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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Berdie Johnson,

Plaintiff,

v. 

United States of America, et al.,

Defendants.

No. CV-17-08218-PCT-DLR

ORDER 

Before the Court is Defendants’ motion for summary judgment, which is fully 

briefed. (Docs. 99, 108, 111.) The Court will grant Defendants’ motion in part and deny 

it in part for the following reasons.1

I. Background

This case stems from injuries suffered by Berdie Johnson allegedly due to a gall 

bladder excision surgery performed by Dr. James Langevin and Dr. Moaz Abulfaraj (the 

“Doctors”) at the Tsehootsoi Medical Center (“TMC”) in Fort Defiance, Arizona on 

December 28, 2015. (Doc. 68.) The Doctors provided services at TMC pursuant to 

Provider Service Agreements with Staff Care, Inc. (“Staff Care”) in which they agreed to 

serve temporarily as locum tenens physicians. During the surgery, the Doctors discovered 

and repaired two enterotomies—cuts caused during surgery—within Ms. Johnson’s bowel. 

1 Defendants’ request for oral argument is denied because the issues are adequately 

briefed and oral argument will not help the Court resolve the motion. See Fed. R. Civ. P. 

78(b); LRCiv. 7.2(f); Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 

724, 729 (9th Cir. 1991). 
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Post-operation, Ms. Johnson remained at TMC to recover. On January 1, 2016, TMC 

nursing staff noted that Ms. Johnson was experiencing drainage from the incision site. 

(Doc. 108-1 at 61.) Based on that development, TMC transferred Ms. Johnson to another

facility on January 2, 2016, where she underwent emergency surgery the same day. (Doc. 

99-1 at 17, 20; Doc. 108-1 at 62.) During this surgery, Dr. Lisa Balduf discovered a third 

through-and-through enterotomy in Ms. Johnson’s small intestine, which she opined had 

been created during the gall bladder excision surgery but missed by the Doctors. (Doc. 99-

1 at 19; Doc. 108-1 at 67-69.)

On October 25, 2017, Ms. Johnson filed suit against, inter alia, the Doctors and 

Staff Care. Ms. Johnson’s operative complaint asserts claims against the Doctors for 

medical negligence and failure to obtain Ms. Johnson’s informed consent prior to surgery 

and seeks to hold Staff Care vicariously liable for the Doctors’ malfeasance on a theory of 

respondeat superior. (Doc. 68.) On January 12, 2021, Defendants moved for summary 

judgment on all of Ms. Johnson’s claims. Defendants’ motion is now ripe. 

II. Discussion

A. Vicarious Liability

Staff Care seeks summary judgment on Ms. Johnson’s vicarious liability claim, 

arguing that respondeat superior liability cannot attach because the evidence indisputably 

shows that the Doctors were independent contractors pursuant to their Provider Service 

Agreements. (Doc. 99-1 at 23.) With some exceptions, an alleged employer cannot be 

held vicariously liable for the negligence of an independent contractor. Pride of San Juan, 

Inc. v. Pratt, 212 P.3d 29, 31 (Ariz. Ct. App. 2009). Ms. Johnson has neither disputed the 

Doctors’ independent contractor status nor suggested than an exception to the general 

independent contractor rule applies such that Staff Care may be held vicariously liable for 

the Doctors’ actions. The Court will therefore grant summary judgment to Staff Care on 

Ms. Johnson’s vicarious liability claim. 

B. Informed Consent

In her complaint, Ms. Johnson alleges that, prior to surgery, the Doctors did not 
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obtain her informed consent. (Doc. 68 at 5, 9-11.) However, Ms. Johnson has produced 

no evidence that the Doctors failed to meet the standards necessary such that Ms. Johnson

could not and did not provide informed consent prior to her surgery. Rather, she merely

notes she felt pressured to proceed with the December operation date, especially because 

Dr. Langevin informed her employer that “otherwise she will need to be rebooked and 

possibly to have an open cholecystectomy.” (Doc. 108 at 4; Doc. 108-1 at 65.) Ms. 

Johnson has not explained how Dr. Langevin’s advice, or any other circumstances, 

rendered her acquiescence to care uninformed or nonconsensual. Ms. Johnson has

therefore failed to create a genuine dispute of material fact as to whether she gave informed 

consent prior to surgery and the Court will grant summary judgment to the Doctors on this

claim. 

