Bradley v. Val-Mejias

• Decision Date: 06 November 2002
• Docket Number: Civil Action No. 00-2395-GTV.
• Citation: 238 F.Supp.2d 1242
• Parties: Rick L. BRADLEY, Plaintiff, v. J.E. VAL-MEJIAS, M.D., et al., Defendants.
• Court: U.S. District Court — District of Kansas

238 F.Supp.2d 1242

Rick L. BRADLEY, Plaintiff, v. J.E. VAL-MEJIAS, M.D., et al., Defendants.

Civil Action No. 00-2395-GTV.

United States District Court, D. Kansas.

November 6, 2002.

Jeffrey D. Zimmerman, Shawnee, KS, Jim Leventhal, James E Puga, Natalie Brown, Leventhal & Brown, P.C., Denver, CO, for Plaintiff.

Jack Focht, Jay F. Fowler, Amy S. Lemley, Shannon D. Wead, Foulston Siefkin LLP, Wichita, KS, Timothy M. Aylward, Horn, Aylward & Bandy LLC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

VANBEBBER, Senior District Judge.

Plaintiff, Rick L. Bradley, brings this medical malpractice action against Defendants, J.E. Val-Mejias, M.D. ("Dr.Val-Mejias") and The Galichia Medical Group, P.A. ("GMED"). The case is before the court on GMED's motion to dismiss (Doc. 23), GMED's motion for Rule 11 sanctions against Jeff Zimmerman and Natalie Brown (Doc. 26), GMED's first motion for summary judgment (Doc. 169), Plaintiff's motion to disqualify Amy S. Lemley and the law firm of Foulston Siefkin LLP (Doc. 183), Plaintiff's motion for leave to file a second amended complaint (Doc. 204), and Dr. Val-Mejias's first and GMED's second motion for summary judgment (Doc. 212). For the reasons set forth below, GMED's motion to dismiss (Doc. 23) is granted, GMED's motion for Rule 11 sanctions (Doc. 26) is denied, GMED's first motion for summary judgment (Doc. 169) is denied as moot, Plaintiff's motion to disqualify defense counsel (Doc. 183) is denied as moot, Plaintiff's motion for leave to file a second amended complaint (Doc. 204) is denied, and Dr. Val-Mejias's first and GMED's second motion for summary judgment (Doc. 212) is granted in part and denied as moot in part.

I. FACTUAL BACKGROUND

The following facts are taken from the motions for summary judgment submitted in this case. As such, they are either uncontroverted or viewed in the light most favorable to Plaintiff. Immaterial facts and facts not properly supported by the record are omitted. Plaintiff, a forty-seven year-old man, had his first pacemaker installed in 1981. He became a patient of GMED, located in Wichita, Kansas, in approximately 1988. On September 24, 1992, Dr. Demosthenis Klonis, a cardiac surgeon employed by GMED, performed a procedure upgrading Plaintiff's pacemaker. Dr. Val-Mejias, who was also employed by GMED, assisted Dr. Klonis in the procedure.

In August 1993, Plaintiff began experiencing problems with his pacemaker after he was involved in an automobile accident. As a result of the problems, Dr. Klonis replaced Plaintiff's pacemaker in a surgical procedure performed on September 16, 1993. Dr. Val-Mejias was not involved in the second procedure.

For several years after the 1993 pacemaker replacement, Plaintiff's contact with GMED personnel or physicians was limited to several instances in which he telephoned in to GMED to transmit basic pacemaker data to be read and evaluated by a machine. Such telephone contacts are noted in Plaintiff's medical records on December 12, 1994, June 15, 1995, and February 10, 1997.

In March 1997, Plaintiff quit his job working as a truck driver. During that month and the following month, Plaintiff saw a series of doctors, including Dr. T.K. Reddy of Hutchinson, Kansas, Dr. J.S. Spitzer of Hutchinson, Kansas, and Dr. Gregory Boxberger of GMED. Plaintiff consulted Drs. Reddy and Boxberger for complaints generally related to chest pain, left arm numbness, dizziness, clammy skin and blurred vision. Plaintiff visited Dr. Spitzer for his yearly Department of Transportation ("DOT") physical exam, which he passed. The specific details of Plaintiff's visits with those doctors are not pertinent to this opinion.

Plaintiff also maintains that he visited Dr. Val-Mejias in March 1997, and that Dr. Val-Mejias denied Plaintiff's DOT certification at that time. Although Defendants deny that Plaintiff visited Dr. Val-Mejias then, the court will assume for purposes of this opinion that the visit occurred.

Plaintiff also had appointments with Dr. Val-Mejias on May 2, 1997 and June 16, 1997. On June 16, 1997, Dr. Val-Mejias diagnosed Plaintiff with vertigo, which he attributed to an inner ear problem, and shingles (herpes zoster), which he believed was the cause of the numbness on the left side of Plaintiff's body. Dr. Val-Mejias indicated that he did not believe that Plaintiff's problems had a cardiac origin or were in any way related to his pacemaker. He referred Plaintiff to Dr. Gary Pease, an ear, nose, and throat specialist, for further evaluation.

