LaFleur v. Jetzer
Filing
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ORDER denying 37 Motion to Amend; denying as moot 23 Motion for certification of class action; granting 30 Motion to Dismiss; dismissing Plaintiff's amended complaint 29 without prejudice. Signed by U.S. District Judge Karen E. Schreier on 10/19/15. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
4:14-CV-04175-KES
TERRY LEE LAFLEUR,
Plaintiff,
ORDER DENYING MOTION TO
AMEND, GRANTING MOTION
TO DISMISS, AND DENYING
CERTIFICATION OF CLASS.
vs.
DR. THOMAS C. JETZER,
Defendant.
INTRODUCTION
Plaintiff, Terry Lee LaFleur, filed this lawsuit naming Dr. Thomas C.
Jetzer as defendant. LaFleur makes numerous claims concerning his
examination by Dr. Jetzer and the subsequent denial of his workers’
compensation benefits. Dr. Jetzer moves to dismiss LaFleur’s amended
complaint. Docket 30. LaFleur moves for certification of a class action.
Docket 23. LaFleur also moves to amend his complaint. Docket 37. For the
reasons stated below, Dr. Jetzer’s motion to dismiss is granted, and LaFleur’s
motions to amend and for certification of class action are denied.
FACTUAL BACKGROUND
On March 5, 2014, LaFleur was injured in a motor vehicle accident.
Docket 29 at ¶41. LaFleur worked for Advanced Auto Parts, Inc., and his duties
included driving. Id. at ¶43. LaFleur received workers’ compensation benefits
for an unspecified amount of time. Id. at ¶14. On October 18, 2014, Dr. Jetzer
examined LaFleur at the request of Sedgwick Claims Management Services,
Inc., the third-party administrator that handled LaFleur’s claim for benefits. Id.
at ¶5.
During the independent medical exam (IME), Dr. Jetzer asked whether
LaFleur had been tested for post-concussion syndrome, had been given an
electroencephalogram, or ever had a nerve conduction test for carpal tunnel
syndrome. Id. at ¶7. According to the complaint, Dr. Jetzer knew LaFleur had
not been treated for these conditions and expressed his concern. Id. LaFleur
also alleges Dr. Jetzer “had reasons to suspect that Plaintiff might be
experiencing these medical conditions,” but he did not refer him to another
doctor or treat the conditions. Id. at ¶8. The IME lasted twenty minutes and
was the only time Dr. Jetzer examined LaFleur. Id. at ¶20. One week after the
IME, Dr. Jetzer filed his report with Sedgwick. Id. at ¶12. This report allegedly
caused Sedgwick to terminate LaFleur’s benefits. Id. at ¶27.
Dr. Hoversten performed a second examination on LaFleur on
December 2, 2014 at Sanford Orthopedic Hospital in Sioux Falls. Id. at ¶31.
LaFleur claims Dr. Hoversten “was consulted for the limited purpose of
obtaining a second opinion of [his original doctor’s] diagnoses and prognoses.”
Id. at ¶32. Before this examination, LaFleur claims that Dr. Jetzer “published
Plaintiff's unprivileged medical information to” Dr. Hoversten. Id. at ¶31.
LaFleur alleges that he relied on the “duty of reasonable care” Dr. Jetzer
owed to him, and did not immediately seek medical treatment for the
conditions discussed above. Id. at ¶9. It was not until December 12, 2014, that
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LaFleur “could no longer stand the debilitating symptoms” and sought medical
treatment. Id.
PROCEDURAL BACKGROUND
LaFleur filed this complaint on November 25, 2014. Docket 1. He
amended his complaint on January 7 and January 9, 2015. Dockets 9 and 11.
Dr. Jetzer responded by moving to dismiss the amended complaint for failing to
state a claim. Docket 15. LaFleur moved to amend his complaint. Dockets 18,
19. The court granted this motion, Docket 26, over Dr. Jetzer’s objection,
Docket 20, and denied Dr. Jetzer’s motion to dismiss as moot. Docket 28.
LaFleur also moved to certify his complaint as a class action. Docket 23.
LaFleur filed his current, amended complaint on May 6, 2015.
Docket 29. Dr. Jetzer now moves to dismiss this complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and for lack of subject
matter jurisdiction under 12(b)(1). Docket 30 at 2-3. In response, LaFleur filed
“Plaintiff’s Resistance Of Defendant’s Motion To Dismiss,” restating his claims.
Docket 32. He also filed a “Memorandum Of Authorities In Support Of
Plaintiff’s Resistance” in which he responded to Dr. Jetzer’s motion to dismiss
and supplied additional legal and factual support for his claims. Docket 33.
