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March 15, 1999


The opinion of the court was delivered by: McCLURE, District Judge.



On September 29, 1995, plaintiffs Jeannette Tranor and Richard Tranor (both now deceased) commenced this action with the filing of a complaint in the Eastern District of Pennsylvania alleging negligence on the part of the defendant health care providers. Plaintiffs also alleged that defendants committed battery by providing medical treatment without informed consent on the part of Jeannette Tranor. The case was transferred to this court by Order of Court dated January 17, 1996, which was supplemented by a memorandum dated January 22, 1996. The claim of battery as against defendant Bloomsburg Hospital was dismissed by Order of Court dated April 26, 1996. Plaintiff Delphine Meyers now represents the estates of Jeanette and Richard Tranor.

Before the court are: (1) a motion (actually, two such motions) by defendants Hinkle and Vickers for summary judgment on Count III of the complaint; (2) a motion by defendant Vickers for summary judgment as to Count I of the complaint insofar as it refers to negligent referral; (3) a motion by defendant Hinkle to dismiss claims raised pursuant to Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991); and (4) a motion by defendant Hinkle for summary judgment regarding negligence in the performance of surgery and negligent follow-up.



Plaintiff indicates that there is no opposition to the motions numbered (1), (2), and (4). Plaintiffs Brief in Opposition to Motion of Richard S. Hinkle, D.O., to Dismiss Claims Per: Thompson v. Nason at 1 n. 2. We construe this statement to mean that plaintiff concurs in the motions, and they will be granted. The first motion for summary judgment on Count III of the complaint will be denied as moot, based on the filing of the second motion.


A. Procedural Posture and Standard

The only remaining motion, then, is the motion to dismiss claims against Dr. Hinkle for negligent referral. We note first that, in contrast to a statement in the "Introduction" portion of Dr. Hinkle's reply brief, the motion is one to dismiss, not for summary judgment. No "separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried" was filed as required under LR 56.1 of the Local Rules for the Middle District of Pennsylvania. Absent a proper statement of facts, we cannot review the factual basis for the claim (or its lack of merit, as argued by Dr. Hinkle). We therefore confine our analysis to the legal validity of a claim for negligent referral.

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The complaint must be construed in favor of the plaintiff with every doubt resolved in the plaintiffs favor. In re Arthur Treacher's Franchise Litigation, 92 F.R.D. 398, 422 (E.D.Pa. 1981). That is, the court must accept as true all factual allegations set forth in the complaint as well as all reasonable inferences that can be drawn from them. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court looks only to the facts alleged in the complaint and any attachments, without reference to any other parts of the record. Jordan at 1261. "[A] case should not be dismissed unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiffs allegations." Id. (citing, inter alia, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). Whether a plaintiff will ultimately prevail is not a consideration for review of a motion under Rule 12 (b)(6). Nami at 65.

B. Analysis

Plaintiff disclaims any reliance on Thompson, and indicates that the claim set forth in Count I of the complaint is brought under general principles of negligence, Succinctly and somewhat colloquially stated, the claim is that Dr. Hinkle should have known better than to send Jeanette Tranor to Dr. Brown for surgery because Dr. Brown was not competent and Dr. Hinkle knew it or should have known it. We agree with the parties that Thompson is inapposite, as it refers to corporate liability on the part of a hospital for negligent treatment.

Dr. Hinkle cites a number of cases in his reply brief which also are inapposite. Most of the cases cited refer to vicarious liability on the part of the referring physician for negligent treatment by the physician to whom the patient was referred. Plaintiff's claim here is that the referral itself ...

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