Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grider v. Shawnee Mission Medical Center, Inc.

United States District Court, D. Kansas

July 12, 2017

GARY D GRIDER, et al., Plaintiffs,
v.
SHAWNEE MISSION MEDICAL CENTER, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          GERALD L. RUSHFELT U.S. MAGISTRATE JUDGE.

         Plaintiff Teresa Mary Palmer, proceeding pro se, brings this medical malpractice suit against Defendants Shawnee Mission Medical Center (“SMMC”) and Mid-America Physician Services, LLC (“MAPS”). At issue is their treatment of Plaintiff Teresa Mary Palmer, who checked into SMMC because she appeared to be going into labor. Joining her as Plaintiffs are Gary Dean Grider (her husband), Teresa Marita Palmer (her mother), and James William Palmer (her father) (collectively, the “Family Plaintiffs”). The matters before the Court are Plaintiffs' Motion for Leave to File Third Amended Complaint (ECF 36) and Motion for Clarification (ECF 47). For the reasons below, the Court grants in part and denies in part Plaintiffs' Motion for Leave to File Third Amended Complaint (ECF 36) and its supplement that requests alternative relief, Plaintiffs' Motion for Clarification (ECF 47).

         I. Background

         Plaintiffs' first Complaint (ECF 1) asserted twenty-three counts within five different groups and alleging violations of 42 U.S.C. § 1395dd (Counts 1-5), strict liability (Counts 6-9), res ipsa loquitur (Counts 10-13), intentional infliction of emotional distress (Counts 14[1]-19), and breach of contract (Counts 20-23). Plaintiffs amended their Complaint twelve days after filing (ECF 4). The Court cannot discern a difference between the Complaint and the Amended Complaint, except for adding the case number to the caption. With leave of Court Plaintiffs then filed their Second Amended Complaint (ECF 23) on March 16, 2017. It contains only a few changes: combining two numbered fact paragraphs into one numbered paragraph; and addressing the numbering error (see footnote one) with respect to the alleged Counts.

         On April 6, 2016, Plaintiffs filed a Motion for Leave to File Third Amended Complaint (ECF 36). It attaches their proposed Third Amended Complaint (ECF 36-1).

         On May 15, 2017, Plaintiffs filed a Motion for Clarification (ECF 47), which contained another proposed Third Amended Complaint (ECF 47-1). The two Third Amended Complaints thus proposed by these two motions are essentially identical, except that the latter document does not include Dr. Piquard as a defendant. Plaintiffs explained that, if the Court rules that Dr. Piquard not be added as a defendant, they intend the latter proposed Complaint (ECF 47-1) to be their Third Amended Complaint. The Court thus construes Plaintiffs' Motion for Clarification (ECF 47) as a supplement to Plaintiffs' Motion for Leave to File a Third Amended Complaint that requests alternative relief.[2]

         II. Legal Standards

         Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading once “as a matter of course” before trial if they do so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a responsive pleading is required, ” 21 days after service of the responsive pleading or a motion under Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier.[3] Other amendments are allowed “only with the opposing party's written consent or the court's leave.”[4] Rule 15(a)(2) also instructs that the court “should freely give leave when justice so requires.”[5] The court's decision to grant leave to amend a complaint, after the permissive period, is within the trial court's discretion and will not be disturbed absent an abuse of that discretion.[6] The court may deny leave to amend upon a showing of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”[7]

         “If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.”[8]

         The Court liberally construes the pleadings of a pro se plaintiff.[9] This does not mean, however, that the Court must become an advocate for the pro se plaintiff.[10] Liberally construing a pro se plaintiff's complaint means that “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”[11]

         III. Discussion

         Plaintiffs propose a Third Amended Complaint (ECF 36-1), which contains two significant changes. First, Plaintiffs seek to add another defendant, Angela L. Piquard, M.D., an obstetrician employed by MAPS and who had a physician-patient relationship with Plaintiff Teresa Mary Palmer. Second, Plaintiffs condense their claims to five Counts, some of which may be substantively different. The Counts in the latest proposed version are:

Count 1: Violations of 42 U.S.C. § 1395dd against SMMC;
Count 2: Negligence against SMMC;
Count 3: Negligence against MAPS;
Count 4: Negligence against proposed-defendant Dr. Piquard;[12] and
Count 5: Contract Liability against SMMC, MAPS, and Dr. Piquard.[13]

Defendants SMMC and MAPS filed separate responses (ECF 38 and 39), and SMMC joins and incorporates MAPS' response.

         A. Addition ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.