C. Negligence

Defendants contend that summary judgment should be granted in their favor on Ms. 

Johnson’s negligence claim because she has failed to produce evidence that creates a 

genuine dispute of material fact as to whether the Doctors breached their duty to Ms. 

Johnson performing the gall bladder excision surgery, thereby causing her harm. To the 

contrary, Ms. Johnson’s expert, Dr. Thomas Gouge, opined that the standard of care 

obligated the Doctors to “run the bowel”2 prior to closing Ms. Johnson’s abdomen, the 

Doctors failed to run the bowel, and such failure caused the Doctors to miss the third 

enterotomy, leading Ms. Johnson to suffer infection and extensive hospitalization. In 

response, Defendants argue that Dr. Gouge’s opinion is insufficient to create a genuine 

dispute of material fact as to breach for three reasons.3 

First, Defendants suggest Dr. Gouge’s opinion that the Doctors did not run the 

bowel is improperly speculative because it is based solely on the fact that the Doctors’ 

operative note lacks a notation that they did so. To the contrary, Dr. Gouge’s opinion does 

2 A bowel run is a systematic examination of the entire small intestine, which is 

performed by holding the bowel between one’s fingers and examining both sides. (Doc. 

99-1 at 44.)

3 Defendants have not filed a Daubert motion seeking to exclude Dr. Gouge’s 

opinion. 
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not stem only from guesswork or his review of the operative note in a vacuum; it relies on 

his knowledge and experience in the field. Fed. R. Evid. 703. Particularly, while Dr. 

Gouge opined that the standard of care does not require surgeons to include in their 

operative report a notation that they ran the bowel, he explained that the Doctors’ failure 

to do so strongly indicates that they did not, in fact, run the bowel, explaining,

[i]t would be unusual in my experience with this type of 

situation for a surgeon not to describe having [run the bowel], 

having found two bowel injuries in a case where there really 

wasn’t reason to suspect those. So it’s beyond just the dictum 

that if you didn’t write it down, it didn’t happen. 

(Doc. 99-1 at 44.) While Defendants make much ado of Dr. Gouge’s admission that—had 

the Doctors included a notation that they ran the bowel in their operative note—he would 

have concluded that the Doctors had, in fact, run the bowel and had met the standard of 

care, the Doctors did not include such a notation, and Dr. Gouge persists in opining that 

the bowel-running was not performed. Defendants’ first argument is rejected.

Second, Defendants argue that Dr. Gouge’s opinions do not support of breach 

finding, because Dr. Gouge agreed that a hypothetical surgeon could run the bowel in a 

“diligent and systemic fashion” (Doc. 99-1 at 45)—as required by the standard of care—

yet miss an enterotomy under some circumstances, because the standard of care does not 

require the discovery of all enterotomies. However, looking to this particular injury and 

this particular patient—Dr. Gouge nevertheless opined that the Doctors did not run the 

bowel, and therefore breached the standard of care, because had the Doctors run the bowel, 

“there’s absolutely no way that they could have missed this injury.” (Id. at 44-45.) 

Defendants’ second argument is rejected. 

Third, Defendants argue that Dr. Gouge’s opinion that the Doctors did not run the 

bowel lacks proper foundation, because he did not consider Dr. Albufaraj’s testimony that 

the Doctors, in fact, ran the bowel. (Doc. 99-1 at 35.) Defendants provide no authority in 

support of the proposition that Dr. Gouge was required to review the Doctors’ deposition 

transcripts before rendering an opinion. Here, Dr. Gouge based his opinion on his review 

of operative note and his knowledge of standard practice. Fed. R. Evid. 703. And, looking 
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to Dr. Gouge’s evidence, a reasonable juror could conclude that Dr. Albufaraj’s testimony 

was not credible, determine that the Doctors did not run the bowel, and decide that the 

Doctors breached the standard of care. Defendants’ third argument is therefore rejected 

and the Court will deny Defendants’ motion as to Ms. Johnson’s negligence claim. 

Accordingly,

IT IS ORDERED that Defendants’ motion for summary judgment is GRANTED 

IN PART and DENIED IN PART as described herein.

IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment 

in favor of Staff Care and terminate it as a party.

Dated this 6th day of July, 2021.

Douglas L. Rayes

United States District Judge