Dr. Jetzer replied repeating his arguments and pointing out that he was not a
proper party because LaFleur complained of Sedgwick and AAP’s actions.
Docket 34. LaFleur responded to this in a “Reply To Defendant’s Memorandum
Of Authorities In Support Of Plaintiff’s Resistance.” Docket 35. LaFleur
responded again reiterating his arguments in support of class certification.
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Docket 36. Finally, LaFleur moved to amend his complaint. Docket 37.
Defendant oppose this amendment. Docket 38. For the following reasons,
LaFleur’s motion to amend is denied and his complaint is dismissed for lack of
subject matter jurisdiction and failure to state a claim upon which relief can be
granted.
LEGAL STANDARD
After the amended complaint and answer were filed, both parties filed
numerous documents. “A court generally may not consider materials outside
the pleadings when deciding a motion to dismiss for failure to state a
claim . . . .” Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (citing
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). For
purposes of this motion, the court has only considered the facts and
arguments presented in the amended complaint and answer, disregarding the
further filings.
“Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations in
the complaint are accepted as true and viewed most favorably to the plaintiff.”
Hager v. Ark. Dep't of Health, 735 F.3d 1009, 1013 (8th Cir. 2013) (citing Gross
v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999)). “A complaint must ‘state a
claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint “does not need detailed
factual allegations . . . [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555.
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Pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007). Even with this construction, “a pro se complaint must
contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504
(8th Cir. 2013).
DISCUSSION
I.
Motion to Amend Complaint
LaFleur moves to amend his complaint for a second time, arguing that
there are other plaintiffs with similar claims relating to their IMEs. A motion for
leave to amend is committed to the sound discretion of the district court.
Glickert v. Loop Trolley Transp. Dev. Dist., 792 F.3d 876, 880 (8th Cir. 2015)
(quoting Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008)). “A
party may amend its pleading once as a matter of course within . . . 21 days
after serving it.” Fed. R. Civ. P. 15(a)(1)(A). “In all other cases, a party may
amend its pleading only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). Because it has been more than 21 days
since defendant was served, leave of court is required.
The local rules for district courts in South Dakota state “any party
moving to amend a pleading will attach a copy of the proposed amended
pleading to its motion to amend . . . .” D.S.D. Civ. LR 15.1. LaFleur has not
attached his proposed amended complaint. As a result, the motion to amend is
denied for failure to comply with the local rules.
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Even if LaFleur had complied with the local rules, his motion to amend
would be denied. “District courts can deny motions to amend when there ‘are
compelling reasons such as ... futility of the amendment.’ ” Silva v. Metro. Life
Ins. Co., 762 F.3d 711, 719 (8th Cir. 2014) (quoting Reuter v. Jax Ltd., 711 F.3d
918, 922 (8th Cir. 2013)). In his motion, LaFleur argues that other individuals
have had similar experiences to his in their IMEs. For the reasons stated below,
LaFleur’s claims concerning his IME are meritless. The fact that other
individuals had the same experience as he did does not change the court’s
rationale. Therefore, the motion to amend the complaint for a second time is
denied.
II.
Motion to Dismiss
In his first amended complaint, LaFleur alleges five causes of action: (1)
medical malpractice, (2) fraud, misrepresentation, and concealment, (3) slander
and libel (i.e. defamation), (4) public policy and public safety violations, and (5)
violations of due process, equal protection, and HIPAA. Docket 29. Dr. Jetzer
moves to dismiss all LaFleur’s claims, arguing LaFleur failed to exhaust his
administrative remedies, Dr. Jetzer is entitled to immunity under
SDCL 20-11-5, Dr. Jetzer is entitled to common law witness immunity, LaFleur
fails to state a claim for medical malpractice because his complaint does not
establish a doctor-patient relationship, LaFleur’s public policy and safety, due
process, and equal protection claims are frivolous and fail to state a claim, and
LaFleur fails to state a claim under HIPAA. Docket 30.
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A.
Failure To Exhaust Administrative Remedies
Dr. Jetzer first argues that all of LaFleur’s claims should be dismissed
under 12(b)(1) because the court lacks jurisdiction. Docket 31 at 3. Dr. Jetzer
argues the court lacks jurisdiction because LaFleur has not exhausted his
administrative remedies under South Dakota’s workers’ compensation system.
Id. In a diversity action, the court applies the substantive law of the state in
which it is located. Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 996 fn. 6
(8th Cir. 2007) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). South
Dakota law governs this case. Under South Dakota law, “Worker's
compensation is the exclusive remedy for all on-the-job injuries to workers
except those injuries intentionally inflicted by the employer.” Harn v. Cont'l
Lumber Co., 506 N.W.2d 91, 95 (S.D. 1993).
“Exhaustion of administrative remedies is a fundamental principle of
administrative law and jurisprudence that precludes a state court from
exerting jurisdiction over a claim that has not yet reached the final stages of
the administrative process.” Zuke v. Presentation Sisters, Inc., 589 N.W.2d 925,
929 (S.D. 1999). “It is a settled rule of judicial administration that ‘no one is
entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.’ ” Jansen v. Lemmon
Fed. Credit Union, 562 N.W.2d 122, 124 (S.D. 1997) (quoting S.D. Bd. of
Regents v. Heege, 428 N.W.2d 535, 539 (S.D. 1988)). “Exhaustion of
administrative remedies applies to disputes cognizable by an administrative
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agency.” Zuke, 589 N.W.2d at 929 (citing Johnson v. Kolman, 412 N.W.2d 109,
112 (S.D. 1987)).
LaFleur’s claims under Counts II and III alleging “fraud,
misrepresentation, and concealment” and “slander and libel,” concern
statements made by Dr. Jetzer in his IME report. The only damage LeFluer
claims under Count II is that his wokers’ compensation benefits were revoked.
Docket 29 at ¶27. Count III does not clearly allege damages, but even if the
IME report was libelous, it did not damage LaFluer except by causing Sedgwick
to revoke his workers’ compensation benefits. LaFleur does not assert that the
allegedly fraudulent, misrepresented, or libelous statements themselves caused
any other damage to him. Because Counts II and III are essentially claims for
loss of benefits, they are “cognizable by an administrative agency.” LaFleur has
not alleged that he has exhausted his administrative remedies regarding these
claims. Therefore, these claims are dismissed for failure to state a claim upon
which relief can be granted.
LaFleur’s medical malpractice, policy, safety, and constitutional claims
are distinguishable from Counts II and III because they allege injuries separate
from LaFleur’s work-related injuries and subsequent claim for benefits. These
claims allege injuries that arise out of the IME itself and Dr. Jetzer’s actions
outside of the workers’ compensation scheme. Dr. Jetzer cites Chavez v.
Loiseau Const., Inc., No. CIV. 04-4165, 2006 WL 2382330 (D.S.D. Aug. 16,
2006), to support his argument for dismissal. In Chavez, the plaintiff did not
present “evidence to demonstrate he made a claim for work-related injury
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before the Department of Labor[,] . . . admitted he never informed the
Defendants about any alleged injury he suffered, and the Defendants had no
knowledge about such injury until after this litigation began.” Id. at *4. The
court held it was “without jurisdiction to entertain a [work-related injury] claim
. . . .” Id. This court does not find Chavez persuasive, however, because LaFleur
claims damages arising from the IME itself rather than from a work-related
injury as in Chavez.
Because the court finds that LaFleur’s medical malpractice, policy,
safety, and constitutional claims are not, in essence, claims seeking workers’
compensation benefits, the claims are not cognizable by an administrative
agency. As a result, Dr. Jetzer’s motion to dismiss these claims for failure to
exhaust administrative remedies is denied.
B.
Medical Malpractice Claim
Dr. Jetzer argues that LaFleur fails to state a claim for medical
malpractice because he has not established the requisite doctor-patient
relationship. Docket 31 at 23. The crux of LaFleur’s claim is that Dr. Jetzer
knew LaFleur suffered from certain conditions and did not treat him or refer
him to another doctor to be treated. Docket 29 at ¶5-15.
The South Dakota Supreme Court has not addressed the question of
whether a doctor-patient relationship is formed when a physician is hired to
perform an IME in a pending workers’ compensation claim. The IME statute,
however, suggests that a doctor-patient relationship is not formed because it
describes the examination’s purpose as “determining the nature, extent, and
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probable duration of the injury received by the employee and . . . ascertaining
the amount of compensation which may be due the employee from time to time
for disability according to the provisions of this title.” SDCL 62-7-1.
The majority of courts that have considered this question found medical
malpractice claims arising from IMEs “fail as a matter of law for lack of a duty
of care.” Smith v. Radecki, 238 P.3d 111 (Alaska 2010); see, e.g., Joseph v.
McCann, 147 P.3d 547, 551 (Utah Ct. App. 2006) (holding there was no doctorpatient relationship where doctor was contracted by the city to perform an IME
and noting that a majority of jurisdictions support this analysis.); Erpelding v.
