Berger v. Hahnemann Univ. Hosp., Tenet Healthsystem Hahnemann, LLC
| Decision Date | 17 November 2017 |
| Docket Number | CIVIL ACTION NO. 17-2295 |
| Parties | DANIEL A. BERGER, Plaintiff, v. HAHNEMANN UNIVERSITY HOSPITAL, TENET HEALTHSYSTEM HAHNEMANN, LLC, HAHNEMANN UNIVERSITY HOSPITAL BILLING DEPARTMENT, DREXEL MEDICINE, DREXEL UNIVERSITY COLLEGE OF MEDICINE, TPS OF PA, LLC, TPS IV OF PA, LLC, TENEANT HEALTHCARE CORPORATION, CONIFER HEALTH SOLUTIONS, LLC, PHILADELPHIA FIRE DEPARTMENT- EMS, MICHAEL GREENBERG, M.D., MICHAEL MCCOLLUM, D.O., NANCY A. MOHSEN, M.D., ROBERT KOENIGSBERG, D.O., ALBERTO NUNEZ, M.D., EVAN HAWBAKER, M.D., ROY BURKET, BERNARD BAKER, JOHN DOE, AND ABC COMPANY. Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
This case arises out of a series of unfortunate events - a late night consuming alcohol, an epileptic seizure, and a poorly placed glass window - compounded by bad luck - a short period in which Plaintiff was uninsured. However, not all unfortunate events give rise to legal wrongs and this case proves the point.
Plaintiff, a young lawyer proceeding pro se, brings fifteen claims against twenty-two defendants arising from a medical episode on December 29, 2016 and subsequent attempts by several defendants to collect unpaid medical bills. Those claims include state law claims for negligence (medical malpractice), unjust enrichment, battery, fraud, breach of contract, and federal claims stemming from violations of the Federal Debt Collection Protection Act (FDCPA), 15 U.S.C. § 1692e, and the civil Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1962. Plaintiff has yet to serve all of the Defendants. Those he has have each filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Two sets of Defendants have also filed a motion to strike Plaintiff's Certificate of Merit - a document necessary to maintain a malpractice claim brought under Pennsylvania law. For the reasons outlined herein, their motions will be granted.
Plaintiff, Daniel A. Berger, has a history of epileptic seizures. On December 29, 2016, Plaintiff was walking down 18th Street in Philadelphia, Pennsylvania in front of Second Federal Savings and Loan Association of Philadelphia, Inc. ("Federal Savings") when he began to experience symptoms consistent with a seizure. Plaintiff does not recall what happened next, though video surveillance from Federal Savings shows him falling through the bank's glass window. Emergency medical personnel from the Philadelphia Fire Department ("the Fire Department") took him to Hahnemann University Hospital in Philadelphia, Pennsylvania ("Hahnemann").
Plaintiff brings several claims against Hahnemann and its various affiliates stemming from three general complaints about his care there. First, Plaintiff alleges that his treating doctors did not listen to his warnings: Plaintiff told clinical staff that he was dehydrated and needed water before taking medication. Nonetheless, they administered the medication immediately without water and Plaintiff vomited. Second, Plaintiff alleges that the treating physicians performed numerous tests without his informed consent. Third, he alleges that thechest and abdomen images ordered by the physicians were not medically necessary.
Plaintiff told the treating physicians that he was concerned about the cost of medical procedures because he was not insured. In response, one of the doctors told him he could "just not pay it."
Shortly after Plaintiff's hospital visit, he began to receive collection notices from Hahnemann and the Fire Department. He refused to pay and tried to negotiate with each of them. Hahnemann refused to negotiate any terms other than a payment plan.
Hahnemann sent Plaintiff two letters, which he says give rise to FDCPA liability. A March 3, 2017 letter demanding payment for services rendered stated, according to Plaintiff falsely, that Defendants had been "attempting to contact" Plaintiff.1 On March 24, 2017, the hospital sent Plaintiff a letter containing two alleged misstatements. First, it stated that Plaintiff has "failed to either pay in full or contact [Defendants] to make acceptable arrangements to resolve [the] debt." Second, the letter did not contain any mention of Plaintiff's correspondence disputing the debt.
