Miller v. Methodist Healthcare - Memphis Hospitals et al

Filing 24

ORDER denying Defendant's Motion to Strike; and ORDER granting Defendants' Motions for Judgment on the Pleadings. Signed by Chief Judge Jon Phipps McCalla on 08/13/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

KENNEDY WILLIAM MILLER,
Plaintiff,
v.
CHINENYE UCHENDU, M.D.;
METHODIST HEALTHCARE MEMPHIS
HOSPITALS d/b/a METHODIST
LEBONHEUR HEALTHCARE; and
METHODIST HEALTHCARE
FOUNDATION,
Defendants.

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No. 2:13-cv-02149-JPM-dkv

ORDER DENYING DEFENDANT’S MOTION TO STRIKE
AND
ORDER GRANTING DEFENDANTS’ MOTIONS FOR JUDGMENT ON THE PLEADINGS

Before the Court are the following Motions:

the Motion for

Judgment on the Pleadings of Defendant Chinenye Uchendu, M.D.
(“Uchendu”), filed April 29, 2013 (ECF No. 11); the Motion to
Strike of Uchendu, filed May 29, 2013 (ECF No. 18); the Motion
for Judgment on the Pleadings by Methodist Healthcare Memphis
Hospitals d/b/a Methodist LeBonheur Healthcare (“Methodist
Healthcare”), filed May 29, 2013 (ECF No. 17); and the Amended
Motion for Judgment on the Pleadings of Methodist Healthcare,
filed July 1, 2013 (ECF No. 22.)

For the following reasons,

Uchendu’s Motion to Strike (ECF No. 18) is DENIED and Defendants’

Motions for Judgment on the Pleadings (ECF Nos. 11, 17, 22) are
GRANTED as to Plaintiff’s state-law claims.
I.

BACKGROUND
On February 15, 2013, Plaintiff filed a Complaint in the

Circuit Court of Shelby County, Tennessee, against Defendants
Uchendu, Methodist Healthcare, and Methodist Healthcare
Foundation (collectively “Defendants”), alleging that he was
injured by the actions of these health care providers.
No. 1-1 at Page ID 8-20.)1

(ECF

The Complaint asserts claims for

negligence, negligence per se, res ipsa loquitor negligence,
medical malpractice, and failure of the Defendants to comply with
the Emergency Management Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd.

(ECF No. 1-1 at Page ID 13-18.)

On March 8, 2013, Defendant Methodist Healthcare removed the
instant action to this Court.

(ECF No. 1.)

Methodist Healthcare

filed its Answer to Plaintiff’s Complaint on March 14, 2013 (ECF
No. 4), and on April 16, 2013, Uchendu filed his Answer to
Plaintiff’s Complaint (ECF No. 9).2
On April 29, 2013, Uchendu filed a Motion for Judgment on
the Pleadings on the grounds that Plaintiff’s Complaint does not
comply with Tennessee Code Annotated Section 29-26-121.
11.)

(ECF No.

On May 17, 2013, Plaintiff filed a Notice of Filing

1

When an Electronic Case Filing contain multiple documents, the Court will
refer to the Page Identification (“PageID”) numbers on the top right of the
Electronic Case Filing.
2
On March 18, 2013, the Court dismissed all claims against Defendant Methodist
Healthcare Foundation pursuant to a Stipulation of Dismissal. (ECF No. 8.)

2

Supplemental Exhibits to Plaintiff’s Original Complaint (the
“Notice”), containing HIPAA medical authorizations for release
and return receipts for certified mail sent to Defendants that
were not attached to his Complaint (the “Supplemental Exhibits”).
(See ECF Nos. 12 to 12-4.)3

On May 28, 2013, Plaintiff filed a

Response in opposition to Uchendu’s Motion for Judgment on the
Pleadings relying in part on the Supplemental Exhibits.
14.)

(ECF No.

On May 29, 2013, Uchendu filed a Motion to Strike the

Supplemental Exhibits (ECF No. 15) and Methodist Healthcare filed
an Objection to Plaintiff’s Notice of Filing Supplemental
Exhibits (ECF No. 16).
On June 10, 2013, Uchendu filed a Reply in support of his
Motion for Judgment on the Pleadings.

(ECF No. 19.)

On June 12,

2013, Plaintiff responded in opposition to the Motion to Strike
(ECF No. 20) and on June 26, 2013, Plaintiff responded in
opposition to Methodist Healthcare’s Motion for Judgment on the
Pleadings (ECF No. 21).
On July 1, 2013, Methodist Healthcare filed an Amended
Motion for Judgment on the Pleadings, incorporating by reference
its Motion for Judgment on the Pleadings.

