Moore et al v. Ferguson et al
Filing
26
MEMORANDUM OPINION AND ORDER denying the 6 MOTION to Dismiss; and granting the motion to strike. Signed by Judge John T. Copenhaver, Jr. on 6/30/2015. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
AMETHYST DAWN KIMBLE MOORE and
TIMOTHY ALLEN MOORE and
AMETHYST DAWN KIMBLE,
Administratrix of the Estate of
Elijah Allen Moore,
Plaintiffs,
v.
Civil Action No. 2:15-cv-04531
RICHARD A. FERGUSON, M.D. and
MESA OF TEAMHEALTH, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is defendants’ motion to dismiss, which
includes an alternative motion to strike, filed May 1, 2015.1
I.
On July 23, 2013, expectant mother Amethyst Dawn
Kimble2 (“Kimble”) informed her obstetrician that her father had
1The
motion was originally filed only by defendant Richard
A. Ferguson; defendant MESA of TeamHealth joined the motion and
defendant Ferguson’s subsequent briefing on May 29, 2015, but
offered no additional briefing.
2Since the events described herein, Kimble married Timothy
Allen Moore and assumed the name Amethyst Dawn Moore.
suffered from hemophilia.
(Compl. ¶¶ 3-4.)
Prior to December
18, 2013, at a time after it became known that Kimble’s child
was male, the obstetrician requested information from Kimble’s
pediatrician regarding Kimble’s hemophilia history, and was
misinformed that her brother, rather than her father, suffered
from hemophilia.
(Id. ¶¶ 6-8.)
Kimble gave birth to Elijah
Allen Moore (“Elijah”) on February 14, 2014, in a traumatic
vacuum-assisted delivery.
(Id. ¶¶ 9-10).
In the period between
Elijah’s birth and February 17, 2014, Elijah’s nurses noted
bruising and a growing contusion on his head, and that his
bilirubin level had not decreased as expected.
(Id. ¶¶ 11-12.)
Despite these symptoms indicating possible internal
bleeding, Elijah was discharged from the hospital on February
17, 2014, with instructions that he should be taken to the
bilirubin clinic and his pediatrician on February 19, 2014.
(Id. ¶¶ 13-14.)
Kimble brought Elijah to the bilirubin clinic
and reported that he was “restless” and “not feeding [sic]
well.”
(Id. ¶ 15.)
The clinic’s nurses noted Elijah was
lethargic, had significant bruising, and had a climbing
bilirubin level.
(Id. ¶ 16.)
Kimble and Elijah’s father,
Timothy Allen Moore (“Moore”), took Elijah to the pediatrician
later that day, and were told Elijah was in good health, though
2
he had Factor VIII deficiency (Hemophilia A, a bleeding
disorder).
(Id. ¶¶ 17-19, 22.)
At approximately 2:38 p.m. on February 19, 2014, after
noticing Elijah was suffering what appeared to be seizures,
Kimble and Moore took him to the emergency department of a local
hospital.
(Id. ¶ 23.)
Elijah was assigned to the care of
Richard A. Ferguson, M.D. (“Ferguson”), a physician board
certified in family practice medicine, but not in emergency
medicine.
(Id. ¶¶ 24, 28-29.)
Kimble and Moore chose this
hospital in part because the emergency department was operated
by MESA of TeamHealth, who advertised their emergency medicine
physicians as highly qualified.
(Id. ¶ 35.)
After arriving,
Elijah was attended by nurses at around 3:10 p.m., who noted he
was visibly jaundiced and had bruising of both hands and feet,
the right eye, and the left antecubital region.
(Id. ¶ 37.)
Results of Elijah’s laboratory testing were received at 4:44
p.m., indicating his white blood cell count was 12, his
hemoglobin was 7.2, his hematocrit was 20.3, and his platelet
count was 144.
(Id. ¶ 39.)
Ferguson did not see Elijah until 5:15 p.m., and was
provided with a history of a five-day-old male with Factor VIII
deficiency, seizure activity, and feeding issues.
(Id. ¶ 40.)
