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Rosa Alba Flores-Hernandez v. United States of America

May 10, 2013

ROSA ALBA FLORES-HERNANDEZ,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

MEMORANDUM OPINION

In November 2012, the Court presided over a four-day bench trial in this case, ultimately finding that Plaintiff Rosa Alba Flores-Hernandez ("Flores-Hernandez") failed to carry her burden of proof on her delayed-diagnosis medical malpractice claim. In brief, Flores-Hernandez asserted that Defendant United States of America (the "United States" or the "Government"), acting through Dr. Luis Padilla, negligently delayed in referring her to a specialist for diagnostic tests that, according to Flores-Hernandez, would have detected the presence of her cervical cancer much earlier than it was ultimately discovered. Because of Dr. Padilla's delay, Flores-Hernandez argued, by the time her cancer was ultimately discovered and diagnosed, the disease had already progressed to Stage IVA cervical cancer and her chances of recovery and survival were only a fraction of what they might have been.

After careful consideration of all of the evidence presented at trial, the Court found that Flores-Hernandez did successfully establish some elements of her malpractice claim-the applicable standard of care, and also a deviation from that standard on Dr. Padilla's part when he failed to timely refer Flores-Hernandez to a gynecologist based on the symptoms she presented with at the time. But the Court's analysis-and Flores-Hernandez's burden-did not end there.

Although she proved that Dr. Padilla breached the applicable standard of care by a preponderance of the evidence, the Court found that she did not clear the final hurdle to prove her claim because she failed to demonstrate that Dr. Padilla's actions proximately caused a delay in the ultimate diagnosis and treatment of her cervical cancer. Simply put, Flores-Hernandez's evidence on this last element was simply too speculative to carry the day, and the only expert testimony she presented with respect to causation was not credible. Consequently, the Court found against Flores-Hernandez and issued judgment in favor of the United States.*fn1

Flores-Hernandez now moves to alter and amend this judgment under Federal Rule of Civil Procedure 59(e), arguing that the Court's Findings of Fact and Conclusions of Law contain "several factual errors on the face of the record that result in its finding that Dr. Padilla's negligence did not matter to Flores-Hernandez's outcome." (Dkt. No. 72 ("Pl.'s Mem.") at 1). She argues that "[t]he Court did not just reach the wrong conclusion in failing to make [these] findings-it misconstrued, or in some cases, overlooked facts about this case which showed the likely course of events if Dr. Padilla had followed the standard of care." (Id.). She maintains that the "clear errors" committed by the Court warrant amendment of judgment in her favor, and an award of damages, as she sought at trial. The Court does not agree.

Accordingly, upon careful consideration of the parties respective briefing, (Dkt. Nos. 72, 77, 80), and the entire record in this action, the Court concludes that Flores-Hernandez's Motion to Alter and Amend Judgment will be DENIED for the reasons set forth herein.

ANALYSIS

A.Standard of Review

Motions to alter or amend under Rule 59(e) are disfavored, "and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)). As explained by our Circuit, a Rule 59(e) motion "need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006); Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Consequently, "a losing party may not use a Rule 59 motion to raise new issues that could have been raised previously." Kattan by Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993). Nor is a Rule 59 motion a means by which to "reargue facts and theories upon which a court has already ruled," New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995), or "a chance . . . to correct poor strategic choices," SEC v. Bilzerian, 729 F. Supp. 2d 9, 15 (D.D.C. 2010).

B.Flores-Hernandez Does Not Merit Relief Under Rule 59(e)

Through her Rule 59(e) motion, Flores-Hernandez raises three purported errors on the Court's part that she contends warrant reversal of its prior ruling. First, she argues that the Court erred "in determining that Dr. Hamilton would not have performed an endometrial biopsy in late 2007 or early 2008," assuming that Dr. Padilla had promptly referred her to a gynecologist at that time. (Id. at 3-6). Second, she asserts that "the Court erred in finding that Ms. Flores-Hernandez did not prove that she would have had some stage of diagnosable cancer at the time Dr. Padilla violated the standard of care." (Id. at 6-15). And third, she argues that the Court "erred in determining that a cone biopsy would not have been performed sooner if Dr. Padilla complied with the standard of care in late 2007." (Id. at 15-20). The Court considers each of these contentions in turn, but concludes that none warrants relief.

1.The Court's Finding That Flores-Hernandez Did Not Prove That An Endometrial Biopsy Would Have Been Performed In 2008

Flores-Hernandez first insists that the Court erred in finding that she failed to prove, by a preponderance of the evidence, that an endometrial biopsy would have been performed during 2008, if she had been more promptly referred to a gynecologist by Dr. Padilla. On this point, the Court agrees with her initial premise-that, based on the evidence, it appears that Dr. Hamilton and her assistant were prompted to perform an endometrial biopsy, at least in part, based on Flores-Hernandez's complaints of irregular menstrual bleeding in late July 2009. Yet Flores-Hernandez seems to ignore the next step in the Court's analysis-that "to assume that an endometrial biopsy would have taken place in 2008, the Court would need to find that it is more likely than not that Flores-Hernandez would have complained to Dr. Hamilton about menstrual bleeding at some point during that timeframe, and the evidence does not tilt in Flores-Hernandez's favor on this point." Flores-Hernandez, 2012 WL 6600336, at *14. In support of this conclusion, the Court set forth a number of evidentiary findings that cut against Flores-Hernandez, including that: (1) during her first visit with Dr. Hamilton, Flores-Hernandez did not describe any history or ongoing symptoms of irregular menstrual bleeding; (2) during her visits with Dr. Padilla in December 2008 and May 2009, there is no indication that Flores-Hernandez complained about any irregular menstrual bleeding; and (3) between December 2007 and December 2008, Flores-Hernandez did not return to Unity for any health concerns, and certainly not to complain about irregular bleeding. See id. On the other side of the coin, the Court also took note of Flores-Hernandez's testimony to the contrary-that she "always" complained to her doctors about menstrual bleeding during every visit, and that her symptoms "increased day by day"-but, as the Court already explained, it did not find her testimony on this point to be credible. Id. Flores-Hernandez effectively ignores these findings.

Instead, she argues that the evidence shows that Dr. Hamilton ("or any other gynecologist that she might have been referred to") would have performed an endometrial biopsy immediately upon referral from Dr. Padilla in late 2007 or 2008. (Pl.'s Mem. at 4). But the record establishes no such thing. As the Government points out, this line of argument wrests a portion of Dr. Hamilton's testimony out of context, claiming that she said "Menometrorrhagia in a, at this time, 39-year-old would have required an endometrial biopsy in addition to the colposcopy." (Id. at 4). Notably, however, Dr. ...


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