Opinion
Civil Action No. 05-3004.
November 22, 2005
ORDER
AND NOW, this 21st of November, 2005, following a hearing on November 16, 2005, at which counsel for all parties were heard, it appearing that:
a. This court has subject matter jurisdiction over the action under 28 U.S.C. § 1331 and § 1367; defendants have waived objections to personal jurisdiction and venue.
b. Plaintiffs bring this action on behalf of their minor son and on their own behalf. On behalf of their minor son they allege: negligent supervision, monitoring, and retention of health care providers by the A.I. Dupont Hospital of the Nemours Foundation (the "Hospital") and the Nemours Foundation (the "Foundation") (Count II); negligence by Dr. Norwood (Count III); negligence by Ms. Hillyer (Count VI); failure to secure informed consent by Dr. Norwood, Murdison, Murphy, Spurrier, and Davis (Count VII); and violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count VIII). On their own behalf they allege: fraud and conspiracy by all defendants (Count I); negligent infliction of emotional distress by Drs. Norwood, Murphy, Murdison, Spurrier, and Davis (Count IV); and intentional infliction of emotional distress by Drs. Norwood, Murphy, and Murdison (Count V). Defendants move to dismiss Counts I, IV, V, and VIII. Additionally, they move: to dismiss Count VII as to Drs. Davis and Spurrier; to dismiss the individual defendants from Count VIII; to dismiss punitive damages; to dismiss the entire complaint for failure to comply with Rule 8(A)(2) of the Federal Rules of Civil Procedure or, alternatively, to strike several "scandalous and impertinent allegations" from the complaint.
c. Pennsylvania choice of law rules apply to the tort claims in this action. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Shuder v. McDonald's Corp., 859 F.2d 266, 269 (3d Cir. 1988). Where there is no conflict between the laws of potentially interested jurisdictions, the choice of law question need not be decided and the court may refer interchangeably to the forum law and the laws of the interested jurisdictions. Lucker Mfg. v. Home Ins. Co., 23 F.3d 808 (3d Cir. 1994). In a tort case, if the states' laws differ, courts sitting in Pennsylvania conduct an "analysis of the policies and interests underlying the particular issue before the court." Griffith v. United Air Lines, Inc., 203 A.2d 796, 805 (Pa. 1964). In this case, all the events occurred in Delaware and none of the parties is a Pennsylvania citizen; Pennsylvania had no contact with this case prior to the filing of this action. Pennsylvania and Delaware law are the same with respect to fraud, conspiracy, emotional infliction of emotional distress, and the availability of punitive damages in tort actions. The court will generally cite to Pennsylvania law in its discussion of these torts. Pennsylvania and Delaware law differ as to negligent infliction of emotional distress and informed consent. Delaware law applies to these claims.
d. When considering a motion to dismiss, the court must accept all well-pleaded allegations contained in the plaintiffs' complaint as true and construe them in a light most favorable to the plaintiffs. Carino v. Stefan, 376 F.3d 156, 159 (3d Cir. 2004). A motion to dismiss may be granted where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.
e. Plaintiffs allege that defendants committed fraud because: (1) defendants falsified records and otherwise concealed from plaintiffs what took place during the second of three surgical procedures their son underwent at the Nemours Cardiac Center of A.I. Dupont Hospital (the "Cardiac Center"); (2) defendants lied about the conditions of plaintiffs' son following the second surgical procedure; (3) plaintiffs were falsely told the "Cardiac Center" was the best facility for treating their son's condition and enjoyed high success rates in the procedures their son would undergo; (4) plaintiffs' son was severely injured as the result of defendants' negligence during the second of three procedures he underwent at the Cardiac Center.
Under Federal Rule of Civil Procedure 9(b), plaintiffs must plead with particularity the circumstances of alleged fraud to place the defendants on notice of the precise misconduct with which they are charged. Plaintiffs must plead the date, place or time of the fraud, or otherwise inject precision and some measure of substantiation into their allegations of fraud. Lum v. Bank of America, 361 F.3d 217, 223-24 (3d Cir. 2004). When multiple defendants are involved, the complaint must plead with particularity by specifying the allegations of fraud applying to each defendant. MDNet, Inc. v. Pharmacia Corp., 2005 WL 1385906, at *5 (3d Cir. June 13, 2003).
