Hadley vs. Hays Medical Center, et al.

Filing 50

MEMORANDUM AND ORDER granting 37 Motion to Dismiss for Failure to State a Claim as to defendant, Koerner Chiropractic. Signed by District Judge Richard D. Rogers on 10/31/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELISSA HADLEY,

)
)

Plaintiff,

)
)
)

HAYS MEDICAL CENTER;
KENNETH KOERNER, D.C.;
KOERNER CHIROPRACTIC, P.A.;
CURT D. MEINECKE, M.D.;
MICHAEL PFANNENSTIEL, M.D.;
TROY W. KERBY, M.D.; and
VALERIE ECKARD, M.D.,

)
)
)
)
)
)
)

v.

Defendants.

Case No. 14-1055-RDR

)
)

MEMORANDUM AND ORDER
This matter is presently before the court upon defendant Koerner
Chiropractic, P.A.=s motion to dismiss for failure to state a claim.
Having carefully reviewed the arguments of the parties, the court
is now prepared to rule.
I.
In

her

complaint,

plaintiff

asserts

claims

of

medical

negligence against the various defendants arising from medical care
and treatment she received in February 2012.

In Count II of the

complaint, plaintiff asserts a claim of chiropractic negligence
against Kenneth Joseph Koerner, D.C., and his employer, Koerner
Chiropractic,

P.A.

Specifically,

plaintiff

alleges

that

Dr.

Koerner, while working as an employee of Koerner Chiropractic, P.A.,
negligently

manipulated

plaintiff=s
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head

and

neck,

causing

a

vertebral artery dissection and stroke.
In the instant motion, defendant Koerner Chiropractic, P.A.,
contends that plaintiff=s claim against it must be dismissed because
(1) Koerner Chiropractic, P.A., a health care provider, cannot be
held vicariously liable for the acts of another health care provider;
and (2) in the complaint, plaintiff has not adequately set forth facts
that would entitle her to relief from Koerner Chiropractic, P.A.
In response to the defendant=s motion, plaintiff contends that
her complaint, when construed broadly, is sufficient to allege
independent negligence by other employees of Koerner Chiropractic,
P.A.

Plaintiff points out that Koerner Chiropractic, P.A., is an

independent defendant, which independently performed actions to
provide care and treatment to her.

Thus, she asserts that, every

time that Koerner Chiropractic, P.A., is named in the complaint,
those references must be construed to allege acts of all of the
association

employees

since

an

association

acts

through

its

employees.
II.
ATo survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter, accepted as true,
to >state a claim for relief that is plausible on its face.=@

Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly,

550

U.S.

544,

570

(2007)).
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A[T]he

mere

metaphysical

possibility that some plaintiff could prove some set of facts in
support of the pleaded claims is insufficient; the complaint must
give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.@ Ridge at
Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
AThe court’s function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to
assess whether the plaintiff’s complaint alone is legally sufficient
to state a claim for which relief may be granted.@

Dubbs v. Head

Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). In determining
whether a claim is facially plausible, the court must draw on its
judicial experience and common sense.

Iqbal, 556 U.S. at 678.

All

well-pleaded facts in the complaint are assumed to be true and are
viewed in the light most favorable to the plaintiff.

See Zinermon

v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810,
813

(10th

Cir.

1984).

Allegations

that

merely

conclusions, however, need not be accepted as true.

state

legal

See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III.
Under Kansas law, a healthcare provider who qualifies for
coverage under the Health Care Stabilization Fund (Athe Fund@) shall
have no vicarious liability or responsibility for any injury arising
out of the rendering of or the failure to render professional services
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in Kansas for any other health care provider who is also qualified
for coverage under the Fund.

K.S.A. 40-3403(h); Glassman v.

Costello, 267 Kan. 509, 523, 986 P.2d 1050 (1990).
Koerner Chiropractic, P.A., contends that it and Dr. Koerner
are both health care providers who are qualified for coverage under
the Health Care Stabilization Fund, and therefore it cannot be held
vicariously liable for Dr. Koerner=s alleged negligence.
agrees.

The court

There is no dispute here that Koerner=s Chiropractic, P.A.,

and Dr. Koerner are health care providers who are qualified for
coverage under the Fund.

Thus, Koerner Chiropractic, P.A., cannot

be vicariously liable for the negligent acts of Dr. Koerner.
Plaintiff contends, however, that the complaint, when construed
broadly, adequately sets forth negligence claims against employees
of Koerner Chiropractic, P.A., other than Dr. Koerner.

The court

acknowledges that plaintiff has at times in her complaint broadly
stated that she suffered damages as a result of the wrongful actions
of the employees of Koerner Chiropractic, P.A., but she has failed
to allege any supporting allegations.

The only specific allegations

of negligence involve the purported actions of Dr. Koerner.

To state

a claim of negligence under Kansas law, plaintiff must allege facts
of the existence of a duty, breach of that duty, injury, and a causal
connection between the duty breached and the injury suffered.

Smith

v. Kan. Gas Serv. Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).

Here,

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plaintiff has not asserted sufficient facts showing a plausible claim
against any of the employees of Koerner Chiropractic, P.A., other
than Dr. Koerner.

Moreover, plaintiff has not alleged any claim of

independent liability by Koerner Chiropractic, P.A., for its failure
to properly supervise Dr. Koerner.
is barred under Kansas law.

Such a claim, even if alleged,

See Cady v. Schroll, 298 Kan. 731,

745-46, 317 P.3d 90 (2014); McVay v. Rich, 255 Kan. 371, 377, 874
P.2d 641 (1994).

Accordingly, the court shall grant defendant=s

motion to dismiss for failure to state a claim upon which relief can
be granted.

See Culp v. Sifers, 550 F.Supp.2d 1276 (D.Kan.

2008)(claim against medical practice dismissed because complaint
failed to state sufficient factual allegations to state a plausible
claim against any of the medical practice=s employees other than the
doctor who treated plaintiff).
IT IS THEREFORE ORDERED that defendant Koerner Chiropractic,
P.A.=s motion to dismiss for failure to state a claim (Doc. # 37) be
hereby granted.
IT IS SO ORDERED.
Dated this 31st day of October, 2014, at Topeka, Kansas.

s/ RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

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