Asselin v. Shawnee Mission Medical Center, Inc., Civ. A. No. 94-2505-KHV.

• Decision Date: 25 July 1995
• Docket Number: Civ. A. No. 94-2505-KHV.
• Citation: 894 F. Supp. 1479
• Parties: Leonard J. ASSELIN, Jr., Plaintiff Pro Se, v. SHAWNEE MISSION MEDICAL CENTER, INC., et al., Defendant.
• Court: U.S. District Court — District of Kansas

894 F. Supp. 1479

Leonard J. ASSELIN, Jr., Plaintiff Pro Se, v. SHAWNEE MISSION MEDICAL CENTER, INC., et al., Defendant.

Civ. A. No. 94-2505-KHV.

United States District Court, D. Kansas.

July 25, 1995.

Leonard J. Asselin, Jr., Prairie Village, KS, pro se.

Sally H. Harris, John M. Graham, Jr., Wallace, Saunders, Austin, Brown & Enochs, Overland Park, KS, for Shawnee Mission Medical Center, Inc.

Janet M. Simpson, Holbrook, Heaven & Fay, P.A., Kansas City, KS, for Seventh-Day Adventists Church.

Phillip R. Dupont, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, for Steven J. Hess.

Philip P. Ashley, M. Warren McCamish, Williamson & Cubbison, Kansas City, KS, for Gregory Rick, Jr.

MEMORANDUM AND ORDER TO SHOW CAUSE

VRATIL, District Judge.

This matter comes before the Court on Plaintiff's Motion to File Second Amended Complaint (Doc. # 30) filed April 11, 1995; Plaintiff's Motion to File Supplemental Pleading (Doc. # 47) filed May 9, 1995; the Motion of Plaintiff, Leonard J. Asselin, Jr. Requesting Leave of the Court To File A Third Amended Complaint Pursuant to FedRCivP 15, and the Court's Permission to Extend the Time for Service Pursuant to FedRCivP 4(m) (Doc. # 51) filed June 22, 1995; and the Motion of Plaintiff, Leonard J. Asselin, Jr. Requesting Leave of the Court For Possible Intervention by the United States Department of Justice Pursuant to the Americans With Disabilities Act 28 CFR 36.501-36.508 (Doc. # 54) filed June 22, 1995.

This matter also comes before the Court with respect to various motions to dismiss: Defendant Shawnee Mission Medical Center, Inc.'s Motion To Dismiss for Lack of Jurisdiction (Doc. # 15) filed February 28, 1995; Defendant Hess' Motion to Dismiss First Amended Complaint and Motion to Quash (Doc. # 18) filed March 10, 1995 and plaintiff's Motion to Reconsider Defendant Hess' Position Relative to Facts of Service (Doc. # 53) filed June 22, 1995; Defendant Gregory Rick, Jr., M.D.'s Motion to Dismiss (Doc. # 33) filed April 17, 1995; and Defendant Seventh-Day Adventists Church's Motion to Dismiss for Lack of Jurisdiction (Doc. # 35) filed April 17, 1995.

Plaintiff's Complaint and Amendments Thereto

Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the pleadings, before a responsive pleading is served or within 20 days after service. Subsequent amendments are allowed by leave of court or by written consent of an adverse party. Fed. R.Civ.Pro. 15(a). Subsequent amendments should be "freely given when justice so requires." Id.

On December 12, 1994, plaintiff filed his Complaint of Negligence in this case. On February 10, 1995, with leave of court, he filed an amended complaint which he characterized as his "First Amended Complaint of Medical Negligence" (Doc. # 12). On April 11, 1995, in response to various motions to dismiss, plaintiff sought leave to file a second amended complaint which further clarified his claims. By way of still further clarification, plaintiff lodged a motion for leave to file a supplemental pleading and a motion for leave to file a third amended complaint.

Defendants argue that the Court lacks subject matter jurisdiction because complete diversity does not exist and plaintiff alleges no viable basis for federal jurisdiction. In attacking the jurisdictional basis for plaintiff's complaint, however, they confront a moving target. While plaintiff is no stranger to the field of litigation, he does appear pro se and the Court has entertained consecutive motions and purported "clarifications" of plaintiff's original complaint. Moreover, the Court has made extraordinary efforts to ascertain the gist of plaintiff's claim. To that end the Court has reviewed all of plaintiff's various pleadings and motions and for purposes of this order, accepts their factual allegations as true. From that vantage point, as best the Court can determine, the factual basis of plaintiff's claim is that stated below. For purposes of evaluating defendants' motions to dismiss, the Court grants all pending motions for leave to amend.

