Opinion
CIVIL NO: 3:17-CV-01884
01-16-2019
NICHOLAS F. BELLEZZA, Plaintiff, v. TERENCE F. DUFFY, M.D., Defendant.
(Judge Mariani) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff Nicholas F. Bellezza ("Bellezza") alleges that the defendant Terence F. Duffy, M.D. ("Duffy") failed to order MRI scans of his thoracic spine and failed to provide a complete medical diagnosis following a consultation in January of 2001. Bellezza contends that had Duffy ordered an MRI of his thoracic spine, Bellezza could have been treated for a fracture rather than living in pain for fifteen years. The defendant moves to dismiss the complaint. For the reasons discussed below, we recommend that the Court grant the motion to dismiss and further grant Bellezza leave to amend.
The defendant was "incorrectly named as 'Dr. Terrance Duffy'" in the complaint. Doc. 10 at 1. Counsel for Duffy entered her appearance on behalf of Terence F. Duffy, M.D., and we address him as such going forward. Id.
II. Background and Procedural History.
Bellezza began this action on October 16, 2017, by filing a complaint which named Duffy as the defendant and instructed us to "[p]lease see attached letter." Doc. 1 at 1-2. Bellezza attached an email from his daughter, Angela Bellezza, which constitutes the only explanation of his allegations. Doc. 1 at 3. Through this attached email, Bellezza alleges that he "is in the very severe physical state he is now in because, he was not provided with an adequate medical diagnosis when he first consulted with, Dr. Terrance Duffey [sic]." Id. Bellezza explains that he had "a very serious fall back in January of 2001" for which Duffy ordered "an MRI in his Lumbar Spine . . . [but] an MRI on [Bellezza's] Thoracic Spine was never done." Id.
Bellezza claims that, after a fall in October 2015, a
Thoracic CT Scan showed a chronic fracture to his back . . . [prompting his] belief that, had [he] been provided with an MRI or CT Scan of his Thoracic Spine, at the time he consulted with Dr. Duffey [sic], in 2001, he could have been treated for his broken back . . . at that time rather than having to experience 15 years of extreme pain and suffering.Id. Bellezza alleges that he "has not been able to work since 2012 . . . [,] can not provide a living for himself and his family[, . . . and] also suffers from very severe anxiety and depression." Id.
We ordered Bellezza to "serve the complaint on the defendant in accordance with Fed. R. Civ. P. 4 or obtain waivers of service under Fed. R. Civ. P. 4(d) from the defendant." Doc. 2 at 1. Counsel for Duffy thereafter entered her appearance with the court. Doc. 10. On April 24, 2018, Duffy filed a motion to dismiss for (1) failure to state a claim upon which relief can be granted, (2) failure to file a Certificate of Merit in accordance with Pennsylvania Rule of Civil Procedure 1042.3, (3) failure to file within the statute of limitations, and (4) failure to comply with Fed. R. Civ. P. 8(a)(1), 8(a)(3), 10(a), and 10(b). Doc. 16 at 2-5.
We ordered Bellezza to file a brief in opposition to Duffy's motion to dismiss. Doc. 18. On May 30, 2018, Bellezza filed a handwritten brief in opposition in which he explains that his "civil case needs to not be dismissed." Doc. 20 at 1. Bellezza continues that he "did not know [he] had broke [his] back" in January 2001, and that he "came to believe [his] back problems were as Dr. Duffy said it was, all in [his] lumbar spine and facet joints." Id. at 2. Following his 2015 injury, Bellezza asserts, thoracic CT scans "revealed a very serious fracture to thoracic spine from a long time ago." Id. at 3. Bellezza concludes that if he "were given a thoracic MRI or CT scan, [he] may have had a much better chance to live a much better life" and requests "$100,000 for the injuries sustained as a result of the above actions caused by the [defendant]." Id. at 6.
III. Motion to Dismiss under Rule 12(b)(6) Standards.
In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss, "[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
"A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to 'show' such an entitlement with its facts." Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court must accept as true all well-pleaded factual allegations in the complaint, and the court must draw all reasonable inferences from the facts alleged in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). But a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify
allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
IV. Discussion.
A. Bellezza Fails to Establish Subject-Matter Jurisdiction.
In his complaint, Bellezza does not explain what relief he requests, nor does he put forth any allegations in his complaint that allow us to conclude whether we have subject-matter jurisdiction. See doc. 1. On the face of the complaint, Bellezza does not adequately assert diversity jurisdiction as he does not plead sufficient facts to establish the amount in controversy or the citizenship of the parties. See 28 U.S.C.A. § 1332. Neither does Bellezza provide us with any assertions as to why his claims implicate any federal law. See doc. 1. Thus, we cannot ascertain whether we have federal question subject-matter jurisdiction pursuant to 28 U.S.C.A. § 1331.
