The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION & ORDER
Mary Sanders ("plaintiff"), Personal Representative for the Estate of Benjamin Sanders ("Sanders"), has brought this wrongful death action alleging medical malpractice against the United States of America. Plaintiff claims that the United States Department of Veterans Affairs ("VA") Comprehensive Nursing and Rehabilitation Center ("CNRC") failed to properly assess Mr. Sanders's cigarette smoking ability, which resulted in his burning death on March 19, 2006. Defendant has moved to dismiss the case for failure to state a claim, or in the alternative for summary judgment. For the reasons stated herein, this motion will be denied.
Sanders had a stroke in 1992, which resulted in partial paralysis of his left side. (Def.'s Ex. 1 [Mary Sanders Deposition] at 13:15.) For the first thirteen years after his stroke, Sanders lived at home. (Id. at 14:1-6, 22:13-17.) During that time, Sanders came to CNRC twice a year for a period of two weeks at time for "respite care." (Def.'s Ex. 2 [Tamega Sanders Deposition] at 18:7-12.) After Sanders was admitted in January 2005, his wife became ill and was hospitalized. (Id. at 22:12-15, 23:1-18.) At that point, his stay became permanent because his wife was no longer able to care for him. (Def.'s Ex. 1 at 22:13-20.)
Upon his admission in 2005, Sanders was evaluated and a "care plan" was developed for him. (Def.'s Ex. 4 [Excerpts from Medical Records] at 705-22.) At that time, his medical problems included benign hypertension, cerebrovascular effects, chronic kidney failure, diabetes, gout, monoclonal gammopathy, some hearing loss, seizures, and periodontitis. (Id. at 716.) Because of his stroke, he could only move the thumb and pointing finger of his left hand. (Def.'s Ex. 7 [Kheirbek Dep.] at 65:2-11.) He had limited use of his left arm,*fn1 and he could not walk. (Pl.'s Ex. 3 [Phillips Dep.] at 9:20-21.) Sanders had a history of seizures, for which he was taking medication. (Def.'s Ex. 5 [Henderson Dep.] at 112:9-14.) He had a mild cognitive impairment (id. at 146:16-18), but was still "able to articulate himself and . . . make his needs known." (Def.'s Ex. 7 at 64:16-17.) He had difficulty speaking, but he had a loud speaking voice. (Def.'s Ex. 6 [Alehossein Dep.] at 27: 10-15.)
The CNRC admission evaluation does not document any assessment of Sanders's smoking risk. (Def.'s Ex. 4 [CNRC Medical Records] at 712.) Frances Henderson, Associate Chief Nurse for Geriatrics and Extended Care, testified that the Interdisciplinary Treatment Team determined that Sanders was not a high risk smoker. (Def.'s Ex. 5 at 38:20-21.) Under the "Safety/Risk Factors" section in his care plan, only "falls" and "seizures" were checked, not smoking. (Def.'s Ex. 4 at 712.) Members of the nursing staff at CNRC testified that Sanders was able to smoke safely and that he observed the smoking rules. (See, e.g., Def.'s Ex. 6 at 60:9-22; 61:1-8.) However, the nurse practitioner responsible for his care refused to answer the question whether Sanders could "self-manage" in the event of a fire. (Pl.'s Ex. 17 [Alehossein Dep.] at 73:17-76.)
On March 19, 2006, Sanders was in the CNRC designated smoking room talking to nursing assistant Jerry Lee Phillips. (Pl.'s Ex. 3 at 18:19-22.) Phillips left the room for a few minutes. (Id. at 19:4-21.) When Phillips again passed the smoking area, he looked into the room and saw Sanders on fire. The flames had totally engulfed him and were above his head. Phillips and other employees put out the fire with wet blankets and a fire extinguisher. (Id. at 20:1-4.) Sanders died within minutes due to thermal inhalation injury or asphyxiation due to the fire. (Def.'s Ex. 9 [Compton Report] at 4.)
To establish a medical malpractice claim under District of Columbia law, plaintiff must show: (1) that there was a national standard of care for determining whether a resident of a long term care facility was a safe or unsafe smoker; (2) that the VA deviated from that standard of care; and (3) that the deviation caused the harm to plaintiff. See Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007). Defendant has moved to dismiss or for summary judgment arguing that plaintiff has failed to show a national standard of care requiring assessment of nursing home patients for smoking risk and that even if plaintiff can show a national standard, it has failed to demonstrate any breach by defendant. The Court disagrees.
The D.C. Court of Appeals has held that "an expert in a medical malpractice case must establish the basis for his knowledge of the applicable national standard of care and link his opinion to the applicable national standard." Hill v. Medlantic Health Care Group, 933 A.2d 314, 325 (D.C. 2007). Through this testimony, the plaintiff must demonstrate the "course of action that a reasonably prudent doctor with the defendant's specialty would have taken under the same or similar circumstances." Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984). "[N]ational standard of care testimony may not be based upon mere speculation or conjecture." Hawes v. Chua, 769 A.2d 797, 806 (D.C. 2001). Nor is a expert's personal opinion alone sufficient to prove a national standard of care. Nwaneri, 931 A.2d at 473. "Rather, the expert must clearly articulate and reference a standard of care by which the defendant's actions can be measured. Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997) (quotation marks, emphasis, and citation omitted). "[R]eference to a published standard is not required, but can be important." Hawes, 769 A.2d at 806 (citing Travers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996)). Additionally, "discussion of the course of action or treatment with doctors outside this jurisdiction, at seminars or conventions, who agree with it; or references to 'specific medical literature' may be sufficient." Id. (citing Travers, 672 A.2d at 569).
Plaintiff has introduced testimony from Ilene Warner-Maron, an expert in the fields of nursing home management and nursing, and from Dr. Richard Steffanaci, an expert in geriatric care and long-term care. Both Warner-Maron and Steffanaci testified that the Joint Commission for the Accreditation of Health Care Organizations ("JCAHO") provides national standards for nursing care that an organization like CNRC must follow in order to be accredited. (See Pl.'s Ex. 8 [Warner-Maron Dep.] at 15:12-22, 16:1-22; Def.'s Ex. 11 [Steffanaci Dep.] at 70.) JCAHO's regulations provide that its organizations may permit residents to smoke only if they "meet criteria developed and approved by the organization's leaders." (Pl.'s Ex. 9 [JCAHO Standard E.C. 130] at EC-9.) CNRC complied with this directive by implementing the Smoking Risk Protocol, which requires that the staff identify and monitor patients who are "high risk." (See Pl.'s Ex. 6 [Smoking Risk Protocol] at 1.) The Smoking Risk Protocol provides that in making the determination whether a patient is high risk, the nursing staff shall assess a patient's established smoking pattern, his ability to understand smoking regulations; his compliance with the smoking policy; and his ability to handle smoking materials safely. (Id.)
Defendant does not genuinely contest that JCAHO guidelines require it to assess and identify high risk smokers.*fn2 Rather, it contends that there is no national standard for determining how this assessment should be performed, and thus no way for a jury to properly evaluate its assessment efforts. As Warner-Maron explains, however, it is inherent in the JCAHO assessment requirement that patients are being assessed for their ability to smoke safely. (See Pl.'s Ex. 8 at 84:11-17.) JCAHO EC.1.10 is entirely dedicated to evaluating how an organization manages safety risks. (See Pl.'s Ex. 9.) The subsection on smoking is intended to reduce the risk of permitting smoking to people who smoke and to others who are exposed to their smoke, as well as to reduce the risk of fire. (Id. at EC-9.) Thus, it is commonsense that the subsection which requires evaluation of smoking patients requires an assessment of their ability to smoke safely.
Furthermore, Steffanaci's expert report indicates that there is a national standard for assessing the ability to smoke safely, with which CNRC's own internal assessment standard (outlined in the Smoking Risk Protocol) is entirely consistent. In January 2008, Steffanaci performed a study with the National Association Directors of Nursing Administration/Long Term Care (NADONA/LTC) to determine the criteria by which these organizations assess high risk smokers. (See Pl.'s Ex. 15 [Nursing Home Resident Smoking Policies].) "[The] national survey was distributed online through NADONA/LTC and completed by 248 directors of nursing. The surveys were completed by a national sampling representing an even distribution with regard to geographic distribution as well as for-profit and non-profit facilities." (Id. at 2.) Over 95% of the survey's respondents assessed the patient's mental acuity, physical limitations, and equipment requirements in determining whether the patient could smoke safely.*fn3 (Id. at 3.) This comprehensive study indicates that CNRC's policies are consistent with the national standard of care.*fn4 See Briggs v. WMATA, 481 F.3d 839, 847 (D.C. Cir. 2007) ("[A]n expert may support a purported standard by showing that it has been accepted as controlling in facilities and enterprises that are similar to defendants' facilities or enterprises."). Indeed, these parameters were applied by defendant's expert, Dr. Gregory Compton, in making his determination that Sanders was a safe smoker.*fn5 (See Def.'s Ex. 9 [Compton Expert Report] at 4 (noting that Sanders had the ability to physically manage the active smoking task, follow the smoking rules, and manage a smoking mishap).)
The real dispute between the parties in this case turns not on whether there is a national standard for assessing "high risk" smokers, but rather on whether CNRC correctly applied the standard in their assessment of Sanders. Plaintiff's experts both contend that no reasonable medical professional could have concluded that he could smoke safely based on an assessment of his cognitive and physical limitations. (Def.'s Ex. 10 [Warner-Maron Expert Report (Nov. 27, 1996)] at 4; Def.'s Ex. 11 [Steffanaci Expert Report] at 6.) They point to, inter alia, Sanders's history of seizure disorder, his inability to walk, his limited use of his left arm and hand, his cognitive impairment, and his speech limitations. (Id.) Defendant's expert disagrees. He notes that Sanders had been smoking in the CNRC, without incident, for at least one year prior to his death and had followed the rules requiring him to smoke only in designated areas. (See Def.'s Ex. 9 [Compton Expert Report] at 4.) He further explains that Sanders had full use of his right arm and hand which would have allowed him to self-manage a ...