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Ely v. United States

United States District Court, Ninth Circuit

August 19, 2013

JAMES M. ELY, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

Pro Se Plaintiff James M. Ely ("Ely") brings this medical malpractice action against the United States of America ("US") under the Federal Tort Claims Act ("FTCA") claiming that employees in the Department of Veterans Affairs ("VA") negligently refused to operate on his torn rotator cuff. Cmplt. (ECF 1) 4-5. [1] He seeks to recover $7, 651.49 - reimbursement for medical expenses of $7301.49 and his $350.00 filing fee. Id . at 5.

On February 1, 2013, Chief Judge Christensen referred this case to the undersigned for all pretrial proceedings. ECF 12. Now pending are Ely's summary judgment motion ( ECF 16 ) and the US's summary judgment motion ( ECF 17 ). For the reasons stated below, the Court recommends that Ely's motion be denied and the US's motion be granted.

I. BACKGROUND[2]

Ely is a U.S. military veteran. In 2008, he sought treatment for a shoulder condition with the VA and was referred to the VA Medical Center at Fort Harrison, Montana, where an MRI and an orthopedic consultation were obtained. Ely was diagnosed with, among other things, a large tear of his right rotator cuff. VA health care providers did not recommend a surgical repair of Ely's rotator cuff tear.

Ely sought a second opinion regarding the treatment of his shoulder from a private orthopedist. On January 14, 2009, Ely underwent a surgical repair of his right shoulder rotator cuff by a private orthopedist in Bozeman, Montana.

On or about June 7, 2010, Ely submitted an administrative tort claim with the VA. He stated a sum certain damage claim of $7, 301.49.

On September 26, 2012, Ely filed this action. On January 14, 2013, the Court issued a Scheduling Order to govern all further pretrial proceedings. ECF 11. Relevant to the motions at hand, the Scheduling Order includes the setting of a July 11, 2013 deadline for the parties to disclose liability expert witnesses. Id . at 1.

II. SUMMARY JUDGMENT STANDARD

Fed. R. Civ. P. 56(a) requires the court to grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The movant bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the parties file cross-motions for summary judgment, the court must consider each party's evidence, regardless under which motion the evidence is offered. Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. The purpose of summary judgment is to pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial. Id. at 587 (quotation omitted).

III. PARTIES' ARGUMENTS

Ely argues that VA health care providers committed medical malpractice by negligently refusing to operate on his torn rotator cuff. The private orthopedist later performed a successful surgical repair of the right shoulder rotator cuff. Ely argues that the U.S. should pay for his medical expenses because "but for' the defendant's negligent action, it would have not been necessary for [him] to be treated by a private orthopedic surgeon." Ely's Mtn. (ECF 16) at 2-4.

In response, and in support of its own summary judgment motion, the U.S. argues that: (1) under Montana law, Ely has failed to present any evidence that either establishes the standard of professional care in a medical malpractice case or that VA health care providers negligently departed from the recognized standard in treating him, US's Br. (ECF 18) at 3-4; (2) Ely has failed to present necessary qualified expert testimony to establish the applicable standard of care, id. at 4-5; and (3) Ely's failure to identify expert testimony on ...


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