Doe v. Raleigh Gen. Hosp.
| Decision Date | 30 September 2021 |
| Docket Number | Civil Action 5:20-cv-00865 |
| Parties | JANE DOE #4, Plaintiff, v. RALEIGH GENERAL HOSPITAL, LLC and DR. ZOUHAIR KABBARA; and John Doe, individual and/or corporations, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending are Defendant Raleigh General Hospital, LLC's (“RGH”) Motion to Dismiss Plaintiff's Complaint [Doc. 11], filed February 29, 2021; Plaintiff Jane Doe #4's Motion for Rule 11 Sanctions [Doc. 25], filed March 08, 2021; RGH's Rule 15(d) Motion to Supplement Prior Pleadings with Recent Decision by the Supreme Court of Appeals of West Virginia [Doc. 35], filed June 3, 2021; and RGH's Motion to Stay Discovery, or in the Alternative for a Protective Order [Doc. 46], filed September 7, 2021. The matters are ready for adjudication.
The Complaint alleges Doe began working at RGH in August 2018. [Doc. 1-1 at 12]. Doe alleges RGH employed Kabbara or permitted him to practice medicine at its location. [Id. at 11]. During her employment, Defendant Zouhair Kabbara routinely approached Doe in the hallway to have conversations and compliment her. [Id. at 12]. The conversations and compliments made Doe uncomfortable and she made efforts to avoid Kabbara. [Id.].
In July 2019, Kabbara approached Doe, handed her a slip of paper with his phone number on it, and told her that she better answer when he calls. [Id.]. He also said he would take care of her. [Id.]. He offered to buy her things and said she would not have to work. [Id.]. Later that same day, Kabbara again approached Doe and asked her to meet him outside to talk. [Id.].
When Doe went outside on her break, Kabbara asked her to ride to Kroger with him. [Id. at 13]. Doe acquiesced entered Kabbara's car, and they drove in the direction of Kroger. [Id.]. However, Kabbara did not stop at Kroger; he instead parked near some apartments behind Kroger. [Id.]. After making comments about how Doe should leave her boyfriend, Kabbara reached over and put his hands down Doe's pants without consent. [Id.]. Doe forced his hands out of her pants and demanded Kabbara take her back to RGH. [Id.]. He complied, and the two arrived back at RGH forty-five minutes after Doe had gone on her fifteen-minute break. [Id.].
On December 23, 2020, Plaintiff instituted this action. She asserted nine claims against Defendants. [See Doc 1-1 at 14-20]. Doe alleges Kabbara's inappropriate conduct was reported to RGH on multiple occasions, yet RGH still employed or credentialed him. [Id. at 14].
On January 29, 2021, RGH filed a Motion to Dismiss. [Doc. 11]. RGH contends this is a medical professional liability action which, must be dismissed for failure to comply with the pre-suit requirements of the West Virginia Medical Professional Liability Act (“MPLA”). [Doc. 12 at 2]. RGH also contends Counts I and II must be dismissed because they are barred by the exclusivity provision of the West Virginia Workers' Compensation Act (“WCA”). [Id. at 4]. Finally, RGH contends Doe's Complaint contains only “threadbare recitals” of the elements of her various claims rather than sufficient factual allegations to state a claim to relief that is “plausible on its face.” [Id. at 6 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))].
On February 12, 2021, Doe replied. [Doc. 17]. Doe first maintains the MPLA is inapplicable. According to Doe, West Virginia Code Section 55-7B-2 limits the applicable terms to care or services rendered to a patient. [Id. at 3]. She further suggests that West Virginia Code Section 55-7B-1 applies only to “medical professional liability actions.” [Id. at 5]. Second, Doe alleges her claims do not fall within the WCA, inasmuch as she was off duty when Kabbara assaulted her. [Id. at 9 )]. Doe also contends she has not alleged a compensable workers' compensation injury, so her claims should proceed outside of the workers' compensation system. [Id. at 11]. Finally, Doe contends her Complaint contains sufficient factual allegations to state a claim upon which relief may be granted. [Id. at 11-12]. Doe contends that RGH's assertions regarding the sufficiency of the factual allegations create evidentiary questions for the trier of fact. [Id. at 13-14].
RGH replied on February 19, 2021. [Doc. 19]. RGH contends it prevailed on its MPLA argument in state court but that the underlying class-action state lawsuit was voluntarily dismissed before the ruling was memorialized or entered.[1] [Id. at 3]. RGH claims Doe ignores the 2015 amendments to the MPLA which expanded the types of suits covered. [Id. at 5]. RGH next asserts the WCA applies even to mental or emotional injuries like the one at issue here. [Id. at 10]. Finally, RGH realleges that Doe has not met the pleading standard. [Id. at 11].
