BROWN v. DR. WILSON et al

Filing 50

Entry Discussing Motion to Dismiss and Motion to Amend - Although Dr. Cho argues that Mr. Brown knew or reasonably should have known of complications from the surgery within a month or so of the surgery, this is not the type of dispute that should be properly resolved on the basis of the pleadings only. Dr. Cho's (35) motion to dismiss must therefore be DENIED. Mr. Brown's 49 motion to amend the complaint is DENIED as unnecessary. The operative complaint remains the 4 amended complaint filed on March 17, 2015. Signed by Judge Tanya Walton Pratt on 11/20/2015. Copy sent to Plaintiff via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANIEL LYNN BROWN, JR.,
Plaintiff,
vs.
DR. MICKEY CHO, GARY ULRICH,
UNITED STATES OF AMERICA and
UAP CLINIC,LLP.
Defendants.

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Case No. 1:15-cv-0224-TWP-DML

Entry Discussing Motion to Dismiss and Motion to Amend
This matter is before the Court on a Motion to Dismiss (Filing No. 35) filed by Defendant
Dr. Mickey Cho (“Dr. Cho”). Plaintiff, Daniel Lynn Brown, Jr. (“Mr. Brown”) brings this Federal
Tort Claims Act case against the United States of America (the “United States”) and state law
medical malpractice claims against Dr. Cho, Dr. Gary Ulrich (“Dr. Ulrich”), and the UAP Health
Clinic (“UAP”). Dr. Cho has moved to dismiss the first amended complaint against him and Mr.
Brown has opposed that motion. Also before the Court is a Motion to Amend the Complaint (Filing
No. 49) filed by Mr. Brown. For the reasons stated below, both motions are denied.
I. Motion to Dismiss
A. Legal Standards
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
is to test the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chi.
Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The standard for assessing the procedural
sufficiency of pleadings is imposed by Federal Rule of Civil Procedure 8(a)(2), which requires “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, although

the complaint need not recite “detailed factual allegations,” it must state enough facts that, when
accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). A claim is facially plausible when the plaintiff pleads facts
sufficient for the Court to infer that the defendant is liable for the alleged misconduct. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Twombly/Iqbal standard “is not akin to a ‘probability
requirement’, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556). By comparison, a complaint that merely contains “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy
the factual plausibility standard. Twombly, 550 U.S. at 555.
In ruling on a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff, accepting all well-pleaded factual allegations as true and drawing all reasonable
inferences from those allegations in favor of the plaintiff. Lee v. City of Chi., 330 F.3d 456, 459
(7th Cir. 2003). Thus, a complaint should only be dismissed pursuant to Rule 12(b)(6) when “it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.
2007). Additionally, the Court may not rely upon evidence and facts outside of those alleged in
the complaint in ruling on a motion to dismiss.
B. Discussion
Dr. Cho operated on Mr. Brown in August of 2012. The original complaint was filed on
February 13, 2015, and the first amended complaint was filed on March 17, 2015. “While
complaints typically do not address affirmative defenses, the statute of limitations may be raised
in a motion to dismiss if ‘the allegations of the complaint itself set forth everything necessary to
satisfy the affirmative defense.’ United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005).

(Technically, one might see this as a motion for judgment on the pleadings under Rule 12(c) rather
than a motion under Rule 12(b)(6), but the practical effect is the same.).” Brooks v. Ross, 578 F.3d
574, 579 (7th Cir. 2009). The statute of limitations applicable to the medical malpractice claim
asserted against Dr. Cho is two years. Moyer v. Three Unnamed Physicians, 845 N.E.2d 252, 256
(Ind. Ct. App. 2006). The two years accrues generally from the date that the alleged malpractice
occurred, however, if in the exercise of reasonable diligence, the plaintiff does not discover the
malpractice and the resulting injury until more than two years after the occurrence, the plaintiff
has two years from the date of discovery in which to file a malpractice claim. Id. at 256-57.
In response to the motion to dismiss, Mr. Brown alleges that he did not discover the alleged
malpractice until August 8, 2014. He argues that the discovery of the malpractice after the two
year limitations periods should render his first amended complaint timely filed. Dr. Cho responds
by asserting that no facts or evidence have been presented to support the allegation that the
malpractice was not discovered until August of 2014.
As noted above, the Court may dismiss a complaint under Rule 12(b)(6) only if “no relief
may be granted under any set of facts that could be proved consistent with the allegations.” Hrubec
v. National R.R. Passenger Corp., 981 F.3d 962, 963 (7th Cir. 1992) (internal quotation omitted).
“A plaintiff need not put all of the essential facts in the complaint; he may add them by affidavit
or brief in order to defeat a motion to dismiss if the facts are consistent with the allegations of the
complaint.” Help At Home, Inc. v. Medical Capital, LLC., 260 F.3d 748, 752-53 (7th Cir. 2001)
(internal quotation omitted). The allegation that Mr. Brown did not discover the malpractice and
the injury until August of 2014 is not inconsistent with the allegations of his first amended
complaint. Although Dr. Cho argues that Mr. Brown knew or reasonably should have known of
complications from the surgery within a month or so of the surgery, this is not the type of dispute

that should be properly resolved on the basis of the pleadings only. Dr. Cho’s motion to dismiss
(Filing No. 35) must therefore be DENIED.
III. Motion to Amend
Mr. Brown’s motion to amend the complaint (Filing No. 49) is DENIED as unnecessary.
Mr. Brown seeks to amend his complaint only to allege facts relating to the issue of when he
discovered the alleged malpractice. Under these circumstances, Mr. Brown need not allege facts
to defeat an affirmative defense. Now that the motion to dismiss has been dismissed, the issue of
the statute of limitations may be addressed with evidence outside the pleadings through a motion
for summary judgment or at trial. The operative complaint remains the amended complaint filed
on March 17, 2015 (Filing No. 4).
IT IS SO ORDERED.

Date: 11/20/2015

Distribution:
Daniel Lynn Brown, Jr., #05609-030
Terre Haute FCI
Inmate Mail/Parcels
P. O. Box 33
Terre Haute, IN 47808
Electronically registered counsel