Harvey v. United States
2012 U.S. App. LEXIS 14436
10th Cir.2012Background
- Frances Harvey, a Navajo enrolled member, sued the United States under FTCA for hand injuries sustained on the Navajo Reservation involving Fort Defiance Indian Hospital.
- Plaintiff alleges misdiagnosis and delay in treating a hand fracture and later negligent hand surgery by government providers.
- District court treated Navajo law as the law of the place and addressed accrual dates and timeliness of the misdiagnosis claim.
- District court granted the government’s reconsideration and held the misdiagnosis claim accrual and time-bar issues, and later granted summary judgment on the negligent surgery claim for lack of expert evidence.
- Plaintiff was denied default judgment; district court determined expert testimony was required under applicable law, and the case was set for summary judgment on the merits.
- This appeal challenges default judgment denial, accrual timing for misdiagnosis, and the necessity of expert evidence for the malpractice claims; the court ultimately affirms dismissal of the claims due to lack of expert testimony, with outcome unchanged under either Navajo or Arizona law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Default judgment proper against the United States? | Harvey argues for default due to late answer. | Government contends Rule 55(d) and forfeiture bar default relief; timely expert proof still required. | Default judgment denial affirmed; forfeiture and lack of proven claims básica. |
| Whether misdiagnosis claim accrued timely under FTCA? | Misdiagnosis accrual occurred later than two-year window; not time-barred. | Accrual occurred when injury and cause became known, argued earlier date. | Misdiagnosis claim deemed not time-barred; nevertheless dismissed for lack of expert proof. |
| Whether expert evidence was required to sustain negligent-surgery claim under FTCA? | Nalyeeh/Possible Navajo approach may dispense with expert proof. | Arizona law requires expert testimony for medical malpractice; Navajo law would also require expert review. | Summary judgment affirmed; expert testimony required under both Navajo and Arizona law; Harvey failed to provide it. |
| Do we need to decide which law is the law-of-place here? | Navajo nalyeeh should control without expert proof. | Arizona law would govern unless Navajo law clearly applies; outcome should be same. | Not necessary to decide; result same under both laws. |
| Does remand for expert proof apply? | Court should allow Harvey to supply experts on remand. | Deadline had passed; no remand warranted. | Remand not warranted; district court’s deadlines were clear and Harvey did not comply. |
Key Cases Cited
- Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983) (accrual in misdiagnosis cases depends on discovery of development of a more serious condition)
- Gustavson v. United States, 655 F.2d 1034 (10th Cir. 1981) (accrual when injury from misdiagnosis is learned; failure to act timely triggers FTCA limitations)
- Kubrick v. United States, 444 U.S. 111 (Supreme Court 1979) (FTCA timing and accrual principles)
- Cannon v. United States, 338 F.3d 1183 (10th Cir. 2003) (law-of-the-place under FTCA to determine substantive liability)
- Laird v. Nelms, 406 U.S. 797 (1972) (FTCA precludes liability absent government negligence; waiver limits)
- Seisinger v. Siebel, 203 P.3d 483 (Ariz. 2009) (Arizona medical-malpractice standard generally requires expert testimony)
- Benkendorf v. Advanced Cardiac Specialists Chartered, 269 P.3d 704 (Ariz. Ct. App. 2012) (Arizona: expert testimony required to establish standard of care)