Morrison v. Colorado Permanente Medical Group, Civil Action No. 97-B-711.

• Decision Date: 17 November 1997
• Docket Number: Civil Action No. 97-B-711.
• Citation: 983 F.Supp. 937
• Parties: Roger A. MORRISON, an individual; Roger A. Morrison, as the Personal Representative in the Matter of the Estate of Cindy Marie Kathlien Morrison; Roger A. Morrison, as the Best Friend to Andrew Ryan Morrison and Kylie Beth Morrison, the minor children of Cindy Marie Kathlien Morrison; Donald Evig, an individual; and Patricia Evig, an individual, Plaintiffs, v. COLORADO PERMANENTE MEDICAL GROUP, P.C., a Colorado professional corporation; Dr. Suzanne Simmons-McNitt, an individual; Community Hospital Association, a/k/a Boulder Community Hospital, a Colorado nonprofit corporation; and Linda Curran, an individual, Defendants.
• Court: U.S. District Court — District of Colorado

983 F.Supp. 937

Roger A. MORRISON, an individual; Roger A. Morrison, as the Personal Representative in the Matter of the Estate of Cindy Marie Kathlien Morrison; Roger A. Morrison, as the Best Friend to Andrew Ryan Morrison and Kylie Beth Morrison, the minor children of Cindy Marie Kathlien Morrison; Donald Evig, an individual; and Patricia Evig, an individual, Plaintiffs, v. COLORADO PERMANENTE MEDICAL GROUP, P.C., a Colorado professional corporation; Dr. Suzanne Simmons-McNitt, an individual; Community Hospital Association, a/k/a Boulder Community Hospital, a Colorado nonprofit corporation; and Linda Curran, an individual, Defendants.

Civil Action No. 97-B-711.

United States District Court, D. Colorado.

November 17, 1997.

Kenneth E. Peck, Bette K. Bushell, Denver, CO, for Plaintiffs.

Bruce A. Montoya, Teresa L. Thrailkill, Pryor, Johnson, Montoya, Carney & Karr, P.C. Englewood, CO, J. Stephen Mullen, Retherford, Mullen, Johnson & Bruce, Colorado Springs, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendants Colorado Permanente Medical Group, P.C. (CPMG or Kaiser) and Dr. Suzanne Simmons-McNitt (Dr. McNitt)(arbitration defendants) move to dismiss the complaint of plaintiffs Roger A. Morrison (Mr. Morrison), Donald Evig (D.Evig), and Patricia Evig (P.Evig)(collectively, plaintiffs) pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction over the subject matter. The arbitration defendants also move to compel arbitration. Defendant Community Hospital Association a/k/a Boulder Community Hospital (BCH) moves to dismiss claim one pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted. After consideration of the motions, briefs, and counsels' oral arguments, I will grant the arbitration defendants' motion to dismiss and deny BCH's motion to dismiss.

I.

A. Parties

1. Mr. Morrison is: (a) the surviving spouse of Cindy Marie Kathlien Morrison (Ms. Morrison); (b) the personal representative of Ms. Morrison's estate; and (c) the father and "Best Friend" of Andrew Ryan Morrison and Kylie Beth Morrison, the surviving minor children of Ms. Morrison. Plaintiff Donald Evig is Ms. Morrison's surviving father and plaintiff Patricia Evig is Ms. Morrison's surviving mother.

CPMG was at all times relevant to this action a Colorado professional corporation transacting business in Colorado and authorized to practice medicine in Colorado. "Kaiser" refers collectively to the employees, physicians, officers, directors, and agents of CPMG. Dr. McNitt was a physician licensed to practice medicine in Colorado. BCH is a Colorado nonprofit hospital which owns and operates an acute care hospital (BCH) in Boulder, Colorado. Defendant Ms. Linda Curran (Nurse Curran) was a registered nurse at all times pertinent to this complaint.

B. Claims

Plaintiffs bring fifteen claims: 1) violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd against BCH; 2) negligent emergency room nursing diagnosis and treatment against Nurse Curran; 3) negligent failure to refer or consult against Nurse Curran; 4) loss of chance of cure against Nurse Curran; 5) negligent misrepresentation against Nurse Curran; 6) respondeat superior against Community Hospital Association; 7) negligent emergency room diagnosis and treatment against Dr. McNitt; 8) negligent failure to refer or consult against Dr. McNitt; 9) loss of chance of cure against Dr. McNitt; 10) negligent misrepresentation against Dr. McNitt; 11) respondeat superior against Dr. McNitt; 12) respondeat superior against CPMG; 13) declaratory judgment against all defendants; 14) respondeat superior against BCH; and 15) outrageous conduct against all defendants. Jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1367(a).

II.

A.

Defendants CPMG and Dr. McNitt move to dismiss plaintiffs' pendent state claims for lack of jurisdiction over the subject matter pursuant to Fed.R.Civ.P. 12(b)(1). In support, CPMG and Dr. McNitt rely upon an arbitration provision contained in a group health plan issued to Ms. Morrison's employer. Ms. Morrison had enrolled in the plan and was covered by it at all times relevant to this action.

