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Schmigel v. Uchal

United States District Court, W.D. Pennsylvania

July 11, 2014

BRIAN SCHMIGEL, Plaintiff,
v.
MIROSLAV UCHAL, MD, FACS, Defendant.

MEMORANDUM OPINION

ARTHUR J. SCHWAB, District Judge.

This medical malpractice lawsuit is predicated upon diversity jurisdiction. Currently, before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint. Doc. no. 6. Defendant's Brief in Support of his Motion to Dismiss (doc. no. 7), primarily contends that Plaintiff's failure to timely file a Certificate of Merit - required in medical malpractice cases in the Commonwealth of Pennsylvania - is fatal to this lawsuit. Plaintiff's timely filed Response to the Motion to Dismiss (doc. no. 10) admits the failure to file a Certificate of Merit, but claims this failure was merely an inadvertent clerical error. Defendant filed a Reply (doc. no. 11) and Plaintiff filed a Sur-Reply on this issue. Doc. no. 15. The matter is now ripe for adjudication.

I. Standard of Review

In considering a Rule 12(b)(6) motion, Federal Courts require notice pleading, as opposed to the heightened standard of fact pleading. Fed.R.Civ.P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds on which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Building upon the landmark United States Supreme Court decisions in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit explained that a District Court must undertake the following three steps to determine the sufficiency of a complaint:

First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).

The third step of the sequential evaluation requires this Court to consider the specific nature of the claims presented and to determine whether the facts pled to substantiate the claims are sufficient to show a "plausible claim for relief." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013). "While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 664.

This Court may not dismiss a Complaint merely because it appears unlikely or improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint that provides adequate facts to establish "how, when, and where" will survive a Motion to Dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 212 (3d Cir. 2009).

In short, a Motion to Dismiss should not be granted if a party alleges facts, which could, if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.

II. Factual Background

The facts of this case, taken as true solely for the purposes of adjudicating the pending Motion to Dismiss are:

Plaintiff elected to undergo bariatric surgery as a means of losing weight. Doc. no. 1, ¶ 5. Defendant, a Florida citizen and surgeon, performed a laparoscopic adjustable gastric band procedure on Plaintiff at West Penn Hospital in Pittsburgh, Pennsylvania, on May 10, 2010. Id., ¶¶ 6-8. Plaintiff did not lose weight despite the surgery. Id., ¶ 10. Plaintiff contacted Defendant's office for a post-operative follow up appointment, but Defendant had relocated to Florida. Id., ¶ 11.

Plaintiff next treated with Dr. Jorge Urbandt, who informed Plaintiff on March 27, 2012, that the band was never placed around his stomach. Id., ¶¶ 12, 14. Dr. Urbandt and his Physician Assistant, Julie Maurer, reviewed Defendant's records from May 11, 2010, and confirmed to Plaintiff that the band was never placed around his stomach. Id., ¶ 15. The band was "free floating" in his abdomen. Id., ¶ 7.

On October 19, 2012, Dr. Urbandt performed band removal surgery on Plaintiff, but due to scar tissue, Dr. Urbandt could not place a new band. Id., ¶¶ 17-18. Plaintiff alleges his options for future bariatric surgery are severely limited as a result. Id., ¶ 19.

As noted above, Defendant's Motion to Dismiss Plaintiff's Complaint suggests that Plaintiff's failure to file a Certificate of Merit ("COM") in tandem with his Complaint is fatal to his case. See generally, doc. no. 7.

Plaintiff's Response to the Motion (doc. no. 10) and Plaintiff's lawyer's affidavit attached to the Response (doc. no. 10-2), admits the failure to file the required COM, but argues that said failure should be excused.

III. Discussion

As noted above, this is a medical malpractice lawsuit brought by the Plaintiff against his former surgeon. Because the Defendant-surgeon is now a resident outside of the Commonwealth of Pennsylvania, this Court has diversity jurisdiction ...


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