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Johnson v. Bernstein

United States District Court, D. Nevada

February 1, 2018

CHRISTINE JOHNSON, Plaintiff,
v.
JONATHAN BERNSTEIN, et al, Defendants.

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

          OPINION & ORDER DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 375, 377, 379, AND 380)

         I. INTRODUCTION

         Before the Court is Defendant St. Rose Dominican Hospital's Motion for Summary Judgment (ECF No. 375), Defendant Jonathan Bernstein's Motion for Summary Judgment (ECF No. 377), Defendants Bernstein, Ltd., Annette Logan, and Jeremy Logan's Motion for Summary Judgment (ECF No. 379), and Defendant Alan Ikeda's Motion for Summary Judgment (ECF No. 380). For the reasons discussed below, the Motions for Summary Judgment are granted.

         II. BACKGROUND

         This cases arises out of the treatment of the Plaintiff's minor son, Derek Bryce Johnson, for acute lymphoblastic leukemia (ALL). Plaintiff alleges that each of the Defendants provided negligent medical treatment to Derek, leading to his wrongful death and/or shortening his life expectancy, and causing the negligent infliction of emotional distress to the Plaintiff by making her watch her son suffer unnecessarily. The Defendants do not deny that they provided the decedent with medical treatment, but dispute the claims that they were negligent, that they caused the decedent's wrongful death, that they shortened the decedent's life expectancy, and that they caused the decedent to suffer unnecessarily. Specifically, Plaintiff alleges and the Court has permitted causes of action for: (a) medical malpractice/negligence and (b) negligent infliction of emotional distress.

         Plaintiff filed the Complaint in this case on April 16, 2013. (ECF No. 1). The Complaint did not include an expert medical affidavit as required by NRS §41A.071. Defendants filed several motions to dismiss based on lack of an expert medical affidavit, lack of jurisdiction, and lack of res ipsa loquitur. (ECF Nos. 174, 176, 178, 210, and 220). On January 27, 2016, this Court held a hearing in which it granted the motions to dismiss the res ipsa loquitur claims and granted Plaintiff leave to amend the Complaint to file an expert medical affidavit. (ECF No. 272). Plaintiff filed the most recent Amended Complaint on February 10, 2016, which is the operative pleading here. (ECF No. 274). It includes an expert medical affidavit. On March 14, 2017, this Court held a status conference in which it reopened discovery for seventy-five days. Plaintiff was ordered to produce a notice of expert disclosure and testimony, CVs, and expert reports within thirty days. (ECF No. 351). At the close of this limited discovery period, Defendants timely filed their Motions for Summary Judgment. (ECF Nos. 375, 377, 379, 380). Plaintiff filed a Response to all Motions for Summary Judgment on August 6, 2017. (ECF No. 393). Defendant St. Rose Dominican Hospital replied on August 18, 2017. (ECF No. 395). Defendant Jonathan Bernstein replied on August 18, 2017. (ECF No. 396). Defendants Bernstein, Ltd., Annette Logan, and Jeremy Logan replied on August 18, 2017. (ECF No. 397). Defendant Alan Ikeda replied on August 20, 2017. (ECF No. 398). The Court held a hearing in this matter on January 26, 2018 and took the Motions for Summary Judgment under submission.

         III. LEGAL STANDARD

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011).

         Where the party seeking summary judgment does not have the ultimate burden of persuasion at trial, it “has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). “In order to carry its [initial] burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Id. If the movant has carried its initial burden, “the nonmoving party must produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted). However, the ultimate burden of persuasion on a motion for summary judgment rests with the moving party, who must convince the court that no genuine issue of material fact exists. Nissan Fire, 210 F.3d at 1102.

         IV. ANALYSIS

         A. Medical Malpractice Claims

         1. Legal Standard

         To prevail on her medical malpractice claims against the various Defendants, Plaintiff must establish the following: (1) that the healthcare provider's conduct departed from the accepted standard of medical care or practice; (2) that the healthcare provider's conduct was both the actual and proximate cause of the plaintiff's injury; and (3) that the plaintiff suffered damages. Prabhu v. Levine, 930 P.2d 103, 107 (Nev. 1996) (citing Perez v. Las Vegas Medical Center, 805 P .2d 589, 590-591 (Nev. 1991)). NRS §41A.100(1) provides the standard for proving medical malpractice in Nevada:

Liability for personal injury or death is not imposed upon any provider of health care based on alleged negligence in the performance of that care unless evidence consisting of expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from the accepted standard of care in the ...

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