Charles Dickerson v. TLC The Laser Eye Center
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:10-cv-00685-JMC Copies to all parties and the district court/agency. [998916181].. [12-1117]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1117
CHARLES BENJAMIN DICKERSON, a/k/a Ben, on behalf of himself
and all others similarly situated,
Plaintiff - Appellant,
and
JOHN HOLLMAN, on behalf of himself and all others similarly
situated,
Plaintiff,
v.
TLC THE LASER EYE CENTER INSTITUTE, INC.; TLC THE LASER
CENTER CAROLINA, INC.; TLC THE LASER CENTER MADISON, INC.;
TLC LASER EYE CENTERS OKLAHOMA CITY; TLC THE LASER CENTER
TRI-CITIES, INC.; TLC THE LASER CENTER MASSACHUSETTS, INC.;
TLC THE LASER CENTER BREA, INC.; TLC LASER EYE CENTERS
CLEVELAND; TLC LASER EYE CENTERS COLUMBUS; TLC THE LASER
CENTER BOCA RATON, INC.; TLC LASER EYE CENTERS PITTSBURGH;
TLC LASER EYE CENTERS FARGO; VALLEY LASER EYE CENTER, LLC;
TLC LASER EYE CENTERS TULSA; TLC LASER EYE CENTERS EDINA;
TLC THE LASER CENTER INDIANA, LLC; TLC THE LASER CENTER
INSTITUTE FT. LAUDERDALE, d/b/a TLC Ft. Lauderdale, a/k/a
TLC The Laser Center Institute; TLC THE LASER CENTER
INSTITUTE, INC.-DENVER, d/b/a TLC Denver, a/k/a TLC The
Laser Center Institute, Inc.; TLC THE LASER CENTER INSTITUTE
INC.-ATLANTA, d/b/a TLC Atlanta, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER INSTITUTE, INC.MANHATTAN, d/b/a TLC Manhattan, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER INSTITUTE, INC.-GARDEN
CITY, d/b/a TLC Garden City, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER INSTITUTE, INC.TORRANCE, d/b/a TLC Torrance, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER NORTHEAST, INC.-NORTH
JERSEY, d/b/a TLC North Jersey, a/k/a TLC The Laser Center
Northeast, Inc.; TLC LASER CENTER NORTHEAST, INC.-ROCKVILLE,
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d/b/a TLC Rockville, a/k/a TLC Laser Center Northeast, Inc.;
TLC THE LASER CENTER INSTITUTE, INC.-WHITE PLAINS, d/b/a TLC
White Plains, a/k/a TLC The Laser Center Institute, Inc.;
TLC MIDWEST EYE LASER CENTER, INC.-CHICAGOLAND, d/b/a TLC
Chicagoland, a/k/a TLC Midwest Eye Laser Center, Inc.; TLC
THE LASER CENTER NORTHEAST, INC.-BIG SKY, d/b/a TLC Big Sky,
a/k/a TLC The Laser Center Northeast, Inc.; TLC THE LASER
CENTER INSTITUTE, INC.-CHARLESTON, d/b/a TLC Charleston,
a/k/a TLC The Laser Center Institute, Inc.; TLC THE LASER
CENTER INSTITUTE, INC.-SAN ANTONIO, d/b/a TLC San Antonio,
a/k/a TLC The Laser Center Institute, Inc.; TLC THE LASER
INSTITUTE-TAMPA, d/b/a TLC Tampa, a/k/a TLC The Laser
Institute; DAVID KOHLER, OD, Individually and in their
capacity as Clinical Director for TLC The Laser Center
Institute, Inc.; MELISSA MELOTT, OD, Individually and in
their capacity as Clinical Director for TLC The Laser Center
Institute, Inc. ; DEREK VAN VEEN, OD, Individually and in
their capacity as Clinical Director for TLC The Laser Center
Institute, Inc.; CYNTHIA YEAGER, OD, Individually and in
their capacity as Clinical Director for TLC the Laser Center
Institute, Inc.; JODI ABRAMSON, MD; ALBERTO ARAN, MD; ROBERT
ARFFA, MD; DAVID K. AYMOND, MD; DAVID BOES, MD; STAN
BRAVERMAN, MD; ERIC DONNENFELD, MD; MARTIN FOX, MD; DAVID
HUNTER, MD; JEFFREY MACHAT, MD; JOHN OSTER, MD; GEORGE
PARDOS, MD; EDWARD PERRAUT, MD; LOUIS PROBST, MD; RANDALL
RABON, MD; JEFF ROBIN, MD; ROY RUBINFELD, MD; STEPHEN SLADE,
MD; MARK SPEAKER; NANCY TANCHEL, MD; GREGORY TEMAS, MD;
STEWART TERRY, MD; MARK E. WHITTEN, MD; LARRY WOMACK, MD;
WENDELL WONG, MD; JONATHAN WOOLFSON, MD; BRIAN ANDREW, Esq.;
STACEY ANNE LERUM; BOB MAY, Esq.; JOHN POTTER, MD,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville.
