The Tenth Circuit Court of Appeals published its opinion in Harvey v. United States on Friday, July 13, 2012.
The Tenth Circuit affirmed the district court’s decision. Petitioner’s appeal stems from a Federal Tort Claims Act (FTCA) lawsuit that Petitioner brought against the United States government for complications arising from an injury to his hand. Petitioner “claims that government employees injured him by (1) misdiagnosing and delaying treatment of his hand fracture, and (2) performing negligent surgery on his hand. He argues that the district court erred in holding the misdiagnosis/delay-intreatment claim (‘misdiagnosis claim’) to be time-barred and in granting summary judgment on the negligent surgery claim for failure to produce expert evidence. Also, as a threshold matter, [Petitioner] contends that the district court should have granted his motion for default judgment. The district court agreed with [Petitioner] that Navajo law is the substantive law that should be applied to this case. But [Petitioner] argues on appeal that the district court failed to follow Navajo law in dismissing his negligent surgery claim.”
The Court held that the district court properly denied Petitioner’s motion for default judgment. Although the Court disagreed with the district court’s conclusion that the misdiagnosis claim was time-barred, it concluded that Petitioner’s “failure to provide expert evidence doomed both his misdiagnosis and surgical malpractice claims.” Finally, although the parties disagreed about whether Arizona law or Navajo law applies, the Court determined that it did not need to decide that issue because the outcome would be the same under both.