Blum v. Barrett Hospital Development Corporation et al
ORDER granting 9 Motion to Dismiss; granting 11 Motion to Dismiss; adopting Findings and Recommendations re 20 Findings and Recommendations. Accordingly, IT IS ORDERED that Magistrate Judge Lynch's Findings and Recommendations is ADOPTE D IN FULL. Barrett Hospital's Motion to Dismiss (No. 9) and Hospital District's Motion to Dismiss (No. 11) are GRANTED. Blum's claims in this case related to Barrett Hospital and Hospital District are DISMISSED WITH PREJUDICE. Signed by Judge Brian Morris on 12/20/2016. (ELL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAUREEN O’REILLY BLUM,
d/b/a BARRETT HOSPITAL AND
HEALTHCARE; RICHARD OPPER;
RANDALL NETT; and DOES 1-10,
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
Defendant Barrett Hospital Development Corporation (“Barrett Hospital”)
has moved to dismiss pro se Plaintiff Maureen Blum’s Amended Complaint for
failure to state a claim upon which relief can be granted under Federal Rule of
Civil Procedure 12(b)(6). Although not named as a defendant, Public Hospital
District of Beaverhead County (“Hospital District”) has entered an appearance for
the purpose of also moving to dismiss the Amended Complaint under Rule
United States Magistrate Judge Jeremiah Lynch issued Findings and
Recommendations in this matter. (Doc. 20.) Judge Lynch recommended that the
Court grant both motions to dismiss. No party has filed objections. The Court has
reviewed Judge Lynch’s Findings and Recommendations for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). The Court finds no error.
Blum, a nurse anesthetist, developed ulcerative skin lesions on her left hand
three weeks after providing anesthesia services to a surgical patient at Barrett
Hospital in December 2012. (Doc. 4.) The patient clearly had visible open sores
covering his body, according to Blum. Blum notified Barrett Hospital that she had
developed lesions similar to those found on the patient and sought information
relating to the patient.
Although Blum names Barrett Hospital as a defendant, all of the factual
allegations in the text of her Amended Complaint are directed at Hospital District.
Blum does not identify Hospital District as a defendant in either pleading, but
alleges a negligence claim against the entity in the text of her Amended Complaint.
Judge Lynch determined that because the statute of limitations has run on
Blum’s claims relating to both Barrett Hospital and Hospital District, her Amended
Complaint fails to state a claim upon which relief can be granted under Rule
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Dismissal under
Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A claim may be
dismissed under Rule 12(b)(6) when the running of the statute of limitations “is
apparent on the face of the complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d
992, 997 (9th Cir. 2006). Liberally construed, the Amended Complaint sets forth a
claim of negligence not just against Hospital District, but also against Barrett
Under Montana law, the statute of limitations in an action for negligence is
three years. Mont. Code Ann. § 27-2-204(1). Therefore, a negligence action must
be commenced within three years from the time the claim or cause of action
accrues. Kaeding v. W.R. Grace & Co., 961 P.2d 1256, 1259 (Mont. 1998). “A
claim or cause of action accrues ‘when all elements of the claim or cause exist or
have occurred, the right to maintain an action on the claim or cause is complete,
and a court or other agency is authorized to accept jurisdiction of the action.’”
Kaeding, 961 P.2d at 1259 (quoting Mont. Code Ann. § 27-2-102(1)(a)).
Taking the allegations in the Amended Complaint as true, Blum’s
negligence claim against Barrett Hospital accrued by the end of December 2012.
Blum was aware when she treated the patient on December 5, 2012, that he had
open sores all over his body. She expressed concern that the unknown skin disease
might be contagious. Blum’s alleged injury manifested three weeks later, when she
developed ulcerative skin lesions similar to those she had observed on the patient.
Because the three year statute of limitations began to run in late December
2012, but Blum did not file her initial and amended complaints until January 2016
and July 2016, respectively, her negligence claim against Barrett Hospital and
Hospital District is time barred.
Accordingly, IT IS ORDERED that Magistrate Judge Lynch’s Findings and
Recommendations (Doc. 20) is ADOPTED IN FULL. Barrett Hospital’s Motion
to Dismiss (Doc. 9) and Hospital District’s Motion to Dismiss (Doc. 11) are
GRANTED. Blum’s claims in this case related to Barrett Hospital and Hospital
District are DISMISSED WITH PREJUDICE.
DATED this 22nd day of December, 2016.
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