J. Michelle Childs, District
Judge. (6:10-cv-00685-JMC)
Submitted:
June 20, 2012
Decided:
August 15, 2012
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
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Paul S. Landis, FAYSSOUX LAW FIRM, PA, Greenville, South
Carolina; Douglas F. Patrick, Sr., Stephen R. H. Lewis,
COVINGTON, PATRICK, HAGINS, STERN & LEWIS, PA, Greenville, South
Carolina, for Appellant.
W. Howard Boyd, Jr., Ronald G. Tate,
Jr., Luanne Lambert Runge, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina; H. Donald Sellers, Christopher B.
Major, HAYNSWORTH, SINKLER & BOYD, PA, Greenville, South
Carolina; Robert H. Hood, James B. Hood, Deborah H. Sheffield,
HOOD LAW FIRM, Charleston, South Carolina; David H. Batten,
Charles H. Foppiano, BATTEN LEE, PLLC, Cary, North Carolina;
James F. Rogers, Cory E. Manning, NELSON MULLINS RILEY &
SCARBOROUGH, LLP, Columbia, South Carolina; Lee C. Weatherly,
CARLOCK, COPELAND, SEMLER & STAIR, LLP, Charleston, South
Carolina; Jack G. Gresh, HALL, BOOTH, SMITH & SLOVER, PC,
Sullivan's Island, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Charles
Benjamin
Dickerson
appeals
the
district
court’s grant of motions to dismiss the first amended complaint
(“FAC”)
filed
by
Appellees
TLC
Lasik
Centers,
TLC
Clinical
Directors, TLC LASIK Surgeons, and TLC Management (collectively,
“the Providers”).
action
alleging
Dickerson is the class representative in an
violations
of
the
Racketeer
Influenced
and
Corrupt Organization Act (“RICO”) and requesting declaratory and
injunctive relief regarding his and the putative class members’
medical records that were allegedly concealed and converted by
the
Providers.
Dickerson
alleged
that
the
Providers
participated in an elaborate fraudulent scheme to conceal their
medical malpractice.
For the following reasons, we affirm the
district court’s grant of the motions to dismiss.
I.
Dickerson
challenges
the
district
court’s
determination that his RICO claim is barred by the statute of
limitations.
Federal
Rule
Generally,
of
Civil
“a
motion
Procedure
to
dismiss
12(b)(6),
filed
which
under
tests
the
sufficiency of the complaint, . . . cannot reach the merits of
an affirmative defense, such as the defense that the plaintiff’s
claim is time-barred.”
464
(4th
Cir.
2007).
Goodman v. PraxAir, Inc., 494 F.3d 458,
However,
4
in
rare
cases,
courts
may
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determine the merits of an affirmative defense at this stage in
the
litigation
if
“all
facts
necessary
to
the
affirmative
defense clearly appear[] on the face of the complaint.”
Id.
(quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)) (emphasis in the original).
The RICO statute does not provide a limitations period
for civil actions, however, the Supreme Court has determined
that a four-year statute of limitations applies.
Agency Holding
Corp.
U.S.
v.
Malley-Duff
(1987).
&
Associates,
Inc.,
483
143,
156
Further, the Supreme Court has established that the
discovery-of-injury accrual rule applies to civil RICO actions.
Rotella v. Wood, 528 U.S. 549, 556 (2000).
Under this rule, the
statute of limitations will begin to run from the date when the
plaintiff knew or should have known of the existence of a RICO
injury.
Id.
Dickerson alleged several RICO injuries, which include
conversion of his medical records and payments for unnecessary
surgeries and treatment.
With respect to the injury arising
from payments for unnecessary surgeries and treatment, the FAC
is
silent
occurred
and
Providers.
the
regarding
he
Dickerson’s
sought
first
additional
Lasik
treatment
surgery
from
the
However, the FAC does allege several dates in which
Providers
mailing
when
when
his
converted
records
his
medical
between
records
themselves
5
as
by
faxing
part
of
and
the
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racketeering scheme beginning in February 1999 and continuing
through May 2005.
mail
fraud
J.A. 112-13.
was
committed
The FAC also alleges that the
without
Dickerson’s
knowledge
or
consent and that the Providers continue to conceal and convert
the medical records to date.
based
upon
these
claim
“certainly
dates
The district court concluded that
alleged
accrued
by
in
May
the
FAC,
2005,”
Dickerson’s
since
the
RICO
action
was
initiated in March 2010, and Dickerson’s claims were not raised
until May 2010.
