Filing 24

MEMORANDUM OPINION re: 13 MOTION to Dismiss 1 Complaint filed by THE UNITED STATES OF AMERICA. Signed by Judge William L. Standish on 5/12/2011. (md) Modified on 5/13/2011. (md)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA STACEY REFOSCO, individually and in her capacity as Administratrix of the estate of David W. Refosco, deceased, Plaintiff, Civil Action No. 10-1112 v. THE UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION Pending before the Court is Defendant's motion to dismiss the Complaint in its entirety pursuant Procedure 12 (b) (1) and 12 (b) (6) follow, I. to Federal (Doc. No. 13.) Rules of Civil For the reasons that Defendant's motion is denied in part and granted in part. INTRODUCTION A. Factual Histo David W. Re sco was a veteran of the armed services of the United States who lost his leg when a Vietnam. land mine exploded in In August 2007, Mr. Refosco was diagnosed at the Veterans fairs hospital in Pittsburgh, Pennsylvania ("VA Hospital"), with a number of ser ious cardiomyopathy, medical congestive conditions heart including failure, and non- ischemic complete rt The facts in this section are taken from the Complaint and construed in favor of Plaintiff. blockage with pacemaker dependence. A pacemaker/defibrillator was at the VA Hospital on August 20, 2007. surgically insert Mr. Refosco was readmitted to the VA Hospital on October 18, 2007, complaining that his pacemaker was malfunctioning. ultimately diagnosed resistant with Staphylococcus conventional November ion on infection aureus, antibiotic in an which treatment. 3, Mr. known is methicillin­ highly Refosco Plaintiff 2007. as He was resistant died to from the Stacey Refosco, Mr. Refosco's widow and administratrix, believes her husband contracted the infection during the August 2007 pacemaker implantation and that he died as the direct and proximate result of the negligence of t VA Hospital staff. B. Procedural Ms. Refosco suit in this Court on August 23, Count I, brought pursuant to the Federal Tort CIa § 2671 et seq. ("FTCA U ), 2010. In Act, 28 U.S.C. Plaintiff seeks damages from the death of her husband due to the negligence of the staff the VA Hospital, all of whom are employees or agents of Defendant acting in their capacity as such at the time of and October 2007. r husband's treatment in August Count II alleges that the premature death of her husband was the direct and proximate result of Defendant's corporate negligence. Count III is brought pursuant Wrongful Death Act, 42 Pa. C.S. § to the Pennsylvania 8301, and Count IV is a survival 2 action brought under 42 Pa. C.S. § 8302. Plaintiff alleges she timely submitted an administrative claim to the Office of General Counsel with the Department of Veterans Affairs; the claim was denied on March 1, 2010; 2 and she has therefore complied with the requirement of the administrat FTCA that she exhaust her remedies with the appropriate federal agency prior to bringing su in this Court. Plaintiff further complied wi th the FTCA requirement that if she chose not to seek reconsideration of the decision by the Department of Veterans fairs, s suit within six months of the date on which t mailed. C. See 28 U.S.C. §§ must bring final decision was 2675(a) and 2401. Jurisdiction and Venue aintiff avers that jurisdiction is conferred upon this Court pursuant to 28 U.S.C. § 1346(b) in that the suit is brought under the FTCA. The Court has jurisdiction over the supplemental state law claims pursuant to 28 U.S.C. § 1367. Venue is appropriate in this district under 28 U.S.C. § 1402(b). II. STANDARD OF REVIEW A. Dismissal under Fed. R. Civ. P. 12 b A motion to dismiss pursuant to Rule 12 (b) (1) contends that In paragraph 4 of the Complaint, Plaintiff alleges that the claim was denied on March I, 2009, however, Exhibit B attached to Defendant's brief in support of the motion to dismiss, the denial letter from the Department of Veterans Affairs, is dated March I, 2010. 3 the district court lacks subj ect-mat ter jurisdiction. 