(ECF No. 22.)

On July

29, 2013, Plaintiff responded in opposition to Memphis
Healthcare’s Amended Motion for Judgment on the Pleadings.

(ECF

No. 23.)
3

On May 22, 2013, ECF No. 12 was sealed and redacted documents were filed at
ECF No. 13. The Court will refer to the redacted documents at ECF No. 13.

3

II.

CHOICE OF LAW
This Court has federal-question jurisdiction over

Plaintiff’s EMTALA claim pursuant to 28 U.S.C. § 1331, and
supplemental jurisdiction over Plaintiff’s state-law claims
pursuant to 28 U.S.C. § 1367(a).

“A federal court exercising

supplemental jurisdiction over state law claims is bound to apply
the law of the forum state to the same extent as if it were
exercising its diversity jurisdiction.”

Chandler v. Specialty

Tires of Am. (Tennessee), Inc., 283 F.3d 818, 823 (6th Cir. 2002)
(quoting Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733,
741 (6th Cir. 1999)) (internal quotation marks omitted).
A federal court sitting in diversity applies “state
substantive law and federal procedural law.”

Degussa Admixtures,

Inc. v. Burnett, 277 F. App’x 530, 532 (6th Cir. 2008) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).

Further, in

diversity matters, a federal court must apply the choice-of-law
rules of the forum state.

Andersons, Inc. v. Consol, Inc., 348

F.3d 496, 501 (6th Cir. 2003) (citing Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941)).
As to torts, “Tennessee follows the ‘most significant
relationship’ rule, which provides that ‘the law of the state
where the injury occurred will be applied unless some other state
has a more significant relationship to the litigation.’”

Rhynes

v. Bank of Am., No. 12-2683, 2013 U.S. Dist. LEXIS 42713, at *7
4

(W.D. Tenn. Mar. 26, 2013) (quoting Hicks v. Lewis, 148 S.W.3d
80, 86 (Tenn. Ct. App. 2003)).

Plaintiff’s alleged injuries

occurred in Tennessee, and neither party asserts that the law of
another jurisdiction should apply.
In Tennessee, actions relating to medical care are
considered “health care liability actions” and are subject to the
Tennessee Medical Malpractice4 Act, Tenn. Code Ann. § 29-26-101 et
seq.

See Shuler v. McGrew, No. 12-2003-STA-dkv, 2012 WL 3260685,

at *4 (W.D. Tenn. Aug. 8, 2012).

In the instant case,

Plaintiff’s claims arise out of the alleged failure of Defendants
to treat his medical condition.5

Accordingly, Plaintiff’s state-

law claims are subject to the provisions of the Tennessee Medical
Malpractice Act.
III. ANALYSIS
The Court first addresses Uchendu’s Motion to Strike and
then addresses the Motions for Judgment on the Pleadings of
Uchendu and Methodist Healthcare.
A.

Motion to Strike

In his Motion to Strike, Uchendu argues that the
Supplemental Exhibits should be stricken as they constitute an

4

“In 2012, Tennessee Code Annotated sections 29–26–115 to –122 and section
–202 of the Medical Malpractice Act were amended to replace ‘medical
malpractice’ with ‘health care liability.’” Cunningham v. Williamson Cnty.
Hosp. Dist., M2011-00554-SC-S09CV, 2013 WL 1912611, at *2 n.1 (Tenn. May 9,
2013).
5
“Plaintiff concedes that his claims, excluding the EMTALA claim sound in
medical malpractice, and therefore must comply with the requirements of the
THLA.” (ECF No. 21-1 at 4.)

5

improper attempt by Plaintiff to amend his Complaint without the
consent of Defendants or leave of court.

(ECF No. 15-2 at 3.)

In the alternative, Uchendu argues that the Notice should be
treated as a motion for leave to amend and denied, as such a
motion would be futile.

(Id.)

Pursuant to Federal Rule of Civil Procedure 12(f) (“Rule
12(f)”), “the court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter.”

Although a motion to strike under Rule 12(f) is “a

drastic remedy to be resorted to only when required for the
purposes of justice,” it should be granted “when the pleading to
be [stricken] has no possible relationship to the controversy.”
Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819,
822 (6th Cir. 1953) (internal quotation marks omitted); accord
Parlak v. U.S. Immigration & Customs Enforcement, No. 05-2003,
2006 WL 3634385, at *1 (6th Cir. Apr. 27, 2006).
The Court first considers whether Rule 12(f) applies to the
Supplemental Exhibits and then considers whether to treat the
Supplemental Exhibits as a motion for leave to amend Plaintiff’s
Complaint.
1.

