Lemons v. Board of County Commissioners,
DJW/mat
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID LEMONS, et al., | ) | |
| ) | |
Plaintiffs, | ) | |
| ) | |
v. | ) | No. 00-2292-KHV |
| ) | |
BOARD OF COUNTY COMMISSIONERS OF | ) | |
THE COUNTY OF BROWN, et al., | ) | |
| ) | |
Defendants. | ) |
__________________________________________
ELIZABETH LEMMONS, et al., )
)
Plaintiffs, )
)
v. ) No. 00-2297-CM
)
BOARD OF COUNTY COMMISSIONERS OF )
THE COUNTY OF BROWN, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
Pending before the Court is Plaintiffs’ Motion to Amend First Amended Complaint (doc. 107
in Case No. 00-2292-KHV) and Plaintiffs’ Motion to Amend Complaint (doc. 23 in Case No. 00-2297-CM). In support of their Motions, Plaintiffs state that during the discovery process, new factual
information relating to the claims previously made was discovered; accordingly, Plaintiffs seek to amend
the Complaint to “more accurately set forth the factual and legal basis for Plaintiffs’ claims and to
accurately name the parties who are the real parties in interest.”
Defendants Northeast Kansas Center for Health and Wellness, Inc. (“Hospital”), Linda Becker,
Kenneth Robinson and Dustin Williams (collectively “Hospital Defendants”) oppose Plaintiffs’ Motions
to the extent Plaintiff Ryan Graves seeks to add a claim alleging the Hospital violated the Emergency
Medical Treatment and Active Labor Act , 42 U.S.C. 1395dd(a)-(c) (“EMTALA”). More specifically,
the Hospital Defendants assert the amendment simply restates Plaintiff Graves’ state law negligence
claim and fails to state a federal cause of action. The Hospital Defendants further state that Plaintiff
Graves seeks to add this claim only to secure supplemental jurisdiction in this Court for his state law
claims of medical negligence.
Defendants Board of Commissioners of Brown County, Lamar Shoemaker, Michael Gruber,
and Doug Bramer (collectively “County Defendants”) oppose Plaintiffs’ Motions to the extent the
personal representatives of the estates of Dana Christianson and Brendon Tucker are added as Plaintiffs
to the Complaint. In support of their position, County Defendants state that (1) at the time the
Complaint was filed, these two estates were not entities with the capacity to sue or be sued; and (2) an
amendment to add these administrators would be futile, as Dana Christianson’s and Brendon Tucker’s
claims would then be time barred by the applicable statute of limitations.
Finally, Defendant Edgardo Francisco, M.D. (“Defendant Francisco”) opposes Plaintiffs’ Motion
on the grounds that he was not properly named in the First Amended Complaint and that an amendment
to correct the mistake would be futile, as any claims against him would be time barred by the applicable
statute of limitations.
Upon consideration of the arguments presented by counsel, and for the reasons set forth below,
the Court will grant Plaintiffs’ Motions.
Discussion
Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the pleadings, before
a responsive pleading is served or within twenty days after service. Subsequent amendments are allowed
by leave of court or by written consent of an adverse party. Fed. R. Civ. P. 15(a). Subsequent
amendments should be “freely given when justice so requires.” Woolsey v. Marion Labs., Inc., 934 F.2d
1452, 1462 (10th Cir.1991). “The decision to grant leave to amend a complaint, after the permissive
period, is within the trial court’s discretion, Fed. R. Civ. P. 15(a), and will not be disturbed absent an
abuse of that discretion.” Id. The district court should deny leave to amend only when it finds “undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir.1993).
A court may deny a motion to amend as futile if the proposed amendment would not withstand
a motion to dismiss or otherwise fails to state a claim. Lyle v. Commodity Credit Corp., 898 F. Supp.
808, 810 (D. Kan.1995) (citing Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir.1992)). Thus, the Court
analyzes Plaintiffs’ proposed amendment as if it were before the Court on a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6).
Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears beyond a doubt that
a plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302,
1304 (10th Cir.1998). The Court accepts as true all well-pleaded facts, as distinguished from conclusory
allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor
of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881
(1998). The issue in resolving a motion such as this is not whether a plaintiff will ultimately prevail, but
whether he or she is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Patrick v. City of
Overland Park, Kansas, 937 F. Supp. 1491 (D. Kan. 1996).
Plaintiffs’ EMTALA Claim
Congress enacted EMTALA in 1986 to address the problem of “dumping” patients in need of
medical care but without health insurance. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796-97 (10th
Cir. 2001) (citing Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 680 (10th
Cir.1991); Stevison v. Enid Health Sys., 920 F.2d 710, 713 (10th Cir.1990)). A hospital governed by
EMTALA is faced with two basic requirements. First, “the hospital must provide for an appropriate
medical screening . . . to determine whether or not an emergency medical condition . . . exists.”
42 U.S.C. ? 1395dd(a). Plaintiffs here do not allege in their proposed amendment that the Hospital’s
initial medical screening was inappropriate.
When a hospital determines after the initial screening that an emergency medical condition does
indeed exist, EMTALA further requires the hospital to either
- provide further medical examination and treatment as may be required to stabilize the
medical condition, at least to the extent possible given the staff and facilities available
at the hospital; or - transfer the individual to another medical facility if all of the following conditions are
met:
- the individual, or a responsible person acting on his or her behalf, after being
informed of the hospital’s EMTALA obligations, must request a transfer in
writing or a physician must determine that the risks of transfer are outweighed
by the medical benefits reasonably expected to be provided at another medical
facility, and this determination must be documented in a signed certification; - the transferring hospital must provide medical treatment, within its capacity,
which minimizes the risks to the individual’s health; - the receiving facility must have available space and qualified personnel for the
treatment of the individual and has agreed to accept transfer of the individual and
to provide appropriate medical treatment; - the transferring hospital must send to the receiving facility available medical
records related to the emergency condition; and - the transfer must be effected through qualified personnel and transportation
equipment.
42 U.S.C. ? 1395dd(b)(c).
Relevant to the allegations proposed by Plaintiffs in the Amended Complaints, section (c)(2)(A)
requires the transferring hospital to provide medical treatment, within its capacity, which minimizes the
risks to the individual’s health before it transfers the individual. In an opinion recently issued by the
Tenth Circuit Court of Appeals regarding whether a hospital sufficiently satisfied its obligation to
provide, to the extent possible, medical treatment necessary to minimize the risk to an individual’s health
prior to transfer, the Court stated such sufficiency should be measured by the hospital’s own standard
practices. Ingram v. Muskogee Regional Medical Ctr., 235 F.3d 550, 551-52 (10th Cir. 2000) (citing
Repp v. Andarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994)). (1) Thus, in order to state a cause of
action for inappropriate transfer of an individual by a hospital in violation of 42 U.S.C.
? 1395dd(c)(2)(A), a plaintiff must adequately allege that the hospital violated an existing hospital
procedure or requirement in administering the medical treatment necessary to minimize the risk to such
individual prior to transfer. Id.; see, also, Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796-97 (10th
Cir. 2001) (“[a] court should ask only whether the hospital adhered to its own procedures, not whether
the procedures were adequate if followed.”).
Plaintiffs here seek to allege in their Second Amended Complaint “[t]hat defendant hospital
violated 42 U.S.C. ? 1395dd(a)-(c) by not stabilizing Ryan James Graves within the capabilities and
facilities available at the hospital before transferring” him. Plaintiffs’ Amended Complaint at ? 183,
page 47, attached as Exhibit A to Plaintiffs’ Motion to Amend First Amended Complaint (doc. 107).
