Kathy Holtshouser v. United States

MEMORANDUM

Kathy Holtshouser, individually and as personal representative of decedent Harold Holtshouser, appeals the rejection of her medical malpractice and negligence claims filed under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674 , against the United States Department of Veterans Affairs (“VA”). On partial summary judgment, which we review de novo, the district court rejected her claim against a VA nurse practitioner. Navajo v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.2008) (en banc). After a bench trial, the district court rejected her remaining claim against the VA pharmacy. We review findings of fact in a bench trial for clear error and conclusions of law de novo. Id. Montana law applies to this FTCA action. 28 U.S.C. §§ 1346 (b)(1), 2674. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

In her first claim, Kathy Holtshouser alleged that a VA nurse practitioner negligently prescribed a drug to her husband Harold. The district court rejected this claim because Kathy Holtshouser did not identify an expert who could establish the applicable standard of care. The district court concluded, and we agree, that her two experts could not establish the…