12(b) (1). Fed.R.Civ.P. Such a motion questions the court's "very power to hear the case" and is considered either "facial," that is, attacks the complaint on s face, or "factual," one which attacks subject matter jurisdiction as a matter of fact. Sa:v~~Lo~n First. Fed. one which Mortensen v. AE3 s'n, 549 F.2d 884,891 (3d Cir. 1977); see also Petruska v. Gannon Oniv., 462 F.3d 294, 302, n.3 (3d Cir. 2006), cert. denied, 550 O. S. 903 (2007). to Rule 12(b) (1) to the comp When a motion to dismiss pursuant is filed prior to the defendant filing an answer int, it is, by defin ion, a facial attack. v. Wolff, 622 F. Supp.2d 240,243 (E.D. Pa. 2008) i Zimmerman see also Mortensen, 549 F.2d at 891, n.17 (a "factual jurisdictional proceeding cannot occur until plaintiff's allegations Because Defendant has not fil 12 (b) (1) motion as a "Fa an answer, we will treat its Rule I court must accept the complaint's allegations as true./I Common Cause v. Penns ia, 558 F.3d 249, ~~~~~~__~~~__~_~~~~_B~d~., Cir. 2006). T 257 (3d Cir. 2009), 458 F.3d 181, 188 (3d court's review is limited to "the allegations on face of the complaint. complaint, controverted.") cial attack. ----------------~--~~.....~---~----. t been al attacks . . . contest the sufficiency of the pleadings, and the tr quoting have .and any documents referenced in the viewed in the light most favorable to the plaintiff./I No. Church of the Oniversal 4 07 4021, 2008 U.S. App. LEXIS 21961, *4-*5 (3d Cir. Oct. 20, 2008), ci ting Mortensen, 549 F. 2d at 891, and Tur icentro, Airlines, Inc., 303 F.3d 293, 300 (3d Cir. 2002). S. A. v. Am. A complaint under facial attack may be properly dismissed "only when the claim 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous.'" s v. Fidelcor Kehr Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991), quoting Bell v. Hood, 327 U.S. 678, 682 (1946); see also Iwanowa v. FordMotorCo., 67 F. Supp.2d424, 438 (D. N.J. 1999) (such a complaint should be dismissed "only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction.") The United States Court of Appeals for the Third Circuit has warned district courts against treating a motion under Rule 12 (b) (1) identically to one brought under Rule 12 (b) (6) and reaching the merits of the claim, noting that "the standard for surviving a Rule 12 (b) (1) motion is lower than that motion." Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). The plaintiff has the burden of showing jurisdiction is proper in this Court. Supp. a 12(b) (6) 2d 528, 533 (D. N.J. Rudo of N.J. 2001) Inc. 153 F. (the party invoking the court's jurisdiction bears the burden of persuasion when the subject matter jurisdiction of the court is challenged); Mortensen, id. 5 B. Dismissal under Fed. R. Civ. P. 12 In the aftermath of Bell Atl. 544 v. Twombl , 550 U.S. u.s. , 129 S. Ct. 1937, 173 (2007), Ashcroft v. I 1, L. Ed. 2d 868 (2009), and the interpretation of those two cases by the Third Circuit Court of Appeals, the pleading standards which allow a complaint to withstand a motion to dismiss pursuant to Rule 12 (b) (6) have taken on slightly new parameters. whether the comp The standard is now int includes "sufficient factual matter to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); see also Twombl 550 U.S. at 555, holding that a complaint which offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." The Fowler court rther directed that in considering a motion to dismiss, the district court should undertake a two-part analysis: First, the ctual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded cts as true, but may disregard any legal conclusions. Second, a strict Court must then determine whether the facts alleged in the complaint are suffi ent to show that the plaintiff has a plausible claim for relief. In ot r words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. As the Supreme Court instructed in I 1 "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibili ty of misconduct, the comp int s alleged - but it s not shown - that the pleader is entitled to relief." 6 Fowler, 578 F.3d at 210-211 "A claim has factual content (quotations and citations omitted.) cia I plausibility when the plaintiff pleads that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. H Iqbal, 129 S. Ct. at 1949; see also Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009), and Mayer v. Belichick, 605 F. 3d 223, 230 (3d Cir. 2010). "Determining whether a compl states a plausible claim for relief will . . . be a context-spe task that requires t experience Liti. and common reviewing court to draw on its sense. H In re Ins. nt fic j udici Brokerage Anti trust 618 F.3d 300, 361 (3d Cir. 2010), quoting Iqbal, 129 S. Ct. at 1950. A complaint should not be dismissed even if it seems unlikely the plaintiff can prove the facts alleged in the complaint or will ultimately prevail on the merits. The Twombl pleading standard "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that element. H scovery will reveal McTernanv. Cit of York dence of the necessary 564 F.3d636, 646 (3dCir. 2009) (internal quotations omitted.) III. ANALYSIS Regardless of the federal rule invoked by