On June 3, 2021, RGH moved to supplement the record with a citation to a case from the Supreme Court of Appeals illustrating that the MPLA can be applied to non-patients. [Doc. 35 Brown v. Ohio Valley Health Servs. & Edu. Corp., No. 20-156, 2021 WL 2023532 )]. Doe responded that supplementing RGH's arguments with a reference to a recent case would be futile. [Doc. 36 at 2-3]. Doe further contends the case is distinguishable inasmuch as it involved the provision of health care services to a non-plaintiff patient. [Id. at 3-4]. RGH replied, contending the case shows the MPLA may apply to non-patient plaintiffs. [Doc. 37 at 2].
On March 8, 2021, Doe filed a Motion for Rule 11 Sanctions. [Doc. 25]. The motion addresses RGH's contention that the pre-suit notice requirements of the MPLA bar Doe's action. [Doc. 26 at 6]. Doe contends this argument is “improper and unfounded so as to merit an award of sanctions under Rule 11 of the Federal Rules of Civil Procedure.” [Id. at 2].
On March 22, 2021, RGH responded to Doe's Rule 11 Motion for Sanctions. [Doc. 32]. In pertinent part, RGH asserts that Rule 11 sanctions are “serious, and so too are motions in which one party accuses its adversary of having violated those obligations.” [Id. at 1]. Further, RGH contends the arguments presented in its motion to dismiss do not fall within one of the enumerated improper purposes in Federal Rule of Civil Procedure 11(b). [Id.].
While these motions were pending, the United States Court of Appeals for the Fourth Circuit addressed the applicability of the pre-suit notice requirements of the MPLA in federal court. See Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021). The Court ordered the parties to brief the effect, if any, of this opinion upon the matters in controversy. [Doc. 38].
Doe maintains that the MPLA is inapplicable because she “was not a patient and the claims did not arise out of the provision of health care.” [Doc. 41 at 2]. But Doe contends even if the MPLA is applicable to her claims, the pre-suit notice requirement is inapplicable inasmuch as it conflicts with Rules 8, 9, 11, and 12. [Id. at 3-5 (quoting Pledger, 5 F.4th at 519)]. Doe also contends the Federal Tort Claims Act (“FTCA”) context of Pledger is immaterial inasmuch as our Court of Appeals noted the certificate requirement was procedural, not substantive. [Id. at 7-8].
In its supplemental briefing, RGH first asserts the Court should grant its motion to dismiss on its non-MPLA arguments, avoiding the “thorny issues” in Pledger entirely. [Doc. 45 at 2]. RGH then maintains that Pledger is inapplicable because it is not a final judgment and the mandate has not yet issued. [Id. at 6 (citing Fed. R. App. P. 41(b))]. Pledger, RGH contends, is limited to FTCA cases and has no application to diversity cases. [Id. at 8-9]. Instead, RGH claims the controlling law applicable to its MPLA claims was stated in Ward v. LiNA Med. USA, Inc., 2021 WL 45388 (S.D. W.Va. Jan. 5, 2021). [Doc. 45 at 5 n.5]. Finally, RGH contends our Court of Appeals in Pledger conducted its analysis improperly when it found a conflict between the MPLA and the Federal Rules of Civil Procedure. [Id. at 13-14 (citing Pledger, 5 F.4th at 530-31 (Quattlebaum, J. dissenting))].
On September 7, 2021, RGH filed a Motion for a Stay of Discovery. [Doc. 46 at 3]. RGH seeks a stay of discovery while awaiting the Court's ruling on its Motion to Dismiss. [Doc. 47 at 2-3].
The MPLA defines “medical professional liability” as any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.” W.Va. Code § 55-7B-2(i). “Health care” includes “[t]he process employed by health care providers and health care facilities for the appointment, employment, contracting, credentialing, privileging and supervision of health care providers.” Id. § 55-7B-2(e)(3). “[W]hile the applicability of the [MPLA] is based upon the facts of a given case, the determination of whether a particular cause of action is governed by the [MPLA] is a legal question to be decided by the trial court.” Manor Care, Inc. v. Douglas, 234 W.Va. 57, 74, 763 S.E.2d 73, 90 (2014) (quoting Blankenship v. Ethicon, Inc., 221 W.Va. 700, 706 n.12, 656 S.E.2d 451, 457 n.12 (2007)).
The MPLA includes a pre-suit notice requirement, which prohibits any person from “fil[ing] a medical professional liability action against any health care provider without complying with the [pre-suit notice] provisions of this section.” State ex rel. PrimeCare Med. of W.Va Inc. v. Faircloth, 242 W.Va. 335, 343, 835 S.E.2d 579, 587 (2019) () (quoting W.Va. Code § 55-7B-6(a...
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