To prevail on a fraudulent misrepresentation claim the plaintiff must show: (1) a representation; (2) material to the transaction; (3) made falsely, with knowledge of its falsity or recklessness as to its falsity; (4) with the intent of misleading another to rely on it; (5) justifiable reliance on the misrepresentation; and (6) resulting injury proximately caused by the reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999). An intentional concealment of true facts calculated to deceive the other party may give rise of a claim for fraud. DeJoseph v. Zambelli, 139 A.2d 644 (Pa. 1958).
Plaintiffs' complaint does not plead with sufficient particularity which defendant made specific misleading statements or concealed specific facts, nor does it state that plaintiffs relied on each statement or concealment. The claim will be dismissed.
f. Plaintiffs allege that defendants conspired to conceal the truth about what happened during their son's surgical procedure and their son's injuries.
To state a cause of action for civil conspiracy, a plaintiff must show that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Skipworth by Williams v. Lead Indus. Ass'n, Inc., 690 A.2d 169, 174 (Pa. 1997). Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy. Id. Plaintiffs do not allege that defendants intended to injure plaintiffs or their son. This claim will be dismissed for failure to state a cause of action.
g. Plaintiffs allege that they suffered emotional distress and "serious injuries to their nerves and other parts of their bodies" not because of their son's injuries, but because defendants lied to them about their son's condition and they were distressed when they discovered its nature and cause. In order to state a claim for emotional distress directly caused by another's negligence, the plaintiff must show that "the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance." Lupo v. Med. Ctr. of Delaware, Inc., No. Civ. A. 94C-09-049, 1996 WL 111132 (Del.Super. Feb. 7, 1996). Plaintiffs must show that the distress was sufficient to cause physical injury. Robb, 210 A.2d at 714-15; Lloyd v. Jefferson, 53 F.Supp.2d 643, 675 (D.Del.,1999). Construing the allegations in the complaint most favorably to the plaintiffs, it does not appear certain that the plaintiffs can prove no set of facts entitling them to relief See Lupo, 1996 WL 111132. (allowing claim of negligent infliction of emotional distress based on plaintiffs' discovery that their premature baby had not been stillborn, as hospital staff had told them); but see Lupo v. Med. Ctr. of Delaware, Inc., No. Civ. A. 94C-09-049, 1998 WL 110099 (Del.Super. Jan.12, 1998) (denying plaintiffs' motion for a new trial after jury found there was no malpractice).
h. Plaintiffs argue that defendants intentionally inflicted emotional distress because: (1) Dr. Norwood told plaintiffs nothing had gone wrong with their son's second surgery and he would not take particular precautions for the third; (2) Drs. Murphy and Murdison, some time after the third surgery, threatened Mrs. Everwine with ceasing her son's treatment if she insisted on attempting to retrieve his medical records; (3) Dr. Murdison falsely told Mrs. Everwine that the only procedure available for her son was catheterization; other procedures were available but Dr. Murdison favored catheterization because he was writing a paper on it.
To state a claim for intentional infliction of emotional distress, the plaintiff must establish that: (1) the conduct of the defendant was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the distress was severe. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979). The plaintiff must suffer "some type of resulting physical harm." Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1122 (Pa.Super. 2004). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988). It is the court's responsibility to determine if the conduct alleged in a cause of action is outrageous. Id. at 395. Taking all the allegations of the complaint as true and construing most favorably to the plaintiffs, the court cannot say the plaintiffs can prove no set of facts entitling them to relief.
i. Plaintiffs allege that the anesthesiologists attending their son's second surgical procedure, Drs. Davis and Spurrier, did not secure their informed consent for the surgical procedure. They do not allege that Davis and Spurrier failed to secure consent for the anesthesia administered. A medical provider cannot be liable for failure to obtain informed consent for a procedure he did not perform. This claim will be dismissed as to Drs. Davis and Spurrier.
j. Plaintiffs allege that their son, because of his disabling heart defects, was treated in the Cardiac Center, a facility not subject to the quality control procedures of the rest of the Hospital. They allege that the Hospital and the Cardiac Center receive federal funds, and that Drs. Norwood, Murphy, Davis, Spurrier, and Murdison maintain offices in the Hospital and see patients there.
