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DeBuhr v. Hern

United States District Court, D. Colorado

September 27, 2017

JENNIFER DEBUHR and JASON DEBUHR, Plaintiffs,
v.
WARREN M. HERN and BOULDER ABORTION CLINIC, P.C., a Colorado professional corporation, Defendants.

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendants' Motion for Summary Judgment [Docket No. 43].

         I. BACKGROUND

         Plaintiffs Jennifer and Jason DeBuhr bring this medical malpractice action against defendants Warren M. Hern and the Boulder Abortion Clinic, P.C. (the “Clinic”), alleging injuries as a result of the medical treatment provided by Dr. Hern at the Clinic. Docket No. 1.

         Plaintiffs discovered through an MRI study that their fetus suffered from severe cerebral abnormalities that would reduce its life expectancy to a year. Defendants' Statement of Undisputed Material Facts (“DSUMF”) 1. They decided to terminate the pregnancy. Id. The treating physician who discovered the fetal brain injury, Andrew Robertson, M.D., referred plaintiffs to Dr. Hern. DSUMF 6. The dilation and extraction abortion procedure was performed at the Clinic by Dr. Hern in December 2013. DSUMF 2; Plaintiffs' Response to Defendants' Statement of Undisputed Facts (“PRDSUF”) 2; Docket No. 47 at 1, ¶ 2. The parties dispute the gestational age of the fetus at the time the procedure was performed, but plaintiffs do not dispute that the fetal abnormality was discovered during the end of Ms. DeBuhr's second trimester of pregnancy. DSUMF 1; PRDSUF 5.

         In 2015, Ms. DeBuhr began to experience bleeding and had a hysterectomy. DSUMF 3. Ms. DeBuhr claims that the indication for her hysterectomy was the identification of fetal tissue remaining from the abortion. Id.

         On November 30, 2015, plaintiffs filed their complaint, asserting claims of medical malpractice, failure to warn, negligent misrepresentation, and loss of consortium. Docket No. 1 at 6-11. Plaintiffs have endorsed two experts to provide opinion testimony on the appropriateness of the medical care provided by Dr. Hern. Regan M. Theiler, M.D., PhD is an obstetrician/gynecologist who testified at her deposition that abortions at twenty-five weeks gestational age were outside the scope of her expertise and she would not render expert opinions on such abortions. PRDSUF 5, 7; Docket No. 43-2 at 15-16, 118:24-119:23. Dr. Robertson is an obstetrician/gynecologist who has not performed any induced abortions after 2009 and has not performed any abortions after twenty weeks gestational age because such abortions are illegal in Nebraska, where he practices. PRDSUF 5-6; Docket No. 47 at 2, ¶¶ 5-6.

         On February 28, 2017, defendants filed their motion for summary judgment as to each of plaintiffs' claims. Docket No. 43 at 1, 12. Defendants claim that Drs. Theiler and Robertson are unqualified under Colo. Rev. Stat. § 13-64-401 to testify to the standard of care for the procedure performed by Dr. Hern. Id. at 5. Defendants note that such testimony is required in medical malpractice cases as an essential element of a malpractice claim. Id. at 3-4. Defendants also argue that plaintiffs did not endorse any expert to testify that Dr. Hern did not appropriately secure informed consent in support of plaintiffs' failure to warn claim. Id. at 11-12. Defendants claim that, since plaintiffs have failed to support these claims with qualified expert testimony, defendants are entitled to summary judgment. Id. at 12.

         II. STANDARD OF REVIEW

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation marks omitted)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).

         III. ANALYSIS

         A. Applicable Colorado Medical Malpractice Law

         In Colorado, “[a] medical malpractice action is a particular type of negligence action.” Day v. Johnson, 255 P.3d 1064, 1068 (Colo. 2011) (citing Greenberg v. Perkins, 845 P.2d 530, 534 (Colo. 1993)). “Like other negligence actions, the plaintiff must show a legal duty of care on the defendant's part, breach of that duty, injury to the plaintiff, and that the defendant's breach caused the plaintiff's injury.” ...


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