Jones v. Bagalkotakar

• Decision Date: 15 November 2010
• Docket Number: Civil Action No. AW–10–0309.
• Citation: 750 F.Supp.2d 574
• Parties: Tamara JONES and Martavious Henderson, Plaintiffs,v.Balwant BAGALKOTAKAR, M.D., P.A., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

750 F.Supp.2d 574

Tamara JONES and Martavious Henderson, Plaintiffs,

v.Balwant BAGALKOTAKAR, M.D., P.A., et al., Defendants.

Civil Action No. AW–10–0309.

United States District Court, D. Maryland, Southern Division.

Nov. 15, 2010.

Lawrence S. Lapidus, Karp Frosh Lapidus Wigodsky and Norwind PA, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

The Court has reviewed the entire record, as well as the pleadings and exhibits, with respect to the instant Motions. The issues have been fully briefed and no hearing is deemed necessary. See Local Rule 105.6 (D.Md. 2008). For the reasons stated more fully below, the Court DENIES Defendants' Preliminary Motions to Dismiss. (Doc. Nos. 3, 7).

I. FACTUAL AND PROCEDURAL BACKGROUND

The instant case arises from the series of events leading to the death of the infant Khamari Henderson. On May 18, 2006, the Plaintiffs, Tamara Jones and Martavious Henderson (Plaintiffs), took the child to Defendant Holy Cross Hospital of Silver Spring, Inc. (“Holy Cross”), with complaints of vomiting, diarrhea, and choking. Khamari's vital signs revealed tachycardia and tachypnea, and she began vomiting upon feeding in the emergency room. She was examined in the emergency room by Defendant Dr. Raymond Magnus White (“White”), a board certified internist and emergency care doctor, who instructed the Plaintiffs to give the child Pedialyte and to see a pediatrician.

On May 22, 2006 the Plaintiffs brought Khamari to be examined by their pediatrician, Defendant Dr. Balwant Bagalkotakar. The medical records for Dr. Bagalkotakar list this visit as a “check up” and the autopsy report reveals that the history given to the doctor was the same given during the visit to Holy Cross. On May 30, 2006, Khamari was again brought to Dr. Bagalkotakar who examined her and found her to be having convulsions. The doctor instructed Plaintiffs to bring the child to the Children's Hospital National Medical Center in the District of Columbia. They took the child to the hospital where she was found to be dehydrated and acidotic. After being transferred to the Pediatric Intensive Care Unit fluid resuscitation was attempted, and the child fell into cardiac arrest and subsequently died. The autopsy revealed the cause of death to be occlusive thromboemboli of the pulmonary trunk and both major pulmonary arteries as complications of dehydration.

The Plaintiffs, the parents of the decedent, Khamari Henderson, have waived arbitration and brought this Wrongful Death Action under the Maryland Courts & Judicial Proceedings Article, Sections 3–901 et seq. Md.Code Ann. (2010). They have named the following as Defendants: Balwant Bagalkotakar, M.D., P.A.; Holy Cross Hospital of Silver Spring, Inc.; Silver Spring Emergency Physicians, P.C. (“SSEP”) and Raymond Magnus White, M.D.

Plaintiffs have filed two Certificates of Qualified Expert from Dr. Stephen Marc Krenytzky, a board certified pediatrician concerning the treatment of the decedent by Dr. Bagalkotakar and Dr. White. Both Holy Cross and SSEP together with White have filed Preliminary Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, or, alternatively, 12(b)(1), for lack of subject matter jurisdiction. Both motions claim, identically, that the Plaintiffs have failed to meet a mandatory prerequisite for the institution of a medical malpractice claim by filing an improper Certificate of Qualified Expert and Report and thus have not properly waived out of mandatory arbitration required by the Maryland Healthcare Malpractice Claims Act. See Md.Code Ann. Cts. & Jud. Proc. Art. 3–901 et seq. (2010). Holy Cross Hospital additionally incorporates and adopts the motion of SSEP and White. (Doc. No. 7 at 5). Plaintiffs have responded to the Motions and Defendants have filed reply briefs.

II. STANDARD OF REVIEW

a. Dismissal under Rule 12(b)(1)

There are two ways to present a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). First, a party may contend “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In this situation, “the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. Second, a party may contend that the jurisdictional allegations in the complaint are not true. Id. In the latter situation, the Court may conduct an evidentiary hearing and consider matters beyond the allegations in the complaint. Id.

b. Dismissal under Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In two recent cases, the United States Supreme Court clarified the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Those cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955 (2007). That showing must consist of at least “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.

In its determination, the Court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir.1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979). In addressing a motion to dismiss, a court should first review a complaint to determine what pleadings are entitled to the assumption of truth. See Iqbal, 129 S.Ct. at 1949–50. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949. Indeed, “the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context.” Id. at 1954. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

III. ANALYSIS

The provisions of the Health Care Malpractice Claims Act (“the Act”), Md.Code Ann. Cts. & Jud. Proc. Art. § 3–2A–01, et seq. (2010), are binding in diversity matters in federal court. See Rowland v. Patterson, 882 F.2d 97, 99 (4th Cir.1989); Davison v. Sinai Hospital of Baltimore, Inc., 462 F.Supp. 778 (D.Md.1978), aff'd, 617 F.2d 361 (4th Cir.1980). Compliance with the Act, where applicable, is a prerequisite to bringing a diversity suit in federal court. Group Health Ass'n v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983). Defendants SSEP, White, and Holy Cross assert that Plaintiffs have not fulfilled the mandatory prerequisite of filing a Certificate of Qualified Expert and Report that Maryland requires before arbitration can be waived. Specific to the question of this case, the Court in Lewis v. Waletzky, 576 F.Supp.2d 732, 736 (D.Md.2008) ruled that,

Although the Act has been amended to allow a plaintiff to unilaterally waive the Act's arbitration requirement, the Act still requires a potential plaintiff to file her claim and a certificate of qualified expert with HCADRO and to follow specific procedures for waiver of arbitration prior to filing her claim in state or federal court.

As a result of Plaintiffs' alleged failure, Defendants claim a medical malpractice action cannot be instituted in court pursuant to Maryland statute. § 3–2A–06B(a). The Act describes the requirements of the expert executing the certificate of a qualified expert and attesting report; it states:

(ii) 1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant's compliance with or departure from standards of care:

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant's specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

B. Except as provided in item 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.

Md.Code, Cts. & Jud. Proc. § 3–2A–02(c)(2)(ii) (2010)(emphasis added).

The Plaintiffs have engaged Dr. Marc Krenytzky, a board certified pediatrician, to draft the certificate of a qualified expert that is required for trial. Defendants Holy Cross, SSEP, and White assert that this Dr. Krenytzky does not meet the qualifications of this segment of the statute ...