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Wildermuth v. Consultants In Pulmonary Medicine

United States District Court, D. Kansas

May 13, 2015

PAMELA WILDERMUTH, Heir on Behalf of Decedent PATRICK EUGENE SHARON, Plaintiff,
v.
CONSULTANTS IN PULMONARY MEDICINE, et al., Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

This wrongful death and survival action was filed on April 28, 2014, by pro se Plaintiff Pamela Wildermuth for the death of her father Patrick Eugene Sharon. Plaintiff names as defendants Consultants in Pulmonary Medicine, Dominique M. Crain, M.D., Vance R. Burns, M.D., Dennis P. Lawlor, M.D., James K. Bradley, M.D., United Medical Group, Glenn MacKay, M.D., Simir Desai, M.D., Physicians Reference Laboratory, David J. Stahl, M.D., David Rasmussen, M.D., and Olathe Medical Center, Inc. (collectively "Defendants").[1] Defendants have filed multiple motions to dismiss (Docs. 20, 24, 26, 29, and 35), which are currently before the Court. For the following reasons, the Court grants Defendants' motions.

I. Factual and Procedural Background

Plaintiff is a California resident, who is an heir-at-law of decedent Patrick Eugene Sharon. Sharon died on April 20, 2012, at Olathe Medical Center in Johnson County, Kansas. Plaintiff alleges that Defendants are physicians or healthcare providers engaged in the practice of medicine in Kansas.

On March 16, 2011, Sharon presented to his family doctor with a chronic cough, fatigue, and "chest issues that failed to go away."[2] X-rays performed at that time revealed a small pleural effusion mass/infiltrate in the left lower lobe of Sharon's left lung. Plaintiff states that the treating physician prescribed antibiotics to Sharon for suspected pneumonia, but the antibiotics were ineffective and Sharon's symptoms did not improve.

According to Plaintiff, on April 13, 2011, Defendant Mark Reinsel, M.D., ordered a CT scan for Plaintiff and negligently failed to recognize certain lesions on the scan results as possibly cancerous. Plaintiff claims that over the course of the next year, additional doctors, who are named as Defendants in this action, evaluated Sharon and did not diagnose him with lung cancer despite him suffering from ongoing symptoms associated with the disease. While Sharon and his family allegedly expressed their concern that he may be suffering from lung cancer as early as June 2011, one of the Defendant doctors assured the family that "there is no need to worry about this being lung cancer."[3]

On April 3, 2012, Defendant James Bradley, M.D., performed a pulmonary biopsy on Sharon. Three days later, Sharon and Plaintiff were informed that the biopsy revealed Sharon was suffering from cancer. On April 19, 2012, Sharon presented at Olathe Medical Center Emergency Room with shortness of breath and lower extremity swelling. Plaintiff told Defendant David Rasmussen, M.D., that "if his pulmonary doctors would of [sic] diagnosed him correctly to begin with my dad would have had [his advance directives] in place, but that is not the case."[4] Plaintiff further stated that "my father would have had plenty of time to think everything thru [sic] if those pulmonary doctors would of [sic] done their jobs correctly in the first place."[5] On April 20, 2012, Sharon died from an apparent blood clot. Plaintiff alleges that she was present at the time of his death.

On April 28, 2014, Plaintiff filed this action, seeking to recover for injuries sustained by Sharon that resulted in his death. Plaintiff served Defendants on September 24, 2014, more than 120 days after she filed her Complaint. Plaintiff alleges seven claims against Defendants. The first claim (Negligence) alleges general negligence by Defendants for failing to "exercise that degree of reasonable standard of care or skill as a reasonably prudent medical professional."[6] Plaintiff alleges that Defendants' negligent conduct includes, but is not limited to, failing to inform Sharon of findings revealed by radiologists, failing to diagnose Sharon correctly, failing to order proper medical diagnostic tests, and failing to communicate with Sharon and other health care professionals. The second claim (Failure to Disclose) alleges Defendants "failed to exercise that degree of reasonable standard of care or skill as a reasonably prudent medical professional by failure to disclose all the findings and reports from radiologists and other healthcare professionals' working with Mr. Sharon and failing to provide requisite medical care."[7]

The third claim (Wrongful diagnosis) alleges that Defendants "failed to exercise that degree of reasonable standard of care or skill as a reasonably prudent medical professional by failing to diagnose Mr. Sharon correctly."[8] In the fourth claim (Failure to Inform), Plaintiff alleges that Defendants negligently "failed to inform Mr. Sharon of all relevant medical findings, preventing Mr. Sharon from making decisions under informed consent.'"[9] The fifth claim (Delayed Diagnosis) states that Defendants "had a duty to use reasonable standard of care or skill in requisite medical care for the correct diagnosis and treatment of Mr. Sharon."[10]

In the sixth claim (Loss of Chance for a Better Recovery), Plaintiff asserts that Defendants negligently failed to diagnose cancer and treat Sharon's blood clots resulting in a "lost [] chance to recover."[11] Finally, the seventh claim (Premature Death) alleges "[p]remature death as the direct results of all above healthcare providers failing to perform their standard of requisite care, which denied Mr. Sharon the ability to live another day and failing to follow standard of care directly caused patient blood clots."[12]

In response to Plaintiff's Complaint, Defendants filed multiple motions to dismiss. Collectively, Defendants argue that Plaintiff's claims should be dismissed because (1) the claims are barred by the applicable statutes of limitations and (2) Plaintiff lacks capacity as an heir-at-law to bring a survival action on Sharon's behalf. Defendants Consultants in Pulmonary Medicine, Crain, Burns, Lawlor, Bradley, Shipley, United Medical Group, Mackay, Desai, and Olathe Medical Center also argue that Plaintiff failed to obtain sufficient service of process on them. In addition, individual Defendants Stahl and Physicians Reference Laboratory assert that Plaintiff failed to plead facts sufficient for the Court to infer that they are liable for any alleged misconduct. Plaintiff did not respond to Defendants' motions. Therefore, they are ripe for the Court's decision.

II. >Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.[13] Upon such motion, the court must decide "whether the complaint contains enough facts to state a claim to relief that is plausible on its face.'"[14] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[15] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of the claims as well as the grounds upon which each claim rests.[16] Under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford such a presumption to legal conclusions.[17] Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.[18] If the allegations in the complaint are "so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.'"[19]

Because Plaintiff is pursuing this action pro se, the Court must be mindful of additional considerations. "A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers."[20] The Court, ...


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