Defendant, the gist of its argument is the same: the Complaint must be dismissed in its entirety for failure to comply with a rule of Pennsylvania civil 7 procedure which requires a document known as a "Certificate of Merit" ("COM") to accompany any suit alleging professional malpractice. (United States of America's Brief in Support of Motion to Dismiss, Doc. No. 14, at 5.) does not disagree Defendant asserts in its brief -- and aintiff -- that Pennsylvania law applies in this case, inasmuch as federal courts apply the law of the state in which the allegedly tortious conduct occurred when assessing claims brought under the FTCA. (Id. at 6, ting, inter alia, Hodge v. United States No. 09-3723, 2010 U.S. App. LEXIS 6400, * 6 (3d Cir. Mar. 25, 2010).) On January 27, 2003, Pennsylvania Supreme Court adopted a rule of civil procedure, effective immediately, which requires that either concurrently with filing the complaint or no later than 60 days thereafter, the plaintiff or her attorney bringing a claim of professional liability against certain designated professionals - including a health care provider 3 - with the court hearing the case. Pa. R. Civ. P. 1042.3 and 1042.1. must file a certificate of merit "The rules of this chapter govern a civil action in which a professional liability claim is asserted by on or behalf of a patient or client of [a] licensed professional . . . . As used in thi s chapter, "licensed professional" means (II any person who is licensed pursuant to an Act of Assembly as (i) a health care provider as defined by Section 503 of the Medical Care Availability and Reduction of Error (MCARE) Act." Pa. R. Civ. P. 1042.1(a). MCARE, 40 P.S. § 1303.503, defines "health care provider" as: "A primary health care center . . . or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide health care or professional medical services as a physician . . . hospital, . . . and an officer, employee or agent of any of them acting in the course and scope of employment." 3 8 Alternat ly, \\ r good cause shown," the pIa int iff may file wi thin riod a motion to the extend the time in which the initial 60-day filed. the COM is to Rule 1042.3(d). The policy objectives of the COM requirement are to prevent base ss pro ssional liability claims and protect defendants from frivolous lawsuits. Keel-Johnson v. , CA No. 07-200, 2009 U.S. Dist. LEXIS 19310, *23 (M. D. Pa. Mar. 10, 2009). in the COM the plaintiff or To these ends, attorney attests to the fact that (1) an appropriate licensed pro ssional has supplied a writ ten statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint 11 outs acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2 ) the claim that the defendant deviated from an acceptable professional standard is based solely on licensed professionals allegations that 0 r whom this defendant is responsible deviated from an acceptable pro ssional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Pa. R. Civ. P. 1042.3(a). If the plaintiff Is to timely file the COM or to request an extension of time in which to do so, the defendant may move the prothonotary to enter what is known under Pennsylvania law as a judgment of non s, providing it has given the plaintiff a 30-day notice of its intent. (See form of notice set out in Rule 1042.6.) 9 If the plaintiff files a proper COM within the 30-day period or files ei ther a mot ion see king a determination of the court that no certificate is necessary or a motion seeking an extension of time in which to fi 1042.7. , the judgment of non pros may not be entered. Should t plaintiff Rule il to take any of those actions and the prothonotary enters the jUdgment of non pros, the plaintiff still has at least one more chance to revive the claim by seeking relief from the judgment and requesting that it either be struck or opened. v. Pa. R. P. 3051. In those circumstances, the plaintiff must petition the court alleging "facts showing that (1) the petition is timely filed, excuse (2) there is a reasonable explanation or legitimate the inactivity or delay, and (3) there is a meritorious cause of action." Id. In Booker v. United States, No. 09-2688, 2010 U.S. App. LEXIS 3155, *4 (3d Cir. Feb. 18, 2010) I t Court of Appeals for the Third Circuit confirmed that Rule 1042.3(a) (1) is "substantive state law that must be applied by the federal district courts." v. See also Perez ffin, No. 08-2979, 2008 U.S. App. LEXIS 26250, *4 (3d Cir. Dec. 23, 2008) (same.) We therefore turn to the ef of applying Rule 1042.3 to the procedural history of this case. Ms. Re sco never actually concedes