Opinion
Civil Action No. 1:18-cv-00122-RM-SKC
04-12-2019
FLECIA MARTIN, Plaintiff, v. DR. SARA H. PERMAN, et al., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF. #27
This Recommendation addresses Defendant Daphne G. David's ("David") Motion to Dismiss ("Motion"), filed September 18, 2018. [ECF. #27.] The Motion was referred to the magistrate judge for a recommendation. [ECF. #28.] Plaintiff Flecia Martin ("Martin") filed her Response [ECF. #48], which was followed by David's Reply. [ECF. #49.] Martin filed a surreply on January 2, 2019. [ECF. #50.] Although surreplies are not contemplated by the Federal Rules, the Court, in its discretion, has considered the surreply along with the other filings. For the following reasons, the Court RECOMMENDS that the Motion be GRANTED.
SUMMARY FOR THE PRO SE PARTY
The Court is recommending that Martin's claims against David be dismissed. Upon a review of the pleadings in this case, the Court concludes that Martin has failed to allege sufficient facts to support her claims for negligent hiring, supervision, and training. To the extent that Martin seeks to hold David vicariously liable for the physician defendants' conduct, the Court concludes that Martin has failed to allege an employment relationship, and the claim is barred by the corporate practice of medicine doctrine. Martin has 14 days after service of this Recommendation to file specific written objections to this Recommendation with Judge Moore for his review. Judge Moore may either adopt or reject this Recommendation, and issue an order based on his own findings and conclusions. Should Judge Moore adopt this Recommendation, Martin's claim against David will be dismissed.
BACKGROUND
According to the Amended Complaint, on February 2 and 10, 2015, Martin visited the Emergency Room of North Suburban Medical Center with complaints of nausea, vomiting, and a headache. [ECF. #14 at p.2.] Martin alleges that the named physician defendants administered a number of drugs that were not clinically indicated and "not the best treatment for her symptoms." [Id. at p.7]
On January 31, 2019, this Court ordered service on these defendants by the United States Marshal. [ECF. #52.] To date, however, service has apparently not been completed and none of the doctors have entered an appearance in this case.
In addition, Martin alleges that David, who is President and CEO of North Suburban Medical Center, "neglected to hire and/or adequately train emergency room staff" regarding the proper drug treatments for Martin's symptoms. Martin also alleges that David "neglected to adequately inform her staff of the dangers of giving" drugs that are not clinically indicated. Martin contends that David should be vicariously liable for the actions of the physician defendants. [Id. at p. 9.]
STANDARD OF REVIEW
A. Rule 12(b)(6)
In deciding a motion under Fed. R. Civ. P. 12(b)(6), the Court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. Facts that are "merely consistent" with a defendant's liability are insufficient. Id. "[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The Court's ultimate duty is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). "Nevertheless, the standard remains a liberal one, and 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'" Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). B. Pro Se Parties
The Court acknowledges that Martin is not an attorney. Consequently, her pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. But this Court cannot act as a pro se litigant's advocate. Id. It is the responsibility of the pro se plaintiff to provide a simple and concise statement of each claim and the specific conduct that gives rise to them. See Willis v. MCI Telecomms., 3 F. Supp. 2d 673, 675 (E.D.N.C. 1998). The Court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not been pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
ANALYSIS
Martin asserts one claim for relief against David—her sixth claim. As the Court understands her claim, Martin asserts claims of negligent hiring and negligent supervision and training against David for the allegedly negligent conduct of the physician defendants. In addition, she seems to contend that David should be held vicariously liable for the actions of the physician defendants. [ECF. #14 at p.9.] In her Motion, David argues that Martin has failed to state claims of negligent hiring or supervision against her as an individual. [ECF. #27.] David also argues that even if this Court construed David to be the physician defendants' employer, the corporate practice of medicine doctrine precludes claims of vicarious liability. [Id.] The Court agrees that David should be dismissed from this action. A. Negligent Hiring, Supervision, Training
In her Response, Martin again states that David is "indirectly responsible, in part, for all care given or administered at the hands of hired help." [ECF. #48.]
"It is axiomatic that a prerequisite to establishing negligent hiring [or negligent supervision and training] is an employment or agency relationship. The existence of an agency relationship is ordinarily a question of fact to be determined by the fact finder." Moses v. Diocese of Colo., 863 P.2d 310, 324 (Colo. 1993), cert. denied, 511 U.S. 1137 (1994) (citations omitted). The Court first observes that Martin has sued David individually. [ECF. #14.] The Complaint contains no allegations that the physician defendants were employed by David in her individual capacity. [Id. at p.9.] Thus, Martin has failed to plausibly allege an employment relationship between David and the physician defendants. Likewise, the Complaint alleges no agency relationship between David and these defendants. Moses, 863 P.2d at 324. Her claim could be dismissed on these bases alone. But even assuming arguendo that Martin had sufficiently alleged an employment or agency relationship, dismissal would still be warranted.
To establish a claim of negligent hiring or negligent supervision and training, a plaintiff must allege "the usual elements of negligence—duty, breach of duty, injury, causation—and the establishment of an agency relationship between the employer and the alleged employee." Nielsen v. Archdiocese of Denver, 413 F.Supp.2d 1181, 1184 (D. Colo. 2006) (citation omitted). "An employer may be liable for harm to others for negligently employing an improper person for a task which may involve a risk to others." Moses, 863 P.2d at 323-24.
