Opinion
Civil Action No. 04-2251 Section "K" (5).
June 2, 2005
ORDER AND REASONS
Before the Court is Defendants' Rule 12(b)(6) Motion to Dismiss Plaintiff's action against defendants because, as a qualified health care providers, they are entitled to have all allegations of negligence reviewed by the medical review panel prior to litigation of the claim as required under Louisiana Revised Statutes 40:1299.47.
BACKGROUND
Plaintiffs, Jeffrey Garber and Tammy Garber, are adult residents of Hancock County, Mississippi, and allege they were injured due to the negligence and malpractice of defendants, Jeffrey H. Oppenheimer M.D., Jeffrey H. Oppenheimer, P.C., and AMD Jeffrey H. Oppenheimer, M.D. Neurological Surgery, A.P.C. Defendant, Jeffrey Oppenheimer, M.D., is a person engaged in the practice of medicine in the State of Louisiana. Plaintiffs institute this suit in this Court pursuant to 28 U.S.C. § 1332, alleging diversity of citizenship.
Dr. Oppenheimer is the employee of Jeffrey Oppenheimer, P.C. and Jeffrey Oppenheimer, Neurological Surgery, A.P.C., which are professional corporations. These defendants are juridical persons organized under the laws of the State of Louisiana, and operate in St. Tammany Parish, Louisiana. Plaintiffs allege that as employers of Dr. Oppenheimer, these legal entities are vicariously liable for the medical malpractice of Dr. Oppenheimer.
Plaintiffs contend Defendants failed to provide proper care to Jeffrey Garber in that they
1) did not provide and/or carry out adequate testing,
2) failed to diagnose and treat properly,
3) failed to administer and/or recommend conservative care,
4) performed unnecessary surgery, and
5) breached the contract to provide adequate and necessary care.
Plaintiffs filed suit in this Court making the foregoing allegations on August 8, 2004. ( See Rec.Doc.1). Defendant filed their answer December 29, 2004. ( See Rec.Doc.2). Preliminary conference was held by telephone on February 17, 2005. ( See Rec.Doc.3). Defendants filed a motion to dismiss on March 8, 2005, and plaintiffs filed their opposition on March 31, 2005. ( See Rec.Doc.4).
Defendants move to dismiss this action against them pursuant to Federal Rules of Civil Procedure 12(b)(6) claiming that this action should be dismissed because, as a qualified health care provider under Louisiana Revised Statutes 40:1299.41, they are entitled to have all allegations of negligence reviewed by the medical review panel prior to litigation of the claim as required under Louisiana Revised Statutes 40:1299.47.
Plaintiffs oppose the motion to dismiss arguing that the corporate defendants are not qualified health care providers under La.R.S. 40:1299.41. Rather, they suggest the court to hold in abeyance and/or stay the action against these defendants pending consideration of the claim by the medical review panel.
LEGAL STANDARD
A motion to dismiss an action for failure to state a claim "'admits the facts alleged in the complaint, but challenges plaintiff's right to relief based upon those facts.'" Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995) (quoting Ward v. Hudnell, 366 F.2d 247, 249 (5th Cir. 1996). "[F]or purposes of the motion to dismiss, (1) the complaint is construed in the light most favorable to the plaintiff, (2) its allegations are taken as true, and (3) all reasonable inferences that can be drawn from the pleadings are drawn in favor of the pleader." Wright Miller, Federal Practice Procedure § 1357, at 417 (2004 West). "The district court may not dismiss a complaint under rule 12(b)(6) 'unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Conley v. Givson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations." Id. see also Kaiser Aluminum Chemical Sales v. Avondale Shipyards, 677 F.2d 1045 (5th Cir. 1982). That being said, it is well established that courts do not have to accept every allegation in the complaint as true in considering its sufficiency. Wright Miller, Federal Practice Procedure § 1357, at 548-549; see also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (conclusory allegations and unwarranted deductions of fact are not admitted as true); see also, Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994) (accepting as true, for the purposes of a Rule 12(b)(6) dismissal, well-pleaded factual allegations, but rejecting "conclusory allegations or unwarranted deductions of fact").
ANALYSIS
The question before the Court on this motion is whether all defendants are qualified health providers. The relevant language of La.R.S. 40:1299.41 provides in (A)(1):
"Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician . . . or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability company, management company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment."
Defendant, Dr. Oppenheimer, clearly is a qualified health care provider under the LMMA. On the other hand, it is not clear as to whether the other defendants are qualified health care providers as well. The Court needs more information about the function of these legal entities in order to address the question of whether they are health care providers under the LMMA.
Plaintiff contends that their claims are not subject to the medical review panel procedure imposed under Louisiana Law because this action is brought in federal court. However, it is clear that the Court must apply the LMMA. The LMMA provides that no action against a health care provider "may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel." La.Stat.Rev. 40:1299.47(B)(1)(a)(i). The submission of medical malpractice claims to a review panel prior to suit is a substantive rule of law. See Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir, 1979) (holding that Florida's Medical Malpractice Act is substantive state law); cf. Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1424 (W.D.La. 1988) (concluding that Louisiana's Medical Malpractice Act is substantive state law). Thus, this Court is obligated when exercising diversity jurisdiction to apply the provisions of the LMMA.
Accordingly, for the foregoing reasons,
IT IS ORDERED that the motion of Defendant, Dr. Jeffrey H. Oppenheimer to dismiss plaintiff's action is GRANTED, and plaintiff's claims are DISMISSED WITHOUT PREJUDICE with the right to renew pending review by a Louisiana medical review panel.
IT IS FURTHER ORDERED that the motions of the defendant legal entities to dismiss is hereby DENIED and this matter is stayed and administratively closed pending review by the panel. However, the corporate defendants shall have the right to renew the motion to dismiss if they are able to establish that they are qualified health care providers.