United States District Court, D. Colorado
INGRID IVERSEN, Individually and as Personal Representative of the Estate of Terry Tyler, Plaintiff,
AGA SERVICE COMPANY, Defendant.
ORDER GRANTING SUMMARY JUDGMENT OF DISMISSAL
RICHARD P. MATSCH, SENIOR JUDGE.
Dr. Terry Tyler lived with his wife, Ingrid Iversen, near Durango, Colorado. On December 29, 2012, they went to San Miguel de Allende, State of Guanajuato, Mexico. Before going, they purchased a Travel Protection Policy issued by Allianz Global Assistance.
Dr. Tyler died in the Hospital de la Fe in San Miguel de Allende in the afternoon of January 3, 2013.
Ms. Iverson as Personal Representative of her husband’s estate brought this civil action against the producer and administrator of the Policy, AGA Service Company (“AGA” or “the defendant”), under the Colorado Wrongful Death Statute, C.R.S. §13-21-202, claiming that Dr. Tyler would not have died if the Defendant had performed its contractual obligation to provide timely emergency medical transportation to the closest appropriate facility in the United States where he would have received adequate treatment to preserve his life.
Ms. Iversen must show that Dr. Tyler would have lived if the Defendant had performed its contractual duty to provide emergency medical transportation.
The emergency medical transportation benefits of the Policy provide in pertinent part:
EMERGENCY MEDICAL TRANSPORTATION
If your emergency is immediate and life threatening, seek local emergency care at once....
You or your representative must contact us and we must make all transportation arrangements in advance. We will not pay for any of the services listed in this section if we didn’t authorize and arrange it.
Moving you to a hospital or medical clinic (emergency medical evacuation) If you’re seriously ill or injured during your trip and our medical team determines that the local medical facilities are unable to provide appropriate medical treatment:
• our medical team will consult with the local doctor;
• we’ll identify the closest appropriate facility, make arrangements and pay to transport you to that facility;
• we’ll arrange and pay for a medical escort if we determine one is necessary.
(Def.’s Ex. G at AGA000763 (emphasis removed).)
The Defendant has moved for summary judgment of dismissal contending that after full discovery the Plaintiff has not produced enough admissible evidence to support a finding by a reasonable jury that Dr. Tyler would have lived if a medical evacuation to an appropriate care facility had happened after the Defendant’s obligation to transfer the patient had been invoked.
The obstacle that the Plaintiff is unable to overcome is that the cause of Dr. Tyler’s death cannot be determined within a reasonable degree of medical probability because there is not enough information to provide a basis for a determination by competent evaluators.
Dr. Tyler’s health history is complex and his condition before this travel was extremely fragile. He was a 72 year old retired psychiatrist. In January 2012, Dr. Tyler described his own health history in a statement given to his personal physician in these words.
Since October 25th I’ve had a stroke, two or three episodes of kidney failure and emergency dialysis, carotid jugular fistula 2" dialysis catheter, attempted angiographic repair without success, several episodes of changes of consciousness, usually as part of the kidney failure, but at least once from accidental narcotic OD, one or two (I think two) episodes of bronchitis, two episodes of serious medication reactions (deafness, tendonitis which was painful for 6 weeks), a kidney transplant, low back and/or hip pain to the point of being unable to walk, a fractured femur and surgery to pin the parts of the femur together, a fever, necessitating, because of the immune-suppressants, a host of antibiotics, days and days in the hospital, needing inpatient and outpatient rehab for the fracture, cataract surgeries (not a big deal), ... I had a severe “stress reaction for two weeks to this which I later decided was an acute Addison’s crisis. Will see endocrinologist soon. Scheduled for total left shoulder replacement 1/23/2011 [sic]. told would get anatomical replacement, but since last eval have had significant loss of deltoid functioning.
(Def.’s Ex. I at AGA-PA-000171-72; see also Def.’s Ex. J, Sigurslid Dep. at 23:19-24:6.) A few months later in April and May of 2012, he had hospital admissions for fever and pneumonia. (Def.’s Ex. C, Wiseman Dep. at 29:5-16.) In July, August, September, October, and November of 2012, he was hospitalized several times and underwent surgeries for gastro-intestinal issues. (Id.; Def.’s Ex. A, Iversen Dep. at 152:13 - 162:19; Def.’s Ex. K, Saddler Dep. at 69:1-17.)
After arriving in Mexico on December 29, 2012, Dr. Tyler began to feel unwell and complained of stomach pain. On December 30, 2012, he stopped eating and may have stopped drinking. (Def.’s Ex. A, Iversen Dep. at 184:22 - 185:18.) In the middle of the night of December 30 or early morning of December 31, 2012, Dr. Tyler became incoherent. (Id. at 185:19 - 186:3.) With the assistance of a friend, Ms. Iversen took Dr. Tyler to the Hospital de la Fe, where he was admitted at approximately 7:30 a.m. on December 31, 2012. (Id. at 191:6 - 192:3.)
The court record includes very little information about Dr. Tyler’s medical condition and treatment at the Hospital de la Fe. The doctor most involved with Dr. Tyler’s treatment there was Dr. Arturo Barrera Bortoni (“Dr. Barrera”). Neither party deposed Dr. Barrera or any other member of the hospital staff.
The only contemporaneous records of what occurred while Dr. Tyler was in the Hospital de la Fe are (a) 4 pages of records from Hospital de la Fe, which AGA obtained through Letters Rogatory (see doc. #34-3 at pp. 31-35); (b) AGA’s employees’ notes about their communications with Dr. Barrera (Def.’s Ex. E), and (c) the American and Mexican versions of Dr. Tyler’s death certificate (Defs.’ Exs. F and L).
Other information about Dr. Tyler’s illness, condition, and treatment while in Mexico comes from Ms. Iversen’s recollection and involvement, two emails from Dr. Barrera, and an account Dr. Barrera provided to Mexican legal officials in the course of responding to the Letters Rogatory. (See Def.’s mot. for summ. j. at p. 6, n. 4; Def.’s mot. to exclude testimony of Loren G. Lipson, at p. 4.)
The facts of the response to the request for medical evacuation are documented in AGA’s case notes, which describe the time and content of its employees’ communications with Ms. Iversen, Dr. Barrera and others. (Def.’s Ex. E.)
There are some disputes about the chronology. To the extent those disputes are material, they are resolved in the Plaintiff’s favor for the purpose of determining the Defendant’s motion for summary judgment.
Ms. Iversen testified that she stayed with Dr. Tyler at the Hospital de la Fe during the day on December 31, 2012, then spent that night at a private residence where she and Dr. Tyler were staying. When she returned to the hospital the next morning (January 1, 2013), Dr. Tyler was feeling better. She said he had regained coherency and was talking and walking. (Def.’s Ex. A, Iversen Dep. at 197:15-22; 200:21 - 201:10.) Dr. Tyler remained in the hospital on January 1, 2013. Ms. Iversen stayed with him during the daytime and returned to the house that evening to sleep. (Id. at 203:20 - 204: 2.)
On the morning of January 2, 2013, Ms. Iversen returned to the hospital and learned that Dr. Tyler’s condition had deteriorated. Dr. Barrera told her that Hospital de la Fe was not equipped to care for Dr. Tyler’s medical needs and advised her that she should ...