Ferguson’s exam notes indicate that Elijah appeared normal but
3
for poor oral intake, mild right eye deviation, and a soft
cephalohematoma that became more firm during Elijah’s time in
the emergency department; his report did not mention the
bruising the nurses had documented earlier.
(Id. ¶ 41.)
Ferguson ordered Elijah’s bloodwork be done, but did not order
Factor VIII medicine or an immediate CT scan.
(Id. ¶ 42.)
At
6:46 p.m., a nurse observed that Elijah had an arched back,
stiffness of the arms, eyes drifting to the left, and that his
heart rate had increased to 181 beats per minute, his
respiratory rate had increased to 42 per minute, and his oxygen
saturation was down to 87%.
(Id. ¶ 46.)
Ferguson was notified
of these changes, but still did not order Factor VIII medicine
or an immediate CT scan.
(Id. ¶ 47.)
At some time after becoming apprised of these changes
to Elijah’s condition, Ferguson called Elijah’s pediatrician,
who arrived at the emergency department at 7:23 p.m.
49-50.)
(Id. ¶¶
Elijah’s pediatrician advised Ferguson to have Elijah
transferred immediately to a hospital with a Hemophilia
Treatment Center.
(Id. ¶¶ 50-51.)
Accordingly, at 7:34 p.m.,
Ferguson requested Elijah be transported to Ruby Memorial
Hospital by aeromedical transport.
ordered a CT scan of Elijah’s head.
At 7:45 p.m., Ferguson
(Id. ¶ 57.)
Elijah also
underwent hemoglobin and hematocrit tests, showing levels of 6.4
4
and 18.4, respectively.
(Id. ¶ 58.)
At 8:48 p.m., medical
personnel started Elijah on a transfusion of type-O negative
blood; this was not Elijah’s blood type, but a type-specific
transfer was unavailable due to the urgent nature of the
transfusion.
(Id. ¶¶ 59, 68-69.)
The CT scan was finally
performed at 9:08 p.m.; the results at 9:21 p.m. showed
significant injuries, including internal bleeding, fractures,
and swelling.
(Id. ¶ 61.)
At around 9:30 p.m., the transport
team administered intubation and mechanical ventilation.
(Id. ¶
72.)
After the transfer to Ruby Memorial Hospital, Elijah
had to be put on life support.
(Id. ¶ 75.)
Upon the advisement
that Elijah had no chance of recovery due to the brain bleeding
he had suffered prior to his transfer, Kimble and Moore chose to
remove Elijah from life support on March 3, 2014.
(Id.)
Plaintiffs filed this action in the Circuit Court of
Wood County, West Virginia on March 10, 2015.
Plaintiffs’
complaint is somewhat disorganized, as multiple claims are
alleged under single counts while other counts appear to lack
any cognizable claims.
In addressing defendants’ motion to
dismiss, the court, due to the complaint’s unusual structure,
will deal with each potential claim individually rather than
5
addressing each count individually.
Plaintiffs allege the
following claims:
1. Negligence of Dr. Richard Ferguson in failing to meet the
standard of care required of a physician while treating
Elijah.
(Compl. ¶¶ 103-20.)
2. Negligent infliction of emotional distress by Dr. Richard
Ferguson on Kimble and Moore.
(Id. ¶ 122(a)-(b).)
3. Fraudulent misrepresentation by MESA of TeamHealth
concerning the quality of the emergency department where
Elijah was treated.
(Id. ¶¶ 138-43, 154, 176-80.)
4. Corporate negligence of MESA of TeamHealth in failing to
meet the standard of care required of an emergency
department facility.
(Id. ¶¶ 182-94.)
Defendants removed on April 14, 2015, pursuant to 28
U.S.C. § 1441(a).
Diversity jurisdiction is proper inasmuch as
plaintiffs and defendants are diverse, and the amount in
controversy exceeds the $75,000 amount as required under 28
U.S.C. § 1332(a).
II.
Defendants seek dismissal on three grounds.
First,
dismissal of the entire complaint is sought based on plaintiffs’
violation of the West Virginia Medical Professional Liability
Act, which bars the inclusion of specific dollar amounts in
6
complaints for medical malpractice actions.
Mot. Dismiss 2.)
(Defs.’ Mem. Supp.
