Garriott et al v. Kootenai Hospital District et al

Filing 49

ORDER denying 30 Motion to Dismiss for Lack of Jurisdiction; denying 30 Motion to Dismiss for Failure to State a Claim; granting 39 Motion to Amend/Correct.Plaintiffs must separately file their proposed amended complaint(Dkt. [39-1]) within five (5) days of the Court's order.Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (klw))

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JUSTIN T. GARRIOTT and SUSAN
GARRIOTT, Husband and Wife,
JASPYN GARRIOTT, JUSTIN
GARRIOTT JR., JMG1, a minor, and
JMG2, a minor,

Case No. 2:16-cv-00081-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
KOOTENAI HOSPITAL DISTRICT,
D/B/A KOOTENAI HEALTH,
MATTHEW KREPS, MD, MARK
DALTON, DO; WESTERN MEDICAL
ASSOCIATES PLLC, an Idaho
corporation; PAUL PASCHALL, MD;
BENJAMIN PERSCHAU, MD; ERIC
CHUN, MD; and DOE DEFENDANTS
I through V,
Defendants.

INTRODUCTION
Currently pending before the Court are two motions: (1) a motion to dismiss for
failure to state a claim and for lack of jurisdiction, asserted under Fed. R. Civ. P. 12(b)(1)
and 12(b)(6) and filed by Defendants Western Medical Associates, PLLC, Paul Paschall,

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M.D., Benjamin Perschau, M.D., and Eric Chun, M.D.; and, (2) a motion for leave to file
an amended complaint by Plaintiffs Justin Garriott, Susan Garriott, Jaspyn Garriott, Justin
Garriott Jr., and minors JMG1, and JMG2. (Dkt. 30, 39.) Plaintiffs submitted a proposed
amended complaint with their motion, and Defendants’ reply memorandum in support of
their motion to dismiss addresses the proposed amended complaint.
All parties have consented to the jurisdiction of a United States Magistrate Judge
to adjudicate this matter. 28 U.S.C. § 636(c). (Dkt. 43.) Having fully reviewed the record,
the Court finds the facts and legal arguments are adequately presented in the briefs and
record. In the interest of avoiding delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral argument, this matter will be
decided on the record without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d).
The Court finds the proposed amended complaint alleges sufficient factual
allegations to state a claim for relief, and will therefore deny Defendants’ motion to
dismiss 1 and grant Plaintiffs’ motion to amend, as explained below.
BACKGROUND
1.

Facts 2
Plaintiffs assert that on March 25, 2015, Justin Garriott went to the Northwest

Urgent Care clinic complaining of a dry cough, fever, and body aches that had begun