J.A. 311.
That the conversion of the medical records occurred on
those
dates
does
not
clearly
indicate
that
Dickerson
had
or
should have had notice that the conversions were taking place.
On
the
face
of
the
FAC,
there
is
no
indication
from
the
allegations that Dickerson should have known that his medical
records were being converted over this period of time.
Indeed,
the FAC is explicit that the conversion of the records was kept
secret
to
conceal
his
true
diagnosis.
See
e.g.,
J.A.
116.
Given that there is no allegation that demonstrates Dickerson
should have known that the Providers were converting his medical
records at a date that would lead to the conclusion that the
limitations
period
has
expired,
the
statute
of
limitations
defense was not clearly present on the face of the FAC, and the
district court erred in rendering that conclusion.
the
Court
need
not
consider
Dickerson’s
6
As a result,
alternative
argument
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that the limitations period should be equitably tolled due to
the Providers’ fraudulent conduct.
II.
Next
Dickerson
challenges
dismissal of his civil RICO claim.
the
district
court’s
To establish a RICO claim,
Dickerson must sufficiently allege facts that if accepted as
true demonstrate that the Providers engaged in “(1) conduct (2)
of
an
enterprise
activity.”
(3)
Sedima
through
v.
a
pattern
Imrex
Co.,
473
(4)
U.S.
of
479,
racketeering
496
(1985).
Dickerson can only recover if he shows that his injury caused by
the RICO violation damaged his business or property.
also, 18 U.S.C. § 1964(c).
Id.
See
Thus, any allegation of personal
injuries and losses from those injuries will not be considered
injuries to business or property under the act.
Bast v. Cohen,
Dunn & Sinclair, P.C., 59 F.3d 492, 495 (4th Cir. 1995).
The
district court concluded that the FAC sufficiently alleged a
pattern
of
enterprise.
however,
racketeering
activity
See J.A. 296-300.
because
it
found
and
the
existence
of
an
It dismissed the RICO claim,
that
the
FAC
did
not
allege
a
cognizable injury caused by the RICO activity to Dickerson’s
business or property.
J.A. 306.
In the FAC, Dickerson pled several injuries to his and
the class members’ properties caused by the Providers’ alleged
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RICO activity.
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With respect to the first injury, the district
correctly
concluded
that
costs
and
attorney
fees
are
automatically granted in a successful RICO case, and thus these
damages are separate from the damages arising from the injury to
a plaintiff’s business or property.
Similarly,
respect
to
surgeries
the
the
and
district
court
second
injury,
treatment
were
See 18 U.S.C. § 1964(c).
correctly
the
money
damages
concluded
spent
stemming
on
that,
with
subsequent
from
personal
injuries derived from the Providers’ medical malpractice and not
–- as Dickerson alleged –- damages arising from an injury to his
property. 1
1
Relatedly, Dickerson argues that the district court
ignored allegations in the FAC regarding fees he and the class
members had to pay to enter into the LTCs.
In the FAC,
Dickerson alleged that the LTCs were used to induce prospective
patients to the Providers by guaranteeing lifetime vision care
for patients that would cover “any additional LASIK surgery
needed and any treatment for vision related problems associated
with or caused by the LASIK surgery performed under the LTC.”
J.A. 95-96.
Dickerson contends that the LTCs were ultimately
used by the Providers to further their fraudulent scheme and
that these contracts were no longer honored once the Providers
believed that Dickerson and class members’ claims for medical
malpractice had expired.
While these allegations were part of
the “Factual Background” section of the FAC, Dickerson did not
allege that these fees should be considered property for the
RICO claim nor did he list the fees as compensatory damages
stemming from the RICO violation.
Thus, even when reading the
FAC in a light favorable to Dickerson, the FAC simply does not
contain pleadings that suggest that these fees should be
considered an injury to property as required for the RICO claim.
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Finally,
district
court
with
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respect
concluded
to
that
the
under
third
South
injury,
the
Carolina
law,
Dickerson had an “intangible property interest” in his medical
information, yet conversion of this interest was not a legally
cognizable
action.
J.A.
303.
As
a
result,
it
held
that
Dickerson could not demonstrate any “concrete” or “quantifiable”
injury to his business or property. 2
J.A 303.
