United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. RUSHFELT U.S. MAGISTRATE JUDGE.
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).
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 14-19), 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.
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).
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.
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. Other amendments are allowed “only
with the opposing party's written consent or the
court's leave.” Rule 15(a)(2) also instructs that the
court “should freely give leave when justice so
requires.” 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. 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.”
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
Court liberally construes the pleadings of a pro se
plaintiff. This does not mean, however, that the
Court must become an advocate for the pro se
plaintiff. 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
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
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.
Count 5: Contract Liability against SMMC, MAPS, and Dr.
Defendants SMMC and MAPS filed separate responses (ECF 38 and
39), and SMMC joins and incorporates MAPS' response.