Plaintiff's "Second Amended Complaint"

The Court summarizes the allegations of plaintiff's various complaints and proposed amendments, and accepts them as true for purposes of the pending motions to dismiss:

Shawnee Mission Medical Center, Inc. SMMC is owned and governed by the Seventh-Day Adventist church: Midwest Adventist Health Services, Inc. Midwest, owns the hospital facility and the Mid-America Union Conference of Seventh-Day Adventists Mid-America Conference, an unincorporated association, is its governing body. The Mid-America Conference is part of the General Conference of Seventh-Day Adventists in Silver Spring, Maryland. The General Conference, through Midwest and the Mid-America Conference, controls, sponsors, manages, operates and administers SMMC. Steven J. Hess, M.D., was plaintiff's attending neurosurgeon at SMMC. Gregory Rick, M.D., a gastroenterologist, consulted with Dr. Hess concerning plaintiff's treatment. Both doctors acted as agents of SMMC and the Seventh-Day Adventists.

Defendants are places of public accommodation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and other federal statutes, and they receive federal funds through various programs, including Hill-Burton, Medicare, Medicaid and C.H.A.M.P.U.S.

On December 10, 1992, plaintiff (who was then 56 years of age) fell from a one-story roof and was transported by ambulance to SMMC. Plaintiff was in a great deal of pain and he was hospitalized from December 10, 1992 until January 1, 1993, for an acute compression fracture of his back.

Plaintiff has suffered from epilepsy, a disabling seizure disorder, since an accident in his teen-age years. Plaintiff controls the seizures through medication, i.e. 200 mg. of Dilantin in the morning plus 100 mg. of Dilantin and 60 mg. of phenobarbital at bed-time. In the emergency room on December 10, 1992, plaintiff disclosed his medical condition, including his epilepsy, along with his current medications and their dosages. At that time, plaintiff also executed a consent to hospital and medical treatment. The consent form embodied a representation that "my doctor will explain to me ... his recommended treatment and any associated risks involved." Defendants did not advise plaintiff of any treatment risk with respect to the medications which they administered, nor did they supply plaintiff written information concerning his rights as a patient. Also, defendants did not test plaintiff's blood levels of Dilantin and phenobarbital in the emergency room. As a result, they had no "benchmark" blood level for administering further medication.

Initially, Dr. Hess wanted to perform a fusion operation on plaintiff's back. Plaintiff demanded a second opinion, however, and in the end the agreed treatment was three weeks of bed rest. Defendants cautioned plaintiff that a chip of his backbone was resting against his spinal column, and that his movements should be restricted to "log rolling" from side to side.

While plaintiff was in the hospital, defendants forced him to take various medications which were inappropriate for epileptics. One such drug was Metoclopramide, also known as Reglan, an antipsychotic drug which severely and permanently affects an individual's ability to think and communicate. At approximately 9:30 a.m. on the morning of December 24, 1992, after almost two weeks of being medicated with Reglan and other prescription medications, plaintiff experienced the "aura" which precedes an epileptic seizure. He immediately reported this sensation to hospital nurses. Plaintiff also questioned whether he had received his maintenance medications the preceding night, and asked that his blood levels be checked. Notwithstanding repeated requests and complaints, defendants refused to modify their policy and test his blood. Meanwhile, plaintiff lay in total fear, knowing that a seizure could move the bone chip laying next to his spinal cord because seizures cause him to arch his back.

At approximately 2:00 p.m., after four hours of begging and pleading for a blood test, plaintiff suffered a grand mal seizure in the presence of his son and the nurses he had summoned to his bedside. Although certain forms of grand mal seizures can be life-threatening, plaintiff's seizure lasted only two to three minutes and nurses treated it by placing plaintiff on his side, surrounded by pillows. Blood tests conducted immediately after the seizure revealed that plaintiff's Dilantin level was low and his phenobarbital level was sub-therapeutic.

After the seizure, plaintiff asked defendants whether the in-hospital medications had anything to do with his seizure. Defendants replied that plaintiff's liver was at fault. Plaintiff "first became inquisitive" about the in-hospital medications in November, 1993, when he saw a private neurologist. On or about November 28, 1994, plaintiff purchased a copy of his SMMC medical records and began to realize that some of his medications had warnings and serious side effects. In December, 1994, while visiting someone at the University of Kansas Medical Center, plaintiff also realized that SMMC had not provided him the Patients Bill of Rights or other printed literature on patient rights.

SMMC released plaintiff on January 1, 1993, but readmitted him for x-rays on January 14, 1993. After plaintiff was discharged but while he was still taking his prescribed medications in January, 1993, he suffered another seizure.

Plaintiff seeks $25,000 for defendants' failure to provide him a copy of the Patients Bill of Rights, $125,000 for defendants' failure to provide information sufficient for purposes of informed consent, other damages ("the maximum allowable"), plus costs and attorney's fees under the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.¹; the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.; what plaintiff refers to as the Patient...