Rule 12(f) is Not Applicable

Under Rule 12(f), “a court may strike only material that is
contained in the pleadings.”

Fox v. Mich. State Police Dep’t,

173 F. App’x 372, 375 (6th Cir. 2006); accord Wimberly v. Clark
6

Controller Co., 364 F.2d 225, 227 (6th Cir 1966).

Pursuant to

Rule 7(a), pleadings include only the following documents:

“a

complaint,” “an answer to a complaint,” “an answer to a
counterclaim designated as a counterclaim,” “an answer to a
crossclaim,” “a third-party complaint,” “an answer to a thirdparty complaint,” “and if the court orders one, a reply to an
answer.”

Fed. R. Civ. P. 7(a)(1)-(7).

Under Rule 10(c),

however, [a] copy of a written instrument that is an exhibit to a
pleading is part of the pleading for all purposes.”

Fed. R. Civ.

P. 10(c).
Uchendu seeks to strike Plaintiff’s Supplemental Exhibits
pursuant to Rule 12(f) on the basis that the Supplemental
Exhibits are an “improper attempt to amend [Plaintiff’s]
Complaint” and are “immaterial to . . . the instant matter.”
(ECF No. 15-2 at 4.)
Plaintiff argues that his Supplemental Exhibits are not
“pleadings” as defined by Rule 7(a).

(ECF No. 20-1 at 4.)

Accordingly, Plaintiff asserts that the Supplemental Exhibits may
not be stricken pursuant to Rule 12(f).

(Id.)

In the instant case, Plaintiff’s Supplemental Exhibits were
not attached to the Complaint but were submitted later as a
notice.

As a notice is not a pleading within the meaning of Fed.

R. Civ. P. 7(a), the Supplemental Exhibits attached to the Notice

7

are not subject to a Rule 12(f) motion to strike.

Therefore,

Uchendu’s Motion to Strike the Supplemental Exhibits is DENIED.6
2.
Plaintiff’s Notice of Filing Should Not Be
Considered a Motion for Leave to Amend
Uchendu argues that, if the Court declines to strike
Plaintiff’s Supplemental Exhibits, the Court should construe the
Notice as a motion for leave to amend Plaintiff’s Complaint and
then deny that motion on the basis that amendment would be
futile.

(ECF No. 15-2 at 3.)

In support, Uchendu cites Torrez

v. McKee, a case in which the magistrate judge construed
supplemental exhibits filed after the complaint as a motion to
amend plaintiff’s complaint, No. 1:06-cv-903, 2007 WL 3347618, at
*1 (W.D. Mich. Nov. 9, 2007).

(ECF No. 15-2 at 4-5.)

Plaintiff argues that the Supplement Exhibits may be
considered for the purposes of a Rule 12(c) motion without
construing the Supplemental Exhibits as a motion to amend.
No. 20-1 at 5-6.)

(ECF

In support, Plaintiff cites Huston v. Mittal

Steel USA, No. 2:06-CV-552, 2006 WL 2709776, at *1 (S.D. Ohio
Sept. 20, 2006).

(ECF No. 21-1 at 3-4.)

In Huston, the court

stated that, in considering a motion for judgment on the
pleadings, a “court considers the pleadings alone which consist
of the complaint, the answer, and any written instruments
6

Even if the Supplemental Exhibits were subject to a Rule 12(f) motion to
strike, the Court finds that the Supplemental Exhibits have a relationship to
the controversy and are, therefore, not “redundant, immaterial, impertinent, or
scandalous.” Fed. R. Civ. P. 12(f). Accordingly, it would be inappropriate to
strike the Supplemental Exhibits.

8

attached as exhibits.”

Id.

Additionally, the court stated that

“[t]he complaint is deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by
reference, and documents that, although not incorporated by
reference, are integral to the complaint.”

Id. (citation

omitted).
The Court agrees with Plaintiff’s argument.

First, a

“plaintiff is under no obligation to attach to his compliant
documents upon which his action is based.”

Weiner, D.P.M. v.

Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997).

Second, because

motions for judgment on the pleadings are analyzed under the same
standard as motions to dismiss pursuant to Rule 12(b)(6), see
Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 279 (6th
Cir. 2009), documents “referred to in the pleadings and . . .
integral to the claims” may be considered in analyzing a motion
for judgment on the pleadings, Commercial Money Ctr., Inc. v.
Ill. Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007).
Because the Supplemental Exhibits submitted by Plaintiff are
referenced in the Complaint (see ECF No. 1-1 at PageID 10-11),
and are integral to the Complaint, the Court will not construe
the Notice as a motion to amend and will consider the
Supplemental Exhibits in analyzing the Motions for Judgment on

9

the Pleadings.

