Prickette et al v. Lind et al

Filing 21

MEMORANDUM. Signed by District Judge Todd J. Campbell on 3/1/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JEREMY PRICKETTE, et al.
v.
ROGER C. LIND, M.D., et al.

)
)
) NO. 3-12-1267
) JUDGE CAMPBELL
)

MEMORANDUM
Pending before the Court is Plaintiffs’ Motion to Remand (Docket No. 12). For the reasons
stated herein, Plaintiffs’ Motion is GRANTED, and this action is remanded to the Circuit Court for
Montgomery County, Tennessee.
FACTS
Plaintiffs originally filed this action in the Circuit Court for Montgomery County, Tennessee,
in March of 2006, raising claims arising from the death of the Plaintiffs’ son shortly after birth and
the permanent impairments of his twin sister. Docket Nos. 1, 1-1. The case was removed to this
Court by Defendants Roger C. Lind, M.D., Doug Hong, M.D., and Radiology Associates, P.C.1 on
December 5, 2012, after the Plaintiffs filed a “Second Amended Original Complaint” in state court.
Id. Plaintiffs’ Second Amended Original Complaint alleges the following causes of action: (1)
negligence of Defendants Roger C. Lind, M.D., Doug Hong, M.D., and ultrasonographer/radiology
tech Christina Huff; (2) negligence of Defendants Radiology Associates, P.C., Gateway Health
System, Inc., and Gateway Medical Center; (3) gross negligence and/or reckless conduct of these
Defendants; and (4) fraud and misrepresentation. Docket No. 1-18.

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Defendants Gateway Health Systems, Inc. And Gateway Medical Center did not join
in the Notice Of Removal. Docket No. 1. See 28 U.S.C. § 1446(b)(2)(A); Loftis v. United Parcel
Service, 342 F.3d 509, 516 (6th Cir. 2003).

The Notice of Removal is based on the fraud and misrepresentation claim. Docket No. 1.
The Defendants contend that the allegations of fraud are directed at Tricare, a health program of the
United States Government, and therefore, the claim falls under the False Claims Act, 31 U.S.C.
§ 3729, et seq. (“FCA”), over which the federal courts have exclusive jurisdiction. Id. Defendants
further argue that 28 U.S.C. § 1441(c) requires removal of the entire case. Id.
Plaintiffs have moved to remand this action to state court because, they contend, this Court
has no subject matter jurisdiction as the fraud and misrepresentation claim is based solely on
Tennessee state fraud laws and may not be brought under the FCA. Docket Nos.12, 13. Plaintiffs
also argue that the FCA statute of limitations has expired, and that certain FCA filing requirements
have not been met.
The fraud and misrepresentation claim provides as follows:
7.1 All previous paragraphs are hereby re-alleged as if they were fully restated
herein.
7.2. The Defendants, individually and collectively, represented that Amy
Prickette’s ultrasound was read and interpreted by a Physician Radiologist, meaning
that the Physician Radiologist actually looked at each of the images and wrote a
report based on what was actually on the images. However, instead of looking at the
actual images generated by the radiology tech, the Physician Radiologists (Roger C.
Lind, M.D., and/or Doug Hong, M.D.) prepared the Radiology Final Report using
information obtained solely from the written ‘Final Patient Report’ for each twin
(prepared by the radiology tech Christina Huff). The Physician Radiologists (Roger
C. Lind, M.D., and/or Doug Hong, M.D.) never looked at the actual radiology
images prior to preparing the Radiology Final Report. In addition, the Physician
Radiologists (Roger C. Lind, M.D., and/or Doug Hong, M.D.) never looked at the
actual radiology images prior to electronically signing the December 14, 2004,
Ultrasound Report, certifying that he has read the report and it is correct.
7.3 Defendants, Roger C. Lind, M.D., Doug Hong, M.D., and Radiology
Associates, P.C., billed a United States governmental entity, Tricare, for reading and
interpreting a complete ultrasound on Amy Prickette, when they knew that they had
never looked at the actual radiology images prior to preparing the Radiology Final
Report.
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7.4 On December 13, 2004, when the obstetrical ultrasound was performed, one
of Amy Prickette’s twins was anencephalic (without a scalp, without a vault of the
cranium, without meninges, without either brain hemisphere and without a
cerebellum). Anencephaly should always be diagnosed after 14 weeks gestation.
7.5 Defendants, Roger C. Lind, M.D., Doug Hong, M.D., and Radiology
Associates, P.C., claim that neither physician radiologist mis-read the ultrasound
images that clearly showed one twin without a scalp, without a vault of the cranium,
without meninges, without either brain hemisphere and without a cerebellum, when
such condition should always be diagnosed after 14 weeks gestation. Defendants,
Roger C. Lind, M.D., Doug Hong, M.D., and Radiology Associates, P.C., committed
fraud when they charged for work they did not perform and gave medical advice on
work they charged for but did not perform.
7.6 Defendants, individually and collectively, and its agents, made numerous
representations to Plaintiffs as set forth above. Defendants’ representations were
known to be false when made or made recklessly without knowledge of the truth and
were made as positive assertions. Defendants, individually and collectively, made
material misrepresentations to the Plaintiffs or failed to disclose material facts to
Plaintiffs concerning Defendants’ intentions, their agreements and the abovementioned facts as well as others.
7.7 Defendants, individually and collectively, intended that Plaintiffs rely to its
detriment and injury upon the false statements and impressions of fact being made,
and on the presumption that no material facts of the contrary existed. Plaintiffs relied
to their detriment upon the false statements and impressions of fact purposely created
by Defendants. As a result, Plaintiffs have been damaged in an amount within the
jurisdictional limits of the Court.
Docket No. 1-18, at 14-15.
REMOVAL AND REMAND
Federal law provides that any civil action brought in state court of which the district courts
of the United States have original jurisdiction may be removed by the defendant to the district court
for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a).
In determining whether a complaint arises under federal law, the Court must apply the “well-pleaded
complaint” rule. Roddy v. Grand Trunk Western RR, Inc., 395 F.3d 318, 322 (6th Cir. 2005). Federal
jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly
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pleaded complaint. Id. The well-pleaded complaint rule recognizes that the plaintiff is the master
of his complaint. Id. Accordingly, if the plaintiff chooses to bring a state law claim, that claim
cannot generally be “recharacterized” as a federal claim for the purpose of removal. Id. As the party
seeking to litigate in federal court, the Defendants bear the burden of establishing the existence of
subject matter jurisdiction. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000).
The Defendants argue that the case is removable under the “substantial-federal-question
doctrine” because the Plaintiffs’ fraud claim necessarily depends on construction of federal law –
the FCA. See Mikulski v. Centerior Energy Corp., 501 F.3d 555,565-68 (6th Cir. 2007). In order to
establish removal is proper under this doctrine, the Defendants must show: (1) the state-law claim
necessarily raises a disputed federal issue; (2) the federal interest in the issue must be substantial;
and (3) the exercise of jurisdiction must not disturb any congressionally approved balance of federal
and state judicial responsibilities. Mikulski, 501 F.3d at 568.
In this case, the Court finds it unnecessary to address the second and third element for
application of the doctrine because the Defendants have not established the first element. The fraud
claim alleges that the Defendants represented to the Plaintiffs that they had reviewed the ultrasound
images when they actually reviewed a report on the images prepared by a radiology technician.
Plaintiffs allege that the Defendants defrauded them by making representations, and giving medical
advice, based on work for which they charged but did not perform. Plaintiffs allege that they relied
on those representations and suffered damage as a result. Plaintiffs have not referred or cited to
federal law in general, or the FCA in particular. As the Court reads the fraud claim, the reference
to the Defendants billing of Tricare for reading the images when they had not done so is an effort
to provide proof of a misrepresentation and to suggest the seriousness of the alleged

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misrepresentation, rather than an effort to bring suit on behalf of the federal government to recover
billing costs under the FCA. Plaintiffs’ description of damages extends over four pages of the
Second Amended Original Complaint and includes no request for recovery of the amount billed to
Tricare or on behalf of the United States. Plaintiffs’ fraud claim does not raise a disputed federal
issue providing this Court with subject matter jurisdiction.
Defendants alternatively argue that the case is removable under the “complete preemption”
doctrine because the FCA requires that actions be brought on behalf of the United States
Government in federal court. See 31 U.S.C. §§ 3729, 3730. Even if the FCA is a statute requiring
complete preemption, however, the Defendants have not shown that the Plaintiffs’s state law fraud
claim is actually an FCA claim or is brought on behalf of the United States. See Roddy, 395 F.3d at
323-24. Plaintiffs’ fraud claim has not been brought under the FCA, does not require interpretation
of the FCA, and does not request relief under the FCA. Therefore, there is no “complete
preemption,” and this Court has no subject matter jurisdiction over Plaintiffs’ fraud claim.
CONCLUSION
For these reasons, Plaintiffs’ Motion to Remand (Docket No. 12) is GRANTED, and this
action is remanded to the Circuit Court for Montgomery County, Tennessee, pursuant to 28 U.S.C.
§ 1447(c).
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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