o the extent that Navajo law is silent,” the Navajo Nation Code “provides that the issue may be decided according to comity with reference to the laws of the state in which the matter in dispute may have arisen.” The state in question, Arizona, requires the proffer of expert testimony to establish the standard of care.

The Tenth Circuit agreed with the district court, noting that the plaintiff had not argued that nalyeeh required no showing of injury. In fact, his own Navajo-law expert had stated that nalyeeh constituted a demand that the victim be made whole for an injury. Thus, in order for payment of reparations under nalyeeh to be appropriate, an injury must be proven.

The court went on to observe that an expert must be produced to prove a medical injury, as laypersons are not qualified to reliably judge whether an injury exists, or if it was caused by a medical practitioner's tortious act. And where laypersons are not qualified to reliably analyze the evidence, the Navajo Nation Supreme Court has recognized the need for expert testimony. See Baldwin v. Chinle Family Court, No. SC-CV-37-08, 5 (Nav. Nat. Sup. Ct. Oct. 30, 2008) (family court ruling reversed where no medical evidence produced of mother's inability to care for children). Therefore, even under Navajo law, a medical expert qualified to analyze the medical evidence would be required in this case, to prove that the plaintiff suffered an injury at the hands of the defendants. Further, concluded the court, “[A]lthough we understand Navajo Nation Supreme Court precedent to require expert proof in cases like this one, even if [the plaintiff] were correct that his nalyeeh claim does not require proof of causation, negligence, or fault, the FTCA requires proof of those elements, and such proof calls for expert evidence here.”