Cunagin v. Cabell Huntington Hosp., Inc.
| Decision Date | 22 October 2020 |
| Docket Number | CIVIL ACTION NO. 3:19-0250 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | RONALD CUNAGIN, as father and next friend of J.C., an infant, Plaintiff, v. CABELL HUNTINGTON HOSPITAL, INC., a West Virginia corporation, Defendant. |
Pending before the Court is a Motion to Dismiss the Plaintiff's Amended Complaint (ECF No. 71) by Defendant Cabell Huntington Hospital, Inc. (Defendant CHH) and a Motion to File a Surreply by Plaintiff Ronald Cunagin, as father and next friend of J.C., an infant. ECF No. 82.1 For the following reasons, the Court DENIES, in part, and GRANTS, in part, Defendant CHH's motion and DENIES Plaintiff's motion.
In the Amended Complaint, Plaintiff alleges his infant son J.C. was born prematurely on July 15, 2017, and he was hospitalized at Defendant CHH. Am. Compl. at ¶¶ 5, 18, ECF No. 69. While at the facility, J.C. was diagnosed with "'an acute facture of the right humeral diaphysis with significant displacement and angulation . . . [and] . . . a [p]alpable deformity of theright humerus, no lacerations, ecchymosis swelling[.]'" Id. at ¶11 (internal quotation marks omitted). On August 23, J.C. was transferred to Pikeville Medical Center (PMC) and, four days later, he was transferred to the University of Kentucky Health Care (UKHC). Id. at ¶5. Shriners Hospital for Children Medical Center (SHC) also conducted an evaluation of J.C. Id. These three medical centers diagnosed J.C. with multiple bone fractures. Id. at ¶6. Specifically, Plaintiff states J.C. had three broken ribs, a broken arm, and broken legs. Id. at ¶8. J.C. was discharged to his parents' care on September 10, 2017. Id. at ¶5.
According to Plaintiff, the fractures were ruled non-accidental trauma and all occurred while J.C. was a patient in either the Neo-Natal Intensive Care Unit (NICU) or the Neo-Natal Therapeutic Unit (NTU) of Defendant CHH. Id. at ¶5. As J.C. and his parents are residents of Kentucky, the abuse was investigated by the Kentucky Cabinet for Health and Family Services (the Cabinet). Id. at ¶¶7, 8. After conducting interviews, the Cabinet found "'[t]he only people that had access to the child without supervision were the medical staff (unknown perp) leading the Cabinet to believe that an unknown person caused deliberate harm to the child'" while he was hospitalized at CHH. Id. at ¶7. The Cabinet concluded the perpetrator(s) was/were allowed by Defendant CHH to enter the NICU and NTU and inflict deliberate harm on the child. Id. at ¶8. Specifically, the Cabinet found "the parents never had the opportunity to have injured their child and they did not injure him[.]" Id. Additionally, the Cabinet stated that testing did not reveal any genetic or metabolic bone abnormality. Id.
Plaintiff maintains that J.C.'s injuries in no way occurred as or during medical treatment, and do not fall within the definition of "healthcare" contained in West Virginia Code§ 55-7B-2(e) (2017). Id. at ¶¶13, 14. Instead, Plaintiff alleges that Defendant CHH tortiously permitted someone to have access to J.C. and that person intentionally committed child abuse in violation of West Virginia Code § 61-8D-3 (2014). Id. at ¶¶15, 16; see W. Va. Code § 61-8D-3 (). Plaintiff alleges the lack of reasonable safety measures on the premises violated Defendant CHH's duty, as "the custodial entity," to protect J.C. Id. at ¶25. Plaintiff claims such conduct was so atrocious, intolerable, extreme, reckless, and outrageous, exceeding all bounds of decency, that it establishes a claim for a Tort of Outrage (Count I). Id. at ¶¶25, 26.
