Brown et al v. Providence Medical Center, et al

Filing 87

ORDER - Plaintiffs' Motion to Amend Complaint (filing 73 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFF BROWN, Individually and as
Co-Special Administrator of the
Estate of KB, Deceased, and SHERRI
GOTHIER, Individually and as CoSpecial Administrator of the Estate of
KB, Deceased,
Plaintiffs,
V.
MERCY MEDICAL CENTER, Sioux
City, MERCY MEDICAL
SERVICES, and MERCY HEALTH
SERVICES, Iowa, Corp.,
Defendants.

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8:12CV31

ORDER

This matter is before the Court on Plaintiffs’ Motion to Amend Complaint. (Filing
73.) For the reasons expressed below, Plaintiffs’ motion will be denied.
BACKGROUND
On June 18, 2010, Plaintiffs filed a wrongful death action in this Court, alleging that
Dr. Benjamin Martin, an employee of Defendant Mercy Medical Services (“MMS”), was
negligent in his care and treatment of their daughter, KB. See Brown v. Providence Medical
Center, 8:10CV230 (D. Neb. 2010) (hereinafter “Brown I”). Plaintiffs alleged that MMS
should be held liable for Dr. Martin’s alleged medical negligence on January 24, 2010,
including (1) failing to properly assess KB’s condition on January 24, 2010; (2) failing to
provide adequate or necessary medical care to KB on January 24, 2010; and (3) putting KB
in an ambulance for a trip to Mercy Medical Center when it was unsafe due to her medical
condition. Brown I, filing 50.

Nearly a year and a half after the Brown I litigation was initiated, on the day of the
pre-trial conference and just weeks before trial, Plaintiffs filed a motion to dismiss the case
without prejudice, citing Plaintiffs’ counsel’s scheduling conflict with a trial in Iowa. Brown
I, filing 189. Plaintiffs’ motion to dismiss was granted on October 14, 2011, conditioned
upon Plaintiffs’ payment of Defendants’ reasonable attorney fees, costs and expenses
incurred in the defense of the action if any claim presented in the case was re-filed. Brown
I, filing 196. Plaintiffs filed this second action against MMS on January 20, 2012, based on
the same events as Brown I. (Filing 1.)
DISCUSSION
Under Federal Rule of Civil Procedure 15, a court should “freely give leave” to amend
a pleading “when justice so requires.” Fed. R. Civ. P. 15. Nevertheless, a party does not have
an absolute right to amend and “denial of leave to amend may be justified by undue delay,
bad faith on the part of the moving party, futility of the amendment or unfair prejudice to the
opposing party.” Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (internal quotation and
citation omitted).
Plaintiffs’ proposed amended complaint alleges, for the first time, that MMS is liable
for the negligence of another of its employees, Dr. James Lindau. Specifically, Plaintiffs
allege that Dr. Lindau was negligent when he failed to contact KB’s ENT on January 22 and
23, 2010.1 (Filing 73.) The proposed amended complaint also adds new allegations of
“negligent . . . retention and supervision of doctors who it knew, or should have known,
lacked the skill to provide necessary emergency care,” failing to enforce policies “that
provide for continuity of care between its emergency care doctors and the patient’s primary
surgeon-doctor” and for “failing to protect KB from negligent treatment” prior to January 24,
2010. (Id.) Plaintiffs assert that the proposed amended complaint “will clarify the
Defendants and their status, the allegations of negligence, and remove allegations that were
included in the original Complaint, and that are now unnecessary.” (Id.)

1

The proposed amended complaint does not add Dr. Lindau as a formal party to this

action.
2

Defendants argue that Plaintiffs’ motion should be denied because the proposed
amendments would be futile. In particular, Defendants assert that Plaintiffs’ new contentions
are barred by the statute of limitations. Defendants maintain that because Plaintiffs’ claims
against Dr. Lindau are time-barred, Plaintiffs are likewise barred from bringing any
vicarious/corporate liability claims for Dr. Lindau’s alleged negligence against MMS.
Additionally, Defendants argue that Plaintiffs’ motion should be denied because Plaintiffs
unduly delayed in seeking to amend, resulting in unfair prejudice to Defendants.
Considering the totality of the circumstances, the Court will deny Plaintiffs’ motion
to amend. The Court finds that Plaintiffs unduly delayed in adding the allegations they now
propose and that allowing Plaintiffs to amend their Complaint at this time would unfairly
prejudice Defendants. Plaintiffs first initiated litigation in June, 2010. The parties undertook
extensive discovery in Brown I and were nearly ready to try the matter when Plaintiffs
suddenly moved to dismiss the action. Now, nearly three years after litigation between the
parties first began, Plaintiffs want to amend their Complaint to add new allegations and
theories of liability based on underlying factual support which was seemingly available prior
to filing their complaint in Brown I. The parties have spent a considerable amount of time
and expense litigating Plaintiffs’ claims and have engaged in significant discovery and
consultation with experts. Allowing Plaintiffs to add issues related to Dr. Lindau’s alleged
negligence and/or MMS’s liability related thereto would surely create the need for additional
discovery and expense. Plaintiffs have not pointed to any newly discovered evidence which
would justify filing an amended complaint at this time.
Having concluded that Defendants would be unduly prejudiced by Plaintiffs’ proposed
amendments, the Court will not consider the issue regarding the statute of limitations.
IT IS ORDERED that Plaintiffs’ Motion to Amend Complaint (filing 73) is denied.
DATED April 9, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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