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KLAVAN v. CROZER-CHESTER MEDICAL CENTER

August 16, 1999

MARSHALL KLAVAN, M.D., AN INCOMPETENT, BY JEROME J. SHESTACK, ESQ., GUARDIAN AD LITEM,
v.
CROZER-CHESTER MEDICAL CENTER, ET AL.



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

    MEMORANDUM

In this sad and novel action, plaintiff Marshall Klavan, M.D., through his guardian ad litem, Jerome J. Shestack, Esq.,*fn1 is attempting to sue the defendants*fn2 for "wrongful life" and their alleged violation of his liberty interest in refusing unwanted medical treatment. Because we find that Dr. Klavan has failed to allege a set of facts to demonstrate that the defendants were state actors, we will grant the defendants' motions to dismiss.

I. Facts

The facts alleged here are the stuff of tragedy. Until April of 1997, Dr. Klavan was a "highly regarded, respected and competent physician." Compl. at ¶ 16. He was the Chief and Director of the Obstetrics and Gynecology Department of Crozer-Chester Medical Center (hereinafter "CCMC") in Upland, Pennsylvania.

On March 13, 1993, Dr. Klavan consulted with his personal attorney, Sidney Margulies, Esq., and thereafter adopted an Advance Medical Directive (hereinafter "AMD") providing that, under certain circumstances, he "absolutely did not want any extraordinary care measures utilized by health care providers." Compl. at ¶ 19. According to his complaint, Dr. Klavan had a "deep fear" of suffering a stroke, as he had observed his father's complete debilitation after having one, and he preferred to die rather than be forced to live in a condition like his father's. See Compl. at ¶ 20.

On May 2, 1997, Dr. Klavan's attorney and family told defendants about Dr. Klavan's AMD and his notes stating that he did not want to be resuscitated. At that time, Dr. Klavan was on "Level 2" care, which included treatment that he had expressly prohibited in his AMD. By this point, Dr. Klavan had deteriorated into a persistent vegetative state.

Two days later, on May 4, after a long discussion with Paula Klavan, plaintiff's wife, defendants agreed to provide care in accordance with the AMD and reduced Dr. Klavan's care to "Stage 4." However, the next day, when Dr. Klavan experienced a "life-threatening worsening of his condition," defendant Joan K. Richards, the president of defendant CCMC, allegedly instructed the other defendants to ignore the AMD. Defendants again used extraordinary measures to resuscitate Dr. Klavan, who then suffered a stroke that rendered him mentally and physically incompetent.

Dr. Klavan, through his guardian ad litem, thereafter filed this action. He asserts claims under the Fourteenth Amendment and Pennsylvania law. His Fourteenth Amendment claim is based on his protected liberty interest in refusing medical treatment, a right the Supreme Court recognized in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). We find, however, that Dr. Klavan has not alleged sufficient facts for us to conclude that defendants were "state actors," a necessary predicate for his Fourteenth Amendment claim.

II. Procedural Posture

Several of the defendants have filed motions to dismiss the complaint under both Fed.R.Civ.P. 12(b)(1) (for lack of subject matter jurisdiction) and under 12(b)(6) (for failure to state a claim upon which relief may be granted). In Boyle v. Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir. 1991), our Court of Appeals held that where a motion to dismiss is based on the lack of state action, dismissal is proper only under Rule 12(b)(6) for failure to state a claim. Because we reach only the defendants' state action claims, we treat the motion solely as one under Rule 12(b)(6).*fn3

When considering a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), we must "accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them. Dismissal under Rule 12(b)(6) . . . is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved," Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); see also H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). However, we are not required to accept the plaintiff's alleged or implied legal conclusions. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).

III. State Action Analysis

Dr. Klavan attempts to sue the defendants directly under the Fourteenth Amendment. See Compl. at ¶ 13. His claim is that he has a constitutionally protected liberty interest, under the Fourteenth Amendment's due process clause, in refusing unwanted medical treatment. The Fourteenth Amendment, however, offers no shield against private conduct. See Jackson v. Metropolitan Edison Co., 419 West Page 441 U.S. 345, 349, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). For the Fourteenth Amendment to apply, "state action" is required. Liability will attach only if it can be said that the state is responsible for the specific conduct that Dr. Klavan complains about. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141-42 (3d Cir. 1995).

The Supreme Court has not developed one unitary test to determine whether there has been state action. It has instead employed at least three discrete tests. These are the "traditional exclusive governmental function" test, the "symbiotic relationship" test, and the "close nexus" test. Which test we apply in any given case depends on the particular facts and circumstances.

The lines that separate these tests are far from bright, and our Court of Appeals has noted that we are not foreclosed from employing various approaches as may be warranted under the facts of the case before us. Whichever approach we use, however, the heart of the inquiry is "to discern if the defendant `exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."'" Groman v. Township of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir. 1995) (quoting West v. Atkins, 487 U.S. ...


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