1

None of the other named Defendants filed or joined in the pending motion to dismiss. The reference to
Defendants in this decision is limited to Defendant Western Medical Associates, PLLC, and three of its
members, Drs. Paschall, Perschau, and Chun. Defendants Kootenai Hospital District, d/b/a Kootenai
Health, Matthew Kreps, M.D., and Mark Dalton, D.O., have filed answers to the complaint. (Dkt. 29, 33,
35.)
2
For purposes of deciding the motion to dismiss, all facts alleged in the proposed amended complaint
must be accepted as true. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
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approximately two weeks before. (Dkt. 39 at ¶ 3.1.) He was diagnosed with acute
bronchitis and prescribed Tylenol and ibuprofen. Id.
On March 27, 2015, Garriott went to the Kootenai Health emergency department
complaining of a headache, fever, neck stiffness, abdominal pain, and constipation. Id. at
¶ 3.2. Arne Michaelson, M.D., performed a lumbar puncture in the L4-L5 interspinous
space. The results showed decreasing red blood cells on tube 3, elevated protein of 60
and serum CSF of 116, white counts of 4.5 with 38.1% and 20.0% bands, and
thrombocytopenia of 64. Defendant Benjamin Perschau then took Garriott’s medical
history and completed a physical examination. Id. Defendant Perschau concluded Garriott
had viral meningitis and thrombocytopenia, so he instructed Garriott to go home and
follow up with an oncologist. Defendant Perschau prescribed Garriott ibuprofen and
hydrocodone. Id.
On March 31, 2015, Garriott returned to the Kootenai Health emergency
department complaining of mid-back pain (thoracic and upper lumbar area) that radiated
into his abdomen as well as tightness in his chest. Id. at ¶ 3.3. Defendant Paul Paschall
took Garriott’s medical history and completed a physical examination. He recommended
Garriott follow up with his primary care physician on April 2, 2015, and prescribed
additional pain medication and muscle relaxants.
On the morning of April 2, 2015, Garriott was taken via ambulance to the
Kootenai Health emergency department complaining of gradual onset of leg weakness
and numbness, difficulty urinating, and severe abdominal pain radiating from his back.
Id. at ¶ 3.4. Defendant Eric Chun treated Garriott. He placed Garriott on IV pain therapy
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and ordered lab studies and a lumbar MRI without contrast to rule out cauda equine
syndrome.
Around 5:05 p.m., the lumbar MRI was read as normal and Defendant Chun
admitted Garriott to an observation unit. Id. at ¶ 3.5. Around 7:50 p.m., Defendant
Matthew Kreps updated Garriott’s history and conducted a physical examination.
Defendant Kreps indicated that a thoracic and cervical MRI with contrast should be done
emergently. However, these procedures were not ordered until 10:30 p.m. and did not
occur until the following day. Defendant Kreps ordered also a neurology and
neurosurgery consultation, which also did not occur until the following day. 3
Around 6:34 a.m. on April 3, 2015, Dr. Martinez reported Garriott’s thoracic spine
MRI results to Dr. Mark Dalton. Id. at ¶ 3.6. The results revealed an epidural mass
centered around T7 and T8 with cord compression. Drs. Martinez and Dalton consulted
with neurosurgeon Dr. Dirks and determined that Garriott required emergency surgery to
remove the mass.
Surgery occurred at approximately 9:17 a.m. on April 3, 2015. An epidural mass
was identified and a laminectomy performed. The abscess was removed and its fluid
cultured. Lab reports indicated it was methicillin-sensitive S. aureus (MSSA).
Garriott remained at Kootenai Hospital until he was discharged by Dr. Michael
Kirkpatrick on April 16, 2015. Id. at ¶ 3.7. Dr. Kirkpatrick’s discharge summary

3

It is unclear from the complaint who read the MRI results as normal and who ordered the thoracic and
cervical MRIs.

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indicated Garriott suffered a T7 spinal cord injury with flaccid paralysis and sensory loss
of lower extremities, as well as neurologic bowel and bladder dysfunction. Id.
2.

Procedural Background
On February 23, 2016, Plaintiffs filed a complaint asserting that Defendants

Kootenai Hospital District, Western Medical Associates, PLLC, and Drs. Matthew Kreps,
Mark Dalton, Paul Paschall, Benjamin Perschau, and Eric Chun negligently failed to
meet the applicable standard of health care practice in the community by failing to timely
carry out physician orders, failing to timely diagnose and treat Garriott’s spinal epidural
abscess, and failing to provide appropriate medical care. (Dkt. 1.) Plaintiffs allege that, as
a result of Defendants’ breaches of the standard of care, Justin Garriott sustained
permanent injuries, and the other named Plaintiffs are denied the personal relationship
normally enjoyed between husband and wife or father and child.
On April 25, 2016, Defendants Western Medical Associates, PLLC, and three of
its member physicians Paul Paschall, Benjamin Perschau, and Eric Chun (hereafter,
collectively “Defendants”) filed a motion to dismiss for lack of subject matter
jurisdiction, contending the prerequisites for diversity jurisdiction were not adequately
alleged in the complaint. Defendants allege also that the complaint fails to state a claim
upon which relief can be granted. Plaintiffs both responded to the motion to dismiss and
filed a motion for leave to file an amended complaint.
Defendants’ reply, filed on June 6, 2016, does not oppose Plaintiffs’ motion to
amend, conceding the proposed amended complaint adequately addresses the