that she neither certificate within 60 days led the filing the Complaint nor requested an extension of time in which to do so. 10 (See PI ntiff's Brief in Oppos ion to Motion to referring to "PIa Re smiss, Doc. No. 16, "Plf.'s Brief,u at 4, iff's alleged failure to file u a COM.) sco did not "allegedlyH fail to file the COM, failed to file it until by Defendant's motion. fil Ms. she absolutely was brought to her attention omiss Regardless, however, of when COM was , it is inadequate to support all of Plaintiff's claims. The COM signed by Plaintiff's counsel states in s entirety: The claim that this Defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this Defendant is responsible deviated from an acceptable pro ssional standard and an appropriate licensed professional has suppl a wri tten statement to the undersigned that is a basis to conclude that the care, skill or knowl exercised or exhib ed by the other licensed professionals in the treatment, practice or work that is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. (Plf.'s Brief, Exh. A.) This language tracks p sely paragraph two of the model of the Certificate of Merit set out in Rule 1042.9. the Complaint, Hospital "were Plaintiff alleges carried out contractors and/or representat Hospi tal] and through VA, t In Count I of that the operations of by servants, s of VA rm employees, VA agents, ttsburgh [i.e., the VA Defendant USA, all of whom were acting in the course and scope of their employment U and that" [a] s a result of the negligent breach of the duty and standard of care by the 11 Defendant and its servants, employees, agents, contractors and/or representatives, Plaintiffs sustained . . . damages." ~~ 17-18.) (Complaint, This is the classic description of vicarious liability under Pennsylvania law. 490, 493 (Pa. Super. ct. Costa v. Roxborough Mem'l Hosp., 708 A.2d 1998). though the licensed professionals need not be identified by name, \\ [w] here the COM sets out a vicarious liability theory, additional COMS must also be filed as to each licensed professional for vicariously liable." See Stroud v. Supp.2d 238,248 whom that defendant is alleged to be on Mem. Ho ., 546 F. 49 (E.D. Pa. 2008), citing Rule 1042.3(a) (2) note. We assume the only "licensed professional" for whom Defendant is alleged to be cariously liable is the VA Hospital itself since only one COM was filed and the Complaint does not make allegations against See Vochnis any individual per se. CA No. 09-3012, 2009 U.S. Dist. LEXIS 108792, *10 (E.D. Pa. Nov. 20, 2009) (dismissing medical malpractice claim where the plaintiff led to file a COM for any professional for whom he alleged the defendant was responsible.) The language of the COM therefore satisfies the requirements for stating a claim under the doctrine of vicarious liability against Defendant. However, in Count I, aintiff has alleged corporate liabil y against the VA Hospital, identifying in Paragraph 21 a number of ways in which Defendant allegedly breached its duty of reasonable care 12 to Mr. Refosco. "Corporate negligence liability against the hospital, is a direct theory of which contemplates some form of systemic negligence by the hospital and is not simply a vicarious theory liabili ty based on the negligence of its employees." Stroud, 546 F. Supp.2d at 245, citing Edwards v. Brandywine Hosp., 652 A.2d 1382, 1386-87 (Pa. Super. Ct. 1995). But when proceeding under a direct theory of liability, the COM must incorporate the paragraph of the model form, rst that is, a statement that an appropriate licensed professional has supplied a written statement that there sts a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice, or work that is the subj ect of the complaint 1 outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Rule 1042.3 (a) (1) . Plaintiff has not incorporated such language in her COM even though the model form allows a plaintiff to indicate in a single document her intent to proceed under both direct corporate liability and vicarious liability. Rule 1042.3{b) (2); see also Stroud, 546 F. Supp.2d at 249; Yee v. Roberts, 878 A.2d 906, 914 (Pa. Super. Ct. 2005) (requiring a COM to be filed with respect to the alleged professional negligence of the partnership in failing to properly train and supervise its employees in addition to the COM for the negligence of the individual dentist); Sparks v. Children's Hosp., 2010 Phila. Ct. Com. Pl. LEXIS 35, 13 *12 *14 (Phila. Co., Jan. 26, rmed without opinion at 2010 Pa. Super. LEXIS 6942 (Pa. 2010) , Super. Ct. Nov. 15,2010) (refusing to allow the corporate