Defendants request in the alternative that the
court strike the specific dollar amounts from the complaint
under Fed. R. Civ. P. 12(f).
(Id.)
Defendants next ask for
dismissal of plaintiffs’ punitive damages claim, on the ground
that plaintiffs have not alleged any claims sufficient to
support such an award.
(Id. at 2-3.)
Finally, defendants seek
the dismissal of plaintiffs Amethyst Dawn Kimble Moore and
Timothy Allen Moore in their individual capacities as
plaintiffs, on the ground that they are improper parties in a
wrongful death action.
(Id. at 3-4.)
Plaintiffs argue in their response that the
legislative intent behind the prohibition on listing specific
dollar amounts in West Virginia Code § 55-7B-5(a) was only to
bar plaintiffs from listing exaggerated amounts, not amounts
reasonably linked to injuries suffered.
Defs.’ Mot. Dismiss 9.)
(Pls.’ Mem. Resp.
On the issue of punitive damages,
plaintiffs argue that their claim should not be dismissed, as
they have alleged a level of heightened negligence sufficient to
allow for punitive damages under West Virginia law.3
3On
(Id. at 9-
March 10, 2015, the West Virginia legislature passed a
new law limiting punitive damages to cases in which “a plaintiff
establishes by clear and convincing evidence that the damages
suffered were the result of the conduct that was carried out by
the defendant with actual malice toward the plaintiff or a
7
10.)
Finally, plaintiffs acknowledge that they are not proper
parties in their individual capacities for their claims brought
under the wrongful death statute.
(Id. at 12.)
They assert,
however, that they maintain separate claims for the emotional
distress they experienced while watching their son suffer in the
hospital prior to his death.
(Id. at 12-13).
Defendants timely filed their reply to plaintiffs’
response.
As to the inclusion of specific dollar amounts in
plaintiffs’ complaint in violation of West Virginia law,
defendants argue that the court must follow the plain meaning of
the statute where it is clear, rather than seek to interpret
legislative intent.
(Def.’s Reply Pls.’ Resp. 2.)
On the issue
of punitive damages, defendants argue that all of plaintiffs’
allegations supporting a claim of heightened negligence are
conclusory in nature and thus are not entitled to a presumption
of truth, leaving the record bare of factual allegations
sufficient to support an award of punitive damages.
4.)
(Id. at 3-
Finally, on the issue of plaintiffs’ standing in their
individual capacities, defendants argue that the only claims
delineated in the complaint are those permitted by the wrongful
conscious, reckless and outrageous indifference to the health,
safety and welfare of others.” W. Va. Code § 55-7-29. This law
became effective June 8, 2015. Inasmuch as neither party has
suggested that this provision applies retroactively, the court
will not address it either.
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death statute, and to the extent plaintiffs set out another
claim, it is a filial loss of consortium claim not recognized
under West Virginia law.
(Id. at 5-6).
III.
A.
The Governing Standard
Federal Rule of Civil Procedure 8(a)(2) requires that
a pleader provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”
Fed. R. Civ. P.
8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Rule
12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”
Fed. R. Civ. P. 12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563-64)); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.
2007).
Additionally, the showing of an “entitlement to relief”
amounts to “more than labels and conclusions . . . .”
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Twombly,
550 U.S. at 555.
It is now settled that “a formulaic recitation
of the elements of a cause of action will not do.” Id.;
Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008).
The complaint need not, however, "make a case" against
a defendant or even "forecast evidence sufficient to prove an
element" of the claim.
Chao v. Rivendell Woods, Inc., 415 F.3d
342, 349 (4th Cir. 2005) (quoting Iodice v. United States, 289
F.3d 270, 281 (4th Cir. 2002)).
Instead, the opening pleading
need only contain “[f]actual allegations . . . [sufficient] to
raise a right to relief above the speculative level.”
Twombly,
550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(noting the opening pleading “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”).
Stated another
way, the complaint must allege "enough facts to state a claim to
relief that is plausible on its face."
Twombly, 550 U.S. at
570; Giarratano, 521 F.3d at 302.