Dr. Pease saw Plaintiff on July 14, 1997. The medical records from the visit indicate that Dr. Pease diagnosed Plaintiff with vertigo of undetermined etiology. Plaintiff has testified, however, that Dr. Pease told him that he thought the vertigo was heart-related. In addition, Plaintiff's wife has testified that Dr. Pease told them the following: "He thought that, off the record, basically what he told us, he thought it was probably related back to the heart or he suggested we could got [sic] to a neurologist." Plaintiff testified that he never went to a neurologist because he thought it would be a "waste of time and a waste of money." Plaintiff's wife testified that Plaintiff never went to a see a neurologist and never returned to Dr. Val-Mejias because the couple did not have enough money to pay their medical bills.

Despite his wife's testimony about not returning to Dr. Val-Mejias after the appointment with Dr. Pease, Plaintiff maintains that he had an appointment with Dr. Val-Mejias as late as November 1997. Although Defendants contend that Plaintiff's last visit with Dr. Val-Mejias was in June 1997, the court will assume for purposes of this opinion that the November 1997 visit occurred.

On April 29, 1998, Plaintiff testified under oath and while represented by an attorney at a hearing before an administrative law judge on a claim he filed for Social Security Disability and Supplemental Security Income benefits. At the hearing, Plaintiff testified that he stopped working in March 1997 because of "dizzy spells," "numbness," "not feeling good," and "poor judgment." Plaintiff described many of his symptoms at length, including the fact that his pacemaker caused him pain and shocked him. He stated that every time he went to Dr. Val-Mejias, Dr. Val-Mejias would adjust the pacemaker and the symptoms would come on stronger, and that when he would tell Dr. Val-Mejias this, Dr. Val-Mejias would adjust the pacemaker again but the symptoms would never disappear. Ultimately, Plaintiff testified as follows: "I got off the road because I didn't feel I was safe. I still [feel] it's due to the pacemaker. I don't think they got something in there set right or they are not going deep enough in it and I don't think they're paying a lot of attention to me because of my financial situation."

On May 6, 1998, Plaintiff saw Dr. Candice Morgan of Greeley, Colorado for a second opinion regarding his pacemaker and cardiac problems. After examining Plaintiff, Dr. Morgan completed a report in which she stated that she believed: (1) the ventricular lead of Plaintiff's pacemaker was causing chest muscle stimulation and probable stimulation to the nerve in his left arm, which resulted in pain, numbness and weakness in the arm; (2) poor ventricular sensing in the pacemaker could be causing Plaintiff's lightheadedness; and (3) there were multiple problems with the pacemaker's programming and functions which could explain some of Plaintiff's symptoms. Dr. Morgan noted that she made some programming changes to Plaintiff's pacemaker and then discussed with Plaintiff the options available to him. Dr. Morgan described the options as being "either to continue as he is and replace ventricular lead when present pacemaker is at end of life, which may be a number of years, [or] replace the ventricular lead at this time to allow normal ventricular pacing and sensing without the present problems and high thresholds and poor sensing plus muscle and nerve stimulation."

Plaintiff returned to Dr. Morgan the following day for an evaluation of the effect of the programming changes on his pacemaker. Dr. Morgan's report of the second appointment described "[m]ild improvement in overall symptoms with ventricular lead still firing occasionally" and "an episode of awakening in his sleep around 3:00 AM." Dr. Morgan recommended another pacemaker evaluation in six months.

On September 3, 1998, Plaintiff again saw Dr. Morgan after being admitted to a Colorado hospital with chest pain. At that time, Dr. Morgan reviewed x-rays taken of Plaintiff's chest and opined that a fractured ventricular lead in Plaintiff's pacemaker was the most likely cause of Plaintiff's continuing symptoms. Dr. Morgan informed Plaintiff of her opinion and replaced his pacemaker shortly thereafter.

GMED, Dr. Val-Mejias, and Dr. Klonis are all qualified health care providers pursuant to Kansas law.

II. PROCEDURAL BACKGROUND

Plaintiff filed his original complaint in this case on September 1, 2000. In his original complaint, Plaintiff advances medical malpractice and fraudulent concealment claims against Dr. Val-Mejias, a medical malpractice claim against Dr. Klonis, and medical malpractice claims against GMED. Plaintiff's medical malpractice claims against GMED are based solely on the allegedly negligent actions of Drs. Val-Mejias and Klonis.

On March 26, 2001, GMED filed a motion to dismiss Plaintiff's claims against it (Doc. 23). GMED's motion is based on the argument that the Kansas Health Care Stabilization Act, K.S.A. § 40-3403(h), prohibits a qualified health care provider, such as GMED, from being held vicariously liable for the actions of other qualified health care providers, such as Drs. Val-Mejias and Klonis. In conjunction with its motion to dismiss, GMED also filed a motion for Rule 11 sanctions against Plaintiff's counsel (Doc. 26). GMED argues that sanctions are appropriate because Plaintiff's counsel failed to make a...