Doughty v. Midwest Neurosurgeons

Filing 19

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Defendant Midwest Neurosurgeons, LLCs Motion to Dismiss, or, in the alternative, for a More Definite Statement and/or to Strike (Doc. 11) is granted in part.IT IS FURTHER ORDERED that Plaintiffs allegat ions of fraud and criminal activity are stricken. IT IS FURTHER ORDERED that Plaintiff shall file an Amended Complaint identifying a natural person as the tortfeasor no later than June 16, 2016. IT IS FURTHER ORDERED that Plaintiff shall file a healt h care affidavit as required by Missouri Revised Statutes § 538.225 no later than June 16, 2016. ( Amended/Supplemental Pleadings due by 6/16/2016., Response to Court due by 6/16/2016.). Signed by Magistrate Judge Abbie Crites-Leoni on 5/9/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ALVIN DOUGHTY,
Plaintiff,

vs.
MIDWEST NEUROSURGEONS,
Defendant.

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Case No. 1:16CV0002 ACL,

MEMORANDUM AND ORDER
In his pro se Complaint, Plaintiff Alvin Doughty alleges a medical malpractice claim
against Midwest Neurosurgeons.
Neurosurgeons, LLC’s

This matter is before the Court on Defendant Midwest

(“Midwest”) Motion to Dismiss, or, in the alternative, for a More

Definite Statement and/or to Strike (Doc. 11); and Midwest’s Motion to Dismiss for Failure to
File Affidavit Required by Section 538.225 of the Missouri Revised Statutes (Doc. 15).
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is to test the legal sufficiency of the complaint. The factual allegations of a complaint
are assumed true and construed in favor of the plaintiff, “even if it strikes a savvy judge that
actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007) citing Swierkiewicz v. Sorema N.A., 534 U.S.506, 508 n. 1 (2002). The issue is not
whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present
evidence in support of his claim. Id. A viable complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 570; see also id. at
562–63 (“no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45–46 (1957), “has earned
its retirement.”). “Factual allegations must be enough to raise a right to relief above the
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speculative level.” Id. at 555. Additionally, “[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks and citations omitted).
A motion for a more definite statement under Rule 12(e) should be granted when a
pleading is “so vague or ambiguous that the [opposing] party cannot reasonably prepare a
response.” Fed.R.Civ.P. 12(e).
1.

Defendant’s Motion to Dismiss/More Definite Statement/Motion to Strike (Doc. 11)
Defendant first argues that Plaintiff’s Complaint should be dismissed because it fails to

identify any natural person employed by or acting on behalf of Midwest who engaged in the
alleged tortious behavior. Defendant contends that, even if Plaintiff’s Complaint states a claim
upon which relief can be granted, the Complaint is so vague and ambiguous regarding the
identity of the alleged tortfeasor that Midwest cannot formulate responsive pleadings. In
addition, Midwest argues that Plaintiff’s allegations that Midwest has engaged in criminal and
fraudulent activity should be stricken, as they are irrelevant to Plaintiff’s medical malpractice
claim.
In his Complaint, Plaintiff states that, on October 7, 2015, “they had basically forced me
in to taking [an] injection in my neck and told me if I didn’t they wouldn’t give me my pain
meds.” (Doc. 16-1 at 2.) Plaintiff further states: “[k]nowing that I was allergic to injections
they still proceeded anyway and I had a serious reaction.” Id. Plaintiff alleges that he was taken
to the hospital by ambulance and suffered hearing loss. Id. Plaintiff states that “this Dr is also a
criminal anyway…” Plaintiff includes this statement as part of his prayer for relief: “This dr
office needs to be shut down. This dr. office is known to fraud Medicare.” Id. at 3.
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The undersigned finds that the Complaint is vague and ambiguous in that it does not
identify any natural person as the alleged tortfeasor. Plaintiff only names Defendant Midwest,
which is a corporate entity. Without the names of the specific person or persons that committed
the alleged acts, Midwest is unable to formulate a response to Plaintiff’s allegations. Thus, the
Court will grant Plaintiff’s Motion for More Definite Response and will direct Plaintiff to file an
Amended Complaint. Plaintiff is cautioned that failure to file an Amended Complaint will result
in the dismissal of this action.
Defendant also requests that the Court strike Plaintiff’s allegations of fraud and criminal
activity. Under Federal Rule of Civil Procedure 12(f), a court may “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). In this case, Plaintiff’s vague references to criminal activity and fraud by
Defendant is irrelevant to this medical malpractice action and will be stricken.
2.

Defendant’s Motion to Dismiss for Failure to File Affidavit
Defendant next moves to dismiss Plaintiff’s action for his failure to file a health care

affidavit, as required by Missouri Revised Statutes § 538.225. Section 538.225 requires
plaintiffs to file affidavits attesting to the merits of any action brought against a health care
provider. The statute provides, in relevant part:
1. In any action against a health care provider for damages for personal injury or
death on account of the rendering or failure to render health care services, the
plaintiff or the plaintiff's attorney shall file an affidavit with the court stating that
he or she has obtained the written opinion of a legally qualified health care
provider which states that the defendant health care provider failed to use such
care as a reasonably prudent and careful health care provider would have under
similar circumstances and that such failure to use such reasonable care directly
caused or directly contributed to cause the damages claimed in the petition.
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5. Such affidavit shall be filed no later than ninety days after the filing of the
petition unless the court, for good cause shown, orders that such time be extended
for a period of time not to exceed an additional ninety days.
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6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon
motion of any party, dismiss the action against such moving party without
prejudice.
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Mo. Rev. Stat. § 538.225.
Plaintiff filed his pro se Complaint on December 16, 2015, asserting claims against
Midwest Neurosurgeons, a healthcare provider. (Doc. 1.) Plaintiff alleges that medical
treatment he received from a doctor resulted in personal injuries. Id. Under Section 538.225,
therefore, Plaintiff is required to file an affidavit stating that Plaintiff has obtained an expert
opinion indicating that the care provided by Defendant fell below the applicable standard of care.
The deadline for filing this affidavit was Mach 16, 2016.
Plaintiff has filed a Response to Defendant’s motion, in which he states that he will “fight
this case to the bitter end.” (Doc. 18.) Plaintiff then provides additional facts supporting his
claim. Plaintiff does not address his failure to file a health care affidavit.
Section 538.225.5 provides that the Court may, for good cause shown, extend the time for
filing the affidavit “for a period of time not to exceed an additional ninety days.” Given
Plaintiff’s pro se status, the Court will grant Plaintiff an extension, until June 16, 2016, to file a
health care affidavit. If Plaintiff fails to file an affidavit, his Complaint will be dismissed.
Accordingly,
IT IS HEREBY ORDERED that Defendant Midwest Neurosurgeons, LLC’s Motion to
Dismiss, or, in the alternative, for a More Definite Statement and/or to Strike (Doc. 11) is
granted in part.
IT IS FURTHER ORDERED that Plaintiff’s allegations of fraud and criminal activity
are stricken.

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IT IS FURTHER ORDERED that Plaintiff shall file an Amended Complaint
identifying a natural person as the tortfeasor no later than June 16, 2016.
IT IS FURTHER ORDERED that Plaintiff shall file a health care affidavit as required
by Missouri Revised Statutes § 538.225 no later than June 16, 2016.

/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of May, 2016.

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