Plaintiffs further seek to allege that “Defendant hospital failed to provide medical treatment and
minimize the risks as measured by the hospitals own standard practices and policies” prior to transferring
Ryan James Graves. Id. at ? 184(a). Viewing all reasonable inferences in Plaintiffs’ favor, and bearing
in mind that Plaintiffs seek only the privilege of making these allegations, the Court cannot say that it
appears beyond a doubt that Plaintiffs can prove no set of facts in support of their allegations that the
Hospital violated the EMTALA. Thus, the Court finds Plaintiffs are entitled to offer evidence to
support such allegations and the Motions to Amend will be granted as to this issue. (2)
Adding the Personal Representatives of the Estates of Dana Christianson and
Brendon Tucker as Plaintiffs
The circumstances giving rise to both of the above-referenced lawsuits occurred on July 4, 1998.
The caption of Plaintiffs’ initial Complaint in Case No. 00-2292-KHV (filed on June 29, 2000) includes
as Plaintiffs “Brenden Tucker, by and through Michael Tucker, heir and parent” and “The heirs of Dana
Christianson (Ryan James Graves) by and through his grandmother guardian Elizabeth Lemons . . . and
for Dana Christianson estate [sic].” The caption of Plaintiffs’ initial Complaint in Case No. 00-2297-CM
(filed on July 3, 2000) includes as Plaintiffs “The heirs of Dana Christianson (Ryan James Graves) by
and through his grandmother guardian Elizabeth Lemmons . . . and for Dana Christanson [sic] estate.”
On August 3, 2000, Ryan Hodge was appointed as Administrator of both Brenden Tucker’s and Dana
Christianson’s estates, more than two years after the circumstances giving rise to both of these lawsuits.
The County Defendants oppose Plaintiffs’ Motions to Amend to the extent the personal
representative of the estate of Dana Christianson and the personal representative of the estate of
Brendon Tucker are added as Plaintiffs to the Complaint. The County Defendants argue that the
currently pending survival claims brought on behalf of Dana Christianson and Brenden Tucker fail to
state a cause of action under Kansas law because they are brought by the heirs of decedents Brenden
Tucker and Dana Christianson instead of the personal representatives of the decedents’ estates as
required by Kansas law. The County Defendants further argue that new survival claims brought by the
estates of Brenden Tucker and Dana Christianson would be time-barred, because they were not
commenced within the allegedly applicable two-year statute of limitations. (3)
Rule 17(a) of the Federal Rules of Civil Procedure requires that “(e)very action shall be
prosecuted in the name of the real party in interest.” Moreover, Kansas law requires that a survival
action must be maintained by the personal representative of the decedent and cannot be prosecuted by
a decedent’s heirs. Cory v. Troth, 170 Kan. 50, 52-53, 223 P.2d 1008 (1950); Howe v. Mohl, 168 Kan.
445, 449, 214 P.2d 298 (1950). Thus, in order for the survival actions here to continue, the pleadings
must be amended to name as a plaintiff the administrator of Brenden Tucker’s and Dana Christianson’s
estates.
Rule 15(a) of the Federal Rules of Civil Procedure directs that such leave to amend “be freely
given when justice so requires.” The district court should deny leave to amend only when it finds
“undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc.,
3 F.3d 1357, 1365 (10th Cir.1993). Assuming the Court grants Plaintiffs leave to amend, the question
presented is whether the amendments proposed by Plaintiffs are futile or whether they will relate back
to the date of the original pleading, thus bringing the survival action within the allegedly applicable
two-year statute of limitations.
With regard to this issue, the Federal Rules of Civil Procedure provide that “[a]n amendment
of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading.” Fed. R. Civ. P. 15(c). “It is a matter committed to the district court’s
sound discretion to decide whether a new claim arises out of the same transaction or occurrence.”
Kidwell v. Board of County Comm’rs of Shawnee County, 40 F. Supp.2d 1201, 1217 (D. Kan. 1998)
(citing Wilson v. Fairchild Republic Co., Inc., 143 F.3d 733, 738 (2nd Cir.1998)).