As noted in Iqbal, the Supreme Court has consistently
interpreted the Rule 12(b)(6) standard to require a district
court to “‘accept as true all of the factual allegations
contained in the complaint.’”
Erickson, 551 U.S. at 94 (quoting
Twombly, 550 U.S. at 572); see also South Carolina Dept. of
Health and Environmental Control v. Commerce and Industry Ins.
10
Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross,
313 F.3d 184, 192 (4th Cir. 2002)).
The court is additionally
required to “draw[] all reasonable . . . inferences from those
facts in the plaintiff's favor . . . .”
Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
B.
Discussion
1. MPLA Violation
Defendants first assert that plaintiffs’ entire
complaint should be dismissed as violative of the West Virginia
Medical Professional Liability Act by listing specific dollar
amounts in paragraphs 124, 126, and 127; defendants request in
the alternative that these paragraphs be struck from the
complaint.
(Defs.’ Mem. Supp. Mot. Dismiss 2.)
The relevant
portion of the statute provides “[i]n any medical professional
liability action against a health care provider, no specific
dollar amount or figure may be included in the complaint, but
the complaint may include a statement reciting that the minimum
jurisdictional amount established for filing the action is
satisfied.”
W. Va. Code § 55-7B-5(a).
In the absence of ambiguous language, courts should
interpret a statute according to its plain meaning.
Caminetti
v. United States, 242 U.S. 470, 485 (1917); Hillman v. I.R.S.,
11
263 F.3d 338, 342 (4th Cir. 2001).
Plaintiffs have directly
violated the statute by listing the specific dollar amounts set
out in their complaint.
(Compl. ¶¶ 124, 126-27.)
Dismissal of
the entire complaint for this violation is unnecessary, and the
court finds that defendants’ alternative request to strike the
paragraphs including specific dollar amounts from the complaint
is the proper remedy.
Accordingly, this ground of the motion to dismiss is
denied, and the motion to strike is granted.
2. Punitive Damages
Defendants next contend that plaintiffs have not pled
a viable claim for punitive damages.4
(Defs.’ Mem. 2-3.)
In
their briefing, defendants focus solely on whether plaintiffs
adequately pled that Ferguson’s negligence rose to a level of
4West
Virginia law does not recognize an independent cause
of action for punitive damages. Cook v. Heck’s Inc., 176 W. Va.
368, 376, 342 S.E. 2d 453, 461 n.3 (1986). Federal courts have
noted that, as a form of relief rather than an independent
claim, punitive damages are not subject to dismissal under Rule
12(b)(6). See Rathbone v. Haywood Cnty., No. 1:08CV117, 2008 WL
2789770, at *2 (W.D.N.C. July 17, 2008); Charles v. Front Royal
Volunteer Fire & Rescue Dep't, Inc., 21 F. Supp. 3d 620, 631
(W.D. Va. 2014); Hamrick v. Rest. Mgmt. Grp., LLC, No. 2:14-CV02762, 2014 WL 4698489, at *2 n.4 (S.D. W. Va. Sept. 19, 2014).
Nonetheless, the court will address the availability of punitive
damages against each of the defendants.
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culpability to potentially merit an award of punitive damages.
(Id., Reply 3-4.)
Under West Virginia law, punitive damages can be
awarded in tort actions “where gross fraud, malice, oppression,
or wanton, willful, or reckless conduct or criminal indifference
to civil obligations affecting the rights of others appear, or
where legislative enactment authorizes it.”
Syl. Pt. 4, Mayer
v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895); see also Syl. Pt 3,
Jopling v. Bluefield Water Works & Improvement Co., 70 W. Va.
670, 74 S.E. 943 (1912) (“To sustain a claim for punitive
damages the wrongful act must have been done maliciously,
wantonly, mischievously, or with criminal indifference to civil
obligations.”).
The Supreme Court of Appeals of West Virginia,
in explaining what distinguishes wanton negligence from mere
negligence, held “it is not necessary that there should be ill
will toward the person injured; but an entire absence of care
for the safety of others, which exhibits its indifference to
consequences, establishes legal wantonness.”
Syl. Pt. 2,
Todorobak v. McSurley, 107 W. Va. 372, 148 S.E. 323 (1929).
