United States District Court, D. South Dakota, Southern Division
ORDER DENYING DEFENDANTS DONALD GRAHAM, M.D. AND SANFORD CLINIC'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SANFORD HEALTH'S MOTION FOR SUMMARY JUDGMENT
KAREN E. SCHREIER, District Judge.
Plaintiff, Yvonne Norgauer, brought suit against defendants, Donald Graham, M.D., Sanford Clinic, Sanford Medical Center, and Sanford Health, alleging Dr. Graham negligently left a sponge inside her abdomen following a gastric bypass surgery. Dr. Graham and Sanford Clinic move for summary judgment, arguing that Norgauer has not produced sufficient expert medical testimony to show that Dr. Graham did not meet the applicable standard of care and that Dr. Graham reasonably relied on a sponge count performed by nurses. Sanford Health moves for summary judgment on the grounds that it did not employ any of the medical personnel involved in Norgauer's surgery. For the following reasons, the court denies the motion for summary judgment filed by Graham and Sanford Clinic and grants the motion for summary judgment filed by Sanford Health.
The facts, viewed in the light most favorable to Norgauer, are as follows:
On July 14, 2003, Norgauer underwent a gastric bypass surgery performed by Dr. Graham. The procedure took place at Sioux Valley Hospital, which is now known as Sanford Medical Center. At the time of Norgauer's surgery, Dr. Graham was a physician-employee of Sioux Valley Clinic, now known as Sanford Clinic. A CT scan performed prior to Norgauer's surgery indicated that no foreign bodies were present at that time. At the conclusion of surgery, Dr. Graham noted that the sponge and needle counts were correct. Following the surgery, Norgauer was discharged from Sioux Valley Hospital on July 19, 2003.
Norgauer moved to California in 2004, and on September 10, 2009, she saw her physician in California with a complaint of hardness in her umbilical area after lifting heavy objects. Norgauer's doctor ordered a CT scan of her abdomen, which detected evidence of a foreign body. On October 21, 2009, Norgauer underwent surgery performed by Dr. Albert diVittorio, who removed the foreign body later identified as a laparotomy, or lap, sponge. Norgauer maintains that the only possible source of the sponge in her abdomen is the July 14, 2003, surgery performed by Dr. Graham.
Following the removal of the sponge from her abdomen, Norgauer filed suit in this court. In Count I, Norgauer alleges that Dr. Graham was negligent in failing to remove the sponge during her surgery. In Count II, Norgauer claims Sanford Clinic is liable for Dr. Graham's negligence because it employed Dr. Graham. In Count III, Norgauer claims that Sanford Medical Center is liable for the negligence of its operating room staff in performing an incorrect sponge count. In Count IV, Norgauer claims that Sanford Health is liable for the negligence of its employees. Dr. Graham, Sanford Clinic, and Sanford Health move for summary judgment. Sanford Medical Center does not move for summary judgment on the claim in Count III.
Summary judgment is appropriate 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." Fed.R.Civ.P. 56(a). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of her case on which she bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "The nonmoving party may not rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.'" Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).
Summary judgment is not appropriate if there is a factual dispute that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences drawn from such facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
A federal court sitting in diversity applies the law of the state in which it sits, which here is South Dakota. Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir. 2007).
I. Dr. Graham
A. Expert ...