Western Law Trumps Native’s Claim

Western Law Trumps Native’s Claim

Carol Berry
7/17/12

A Navajo man who sued the government for misdiagnosing and then botching surgery on his injured hand lost in the Tenth U.S. Circuit Court of Appeals July 13 when a three-judge panel insisted his failure to provide expert evidence doomed his claims and said that the outcome would have been the same under Arizona law or Navajo fundamental law.

Frances Leon Harvey, who lives on the Navajo Nation reservation, fell on the ice in February 2004, hurt his right hand, and was X-rayed at Fort Defiance Indian Hospital (FDIH), an Indian Health Service facility. A radiology report cited a fracture at the base of his fifth finger, but a note in his medical record indicated “X-rays all o.k.”

At the end of March 2004, following the X-ray, Harvey was told to see an orthopedic surgeon and the fracture was noted, but “an orthopedic surgeon determined that it was not possible to reduce the two-month-old fracture.” In May of that year he was advised to undergo surgery on his hand.

In June following the surgery, Harvey told the FDIH orthopedic clinic his hand was swollen and turning yellow and claimed he “was informed on June 16, 2004 that it would take a year for his hand to return to normal.”

Nine months later he complained of pain, was found to have nerve compression and in May 2006 he filed an administrative claim with the federal Department of Health and Human Services, claiming FDIH failed to diagnose the broken bone in his right hand and “surgery to repair [allegedly] fell below the standard of care.”

Harvey initially sought personal-injury damages of $300,000, an amount later changed to $2,016,120 because he “believed that the Navajo law concept of nalyeeh required this change,” the federal appeals court said. Nalyeeh is the concept of restitution under traditional law in order to restore harmony to the community without emphasizing blame or fault. He asked the U.S. District Court for the District of New Mexico to determine that his lawsuit “is governed by the tort [damages] law of the Navajo Nation” because it began on the Navajo Nation reservation.

The government contended that Arizona law should apply because “all pertinent events in this case occurred in Arizona on the Navajo Reservation.”

The government argued that even if Navajo law was the correct law to apply, Harvey’s action should be dismissed because he had not designated an expert witness who could establish the government’s negligent conduct.

In 2011 the District Court found for the government because Harvey had not provided expert medical evidence to support his medical malpractice claim and rejected Harvey’s claim that he had demanded nalyeeh under Navajo law “and therefore expert testimony was not required.” The District Court said that “it strongly appears that expert medical testimony is necessary to establish the diagnosis and treatment of a medical condition under Navajo law.”

Harvey appealed to the Tenth Circuit, which reiterated that expert evidence was needed and said, “Not surprisingly, Mr. Harvey disagrees with the District Court’s analysis and argues that the Navajo law of nalyeeh governs his claim and that nalyeeh does not require him to prove ‘intent causation, fault or negligence.’”

The federal appeals court said it agreed with the District Court, which said that “it strongly appears that expert medical testimony is necessary to establish the diagnosis and treatment of a medical condition under Navajo law.”

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