Plaintiff has sued and properly served only three groups of Defendants at this time, all three of which move to dismiss the claims against them. First, the "Hahnemann Defendants" include Hahnemann University Hospital, which is where Plaintiff was treated, and Tenet HealthSystem Hahnemann, LLC, which allegedly owns the hospital. Second, the "Drexel Defendants" include Drexel Medicine and Drexel University (incorrectly identified as Drexel University College of Medicine), health systems associated with the Hahnemann Defendants, as well as Michael Greenberg, a physician from Drexel Medicine who treated Plaintiff. Third, the"Doctor Defendants" - Michael McCollum, Nancy Mohsen, Robert Koenigsberg, Alberto Nunez, and Evan Hawbaker - are the physicians from Hahnemann who treated Plaintiff.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Threadbare" recitations of the elements of a claim supported only by "conclusory statements" will not suffice. Id. at 683. Rather, a plaintiff must allege some facts to raise the allegation above the level of mere speculation. Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 176 (3d Cir. 2010) (citing Twombly, 550 U.S. at 555).
In analyzing a motion to dismiss legal conclusions are disregarded, well-pleaded factual allegations are taken as true, and a determination is made whether those facts state a "plausible claim for relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Generally that determination is made upon a review of the allegations contained in the complaint, exhibits attached appropriately to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. 998 F.2d 1192, 1996 (3d Cir. 1993).
In order to initiate a malpractice action in Pennsylvania, a plaintiff must file a timely Certificate of Merit (COM). The COM certifies either that an expert has stated that there wasmalpractice or that an expert is not necessary to prosecute the action. Pa. R. Civ. P. 1042.3(a).2 The Drexel, Doctor, and Hahnemann Defendants have filed a Motion to Strike Plaintiff's COM, or, in the alternative, dismiss his medical malpractice claim because he filed his COM late.
By operation of the provisions of the Rule, Plaintiff's deadline to file the COM was August 24, 2017.3 Two days before the deadline, he filed a motion for an extension of time to file his COM which it would have been appropriate to grant upon a showing of good cause. Pa. R. Civ. P. 1042.3(d). In his motion, however, rather than provide an explanation as to why he could not filed the COM in a timely manner, Plaintiff argued that Rule 1042.3 was unconstitutional and that he "refuses to, and will continue to refuse to, certify" that expert testimony is not necessary "without a Decree from this Court acknowledging that Plaintiff has not waived any right to call an expert witness in the event that he determines such testimony would strengthen his case." This defiance of Pennsylvania's Rule does not amount to good cause. Accordingly, the Court denied his request for an extension. Regardless, Plaintiff filed a COM more than one week later, on August 31, 2017.
A motion to dismiss is not the proper procedure to dismiss an action for failure to timely file a COM because See Schmigel, 800 F.3d at 122 n. 13. The Third Circuit's reasoned that the notice conditions for filing a COM may not be considered in a motion to dismiss because it is not part of the complaint and need not be filed until after a motion to dismiss is due. Id. at 122. A challenge to an untimely or deficient COM may, however, be addressed through a motion to strike because motions to strike can be filed after the 60-day window required by Rule 1042.3(a), as they were here. See Ramos v. Quien, 631 F. Supp.2d 601, 611 (E.D. Pa. 2008) ().
Plaintiff's COM was not filed in a timely manner. Furthermore, the one document that he did eventually file is deficient because Rule 1042.3(b)(1) requires a separate COM as to each doctor against whom he asserts a claim. Indeed, the one COM that he did file does not even name a single professional against whom Plaintiff's medical malpractice claim is asserted. Accordingly, Defendants' Motions to Strike are meritorious. Furthermore, in not raising any arguments at all in response to the motions, Plaintiff has conceded the point. See Mathias v. Frackville SCI, 869 F.3d 175, 187 (3d Cir. 2017) (). Accordingly, the motions shall be granted and Plaintiff's malpractice claim shall be stricken.
Plaintiff's battery claim against the Hahnemann, Doctor, and Drexel Defendants is premised on the Defendants' failure to obtain Plaintiff's informed consent before conducting certain imaging tests.
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