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CORRIGAN v. METHODIST HOSP.

May 11, 1994

JUDY CORRIGAN
v.
METHODIST HOSPITAL and SANFORD H. DAVNE, M.D. and DONALD MYERS, M.D.



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 This medical malpractice action has been brought before the court on motion of the defendant, Sanford Davne, M.D. to dismiss the plaintiff's complaint against him. Pursuant to the rationale set forth in the paragraphs which follow, the motion is granted in part and denied in part.

 I. STATEMENT OF THE CASE.

 According to the allegations contained in the complaint in this case, on July 9, 1991, the plaintiff, Judy Corrigan, first sought medical treatment of her back pain from the defendant doctors, Sanford Davne and Donald Myers. After several months of treatment for this condition, Drs. Davne and Myers purportedly represented to Ms. Corrigan that the only available option to improve her condition was surgery and, on March 5, 1992, Ms. Corrigan underwent a lumbar foramenotomy, L4-5 discectomy and posterior lateral lumbar fusion at Methodist Hospital. Following her discharge on March 14, 1992, the plaintiff continued to be followed by Drs. Davne and Myers, who prescribed various narcotic medications to relieve the continued intractable pain in her mid-back, low back and legs, muscle spasms and cramping. These symptoms apparently failed to abate and, in fact, grew worse with the passage of time. As a result, in October, 1992, Plaintiff consulted Doctors Mark Kotopka, John Esterhai and M.D. Cheatal at the Hospital of the University of Pennsylvania. On November 11, 1992, after several clinical examinations and tests, including an MRI, Drs. Kotopka, Esterhai and Cheatal diagnosed the plaintiff as suffering from a thoracic meningiomal tumor at the T6 level.

 Plaintiff filed this lawsuit on March 4, 1994 alleging that the defendants had failed to obtain her informed consent for the lumbar fusion surgery in that they did not advise her that they planned to utilize the Acromed VSP plate and pedicle screw system in the surgery, that there was a risk of screw failure which, in turn could lead to an increase in pain, suffering and disability, that the use of that system was still considered investigational for use in lumbar fusion procedures or that the individual defendants had a financial interest in Acromed by virtue of the fact that they held stock options and served as members of Acromed's Medical Advisory Board. The complaint further alleges that the defendants were negligent in failing to appropriately diagnose and treat the plaintiff's meningiomal tumor and that the defendants engaged in a civil conspiracy to circumvent FDA restrictions on the marketing, labeling and use of the Acromed VSP system with the result that the plaintiff was forced to suffer unnecessary surgery and pain.

 By way of the instant motion to dismiss, the defendant Davne primarily asserts that the plaintiff's complaint cannot stand because the state law claims which she asserts therein have been pre-empted by the Medical Device Amendments to the Food, Drug and Cosmetic Act, 21 U.S.C. ┬ž 360c, et. seq. *fn1" In addition, moving defendant argues that the complaint fails to state a claim for civil conspiracy under Pennsylvania law.

 II. DISCUSSION.

 A. Legal Standards Applicable to Rule 12(b)(6) Motions.

 It has long been held that the appropriate vehicle for challenging the sufficiency of a pleading is through the filing of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). In evaluating the merits of such motions, the courts look first to the requirements for pleading cases prescribed by Fed.R.Civ.P. 8(a). That rule states:

 A pleading which sets forth a claim for relief, whether

 an original claim, counter-claim, cross-claim, or third-party

 claim, shall contain (1) a short and plain statement of the

 grounds upon which the court's jurisdiction depends, unless

 the court already has jurisdiction and the claim needs no new

 grounds of jurisdiction to support it, (2) a short and plain

 statement of the claim showing that the pleader is entitled

 to relief, and (3) a demand for judgment for the relief the

 pleader seeks. Relief in the alternative or of several

 different types may be demanded.

 Subsections (e) and (f) of Rule 8 further provide, in

 relevant part:

 (e) Pleading to be Concise and Direct; Consistency.

 (1) Each averment of a pleading shall be simple,

 concise, and direct. No technical forms of ...


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