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jurisdictional deficiencies raised in their motion under Rule 12(b)(1) which would have
prevented the Court from exercising diversity jurisdiction.
However, Defendants argue the proposed amended complaint is still subject to
dismissal for failure to state a claim under Rule 12(b)(6). Defendants assert the proposed
amended complaint merely sets forth conclusory allegations in broad terms that each
Defendant violated the applicable standard of care by failing to timely carry out physician
orders and failing to timely diagnose and treat Garriott’s spinal epidural abscess, and
therefore fails to pass muster under Fed. R. Civ. P. 8(a). Defendants argue Plaintiffs’
complaint must include the applicable standards of heath care and how each Defendant
negligently failed to meet those standards in connection with the care provided to
Garriott.
DISCUSSION
1.

Motion for Leave to File an Amended Complaint
Defendants concede the motion to amend cures the deficiencies regarding the

Court’s subject matter jurisdiction over the Plaintiffs’ state law claims of malpractice
against Defendants. Upon review, the Court finds the proposed amended complaint
adequately alleges diversity jurisdiction under 28 U.S.C. § 1332. Plaintiffs reside in
Arizona, and all Defendants reside in Idaho. Plaintiffs allege damages exceeding
$75,000.00.
The substantive facts alleged in the proposed amended complaint are largely
unchanged from the initial complaint. Accordingly, given Defendants’ non-opposition to
the proposed amendment other than as set forth in the motion to dismiss under Rule
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12(b)(6), the motion to amend will be granted, and the motion to dismiss will be
considered in light of the proposed amended complaint. Fed. R. Civ. P. 15(a)(2) (“The
Court should freely give leave [to amend] when justice so requires.”).
2.

Motion to Dismiss
A.

Standard of Law

Federal Rule of Civil Procedure 8(a)(2) requires only a “short and plain statement
of the claim showing that the pleader is entitled to relief,” to “give the defendant fair
notice of what the … claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule 12(b)(6)
motion to dismiss “does not need detailed factual allegations,” it must set forth “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Id. at 556. The plausibility standard is not akin to a “probability requirement,” but it asks
for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a
complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of ‘entitlement of relief.’” Id. at 557.
The Court uses a two-step approach for deciding when a complaint meets the
plausibility requirement. First, the Court strips the complaint of legal conclusions and
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accepts as true all factual allegations made in the complaint, drawing all reasonable
inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). Second,
the Court analyzes the remaining factual allegations in the complaint to determine
whether a plausible claim of entitlement to relief has been alleged. Id.
B.

Elements of a Medical Malpractice Claim

The elements of a negligence action are the following: “(1) a duty, recognized by
law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of
duty; (3) a causal connection between the defendant’s conduct and the resulting injuries;
and (4) actual loss or damage.” Jones v. Starnes, 245 P.3d 1009, 1012 (Idaho 2011)
(quoting Hansen v. City of Pocatello, 184 P.3d 206, 208 (Idaho 2008)). In medical
malpractice cases:
[P]laintiff must, as an essential part of his or her case in chief, affirmatively
prove by direct expert testimony and by a preponderance of all the
competent evidence, that such defendant then and there negligently failed to
meet the applicable standard of health care practice of the community in
which such care allegedly was or should have been provided, as such
standard existed at the time and place of the alleged negligence of such
physician and surgeon, hospital or other such health care provider and as
such standard then and there existed with respect to the class of health care
provider that such defendant then and there belonged to and in which
capacity he, she or it was functioning.
Idaho Code § 6-1012. The statute provides also the criteria by which a health care
provider must be judged: “Such individual providers of health care shall be judged in
such cases in comparison with similarly trained and qualified providers of the same class
in the same community, taking into account his or her training, experience, and fields of
medical specialization, if any.” Id.
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Idaho Code § 6-1013 requires that the applicable standard of health care practice
and the failure of the defendant physician to meet this standard be established by plaintiff
providing opinions from “one or more knowledgeable, competent expert witnesses.”
Expert opinions may be admitted in evidence only if a foundation is laid establishing: (1)
the “opinion is actually held by the expert witness,” (2) the “opinion can be testified to
with reasonable medical certainty, and (3) the “expert witness possesses professional
knowledge and expertise coupled with actual knowledge of the applicable community
standard to which the testimony of the witness is addressed.” Idaho Code § 6-1013.
C.