Defendants argue that plaintiffs’ allegations against
Ferguson sound in simple negligence, and thus cannot merit an
award of punitive damages.
(Defs.’ Mem. 3.)
Defendants
acknowledge that plaintiffs’ complaint contains a section
13
alleging heightened negligence, but defendants argue that these
allegations are unsupported by any facts.
(Reply 3-4.)
Defendants correctly quote Iqbal that a complaint will not
“suffice if it tenders ‘naked assertions[s]’ devoid of further
‘factual enhancement.’” 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557).
However, plaintiffs’ allegation that the
“timeline for the lack of care provided by [Ferguson]
demonstrates a complete disregard for the safety of [Elijah]” is
not devoid of factual enhancement.
(Compl. ¶ 132.)
Though the
complaint has organizational issues, it includes a detailed
factual section describing Elijah’s timeline of care by
Ferguson.
(Id. ¶¶ 22-75.)
Plaintiffs incorporate by reference
this factual section into their allegations regarding heightened
negligence.
(Id. ¶ 129.)
These factual allegations, taken as
true, with all inferences drawn in plaintiffs’ favor, along with
plaintiffs’ assertion that Ferguson showed a “complete disregard
for the safety of [Elijah],” are sufficient at this stage to
support a claim for wanton negligence, for which punitive
damages are proper.
Defendants offer no specific arguments against the
availability of punitive damages for plaintiffs’ claims against
MESA of TeamHealth.
Punitive damages are available in West
Virginia for common-law fraud claims.
14
Syl. Pt. 4, Mayer; see
also Muzelak v. King Chevrolet, Inc., 179 W. Va. 340, 345, 368
S.E.2d 710, 715 (1988).
Because plaintiffs assert a
misrepresentation claim based in fraud against MESA of
TeamHealth, punitive damages are available against this
defendant.
(Compl. ¶¶ 138-43, 154, 176-80.)
Because plaintiffs have pled claims for which punitive
damages could be awarded against each defendant, this ground of
the motion is denied.
3. Plaintiffs’ Standing in their Individual Capacities
Defendants’ final ground for dismissal is based on the
style of the complaint, which lists the plaintiffs as Amethyst
Dawn Kimble, as the Administratrix of the estate of Elijah Allen
Moore, and Amethyst Dawn Kimble Moore and Timothy Allen Moore
individually.
Defendants argue that this is exclusively a
wrongful death action in which plaintiffs have no standing in
their individual capacities.
(Defs.’ Mem. 3-4.)
The relevant portion of the West Virginia wrongful
death statute reads “[e]very such action shall be brought by and
in the name of the personal representative of such deceased
person.”
W. Va. Code § 55-7-6(a).
This statute has been
construed to require dismissal of plaintiffs in their individual
capacities.
See Jones v. George, 533 F.Supp. 1293, 1307 (S.D.
15
W. Va. 1982).
However, West Virginia law allows a plaintiff to
bring a negligent infliction of emotional distress claim based
on the same factual circumstances that give rise to a wrongful
death suit.
Syl. Pt. 4, Stump v. Ashland, Inc., 201 W. Va. 541,
499 S.E.2d 41 (1997).
Plaintiffs do not dispute that they lack standing in
their individual capacities for their claims brought under the
wrongful death statute.
(Pls.’ Mem. Resp. 12.)
Rather, they
assert that they are properly joined in their individual
capacities for their emotional distress claims.
(Id. at 12-13.)
In their reply, defendants fail to address plaintiffs’ claims
for negligent infliction of emotional distress; instead, they
reassert their belief that all of plaintiffs’ claims are based
on the wrongful death statute and argue that plaintiffs’ attempt
to assert individual claims seeks to apply a filial loss of
consortium claim not recognized by West Virginia law.
(Reply 5-
6.)
Because plaintiffs allege claims not derivative of the
wrongful death action, this ground of the motion is denied.
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IV.
Based upon the foregoing discussion, it is ORDERED
that the motion to dismiss be, and hereby is, denied, and the
motion to strike be, and hereby is, granted.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
DATED:
June 30, 2015
John T. Copenhaver, Jr.
United States District Judge
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