The goal of Fed. R. Civ. P. 15(c) is “to provide the opportunity for a claim to be tried on its
merits, rather than being dismissed on procedural technicalities.” 3 Moore’s Federal Practice 2d Ed.,
? 15.19[3][a] at 15-84. This goal is accomplished “if the original complaint gives the defendant fair
notice that litigation is arising out of a specific factual situation.” Spillman v. Carter, 918 F. Supp. 336,
340 (D. Kan.1996). If the original complaint fairly discloses the general fact situation out of which the
new claims arise, a defendant is not deprived of the protection of the statute of limitations. Id.
Therefore, “[t]he linchpin to Rule 15(c) is notice before the limitations period expires.” Kidwell v.
Board of County Comm’rs of Shawnee County, 40 F.Supp.2d at 1217 (quoting March v. Coleman Co.,
774 F. Supp. 608, 612 (D. Kan.1991)).
Without a doubt, the survival claims brought by the estates of Brenden Tucker and Dana
Christianson against the defendants in the second amended complaints arise out of the same occurrence
complained of in the original complaints. Moreover, the Court finds that all Defendants had timely
constructive notice of these claims before the limitation period expired. Accordingly, the Court hereby
exercises its discretion pursuant to Rules 15(c) and 17(a) of the Federal Rules of Civil Procedure to
permit Plaintiffs to amend the capacity in which Brenden Tucker and Dana Christianson bring their
causes of action and to further permit such amendments to relate back to the date of the filing of the
original Complaints. See Shinkle v. Union City Body Co., 94 F.R.D. 631 (Kan. 1982) (under
circumstances similar to those presented here, court held amended complaint relates back to date of
filing of original complaint because no change in parties and all parties on notice of facts out of which
claim arose) (4) (citing Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962); Hunt v.
Pennsylvania Central Transportation Co., 414 F. Supp. 1157 (W.D. Pa.1976); Fierstein v. Piper
Aircraft Corp., 79 F. Supp. 217 (M.D. Pa.1948); Owen v. Paramount Productions, 41 F. Supp. 557
(S.D. Cal.1941)). See, also, Missouri, Kansas & Texas Railway Co. v. Wulf, 226 U.S. 570 (1913)
(holding second amended complaint related back to filing of original complaint because, “aside from the
capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the
original and amended petitions.”); Russell v. New Amsterdam Cas. Co., 303 F.2d 674 (8th Cir. 1962)
(“where an amendment to a complaint in an action for wrongful death introduced no new or different
cause of action and does not set up any different state of facts as the ground action, it relates back tot
he beginning of the suit and the statute of limitation is arrested at that point.“)
Amending the Complaint to Properly Identify Defendant Edgardo C. Francisco
Plaintiffs seek to amend their First Amended Complaint in order to properly identify Dr. Edgardo
C. Francisco as the correct defendant. Defendant Francisco opposes this amendment on the grounds
that he was not properly named in the First Amended Complaint and that an amendment to correct the
mistake would be futile, as any claims against him would be time barred by the applicable statute of
limitations.
In the caption of Plaintiffs’ initial Complaint in Case No. 00-2292-KHV (filed on June 29, 2000),
Defendant Francisco was incorrectly identified as “Dr. Michael Filipinas Francisco.” Defendant
Francisco was served with Summons and Complaint in this action on November 3, 2000 and on
December 5, 2000, Defendant Francisco filed an Answer to the First Amended Complaint. In his
Answer, Defendant Francisco denies he is “Michael Filipinas Francisco” and further denies knowing any
such person. Defendant Francisco admits in his Answer, however, that he “is a licensed health care
provider” and that he did countersign the emergency room records at issue, although he did so “as a
matter of hospital protocol, practice and procedure” and that such signing occurred “after Ryan Graves
left the facility by helicopter.”