Analysis

Defendants assert Plaintiffs’ proposed amended complaint fails to set forth the
applicable standards of care, and does not explain how each of the Western Medical
Associates Defendants breached the standards. As a result, Defendants argue the
proposed amended complaint fails to state a claim. However, Defendants mistakenly
include the specific standard of care as an element required at the pleading stage. While a
plaintiff is required to plead facts that plausibly show a duty to conform to a standard of
care, the actual standard of care must be established by an expert witness. Generally, the
Court considers the legal sufficiency of the expert opinion evidence in conjunction with a
motion for summary judgment, if raised by the defendants after discovery of the expert
opinions and the qualifications of the expert. See, e.g., Hayward v. Jack’s Pharmacy,
Inc., 115 P.3d 713, 717 (Idaho 2005) (discussing expert testimony introduced via
affidavits in support of motion for summary judgment). Defendants have cited no legal
authority for requiring a higher or more detailed threshold at the pleading stage.
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Here, the proposed amended complaint contains detailed factual allegations. It
alleges Garriott visited Kootenai Health twice prior to being hospitalized. On both
occasions, Garriott complained of symptoms that appear to be severe. During his initial
visit, Garriott was diagnosed with viral meningitis and thrombocytopenia. Despite the
seriousness of these diagnoses, Garriott was sent home with a referral and a prescription
for pain medication. When Garriott returned days later, he was once again referred to see
his primary care physician and prescribed pain medication and muscle relaxants. When
Garriott was admitted to the hospital almost a week after his initial visit, Defendant Kreps
determined that tests and procedures were needed emergently. However, these tests and
procedures were not ordered until later in the evening and not performed until the
following day.
The Court can plausibly infer that, during the course of three visits to the Kootenai
Health emergency room, a patient complaining of severe symptoms would receive health
care necessary to allow physicians to properly diagnose and treat that patient. However,
the facts alleged by Plaintiffs in the proposed amended complaint, taken as true, state a
plausible claim that Defendants Perschau and Paschall did not diagnose Garriott correctly
despite two visits to the emergency room, and may not have provided treatment that
would be effective for either his actual or misdiagnosed condition. With respect to
Defendant Chun, the alleged facts state a plausible claim that Dr. Chun did not order
appropriate tests or order procedures with the urgency indicated by Garriott’s symptoms
and test results.

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The Court finds these factual allegations, taken as true as the Court must do upon
resolving the motion to dismiss, and drawing all reasonable inferences in favor of
Plaintiffs, are sufficient to state claims upon which relief can be granted. The proposed
amended complaint adequately states: (1) Defendants were doctors, required to conform
to certain standards of health care in the community, and owed a legal duty to Garriott;
(2) Defendants breached the standards of care by failing to timely or properly diagnose
Garriott or timely perform certain tests and procedures; (3) Defendants’ conduct caused
Garriott’s condition to worsen; which, (4) ultimately resulted in permanent paraplegia of
his lower extremities and caused damages. It will be Plaintiffs’ burden to establish,
however, what the applicable community standard of care was for each Defendant
physician, and how each Defendant failed to meet it, through expert opinion testimony
that meets the requirements of Idaho law.
CONCLUSION
For the reasons set forth above, the Court will grant Plaintiffs’ motion for leave to
file an amended complaint and deny Defendants’ motion to dismiss for failure to state a
claim.

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ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiffs’ Motion For Leave to File an Amended Complaint (Dkt. 39) is
GRANTED;
2) Defendants’ Motion to Dismiss (Dkt. 30) is DENIED; and
3) Plaintiffs must separately file their proposed amended complaint
(Dkt. 39-1) within five (5) days of the Court’s order.

DATED: July 8, 2016

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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