Zhu v. St. Francis Health Center

• Decision Date: 06 February 2006
• Docket Number: No. CIV.A. 05-2139-KHV.,CIV.A. 05-2139-KHV.
• Citation: 413 F.Supp.2d 1232
• Parties: Xiangyuan ZHU, Plaintiff, v. ST. FRANCIS HEALTH CENTER and Kennen Thompson, M.D., Defendants.
• Court: U.S. District Court — District of Kansas

413 F.Supp.2d 1232

Xiangyuan ZHU, Plaintiff, v. ST. FRANCIS HEALTH CENTER and Kennen Thompson, M.D., Defendants.

No. CIV.A. 05-2139-KHV.

United States District Court, D. Kansas.

February 6, 2006.

COPYRIGHT MATERIAL OMITTED

Xiangyuan Zhu, Topeka, KS, pro se.

Kyle J. Steadman, Thomas L. Theis, Foulston Siefkin LLP, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Xiangyuan Zhu pro se brings suit against St. Francis Health Center, Inc. ("St.Francis") and Kennen Thompson, M.D., asserting claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (Count 1) and state law claims of conspiracy (Count 2); constructive trust (Count 3); fraud, misrepresentation and concealment (Count 4); invasion of privacy (Count 5); tortious/negligent misrepresentation (Count 6); failure to perform a duty (Count 7); and deceptive and unconscionable practices (Count 8). Plaintiff seeks unspecified monetary damages, punitive damages and equitable relief in the form of an accounting and divestiture of wrongfully obtained funds.

This matter comes before the Court on Defendants' Motion to Dismiss And For Sanctions (Doc. # 8) filed May 12, 2005, Defendants' Motion To Dismiss Plaintiffs Amended Complaint And Motion For Sanctions (Docs.# 12, 13) filed May 26, 2005,¹ plaintiffs Motion For Extension Of Time To File Response As To Motion To Dismiss Plaintiffs Amended Complaint And Motion For Sanctions (Doc. # 15) filed June 23, 2005, plaintiffs Motion To Strike Motion To Dismiss Plaintiffs Amended Complaint And Motion For Sanctions (Doc. # 20) filed July 9, 2005, Defendants' Motion For Sanctions (Doc. #23) filed August 26, 2005, plaintiffs Motion For Extension Of Time To File Response As To Motion For Sanctions (Doc. #24) filed September 12, 2005, plaintiffs Motion To Amend/Correct Motion For Extension Of Time To File Response As To Motion For Sanctions (Doc. # 25), filed September 29, 2005, plaintiffs Motion For Defendants' And Foulston Siefkin LLP's Compliance Sanction (Doc. # 27) filed October 3, 2005, plaintiffs Motion To Strike Reply To Response To Motion For Sanctions, (Doc. # 30) filed November 6, 2005 plaintiffs Motion For Leave To File Reply To Defendants' Response To Motion (Doc. # 33) filed December 3, 2005, and plaintiffs Motion To Amend Amended Complaint (Doc. # 36) filed December 6, 2005.

Facts

On April 11, 2005, plaintiff filed her complaint. On May 12, 2005, plaintiff filed an amended complaint which alleges the following:

In early July of 1999, plaintiff was working for the Federal Home Loan Bank of Topeka ("the Bank"). At the advice of an attorney in the Bank's employee assistance program, plaintiff reported to police that realtor Marc Bunting had sexually assaulted her on June 30, 1999. Plaintiff then went to see her family physician, Dr. Thompson, who worked for St. Francis. Dr. Thompson referred plaintiff to Jonathan Farrell-Higgins, Ph.D., for treatment of post-traumatic stress disorder ("PTSD") and a sleep disorder.

On January 28, 2000, plaintiff saw Dr. Thompson for treatment of PTSD and neck pain and headaches which she suffered after a car accident on September 1, 1999. On February 23, 2000, plaintiff again saw Dr. Thompson and told him that Dr. Troy Counselman had examined her on September 3, 1999' and determined that her neck was out of alignment because of the accident. Dr. Thompson wrote in plaintiffs medical record that plaintiff had a "questionable history of neck pain." On June 28, 2001, plaintiff saw Dr. Thompson's nurse practitioner for severe right knee pain. In June of 2001, plaintiff again saw Dr. Thompson for treatment of her PTSD and sleep problems that resulted from alleged retaliation at work and a criminal prosecution against her by Bunting. Dr. Thompson referred her to William Johns, D.O., who prescribed medication which made plaintiff very sleepy in the morning.

On July 26, 2001, the Bank fired plaintiff for not following a 7:30 a.m. to 4:30 p.m. schedule. Plaintiff saw Dr. Thompson for treatment several times after that, including on August 31, 2001, for severe bodily pain including neck pain, headaches and right shoulder pain. Dr. Thompson prescribed physical therapy but did not discuss with plaintiff the option of obtaining radiologic or blood tests.

On September 4, 2001, St. Francis mailed plaintiff a statement which included charges for oxygen, a chest x-ray and other services which it had not provided her.