As noted in the preceding section, the Federal Rules of Civil Procedure provide that “[a]n
amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading.” Fed. R. Civ. P. 15(c). The amendment properly
relates back “if the original complaint gives the defendant fair notice that litigation is arising out of a
specific factual situation.” Spillman v. Carter, 918 F. Supp. 336, 340 (D. Kan.1996). If the original
complaint fairly discloses the general fact situation out of which the new claims arise, a defendant is not
deprived of the protection of the statute of limitations. Id.
Throughout this litigation, Defendant Francisco has acted and responded as if he were properly
named as a Defendant in this action. Thus, Defendant Francisco cannot genuinely assert prejudice or
surprise with respect to the claims asserted against him now that Plaintiffs have moved to amend their
Complaint to identify him by his proper first name. Accordingly, Plaintiffs’ Motion to Amend will be
granted with respect to this issue as well.
Conclusion
Viewing all reasonable inferences in Plaintiffs’ favor, and bearing in mind that Plaintiffs seek only
the privilege of making the allegations proposed in the Amended Complaint, Plaintiffs Motions to
Amend are hereby granted and such amendments shall relate back to the date of the filing of the original
Complaints. Pursuant to D.Kan. Rule 15.1, the clerk shall file Plaintiffs’ Amended Complaints (attached
to the pending motions), and they shall be deemed filed as of the date this Order is filed. Defendants
shall answer the amended Complaints in accordance with local rule.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this ______ day of January, 2002.
_____________________________________
David J. Waxse
United States Magistrate Judge
cc: All counsel and pro se parties
1. Based upon pre-existing procedures adopted and employed by the hospital at issue, the Repp
court held EMTALA’s screening requirement is violated “when [the hospital] does not follow its own
standard procedures.” Repp v. Andarko Mun. Hosp., 43 F.3d at 522. In so holding, the Repp court
noted that EMTALA was not enacted as a federal medical malpractice statute and was not intended to
ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the
same level of treatment regularly provided to patients in similar medical circumstances. Id.
2. Given Plaintiffs’ Motions to Amend were filed in a timely manner pursuant to the March 28,
2001 Scheduling Order issued by the Court, the Court is unable to find Plaintiffs’ Motions were dilatory
or motivated by bad faith.
3. Defendants also rely on K.S.A. 60-515 to argue that these claims are time-barred. This statute
provides that “if any person [less than 18 years of age] entitled to bring an action dies . . . and no
determination is made of the cause of action accrued to the deceased, any person entitled to claim from,
by or under the deceased, may commence such action within one year after the deceased’s death.”
K.S.A. 60-515(b). Defendants’ reliance on this statute, however, is misplaced. The purpose of K.S.A.
60-515 is to mitigate the difficulties of preparing and maintaining a civil suit while the plaintiff is under
a legal disability. Biritz v. Williams, 262 Kan. 769, 774, 942 P.2d 25, 29 (Kan. 1997). The statute does
not suspend, interrupt, or extend the statute of limitations, but operates merely to toll the statute of
limitations under stated circumstances. Id.
4. As the court in Shinkle noted, “such a result is consistent with the decision in Metropolitan
Paving Co. v. International Union of Operating Engineers, 439 F.2d 300, 306 (10th Cir. 1971), in
which the Tenth Circuit stated: ‘The fact that an applicable statue of limitations may have run before
the real parties were substituted is not significant where the change is merely formal and in no way alters
the known facts and issues on which the action is based.'” Id. “This result also agrees with the Tenth
Circuit’s interpretation of Kansas Supreme Court cases that ‘where a cause of action is instituted by one
not authorized to maintain it and thereafter the proper party plaintiff is substituted in his place, the
substitution relates back to the commencement of the action and the statute of limitations stops running
as to the substituted plaintiff from the filing of the original action rather than the date of the
substitution.'” Id. (citing Montgomery Ward & Co. v. Callahan, 127 F.2d 32, 36-37 (10th Cir. 1942)).