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Ramos v. Quien

November 17, 2008

BIENVENIDO QUILES RAMOS, PLAINTIFF,
v.
EMANUAL QUIEN, MD., SEAN HARBISON, MD., TEMPLE UNIVERSITY HEALTH SYSTEM, TEMPLE UNIVERSITY HOSPITAL, TEMPLE UNIVERSITY HOSPITAL, EPISCOPAL CAMPUS, NORTHEASTERN HOSPITAL, LAWRENCE SOLISH, MD., DEFENDANTS.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO REMAND AND MOTIONS TO DISMISS

I. Introduction

Plaintiff, Bienvenido Quiles Ramos, ("Plaintiff") instituted an action for damages for medical malpractice pursuant to Pennsylvania common law, and for failure to provide an interpreter under 42 U.S.C. § 2000d, Title VI of the 1964 Civil Rights Act, in the Court of Common Pleas of Philadelphia County on November 1, 2007. Defendants ("Defendants") include: Emanuel Quien, M.D., Sean Harbison, M.D., Temple Physicians, Inc., Northeastern Hospital, Temple University Hospital, Temple University Hospital - Episcopal Campus and Temple University Health System (collectively "Temple University Hospital"); Lawrence Solish, M.D. ("Dr. Solish"); Lisette Cooper, M.D. ("Dr. Cooper"); and Lehigh Medical Associates ("Lehigh").

Pursuant to 28 U.S.C. § 1441(b), Temple University Hospital removed the case to this Court on June 24, 2008. (Doc. No. 1 at 2). Temple University Hospital and Dr. Solish filed separate motions to dismiss based on Plaintiff's untimely filing of the certificate of merit, as required by Pennsylvania law. (Doc Nos. 3, 6).

Plaintiff then moved to remand, arguing the removal was improper because all Defendants did not unanimously consent to removal by Temple University Hospital. (Doc. No. 4). Specifically, Plaintiff contends that: (1) Temple University Hospital never obtained Dr. Solish's consent to removal; and (2) that Temple University Hospital neither: (a) served Lehigh or Dr. Cooper with the notice of removal, nor (b) obtained Lehigh or Dr. Cooper's consent to the removal. (Doc. No. 4 at 2-3).Because Plaintiffs Motion to Remand was filed 31 days after removal, Temple University Hospital and Dr. Solish assert the case must remain in this Court. (Doc. Nos. 29, 30).

II. Issues Presented

1. Whether this Court should grant Plaintiff's Motion to Remand, despite the untimely filing of the Motion, because Defendants violated the unanimity rule in removal.

2. Whether this Court should grant Defendants' Motions to Dismiss because of Plaintiff's failure to timely file certificates of merit as required by Pennsylvania law.

III. Background

A. Facts

On April 4, 2004, Plaintiff, who "speak[s] little or no English," was "admitted to Temple University Hospital for surgery." (Compl. at ¶¶ 3, 13). The Hospital recorded that Plaintiff indicated he "wishe[d] for communication" in English. (Id. at ¶ 15). It appears that plaintiff underwent surgery twice for inguinal (abdominal and pelvic) cancer April and May of 2004. (Id. at ¶¶ 16-20, 22-24). Plaintiff's condition worsened, and, on January 31, 2006, "a colonoscopy was performed which indicated . . . [m]etastatic cancer." (Id. at ¶ 30). Doctors Solish and Harbison operated on Plaintiff twice in 2006 to treat the inguinal cancer. (Id. at ¶ 33-35, 37, 41-43).

On January 12, 2007, a CT scan performed on Plaintiff revealed "[e]xtensive bilateral inguinal adenopathy," and Plaintiff claims that "Dr. Solish expressed surprise at the results indicating to [Plaintiff] that his last operation only removed one half of the tumor." (Id. at ¶¶ 45, 67-68). Plaintiff contends that Dr. Solish "refused to return [Plaintiff] to the care of Dr. Harbison for corrective surgery but instead referred him to Dr. Michael J. Metro of Urologic Consultants of S.E. Pennsylvania and Albert Einstein Hospital with whom Dr. Metro is associated." (Id. at ¶ 69). On February 6, 2007, Dr. Metro performed surgery on Plaintiff and "has arrested all his cancerous growths." (Id. at ¶ 70-71).

B. Procedural History

The following is a summary of the case's complicated procedural history in both state and federal court:

* Nov. 1, 2007 - Plaintiff commences action by Writ of Summons in the Court of Common Pleas of Philadelphia County. (Doc. No. 1, Ex. A at 4).

* May 15, 2008 - Plaintiff files a Complaint in the Court of Common Pleas. The Court of Common Pleas denies Plaintiff's third request for an extension of time to file the Complaint. (Doc. No. 1, Ex. A at 12).

* May 27, 2008 - Defendants receive Complaint. (Doc. No. 1 at 2)

* June 24, 2008 - Defendants remove to this Court. (Doc. No. 1).

* July 8, 2008 - The Court of Common Pleas reconsiders Plaintiff's Complaint and deems it timely filed as of May 15, 2008. The court gives Plaintiff a 45 day extension to file certificates of merit ("COM"). (Doc. No. 1, Ex. A at 12).

* July 24, 2008 - Temple University Hospital files Motion to Dismiss medical malpractice claims under Fed. R. Civ. P. 41(b) in this Court, arguing that Plaintiff has not filed a COM within 60 days of filing the Complaint. (Doc. No. 3).

* July 25, 2008 - Plaintiff files Motion to Remand, arguing that Temple University Hospital removed in violation of the rule of unanimity. (Doc. No. 4).

* July 31, 2008 - Dr. Solish files Motion to Dismiss medical malpractice claims under Fed. R. Civ. P. 41(b) in this Court, arguing that Plaintiff has not filed a COM within 60 days of filing the Complaint. (Doc. No. 6).

* Aug. 14, 2008 - Plaintiff answers Defendants' Motions to Dismiss, contending that the Court of Common Pleas gave a 45 day extension ...


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