Under South Carolina law, the crime of conversion “is
the
unauthorized
assumption
and
exercise
of
the
right
of
ownership over goods or person or personal chattels belonging to
another, to the alteration of the condition or the exclusion of
the owner’s rights.
To establish the tort of conversion, it is
essential that the plaintiff establish either title to or right
to the possession of the personal property.”
Schmauch,
Carolina
582
law
S.E.2d
does
432,
not
442
(S.C.
ordinarily
Ct.
permit
Regions Bank v.
App.
a
2003).
South
conversion
claim
founded on an intangible property interest unless the interest
is “merged in, or identified with, some document.”
v.
Gignilliat,
(S.C.
2009)
Savitz
&
(dismissing
Bettis,
L.L.P.,
plaintiff’s
2
684
Gignilliat
S.E.2d
conversion
756,
claim
763
that
We assume without deciding, that the district court
correctly determined that Dickerson possesses an intangible
property interest in his medical records under South Carolina
law.
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alleged the defendants used plaintiff’s name without her consent
because
there
was
no
documentation
evidencing
exclusive right to the use of her name).
plaintiff’s
Under South Carolina
law patients do possess rights in obtaining truthful diagnoses,
see J.A. 302 (citing Hook v. Rothstein, 316 S.E.2d 690, 694-95
(S.C. Ct. App. 1984) overruled in part on other grounds by Linog
v. Yampolsky, 656 S.E.2d 355, 358 (S.C. 2008)), and in accessing
information contained in medical files, although the physician
maintains an ownership right in the actual file, id. (citing
S.C. Code Ann. §§ 44-115-20; 44-115-30 (2009)).
Although Dickerson contends that his interest in his
medical information was merged in or identified with the medical
records themselves, South Carolina has designated physicians as
the lawful owners of any medical record within their possession.
See S.C. Code. Ann. § 44-115-20.
And as the district court
pointed out in its opinion denying Dickerson’s motion to alter
or amend its previous judgment, those courts that have addressed
this issue have questioned whether a patient’s possessory or
privacy
interest
in
their
information
contained
records can form the basis of a conversion claim.
in
medical
J.A. 336.
Because the medical records belong to the physicians who possess
them and the law merely affords patient’s access to copies of
their records, the district court was correct to conclude that a
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claim of conversion with respect to the medical records could
not be maintained.
III.
Finally,
Dickerson
appeals
the
district
court’s
dismissal of his claim for declaratory and injunctive relief.
Dickerson contends that the district court misapprehended the
bases for these claims and that his requests for declaratory and
injunctive relief are based on the RICO violation and not the
Health Insurance Portability and Accountability Act, (“HIPAA”),
Pub.
L.
No.
104-191,
110
Stat.
1936
(1996),
or
any
other
provision of law.
For
the
following
reasons,
we
affirm
the
district
court’s dismissal of Dickerson’s requests for declaratory and
injunctive relief.
With respect to the request for declaratory
relief, Dickerson’s argument on appeal is not responsive to the
district
court’s
determination
that
the
proper
avenue
for
requesting medical records given the disposition of this case is
through a discovery motion.
It is within the discretion of the
district court to grant declaratory relief and such relief is
appropriate “when the judgment will serve a useful purpose in
clarifying and settling the legal relations in issue, and . . .
when it will terminate and afford relief from the uncertainty,
insecurity,
and
controversy
giving
11
rise
to
the
proceeding.”
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Centennial Life Ins. Co. v. Poston, 88 F.3d 255, 256 (4th Cir.
1996) (internal quotation marks omitted).
Here, the district
court gave a well-reasoned answer for why a declaration was “ill
suited” to determine whether Dickerson and the putative class
members were entitled to the disclosure of the medical records.
Alternatively, dismissal of the claim for declarative relief is
warranted because of the dismissal of Dickerson’s RICO claim.
With
respect
to
the
request
for
injunctive
relief,
Dickerson now claims that his request for injunctive relief was
only predicated on the RICO violation despite the fact that the
FAC’s
pleadings
explicitly
assert
HIPAA
violations.
As
determined above, Dickerson has not sufficiently pled a RICO
claim,
and
consequently
he
cannot
be
entitled
to
injunctive
relief on this basis.
IV.
For
the
foregoing
reasons,
we
affirm
the
court’s grant of the Providers’ motions to dismiss.
district
We dispense
with oral argument because the facts and legal contentions are
adequately
presented
in
the
materials
before
the
Court
and
argument would not aid the decisional process.
AFFIRMED
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