To establish the existence of a legal duty by an employer in these cases, a plaintiff must show that the employer had the "antecedent ability to recognize a potential employee's attributes of character or prior conduct which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities." Keller v. Koca, 111 P.3d 445, 448 (Colo. 2005), as modified on denial of reh'g (May 16, 2005) (citing Moses, 863 P.2d at 327); see also Sullo v. Vail Summit Resorts, Inc., No. 14-cv-00449-MSK-NYW, 2015 WL 12967823, at *5 (D. Colo. Feb. 23, 2015) ("To state a claim for negligent training and supervision Plaintiff must allege that [the employer] knew its employee posed a risk of harm to her and the harm that occurred was a foreseeable manifestation of that risk."). When considering such a claim, "the court does not inquire into the employer's broad reasons for choosing this particular employee for the position, but instead looks to whether the specific danger which ultimately manifested itself could have reasonably been foreseen at the time of hiring." Van Osdol v. Vogt, 908 P.2d 1122, 1132 n.17 (Colo. 1996).
Here, Martin has not adequately alleged the duty element of her claim. Although she alleges that David "neglected to hire and/or adequately train emergency room staff" and that David "neglected to adequately inform her staff of the danger of giving" medically unnecessary drugs, these allegations are conclusory and devoid of factual content. Even assuming David did employ her co-defendants, Martin has not alleged in what respects these physicians were unfit to be hired or how they were inadequately trained. Nor has Martin alleged that David knew or should have known of the physician defendants' "attributes of character or prior conduct" that "create[d] an undue risk or harm" to her. Keller, 111 P.3d at 448. In the absence of such allegations, Martin fails to plausibly allege any legal duty owed to her by David. Consequently, this claim fails and should be dismissed.
B. Vicarious Liability
With respect to Martin's contention that David should be vicariously liable for the physician defendants' conduct, the Court concludes that this claim should also be dismissed.
"The doctrine of respondeat superior is based on the theory that the employee is the agent of the employer." Daly v. Aspen Ctr. for Women's Health, Inc., 134 P.3d 450, 452 (Colo. App. 2005) (citing Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320-21 (Colo. 1992)). It requires "a master-servant relationship in which the employer has the right to control the employee's performance." Id. (citing Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 472-73 (Colo. 1995); W. Seavey, Handbook of the Law of Agency § 84.C (1964) (Seavey)). However, as discussed in the previous section, the Complaint does not contain any allegations that these physician defendants were employed by David in her individual capacity or were acting within the scope of such a relationship. [ECF. #14.] Rather, the Complaint alleges that the physicians were "of North Suburban Medical Center." [Id. at pp.7-8.] Thus, Martin has failed to allege sufficient facts to state a plausible claim of respondeat superior.
Respondeat superior is a type of vicarious liability and provides that "an employer is liable for torts of an employee acting within the scope of employment." Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691, 693 (Colo. App. 2006). The Court uses these terms interchangeably in this Recommendation. --------
Furthermore, the Court observes that this claim is precluded under the corporate practice of medicine doctrine. As the Court understands her Response, Martin speculates that, as "leader of the North Suburban Medical Center," David can direct the actions of the physicians. [ECF. #48 at p.1.] However, under the corporate practice of medicine doctrine, a corporation or hospital may not interfere with a doctor's independent medical judgment. Pediatric Neurosurgery, P.C. v. Russell, 44 P.3d 1063, 1067 (Colo. 2002); see also Daly, 134 P.3d at 452 (health center not liable because it cannot control physician's medical judgment). Consequently, this doctrine shields corporations and hospitals from vicarious liability for the negligent acts of their medical professionals. See Colo. Rev. Stat. § 12-36-134(1)(f) ("Nothing in this article shall be construed to cause a professional service corporation to be vicariously liable to a patient or third person for the professional negligence or other tortious conduct of a physician who is a shareholder or employee of a professional service corporation."); see also Estate of Harper ex rel. Al-Hamim v. Denver Health & Hosp. Auth., 140 P.3d 273, 275-77 (Colo. App. 2006). Under a special conduct exception, a hospital may only be liable when it commits its own independent acts of negligence. Harper, 140 P.3d at 276.
Here, even if the Court construed the Complaint to establish an employment relationship between David and the physician defendants, none of the remaining claims against the physician defendants allege any independent acts of negligence by David; rather all the "allegedly negligent actions listed in the Complaint require the exercise of independent medical judgment by a physician." Anderson v. HCA-Healthone LLC, No. 09-cv-00704-CMA-KMT, 2010 WL 376983, at *4 (D. Colo. Jan. 25, 2010). Under the corporate practice of medicine, David cannot be held vicariously liable for this conduct even if she employed her co-defendants. Id. Consequently, the Court concludes that that Complaint is not legally sufficient to state a claim against David.
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Daphne G. David's Motion to Dismiss be GRANTED. [ECF. #27.] DATED: April 12, 2019
BY THE COURT:
/s/_________
S. Kato Crews
United States Magistrate Judge NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).