See Huston, 2006 WL 2709776, at *1; see also Sira

v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).7
B.

Motions for Judgment on the Pleadings

Pursuant to Rule 12(c), “[a]fter the pleadings are closed —
but early enough not to delay trial — a party may move for
judgment on the pleadings.”

Fed. R. Civ. P. 12(c).

“For

purposes of a motion for judgment on the pleadings, all wellpleaded material allegations of the pleadings of the opposing
party must be taken as true, and the motion may be granted only
if the moving party is nevertheless clearly entitled to
judgment.”

Warrior Sports, Inc. v. Nat’l Collegiate Athletic

Ass’n, 623 F.3d 281, 284 (6th Cir. 2010) (internal quotation
marks omitted).

Plaintiff’s factual allegations, however, must

“raise a right to relief above the speculative level.”

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In Defendants’ Motions for Judgment on the Pleadings,
Defendants argue that Plaintiff failed to comply with the
mandatory requirements of Tennessee Code Annotated Section 29-26121 by failing to attach the appropriate materials to his
Complaint.

(ECF No. 11-1 at 2-7; ECF No. 17-1 at 4-9.)

Accordingly, Defendants assert that Plaintiff’s state-law claims
must be dismissed with prejudice.

(ECF No. 11-1 at 2; ECF No.

17-1 at 2.)
7

Accordingly, Methodist Healthcare’s objection to the Supplementary Exhibits
(ECF No. 16) is OVERRULED.

10

Defendants further argue that even if the Court considers
the Supplemental Exhibits, Plaintiff’s state-law claims should be
dismissed with prejudice as the HIPAA releases filed by Plaintiff
“do[] not permit[] the provider receiving the notice to obtain
complete medical records, but only allow[] Plaintiff’s own
counsel to obtain his medical records.”

(ECF No. 19 at 10

(second alteration in original) (internal quotation marks
omitted); ECF No. 22 at 2-3.)

Additionally, Uchendu asserts that

the mailing receipt filed by Plaintiff does not meet the
statute’s requirements.

(ECF No. 19 at 10.)

Pursuant to the Tennessee Medical Malpractice Act’s notice
provisions, “[a]ny person . . . asserting a potential claim for
health care liability shall give written notice of the potential
claim to each health care provider.”
121(a)(1).

Tenn. Code Ann. § 29-26-

This notice shall include “[a] HIPAA compliant

medical authorization permitting the provider receiving the
notice to obtain complete medical records from each other
provider being sent a notice.”

Id. § 29-26-121(a)(2)(E).

In

order to satisfy the notice requirement, proof of service “shall
be filed with the complaint.”

Id. § 29-26-121(a)(3).

Where the

notice is mailed,
[c]ompliance
with
subdivision
(a)(3)(B)
shall
be
demonstrated by filing a certificate of mailing from
the United States postal service stamped with the date
of mailing and an affidavit of the party mailing the
notice establishing that the specified notice was
timely mailed by certified mail, return receipt
11

requested. A copy of the notice sent shall be attached
to the affidavit. It is not necessary that the
addressee of the notice sign or return the return
receipt card that accompanies a letter sent by
certified mail for service to be effective.
Id. § 29-26-121(a)(4).

Further, “[i]f a complaint is filed in

any court alleging a claim for health care liability, the
pleadings shall state whether each party has complied with
subsection (a) and shall provide the documentation specified in
subdivision (a)(2).”

Id. § 29-26-121(b).

A “court has

discretion to excuse compliance with this section only for
extraordinary cause shown.”

Id.

Plaintiff argues that he has complied with the notice
requirements of the Tennessee Medical Malpractice Act.
No. 14-1.)

(ECF

First, Plaintiff asserts that, pursuant to Rule

10(c), any exhibit to a pleading is a part of that pleading, and
that a “plaintiff is under no obligation to attach to his
compliant documents upon which his action is based.”
D.P.M., 108 F.3d at 89.

Weiner,

Additionally, Plaintiff asserts that

documents “referred to in the pleadings and integral to the
claims” may be considered in analyzing a motion for judgment on
the pleadings, Commercial Money Ctr., 508 F.3d at 335-36.
No. 14-1 at 6.)

(ECF

Accordingly, the HIPAA releases and the

Certified Mail Domestic Return Receipt, filed as the Supplemental
Exhibits, are part of his pleadings.

(Id.)

Second, Plaintiff

asserts that his general release to Defendants complied with

12

HIPAA and allowed the disclosure of all medical records to
Defendants.

(ECF No. 23 at 3.)