In response to a Rule 12(b)(1) motion, the district court has wide discretion to consider affidavits, documents, and even hold a limited evidentiary hearing. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995); Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987). Here, each party to the Rule 12(b)(1) motion submitted affidavits and exhibits, all of which I will consider in ruling on this motion. The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974).

Following oral argument, arbitration defendants submitted the application for enrollment form signed by Ms. Morrison on August 1, 1993. Plaintiffs moved to strike the document arguing that before I may consider it, the Rule 12(b)(1) motion must be converted to a Rule 56 motion with allowed discovery. I disagree. As stated, in the jurisdictional context of Rule 12(b)(1), I may consider properly this documents. See Holt, 46 F.3d at 1003; Hurdman, 825 F.2d at 259 n. 5.

The enrollment agreement and payroll deduction authorization signed by Ms. Morrison provides in part: "I agree to binding arbitration, if so required by the health plan. I request that my pay be reduced by the amount of my required contribution to the cost of the plan." In turn, the Kaiser Foundation Health Plan Service Agreement, in effect when Ms. Morrison enrolled through her employer, K-Mart, contains an arbitration clause which states:

8. ARBITRATION OF CLAIMS

A. SCOPE OF ARBITRATION. Any claim arising from alleged violation of a duty incident to this Agreement, irrespective of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to binding arbitration if the claim is asserted:

(1) By a Member, or by a Member's heir or personal representative, or by a person claiming that a duty to him or her arises from a Member's relationship with Health Plan, Hospitals or Medical Group incident to this Agreement ("Claimant/s"),

(2) For any reason, including, but not limited to, death, mental disturbance, bodily injury or economic loss arising from the rendition or failure to render services, or the provision or failure to provide benefits under this Agreement or the consideration or defense of claims descried in this Section,

(3) For monetary damages exceeding the jurisdictional limit of the Small Claims Court, and

(4) Against one or more of the following ("Respondent/s"):

(a) Health Plan,

(b) Hospitals,

(c) Medical Group,

(d) Any Physician, or

(e) Any employee or agent of the foregoing.

B. INITIATING ARBITRATION. Claimant/s shall initiate arbitration by serving a Demand for Arbitration that specifies the nature and legal basis of the claim and the type of loss sustained, including, with specificity, the alleged (1) nature of the injuries suffered, (2) acts or omissions that caused the injuries, and (3) date and place of the acts or omissions. All claims against Respondent/s based upon the same incident, transaction or related circumstance must be arbitrated in one proceeding. Colorado Rules of Civil Procedure and Colorado Revised Statutes pertaining to the prerequisites for the filing and maintenance of a civil action will govern the Demand for Arbitration, except as otherwise provided in this Section 8.

Claimant/s shall serve all Respondent/s reasonably servable, and the arbitrators shall have jurisdiction only over Respondent/s actually served. All Respondent/s served with a Demand for Arbitration must be parties. Natural persons must be served as in a Colorado civil action, and any other Respondent/s must be served by registered letter, postage prepaid addressed to Respondent/s in care of Health Plan and the address provided in Section 10-K.

C. FEES AND COSTS. No party shall be entitled to recover pre-award interest separate and apart from the principal amount of any award entered at arbitration, if any. Costs, excluding the fees and expenses of the arbitrators, shall be awarded by the arbitrators at the conclusion of the arbitration pursuant to Colorado Rules of Civil Procedure and Colorado Revised Statutes. Attorney fees may be awarded by the arbitrators at the conclusion of the arbitration pursuant to Colorado Revised Statutes.

D. SELECTION AND POWERS OF ARBITRATOR/S. Unless the parties otherwise agree, within 30 days after service of a Demand for Arbitration, Claimant/s and all Respondent/s served shall each designate an arbitrator and give written notice of such designation to the other. No Claimant or Respondent may act as his or her own arbitrator. Within 30 days after these notices have been given, the two arbitrators so selected shall select a neutral arbitrator and give notice of the section to Claimants and all Respondents served. The parties shall bear the fees and expenses of the neutral arbitrator equally. Each party shall bear the fees and expenses of the arbitrator that it selects. The three arbitrators shall hold a hearing within a reasonable time thereafter. Except where otherwise agreed to by the parties, arbitration shall be held within the Service Area at the time and place designated by the neutral arbitrator.

E. GENERAL PROVISIONS. A claim shall be waived and forever barred if (1) on the date the Demand for Arbitration of the claim is served, the claim, if asserted in a civil action, would be barred by the applicable Colorado statute of limitations, or (2) the Claimants fail to pursue the arbitration claim in accord with the procedures prescribed herein with reasonable diligence. All notices or other papers required to be served or convenient for the conduct of arbitration proceedings following service of the Demand for Arbitration shall be served by mailing the...