B. Bellezza Fails to State a Claim Upon Which Relief Can Be Granted.
Duffy contends that Bellezza's "complaint is devoid of any amount of facts that are not legal conclusions which possibly state a plausible claim for relief." Doc. 16 at 2. Bellezza's complaint, in its totality, lists himself as the plaintiff, Duffy as the defendant, and instructs us to "[p]lease see attached letter." Doc. 1 at 1-2. The letter attached to the complaint is an email written by Bellezza's daughter which explains that Bellezza's
belief here is that, had [he] been provided with an MRI or CT Scan of his Thoracic Spine, at the time he consulted with Dr. Duffey [sic], in 2001, he could have been treated for his broken back . . . at that time rather than having to experience 15 years of extreme pain and suffering.Id. at 3. We assume that Bellezza attempts to state a claim under Pennsylvania medical malpractice law. "To make out a claim for medical malpractice under Pennsylvania law, a plaintiff must show that: (1) the physician owed the patient a duty of care; (2) the physician breached the duty; (3) the breach caused the harm suffered; and (4) the damages were a direct result of the harm." Estien v. Showalter, No. 1:CV-13-2474, 2014 WL 4916333, at *14 (M.D. Pa. Sep. 30, 2014) (citing Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003)). Thus, Bellezza must plead factual allegations establishing that Duffy owed him a duty of care, that Duffy breached that duty, that Duffy's breach caused Bellezza's harm, and that the damages resulted from that harm. Because Bellezza fails to do so, he fails to state a claim upon which relief can be granted for medical malpractice under Pennsylvania law.
Duffy next argues that we should dismiss Bellezza's complaint because Bellezza "has not filed the required Certificate of Merit ("COM") within sixty days of his Complaint . . . as required under Pennsylvania Rule of Civil Procedure 1042.3." Doc. 16 at 3. Pa. R. Civ. P. No. 1042.3
requires that within sixty days of filing "any action based upon an allegation that a licensed professional deviated from an acceptable professional standard," a plaintiff file a COM that states (1) "an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge" of the defendant "fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm"; (2) the claim is "based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard"; or (3) "expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim."Schmigel v. Uchal, 800 F.3d 113, 116-17 (3d Cir. 2015) (quoting Pa. R. Civ. P. No. 1042.3(a)(1)-(3)). But
the Pennsylvania Supreme Court amended the Rules of Civil Procedure to add additional conditions precedent to a defendant's dismissal of a case. As a result of those changes, a Pennsylvania malpractice defendant now may dismiss an action only if four conditions are met: (1) there is not a pending motion (a) for a determination that a COM is unnecessary in the first place or (b) seeking to extend the time to file a COM; (2) a COM was not filed before dismissal was sought; (3) the defendant has attached proof that he served notice of the deficiency upon the plaintiff; and . . . (4) thirty days has elapsed between the notice of deficiency and the defendant's attempt to terminate the action.Id. at 118 (citing Pa. R. Civ. P. No. 1042.7(a)(1)-(4)). "Pennsylvania's notice requirement, like the COM requirement itself, is substantive state law under Erie and therefore must be applied by a federal court sitting in diversity." Id. at 119-20. But "[a]s we have made clear, the COM requirement 'does not have any effect on what is included in the pleadings of a case or the specificity thereof.'" Id. at 122 (quoting Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011)). "That is, the COM 'is not part of the complaint, nor does it need to be filed with the complaint.'" Id. (quoting Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. Withum Smith Brown, P.C., 692 F.3d 283, 303 (3d Cir. 2012)). "Rather, the COM requirement and its conditions are facts that can form the basis for a motion of summary judgment." Id. (citing Nuveen, 692 F.3d at 303 n.13). Thus, "[t]he condition of thirty days' notice prior to seeking dismissal of an action for failure to comply with the COM regime is substantive and must be applied in federal court." Id. at 124. Here, Duffy must provide Bellezza with the same thirty days' notice required in Schmigel in order to dismiss Bellezza's complaint for failure to provide a COM. Thus, Duffy's argument that Bellezza's complaint should be dismissed for failure to attach a COM to his complaint fails. Doc. 16 at 3.
Duffy next argues that "[t]he docketed Complaint is clear that [Bellezza] had ongoing pain, characterized as '15 years of extreme pain and suffering' and as such would have been on notice to seek additional medical treatment and/or a second opinion." Doc. 16 at 4. Although we note Duffy's raising of a statute of limitations argument, given the lack of factual allegations in the complaint we believe that this issue is better decided if Bellezza files an amended complaint or on summary judgment.
C. Leave to Amend.
"[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Here, Bellezza should be given leave to amend his complaint given that this is Bellezza's first opportunity to amend his complaint, and we cannot say such amendment would be inequitable or futile. In an amended complaint, Bellezza must comply with the Federal Rules of Civil Procedure. Additionally, we acknowledge Duffy's substantive arguments, but forestall ruling on them until Bellezza files an amended complaint given the lack of factual allegations in his complaint. In an amended complaint, Bellezza must set forth the basis for federal subject-matter jurisdiction. Also, in an amended complaint Bellezza should set forth sufficient facts to state a claim or claims upon which relief can be granted. A letter, like that attached to the original complaint, is insufficient.
V. Recommendations.
Accordingly, we recommend that the Court grant the defendant's motion (doc. 16) to dismiss the complaint. We further recommend that Bellezza be granted leave to file an amended complaint.
Any amended complaint shall be complete in all respects. It shall contain all of the plaintiff's claims against all of the defendants. It shall be a new pleading which stands by itself as an adequate complaint without reference to the complaints already filed. It shall not incorporate by reference any of the previous complaints. Any amended complaint shall be titled as an amended complaint and shall contain the docket number of this case. Finally, any amended complaint should clearly set forth the basis for subject-matter jurisdiction before this court.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 16th day of January, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge