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Palmer v. Shawnee Mission Medical Center, Inc.

United States District Court, D. Kansas

November 21, 2017

TERESA MARY PALMER, et al., Plaintiffs,



         This case arises from an unexpected home birth that appears to have a happy ending. On November 5, 2014, a pregnant Teresa Mary Palmer awoke around 1:00 a.m. with cramps and pain. She called her OB/GYN to report the symptoms. Ms. Palmer's doctor told her that she had nothing to worry about but to call back if her pain increased. Around 2:00 a.m., Ms. Palmer's husband, mother, and father drove her to Shawnee Mission Medical Center (“SMMC”). SMMC admitted Ms. Palmer to its Birth Center, where non-physicians examined her and observed her for more than five hours. Eventually, SMMC diagnosed Ms. Palmer with false labor and, around 7:30 a.m., discharged her from the hospital.

         Back at home, Ms. Palmer continued to experience painful cramps of longer duration and increased frequency. Her family called 911, and EMS personnel responded. With the assistance of EMS personnel, Ms. Palmer gave birth to her son at 9:14 a.m., on the floor of a bathroom in her home. Despite the unanticipated location of the birth, Ms. Palmer never alleges that she or her infant son sustained any physical injuries from the labor and delivery at home.

         Based on these facts, Ms. Palmer, her husband, her mother, and her father bring this pro se[1] lawsuit against SMMC and Mid America Physician Services, LLC (“MAPS”) asserting five claims for relief: (1) violation of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, against SMMC; (2) strict liability against SMMC and MAPS; (3) res ipsa loquitur against SMMC and MAPS; (4) intentional tort liability against SMMC and MAPS; and (5) breach of contract against SMMC and MAPS.

         This matter comes before the court on two motions to dismiss. Docs. 51, 69. Both SMMC and MAPS ask the court to dismiss the claims that plaintiffs assert against them under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim for relief. For the reasons explained below, the court grants defendants' motions in part and denies them in part.

         I. Motions to Strike

         Before turning to the motions to dismiss, the court addresses two pending Motions to Strike. Docs. 65, 76. First, defendant SMMC moves to strike plaintiffs' Response to its Motion to Dismiss. Doc. 65. SMMC invokes Federal Rule of Civil Procedure 11(b)(1) and D. Kan. Rule 11.1, asserting that the court should strike plaintiffs' Response because plaintiffs filed it out of time and without leave of court upon a showing of excusable neglect. Second, plaintiffs move to strike defendant SMMC's Reply to SMMC's Motion to Dismiss. Doc. 76. Plaintiffs invoke Federal Rule of Civil Procedure 12(f), asserting that the court should strike the portion of SMMC's Reply that responds to plaintiffs' accusation that SMMC falsified medical records.

         The court begins with an observation about an increasing trend among litigants. This trend consists of parties invoking these Rules in their motion practice, preferring to file motions to strike an opposing party's submission instead of simply filing a response or reply that addresses the improprieties or weaknesses of the opposing party's submission. It is a perplexing trend. This practice needlessly multiplies the motions that the court must rule, clogs the court's docket, and wastes judicial resources. And, importantly, the Rules that the parties invoke here provide the court with no authority to strike the requested filings.

         Rule 11(b)(1) provides that a party presenting a filing to the court certifies that the party is not presenting the filing “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed.R.Civ.P. 11(b)(1). A court may award sanctions under Rule 11(c) for a violation of subsection (b), but only “after notice and a reasonable opportunity to respond.” Fed.R.Civ.P. 11(c)(1). A party also may move for sanctions under this Rule, but subsection (c)(2) requires the party to file a motion for sanctions “separately” and the rule includes a “safe harbor” provision. This safety mechanism requires the moving party to serve the motion on the opposing party 21 days before filing it, thus giving the opposing party an opportunity to correct the issue. Fed.R.Civ.P. 11(c)(2). Here, SMMC has not filed a separate motion, and it provides no information showing that it has complied with Rule 11(c)(2)'s requirements.[2] As our court has observed, the “failure to comply with these procedural requirements precludes an award of Rule 11 sanctions, and might even justify Rule 11 sanctions against [the moving party].” Berg v. Frobish, No. 12-1123-KHV, 2015 WL 8966960, at *1 (D. Kan. Dec. 15, 2015). The court denies SMMC's motion to strike for this reason.

         Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Our court has refused to apply Rule 12(f) to strike responses and replies to motions because this Rule applies only to “pleadings” and a response or a reply to a motion “is not a ‘pleading' that the [c]ourt may strike under Rule 12(f).” Fox v. Pittsburg State Univ., __ F.Supp.3d __, 2017 WL 2735475, at *2 (D. Kan. June 26, 2017) (citing Fed.R.Civ.P. 7(a) (listing documents considered pleadings)); see also Williams v. Alpine Banks of Colo., No. Civ. A. 05CV02475WDMME, 2006 WL 905333, at *2 (D. Colo. Apr. 7, 2006) (denying a motion to strike because “[m]otions, briefs in support of motions, responses to motions, replies to responses to motions, and other papers are not pleadings under the Federal Rules and cannot be stricken by the [c]ourt under Rule 12(f)”); Watkins v. New Castle Cty., 374 F.Supp.2d 379, 394 (D. Del. 2005) (denying a motion to strike because “Rule 12(f) applies only to pleadings, not motions and related documents.”). Here, plaintiffs moved to strike part of defendant SMMC's Reply to its Motion to Dismiss. The Reply is not a pleading that the court may strike under Rule 12(f). The court thus denies plaintiffs' Motion to Strike for this reason.

         Also, our court disfavors motions to strike. Landrith v. Gariglietti, No. 11-2465-KHV, 2012 WL 171339, at *1 (D. Kan. Jan. 19, 2012), aff'd, 505 F. App'x 701 (10th Cir. 2012); Semsroth v. City of Wichita, No. 06-2376-KHV-DJW, 2008 WL 45521, at *2 (D. Kan. Jan. 2, 2008); Nwakpuda v. Falley's, Inc., 14 F.Supp.2d 1213, 1215 (D. Kan. 1998). Courts usually deny motions to strike absent a showing of prejudice against the moving party. Semsroth, 2008 WL 45521, at *2. And, “any doubt [about] the utility of the material to be stricken should be resolved against the motion to strike.” Landrith, 2012 WL 171339, at *1.

         Even if the parties here had invoked the proper authority in their Motions to Strike, the court finds no reason to strike any of the requested filings. Defendant SMMC moves to strike plaintiffs' Response to SMMC's Motion to Dismiss because plaintiffs filed it six days late and without leave of court upon a showing of excusable neglect. Although the court does not condone dilatory filing practices, SMMC fails to show that it sustained any prejudice from the late filing. These facts do not support striking plaintiffs' Response.

         Plaintiffs' Motion to Strike seeks to strike a portion of SMMC's Reply to the Motion to Dismiss where SMMC asserts that plaintiffs improperly and falsely have accused SMMC of falsifying medical records. Plaintiffs' Motion never provides a reason for the court to strike the material from the record. Instead, plaintiffs merely dispute SMMC's denials that it falsified medical records. Plaintiffs assert that they have a valid basis to accuse SMMC of falsifying medical records. And, plaintiffs cite several attached exhibits-medical records and an investigation report-that, plaintiffs contend, support their accusations against SMMC. Plaintiffs' Motion demonstrates that the parties sharply disagree whether plaintiffs' accusations against SMMC are true. But, none of plaintiffs' arguments provide any reason for the court to strike SMMC's Reply.

         The court thus denies defendant SMMC's Motion to Strike (Doc. 65) and plaintiffs' Motion to Strike (Doc. 76).

         II. Motions to Dismiss

         The court now turns to the two pending Motions to Dismiss.

         A. Factual Background

         The following facts are taken from plaintiffs' Second Amended Complaint (Doc. 23). The court accepts them as true and views them in the light most favorable to plaintiffs. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court also construes plaintiffs' allegations liberally because they proceed pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that courts must construe pro se litigant's pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers).

         Around 1:00 a.m. on November 5, 2014, Teresa Mary Palmer awoke with cramps, pain, and a vaginal bloody discharge. She called the number on her OB/GYN's business card and spoke with a nurse who said a doctor would call her back. About five minutes later, a doctor returned the call and told her that she had “nothing to worry about, ” but advised her to go to the hospital if her pain increased.

         Around 2:00 a.m., Gary Dean Grider (Ms. Palmer's husband), Teresa Marita Palmer (Ms. Palmer's mother), and James William Palmer (Ms. Palmer's father) drove Ms. Palmer to SMMC's Birth Center. At 2:32 a.m., SMMC admitted Ms. Palmer to the Labor Triage section for observation. Ms. Palmer complained of a new vaginal bloody discharge, abdominal cramps, and pain.

         After Ms. Palmer's admission to the Birth Center, several different healthcare providers-none were physicians-examined her many times. These repeated examinations produced inconclusive results. Also, SMMC performed fetal monitoring on Ms. Palmer. The data from this monitoring was recorded on a 46-page chart. But, pages 26 to 31 were blank because the fetal monitor was not working properly. SMMC maintains an on-call, in-house, Board-certified, OB Hospitalist (a physician) who is available 24 hours a day to respond to obstetrical patients. SMMC never contacted this physician to provide treatment for Ms. Palmer.

         SMMC observed Ms. Palmer for more than five hours. During this period of observation, Ms. Palmer demonstrated increasingly painful cramps. But, SMMC eventually diagnosed Ms. Palmer with false labor (Braxton Hicks contractions). And, at 7:38 a.m., SMMC discharged Ms. Palmer to her home. Although Ms. Palmer was able to walk without assistance when SMMC admitted her, she required a wheelchair when SMMC discharged her because she was in so much pain. While sitting in the wheelchair, Ms. Palmer experienced a particularly painful cramp in front of several providers and medical staff. Ms. Palmer had to stand up and bend over to endure the pain this cramp caused her.

         After Ms. Palmer returned home, she continued to experience increasingly painful cramps of longer duration and increased frequency. Ms. Palmer followed her discharge instructions, took a Tylenol, and tried to sleep. She also tried to relax in a warm bath but painful cramps gave her an uncontrollable urge to scream and pound the wall with her fist.

         The family eventually called 911, and EMS personnel responded. When an EMS technician entered the house, he heard Ms. Palmer's screams coming from a bathroom on the other side of the house. The EMS technician said, “That's not Braxton Hicks.” EMS personnel connected a fetal monitoring device to Ms. Palmer and examined her on the bathroom floor. Based on the examination, EMS personnel told the family that they would have to deliver the baby in the bathroom. At 9:14 a.m., Ms. ...

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