Under the Rehabilitation Act, a plaintiff must allege that: (1) he is a "handicapped individual" under the Act; (2) he is "otherwise qualified" for the program sought; (3) he was excluded from the program "solely by reason of his handicap"; and (4) the program at issue receives federal financial assistance. Wagner by Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995). It is a matter of first impression whether a medical patient may bring a claim of disability discrimination by alleging that because of his disability he was treated in a facility inferior to other facilities within the same program. Dismissal of this claim is premature at this time.
Individuals who do not receive federal aid are not liable under the Rehabilitation Act. See Emerson v. Thiel College, 296 F.3d 184, 189-90 (3d Cir. 2002) (a former president, administrators, and faculty of a college were not liable under Section 504 of the Rehabilitation Act because "Section 504 applies to federal financial assistance recipients" and "the individual defendants [did] not receive federal aid.") Maintaining offices at the Hospital and seeing patients there is not receipt of federal assistance. This claim will be dismissed as to the individual defendants.
In their Complaint, plaintiffs also claim negligent infliction of emotional distress from their son's injuries. They no longer make that claim. See Pl.'s Opp. to Mot. to Dismiss at 11. In any event, that claim would be dismissed, because plaintiffs were not in the "zone of danger" when the defendants' alleged negligence injured plaintiffs' son. See Robb v. Pennsylvania R.R. Co., 210 A.2d 709, 714 (Del. 1965) (a claim of negligent infliction of emotional distress caused by the injury to property or a third party requires that the plaintiff be in the "immediate area of physical danger from that negligence");Mancino v. Webb, 274 A.2d 711 (Del.Super. 1971) (the rule is not relaxed when the injury is to the plaintiff's child).
It is therefore ORDERED that:
1. Defendants' Motion to Dismiss and Motion to Strike (Paper No. 7) is GRANTED IN PART AND DENIED IN PART.
a. Defendants' motion to dismiss Count I of Plaintiffs' Complaint (Fraud and Conspiracy) is GRANTED.
b. Defendants' motion to dismiss Count IV of Plaintiff's Complaint (Negligent Infliction of Emotional Distress) is DENIED without prejudice.
c. Defendants' motion to dismiss Count V of Plaintiffs' Complaint (Intentional Infliction of Emotional Distress) is DENIED without prejudice.
d. Defendants' motion to dismiss Count VII of Plaintiffs' Complaint (Lack of Informed Consent) as to Defendants Davis and Spurrier is GRANTED.
e. Defendants' motion to dismiss Count VIII of Plaintiffs' Complaint (Rehabilitation Act) as to the Nemours Foundation is DENIED; the motion to dismiss Count VIII as to the individual defendants is GRANTED.
f. Defendants' motion to dismiss punitive damage claims is DENIED without prejudice.
g. Defendants' motion to dismiss Drs. Davis and Spurrier is GRANTED.
h. Defendants' Motion to Dismiss the Complaint or Alternatively, to Strike the Scandalous and Impertinent Allegations from the Complaint (contained in Paper #7) is GRANTED in the alternative as a Motion to Strike.
2. On or before November 30, 2005, defendants shall submit a letter stating discussions with counsel about potential conflicts of interest.
3. On or before November 30, 2005, the parties shall jointly file with the court a letter stating how they wish to pursue settlement.
4. On or before November 30, 2005, the parties shall jointly submit a proposed discovery schedule.
5. On or before December 6, 2005, plaintiffs may file an amended complaint consistent with the Federal Rules of Civil Procedure and the Appendix of Forms.
6. On or before December 27, 2005, defendants may move, answer, or otherwise plead in response to the amended complaint.
7. A status conference will be held on January 3, 2005, at 3:00 pm.
8. By agreement of the parties, the A.I. Dupont Hospital is dismissed as a party defendant.