Third, Plaintiff asserts that he

was not required to file a “certificate of mailing” as he
provided Methodist Healthcare notice both by certified mail and
personal delivery.

Accordingly, he was only required to submit

“an affidavit stating that the notice was personally delivered
and [identifying] the individual to whom the notice was
delivered.”

(ECF No. 21-1 (internal quotation marks omitted).)

Additionally, Plaintiff asserts that he was not required to file
a “certificate of mailing” as to Uchendu because his Certified
Mail Domestic Return Receipt is sufficient under Tennessee
Medical Malpractice Act’s notice provisions.

(ECF No. 14-1 at

10-11 (citing Duncan v. Med. Educ. Assistance Corp., No. 2:12-CV182, 2013 WL 1249574, at *9-11 (E.D. Tenn. Mar. 27, 2013)).)
The Court agrees with Defendants that Plaintiff has not
complied with the notice provisions of the Tennessee Medical
Malpractice Act as Plaintiff did not attach the necessary
documents to his Complaint.

The Tennessee Medical Malpractice

Act states that the pleadings “shall provide the documentation
specified in subdivision (a)(2).”
121(b).

Tenn. Code Ann. § 29-26-

Pursuant to subdivision (a)(2), the notice to a

defendant shall include “[a] HIPAA compliant medical
authorization permitting the provider receiving the notice to
obtain complete medical records from each other provider being
13

sent a notice.”

Tenn. Code Ann. § 29-26-121(a)(2).

Accordingly,

Plaintiff was required to file the HIPAA release forms with his
Complaint.

See Reed v. Speck, 508 F. App’x 415, 423 (6th Cir.

2012) (“The notice and certification requirements in any medical
malpractice action in Tennessee are mandatory.”); see also Vaughn
v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV,
2013 WL 817032, at *4 (Tenn. Ct. App. Mar. 5, 2013) (“[T]he use
of the word ‘shall’ indicates that the legislature intended the
requirements to be mandatory, not directory.”).

Plaintiff did

not attach the HIPAA releases to his Complaint.

(See ECF No. 1-

1.)

While Plaintiff argues that his later Notice should be

considered part of his pleadings, Plaintiff may not use federal
procedural law to circumvent the requirements of state
substantive law.

See Conrad v. Washington Cnty., No. 2:11-CV-

106, 2012 WL 554462, at *2 (E.D. Tenn. Feb. 21, 2012) (“[The]
notice requirements of the [Tennessee Medical Malpractice Act]
are substantive law.”); accord Shuler, 2012 WL 3260685, at *4.
Tennessee Courts do not allow later filings to cure the failure
of a plaintiff to strictly comply with the notice requirements of
the Tennessee Medical Malpractice Act.

See, e.g., Thurmond v.

Mid-Cumberland Infectious Disease Consultants, PLC, No. M201202270-COA-R3CV, 2013 WL 1798960, at *3 (Tenn. Ct. App. Apr. 25,
2013); Vaughn, 2013 WL 817032, at *4-6.

Accordingly, the Court

will not allow Plaintiff’s filing of Supplemental Exhibits months
14

after filing his Complaint to cure Plaintiff’s failure to
strictly comply with the notice requirements of the Tennessee
Medical Malpractice Act.

See Duncan, 2013 WL 1249574, at *3

(“[T]he Court concludes that plaintiffs are likely stuck with
what they file, or fail to file, with their original
complaint.”).

Additionally, while failure to strictly comply

with the notice requirements may be excused by extraordinary
cause, Tenn. Code Ann. § 29-26-121(b), Plaintiff has not
demonstrated any cause for his failure to attach the necessary
documents to his Complaint.

As a result, Plaintiff has not

complied with the notice provisions of the Tennessee Medical
Malpractice Act and, as a matter of law, has failed to state a
claim upon which relief can be granted.8
IV.

CONCLUSION
For the foregoing reasons, Uchendu’s Motion to Strike (ECF

No. 18) is DENIED and Defendants’ Motions for Judgment on the
Pleadings (ECF Nos. 11, 22) are GRANTED as to Plaintiff’s statelaw claims.

Plaintiff’s state-law claims are, therefore,

DISMISSED WITH PREJUDICE.
SO ORDERED, this 13th day of August, 2013.
s/ Jon P. McCalla
JON P. McCALLA
CHIEF JUDGE, U.S. DISTRICT COURT
8

Even if Plaintiff had filed the HIPAA releases with his Complaint, the
releases would not have been sufficient as they only authorized the release of
Plaintiff’s medical records to the law firm representing Plaintiff. (See ECF
No. 13-1 at PageID 131; ECF No. 13-2 at PageID 138.)

15