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Farren v. Sessions

United States District Court, E.D. Pennsylvania

August 7, 2019

CAROLYN FARREN and JOSEPH FARREN, w/h, Plaintiffs,
v.
BLANE SESSIONS, M.D., Defendant.

          OPINION

          Slomsky, J.

         I. INTRODUCTION

         Carolyn Farren and her husband, Joseph Farren (“Plaintiffs”) bring this medical malpractice suit against Dr. Blane Sessions, M.D. (“Defendant”). Ms. Farren sought treatment from Defendant after injuring her wrist. Defendant treated Ms. Farren for persistent pain, which included performing diagnostic testing and surgery. She alleges that Defendant failed to accurately diagnose her injury and performed “improper and unnecessary” surgery on her right wrist. In the Complaint, Plaintiffs assert claims for negligence (Count I), informed consent (“battery”) (Count II), and loss of consortium (Count III).

         On April 16, 2019, Defendant filed a Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(5) for failure to timely serve pursuant to Federal Rule of Civil Procedure 4(m). (Doc. No. 3.) Defendant alleges that Plaintiffs did not send Defendant a copy of the Complaint by certified mail until March 7, 2019, well after the ninety-day deadline for service set forth in Federal Rule of Civil Procedure 4(m).

         On April 19, 2019, Plaintiffs filed a Response to Defendant's Motion to Dismiss. (Doc. No. 4.) The Motion is now ripe for disposition. For the reasons discussed infra, the Motion to Dismiss will be denied.

         II. BACKGROUND

         A. Ms. Farren's Injury and Initial Treatment

         In October 2016, Plaintiff Carolyn Farren (“Ms. Farren”) injured her right wrist. (Doc. No. 1 ¶ 5.) Ms. Farren initially sought treatment from Premier Urgent Care in Media, Pennsylvania, where she had x-rays taken. (Id. ¶ 6.) On October 21, 2016, Ms. Farren began treatment for her wrist injury with Defendant Blane Sessions, M.D. (“Sessions” or “Defendant”). (Id. ¶ 7.) Defendant reviewed Ms. Farren's prior x-rays and diagnosed her with a right distal radius fracture, non-displaced.[1] (Id.) Due to complaints of persistent pain, Ms. Farren remained under the care of Defendant. (Id. ¶ 8.) In February 2017, Ms. Farren underwent an MRI which showed subsidence in her wrist.[2] (Id. ¶ 9.) She alleges that Defendant failed to document the subsidence in her medical records and failed to diagnose or discuss it with her. (Id.)

         Ms. Farren further asserts that on March 10, 2017, Defendant performed “improper and unnecessary” surgery on her right wrist. (Id. ¶ 10.) Additionally, she claims that Defendant failed to diagnose and treat the subsidence. (Id.) Following surgery, Ms. Farren complained of continuing and persistent pain in her right wrist, which she attributed to Defendant's failure to diagnose and treat the subsidence. (Id. ¶ 11.)

         B. Procedural History

         On November 6, 2018, Ms. Farren initiated this case by filing the Complaint against Defendant. (Doc. No. 1.) In Count I, Ms. Farren alleges that Defendant was negligent in rendering care and treatment for her injury. (Id. ¶ 17.) In Count II, she makes a claim for battery, alleging that Defendant failed to inform her of all of the risks, complications and potential harm associated with the wrist surgery he performed. (Id. ¶ 22.) And in Count III, Ms. Farren's husband, Mr. Farren, submits a claim for loss of consortium, alleging that Defendant's treatment of Ms. Farren has resulted in the deprivation of her companionship, consortium, and society. (Id. ¶ 29.)

         Plaintiffs allege that they attempted to serve Defendant on December 4, 2018, with the Complaint by certified mail at the address that Ms. Farren had for Defendant at the time. (Doc. No. 4 ¶ 5.) On January 29, 2019, six days before the ninety-day limit was to run, the envelope was returned to Plaintiffs' counsel stamped with the words “return to sender - unclaimed, unable to forward - return to sender.” (Id.) Plaintiffs' counsel then attempted to locate Defendant by performing several internet searches and by working with an investigator. (Id.) On March 7, 2019, Plaintiffs' counsel discovered Defendant's updated address and sent the Complaint to that address by certified mail. (Id.)

         On April 16, 2019, Defendant filed the Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5).[3] (Doc. No. 3.) Defendant argues the Complaint should be dismissed because Plaintiffs failed to timely effectuate service of the Complaint within ninety days under Federal Rule of Civil Procedure 4(m). (Id.) Defendant specifically alleges that he was not served with the Complaint until March 7, 2019, “well after the expiration of the ninety (90) day service deadline . . . .” (Id. at 3.)

         On April 19, 2019, Plaintiffs filed a Response (Doc. No. 4), in which they argue that good cause exists for their failure to timely serve the Complaint because they “attempted to serve Dr. Sessions on ...


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