Lisek, 71 P.3d 754, 757 (Wyo. 2003) (holding while performing an independent
psychological evaluation for the benefit of plaintiff’s employer, defendant did
not owe plaintiff a duty of care and noting “this conclusion is in accord with
virtually every other court that has considered this issue.”); Hafner v. Beck, 916
P.2d 1105, 1108 (Ariz. Ct. App. 1995) (holding there was no doctor-patient
relationship where psychologist was hired by the insurance carrier to evaluate
the claimant and not to treat her, concluding that the psychologist’s duty of
care ran only to the carrier, not the patient.); Henkemeyer v. Boxall, 465
N.W.2d 437, 439 (Minn. Ct. App. 1991) (holding no doctor-patient relationship
existed where plaintiff is examined adversely to determine eligibility for
workers' compensation benefits).
A minority of courts have found that an independent examiner owes the
examinee a duty of care. See, e.g., Webb v. T.D., 951 P.2d 1008, 1013 (Mont.
1997) (IME physician has a duty to exercise reasonable care in communicating
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results of examination to examinee); Greenberg v. Perkins, 845 P.2d 530, 536
(Colo. 1993) (holding an IME “itself may be said to create a relationship
between the parties and impose upon the physician a duty to exercise a level of
care that is consistent with his professional training and expertise”). In light of
South Dakota’s IME statute, it is likely the South Dakota Supreme Court would
follow the majority of courts that have considered this issue and find that Dr.
Jetzer did not owe LeFleur a duty of care. Because LaFleur failed to show the
existence of a doctor-patient relationship, the amended complaint fails to state
a medical malpractice claim. Therefore, Dr. Jetzer’s motion to dismiss is
granted.
C.
Public Policy and Safety Violations
LaFleur claims that Dr. Jetzer “intentionally placed [his] health and
safety at risk in violation of both Public Policy & Public Safety.” Docket 29 at
¶39. LaFleur argues that because he drives for a living, sending him back to
work was dangerous both to him and the public. The rest of the claim is a
restatement of his medical malpractice and fraud claims. Id. at ¶¶42-43. Even
liberally construed, there is no legal support for LaFleur’s claim. He cites to the
National Highway Traffic Safety Administration guidelines for physicians but
does not explain what the guidelines say, how they are binding on Dr. Jetzer,
or exactly how Dr. Jetzer violated the guidelines. Because LaFleur provides no
legal basis for this claim, it is dismissed.
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D.
Due Process, Equal Protection, and HIPAA Claims
LaFleur claims Dr. Jetzer “deprived [him] of his state and federal rights
by not exhausting the administrative remedies nor due process or equal
protection, available to the Defendant under SDCL § 62 . . . .” Id. at ¶45. It is
unclear what LaFleur means by this. Under the workers’ compensation
scheme, it is LaFleur, not Dr. Jetzer, who must exhaust his remedies. See
SDCL 62-7-19. These assertions are merely “labels and conclusions,”
insufficient to state a claim upon which relief may be granted. Twombly, 550
U.S. at 555.
LaFleur also claims that he is a member of a protected class because he
“(1) has a physical or mental impairment that substantially limits one or more
major life activities; (2) has a record of such an impairment; or (3) [i]s regarded
as having such an impairment as determined by the SSA; the American's With
Disabilities Act of 1990.” Docket 29 at ¶48. Because LeFleur does not allege
that membership in this class was the basis of Dr. Jetzer’s treatment, he fails
to state an equal protection claim.
LaFleur claims Dr. Jetzer “violated H.I.P.A.A. by publishing unprivileged
medical information to a non-interested third party without express authority.”
Id. at ¶46. “HIPAA does not create a private right of action.” Dodd v. Jones, 623
F.3d 563, 569 (8th Cir. 2010) (citing Adams v. Eureka Fire Prot. Dist., 352 Fed.
App’x. 137, 139 (8th Cir. 2009); Acara v. Banks, 470 F.3d 569, 571-72 (5th Cir.
2006)). LaFleur’s claims under the Due Process clause, the Equal Protection
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clause, and HIPAA fail to state a claim upon which relief can be granted and
are dismissed.
CONCLUSION
LaFleur’s motion to dismiss is frivolous and is denied. In LaFleur’s first
amended complaint, Counts II and III are merely surreptitious claims to
reinstate his workers’ compensation benefits. Because he has failed to exhaust
his administrative remedies before bringing these claims in this court, the
court is without jurisdiction to hear these claims. LaFleur’s medical
malpractice claim fails because he does not establish a doctor-patient
relationship necessary to hold Dr. Jetzer to a duty of care. His remaining
counts do not state cognizable claims. Accordingly, it is ORDERED
1. Plaintiff’s motion to amend (Docket 37) is denied.
2. Plaintiff's amended complaint (Docket 29) is dismissed without
prejudice.
3. Defendant’s motion to dismiss (Docket 30) is granted.
4. Plaintiff’s motion for certification of class action (Docket 23) is denied
as moot.
Dated October 19, 2015.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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