negligence claim to proceed where the plaintiff did not file a certificate of merit for that claim but only for vica ous liabil y claim); and Doble v. Moses Taylor Hosp., 78 Pa. D. & C. 4 th 449, 465 (Lackawanna Co. 2006) (same). We there re find that even if the Court accepts Plaintiff's reasons for failing to file the COM in a timely fashion, the document provided does not satisfy the requirements of Rule 1042.3(a) (2). dismissed The corporate liability claim in Count II is hereby failure to comply with Rule 1042.3. As noted above, after Defendant moved to dismiss the Complaint, Plaintiff provided the COM attached as Exhibit A to her brief in opposition to the motion to dismiss. The United States then sought and was given leave to file a reply brief (Doc. No. 20) in which it argued that because Plaintiff had failed to offer any "reasonable explanation or legitimate excuse for failure H to file the COM in a timely manner, the Complaint should still be dismissed. With the Court's permission, Ms. Refosco filed a response to Defendant's ly brief, stating that prior to filing the lawsuit, her counsel had obtained an expert's medical report to support the COM. However, shortly a er filing suit, counsel was diagnosed with arly difficult to treat; while a form of cancer which is parti undergoing extensive chemotherapy and radiation treatments, he was 14 unable to attend to his practice, even on a part time basis. (Surreply Brief in Opposition to Motion to Dismiss, Doc. No. 23, at 2-3. ) During his absence, there was a "breakdown of communication" and as a result, he erroneously believed others in his law firm had filed the COM based on the medical expert's report, while co-counsel believed he had done so prior to his illness. his New lead counsel from the firm has been named and the Court is assured that "there are no further obstacles in the path of this case." (Id. at 3-4. ) The Pennsylvania Supreme Court has held that Rule 1042.3 is subject to two "equitable exceptions," substantial compliance with the Rule, prejudice to another party's rights, first, the plaintiff's assuming there has been no and second, the plaintiff's "reasonable explanation" or "leg i timate excuse" for failure to fully comply. Womer v. Hilliker, 908 A.2d 269,279 (Pa. 2006). concludes unexpected that in the serious confusion illness and and stress subsequent associated with lengthy counsel's failure to file the COM is understandable. Burket, 881 A.2d 861, 866 (Pa. Super. 2005) The Court an treatment, See Almes v. (where counsel failed to timely file a COM due to the death of his mother-in-law, the court was "not prepared to assert that an attorney who forgets that the certificate was due or who fails to take [action] when faced with the family crisis like the one presented here is so derelict in his 15 obligations that the oversight should not be excused.") the Pennsylvania Superior Court has accepted as a I In fact, itimate excuse one quite similar to that offered by Plaintiff's counsel here. Sabo v. Worrall, 959 A.2d 347, 349, 352 (Pa. Super. Ct. 2008) See (where a COM was promptly prepared, placed in counsel's file, and counsel erroneously believed his para court, gal had filed the document with the the failure to file the COM was an inadvertent mistake or oversight which justified vacating t Czerniak v. (counsel who entry of non pros.) See also shore, 83 Pa. D. & C. 4th 459, 462 (Bucks Co. 2007) believed the certificate had complaint by another attorney according to been filed with the the firm's ordinary business practices had provided a reasonable excuse); Doble, 78 Pa. o. & C. 4 th 4 4 9 at 4 63 (where former counsel "inexplicably failed" to file a timely COM despite having a favorable expert report to support it and litigation was in its infancy, the otherwise meri torious case would not be dismissed simply due to attorney neglect or mistake.) In sum, Plaintiff has proffered a reasonable excuse for iling to file the necessary COM in a timely fashion and was evidently prepared to do so on April 22, 2011, the date of the COM attached to Plaintiff's brief in opposition to the motion to dismiss. litigation is also in its infancy in that the parties have not This t alternative dispute resolution even identified or participated 16 or begun discovery. However, the COM attached to Plaintiff's brief does not support the claim brought in Count II of the Complaint, which is therefore dismissed. May -LJ-, An appropriate Order follows. 2011 William L. Standish United States District Judge 17

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