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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,
CROZER-CHESTER MEDICAL CENTER, ET AL.
The opinion of the court was delivered by: Dalzell, District Judge.
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.
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
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
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
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
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. ...