On June 10, 2002, plaintiff gave Dr. Thompson a Psychological Test Report by Dr. George Hough, Ph.D. Plaintiff told Dr. Thompson that the report was confidential and that he was not to disclose the information under any circumstances. Plaintiff asked Dr. Thompson to return the report after he reviewed it. Dr. Thompson copied the report before he returned it to plaintiff. On October 25, 2002, plaintiff sought treatment from Dr. Thompson for pain on her right side from her head to her lower extremity. Dr. Thompson told plaintiff that she could pursue radiologic studies or blood tests, but that he did not think she could afford these tests because her health insurance had lapsed in August, 2002.

On December 6, 2002, Dr. Thompson provided a copy of Dr. Hough's report to Deanna McKune, who had been involved in the car accident with plaintiff on September 1, 1999. On March 4, 2003, Dr. Thompson dismissed plaintiff as his patient under the pretext that she was pressuring him to give her legal advice. On April 15, 2003, Dr. Thompson testified as an expert witness for McKune in a grand jury investigation of the car accident. Dr. Thompson fraudulently testified that plaintiff had never told him that the car accident caused her physical injuries. He also fraudulently testified that plaintiffs subjective complaints of injury did not fit any illness or cause that he could identify, when he had never told plaintiff this. Further, Dr. Thompson fraudulently testified that plaintiff attributed her erratic sleep schedule to psychological pressure from her uncle. Dr. Thompson testified that plaintiff pursued psychological consultation on her own, even though plaintiffs health insurance had required a referral from plaintiffs family physician to receive psychological or psychiatric treatment. Dr. Thompson fraudulently testified that plaintiff had had affairs with Dr. Ferell-Higgins. Dr. Thompson used a one-time prescription of risperdal to "frame plaintiff as psychosis."

On April 23 and May 19, 2003, Dr. Johns testified that because plaintiff was at risk for psychosis, "I thought, what the heck, give it a shot and I started her on [risperdal], which is an anti-psychotic agent. I started her on it just to see what would happen because sometimes you can get benefits, you know, from things that are not totally apparent." Plaintiff alleges that Dr. Johns knew that his testimony was false because on a disability insurance form he had checked a statement that plaintiff was able to function in most stress situations and engage in only limited interpersonal relations (slight limitations). Dr. Johns did not state in plaintiffs medical records that she was psychotic. Both Dr. Farrell-Higgins and Dr. Hough indicated in their records that plaintiff was psychotic. On May 29 and June 30, 2003, Dr. Johns mailed plaintiff a fraudulent medical bill for $400.00 for a psychiatric evaluation on April 23, 2003 and professional services on May 19, 2003.

Based on these facts, plaintiff alleges that

The activities of St. Francis, Dr. Thompson and the various others as yet known and unknown in the formation and execution of the scheme to defraud and to hinder, prevent or dissuade plaintiff Zhu from attending or testifying in an official proceeding, and to interfere with Zhu's primary right of securing the blessings of liberty to herself, securing lawful employment, having a family and raising her child in her own country of the United States in connection with the health care services has a pervasive and debilitating impact on plaintiff Zhu's general welfare.

Amended Complaint (Doc. # 9) filed May 12, 2005, ¶ 46. Plaintiff asserts claims under RICO, 18 U.S.C. § 1961 et seq. (Count 1), and state law claims of conspiracy (Count 2); constructive trust (Count 3); fraud, misrepresentation and concealment (Count 4); invasion of privacy (Count 5); tortuous/negligent misrepresentation (Count 6); failure to perform a duty (Count 7); and deceptive and unconscionable practices (Count 8). As noted, plaintiff seeks unspecified monetary damages, punitive damages and costs, equitable relief in the form of an accounting and divestiture of wrongfully obtained funds.

Defendants assert that res judicata bars this lawsuit because plaintiff has already raised these claims in a prior lawsuit in the District Court of Johnson County, Kansas.² In that lawsuit, filed May 26, 2004, plaintiff named as defendants St. Francis, Dr. Thompson and two other entities. See Defendants' Motions To Dismiss And For Sanctions Doc. 8-1 Ex. A. Plaintiff alleged that Dr. Thompson provided medical care and treatment to plaintiff from January 25, 1998 to March 4, 2003. Plaintiff alleged that Dr. Thompson's actions fell below the medically acceptable standard of care in the community., Plaintiff claimed Dr. Thompson "published defamatory statements with actual knowledge that it were [sic] false, or with reckless disregard as to their truth or falsity, or negligently." Id. at ¶ 54. Plaintiff claimed that Dr. Thompson's "defamatory statements are material because they relate to matters that are so substantial as to influence, which including but not limited to, the plaintiffs professional, business, occupation, health insurance and her future marriage." Id. at ¶ 58. Plaintiff claimed that Dr. Thompson "misrepresented the injuries Ms. Zhu sustained from the rear-end collision on September 1, 1999 at his testimony for Deanna L. McCune which resulted in an erroneous and misleading statement of...