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Durnell v. Foti

United States District Court, E.D. Pennsylvania

November 12, 2019

SHEILA DURNELL, on behalf of herself and all others similarly situated, et al., Plaintiffs,
GERARD FOTI, et al., Defendants.


          Schiller, J.

         Shelia Durnell and Charles Opdenaker (“Plaintiffs”) sued Gerald Foti, D.O., Suburban Spine and Orthopedic Center, LLC, Main Line Hospitals, Inc., and Crozer-Keystone Health System for medical malpractice. Defendants now seek to dismiss for failure to state a claim. Because Plaintiffs allege virtually no facts to support their various medical malpractice claims, the Court agrees with Defendants and will dismiss the lawsuit.

         I. BACKGROUND

         Foti practiced medicine at Suburban Spine, Crozer-Keystone's Crozer-Chester Medical Center, and Main Line's Bryn Mawr Hospital, (Compl. ¶ 2.) There, Foti “performed” or otherwise “subjected plaintiffs to” medical procedures, surgeries, injections, anesthesia, and inserted one or more surgical devices into Plaintiffs. (Id. ¶¶ 1, 27, 42, 43.) The specifics of the procedures - including the nature of the procedures, when and why they were performed, and which plaintiff which procedures were performed on - are not detailed in the Complaint. The Complaint further alleges that, following the procedures, Plaintiffs “suffered injuries of a personal and pecuniary nature, ” such as “medical expenses, pain and suffering, and physical and emotional trauma, ” some or all of which “are believed to be permanent.” (Id. at ¶¶ 47, 58, 67, 74, 91, 98.) The Complaint does not specify the nature of the alleged injuries, nor explain how they were caused by Foti's alleged malpractice.

         Plaintiffs sued Foti in the Delaware County Court of Common Pleas on April 26, 2019, alleging that Foti had committed battery, negligent misrepresentation, fraudulent misrepresentation, and medical negligence. Plaintiffs further allege that Main Line and Crozer-Keystone were vicariously responsible for alleged torts committed by Foti, that Suburban Spine, Main Line and Crozer-Keystone had committed corporate negligence, and that all Defendants were liable for loss of consortium and punitive damages. Foti and Suburban Spine removed the case to this Court on July 8, 2019, and all four defendants now move to dismiss the complaint pursuant to Rule 12(b)(6).


         Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6), which requires a court to dismiss a pleading that fails to state a claim upon which relief can be granted. A Pleading states a claim upon which relief can be granted if it contains factual allegations that, if proven to be true, would entitle the plaintiff to a legal remedy. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To determine whether a pleading meets this standard, courts in the Third Circuit administer a three-part test. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).

         First, courts examine the pleading to identify the elements of any claims that could entitle the pleader to relief. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). In so doing, the court may consider any claim potentially available to the pleading party. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2019 3d ed.) (“Many federal courts have concluded that the complaint should not be dismissed merely because the plaintiff's allegations do not support the legal theory he or she intends to proceed on, since the district court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible legal theory.”) Second, courts identify all nonconclusory factual allegations contained within the pleading. Robinson v. Family Dollar Inc, 679 Fed.Appx. 126, 132 (3d Cir. 2017). A court need not, however, accept unsupported conclusion and unwarranted inferences. See Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013). Likewise, a court need not accept conclusions of law. In re Asbestos Prod. Liab. Litig. (No. VI), 822 F.3d 125, 133 (3d Cir. 2016). Third, the court compares the elements of the pleading party's potential claims with the factual allegations in the pleading. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). A pleading states a claim for which relief can be granted if, assuming the truth of the factual allegations in the complaint, the elements of a pleader's claim will be satisfied, and there are no additional legal barriers to relief. See id. at 791. In evaluating whether or not the pleader is entitled to relief, the court must draw all reasonable inferences in favor of the nonmoving party. In re Asbestos Prod. Liab. Litig. (No. VI), 822 F.3d at 131.


         Plaintiffs' Complaint fails to state a claim upon which relief can be granted. While the Court will address each of Plaintiffs' claims individually, the Court notes that each claim suffers from a single generalized defect: the Complaint does not meaningfully describe the events that Plaintiffs believe give rise to liability. It does not describe the circumstances that put the Plaintiffs in Foti's care. It does not describe what procedures Plaintiffs underwent, nor when, where, or how they were performed. It does not explain how Defendants' alleged misconduct resulted in Plaintiffs' injuries, nor even describe the nature of Plaintiffs' injuries. As a result, the Complaint reads as the sort of “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” which “do not suffice” to state a claim for which relief can be granted. Iqbal, 556 U.S. at 678.

         A. Battery (Count I)

         In Count I, Plaintiffs allege that Foti battered them by performing various medical procedures without obtaining informed consent. In Pennsylvania, a medical provider commits a battery if they perform non-emergency surgery, administer anesthesia, or insert a surgical device or appliance without first obtaining informed consent. 40 Pa.C.S. § 1303.504 (a); Duttry v. Patterson, 565 Pa. 130, 135 (2001). The patient must be given a description of a procedure and the risks and alternatives that a reasonable patient would require to make an informed decision as to that procedure. 40 Pa.C.S. § 1303.504 (b). The Court will dismiss Count I because the Complaint does not allege any facts to support the conclusion that Foti performed procedures without informed consent.

         Plaintiffs' allegations regarding actions Foti either took or failed to take regarding informed consent read as follows: “Foti did perform surgery, administer anesthesia, and/or insert one or more surgical devices or appliances into Plaintiffs without informed consent” and “Foti deliberately subjected Plaintiffs to unnecessary medical procedures that could lead to dangerous injections and prescriptions of habit-forming narcotic medications.” (Compl. ¶¶ 42-43.) These allegations are conclusory, and thus unentitled to an assumption of truth, because Plaintiffs plead no facts detailing what information Foti failed to provide, or why that information was necessary to establish informed consent. In fact, it is not even clear from the Complaint what procedures Foti is alleged to have performed. As a result, none of the allegations supporting a charge of battery are entitled to an assumption of truth, and the Court will dismiss the battery claims.

         B. Negligent ...

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