In Count II, Plaintiff also alleges Defendant CHH knew or should have known it was necessary to establish and enforce security measures, with proper supervision, to "provide a reasonably safe place for J.C." while hospitalized. Id. at ¶28. Despite foreseeable and preventable harm, Plaintiff contends Defendant CHH negligently performed these duties and, as a result, J.C. suffered serious and permanent non-accidental traumatic injuries. Id. at ¶¶28-30. Therefore, in Count II, Plaintiff asserts a claim of Negligent Supervision and Premises Liability against Defendant CHH.
Turning to Counts III and IV, Plaintiff alleges related claims involving spoliation of evidence. In Count III, Plaintiff makes a claim of Negligent Spoliation of Evidence, and in Count IV, he makes a claim for Intentional Spoliation of Evidence. With respect to these counts, Plaintiff states that Defendant CHH had actual knowledge of J.C.'s fractured leg, but it failed to report the abuse as required by West Virginia law to the appropriate governmental and law enforcement agencies and covered up the abuse. Id. at ¶¶32, 33; see W. Va. Code § 49-2-803(2015) ).2 Plaintiff asserts Defendant CHH refuses to provide Plaintiff with video or digital images and information about surveillance and security at the NICU and NTU. Id. at ¶36. "To the extent the evidence in the control of CHH is not available or has been lost, discarded or destroyed, [Plaintiff claims] Defendant CHH is guilty of negligent spoliation of evidence" and/or "intentional spoliation of evidence." Id. at ¶¶37, 39.
In Count V, Plaintiff invokes the doctrine of res ipsa loquitur.3 Plaintiff asserts Defendant CHH negligently "fail[ed] to supervise or enforce security for the infant J.C. . . . andfail[ed] to provide J.C. with a reasonably safe premise[, which was] solely within the scope of defendant's duty to provide, supervise and enforce security for infant J.C." Id. at ¶¶ 41, 42(b), (c). Plaintiff maintains this negligence resulted in J.C.'s harm. Id. at ¶41.4
In its motion, Defendant CHH argues Plaintiff's claims arise under the West Virginia Medical Professional Liability Act (MPLA), West Virginia Code § 55-7B-1 et seq., but Plaintiff did not comply with the statutory requirements. As a result, Defendant CHH contends Plaintiff has failed to state a claim under Rule 12(b)(6) and this Court lacks jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff insists, however, the MPLA is irrelevant to his claims.
A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. It is axiomatic that a court must have subject matter jurisdiction over a controversy before it can render any decision on the merits. Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: "facial attacks" and "factual attacks." Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th Cir.1986) (Murnaghan, CJ, concurring), rejected on other grounds, Sheridan v. United States, 487 U.S. 392 (1988). A "facial attack" questions whetherthe allegations in the complaint are sufficient to sustain the court's jurisdiction. Id. When, as here, a party makes a "facial attack," the court must accept the allegations in the complaint as true and decide if the complaint is sufficient to confer subject matter jurisdiction. Id.5
Under Rule 12(b)(6), the Court also must look for "plausibility" in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard requires a plaintiff to set forth the "grounds" for an "entitle[ment] to relief" that is more than mere "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal quotation marks and citations omitted). Accepting the factual allegations in the complaint as true (even when doubtful), the allegations "must be enough to raise a right to relief above the speculative level[.]" Id. (citations omitted). If the allegations in the complaint, assuming their truth, do "not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 558 (internal quotation marks and citations omitted).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained that, although factual allegations in a complaint must be accepted as true for purposes of a motion todismiss, this tenet does not apply to legal conclusions. 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court's own judicial experience and common sense. Id. at 679. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.
Pursuant to the MPLA, a medical professional liability action ordinarily may not be filed against "any health care provider" unless a plaintiff first timely and properly serves the health care provider with a screening certificate of merit. W. Va. Code § 55-7B-6(a), (b).6 A failure to provide the required notices under the MPLA deprives a court of subject matter jurisdiction. See Syl. Pt. 2, State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 835 S.E.2d 579 (W. Va. 2019) (...
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