Chipman v. Nelson

RICKI CHIPMAN, Plaintiff,

v. MARCIA F. NELSON, M.D.; ENLOE MEDICAL CENTER; JOSEPH M. MATTHEWS, M.D.;GERARD VALCARENGHI, M.D.; DALE J. WILMS, M.D.; DINESH VERMA, M.D.;ATTILA KASZA, M.D.; JUDGE BARBARA S. ROBERTS; CHRISTI CALKINS; JOANIE O. MAHONEY;JANE STANSELL; JULIE CLARK-MARTIN; DIRK POTTER; BRENDA BOGGS-HARGIS;KINDRED HOSPITAL - FOLSOM; EVA LEW, M.D.; MARK AVDALOVIC, M.D., Defendants.

No. 2:11-cv-2770-GEB-EFB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: March 13, 2013

ORDER AND

FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). All of the named defendants have moved to dismiss plaintiff's first amended complaint in one form or another. Specifically, defendants Enloe Medical Center ("EMC"), Brenda Boggs, and Marcia F. Nelson, M.D., move to dismiss plaintiff's first amended complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6) and, in the alternative, move for a more definite statement underRule 12(e), Dckt. No. 76, as do defendant Joseph M. Mathews, M.D.,¹ Dckt. No. 79; defendant Julie Clark-Martin, Dckt. No. 80; defendants Gerard R. Valcarenghi, M.D., Dale J. Wilms, M.D., and Dinesh Verma, M.D., Dckt. No. 83; defendants Christi Calkins and Joanie O'Mahoney, Dckt. No. 85; defendants Eva Lew, M.D. and Mark Avdalovic, M.D., Dckt. No. 87; and defendant the Orange County dba Kindred Hospital Sacramento ("Kindred"), Dckt. No. 95. Defendant Judge Barbara S. Roberts moves to dismiss for failure to state a claim under Rule 12(b)(6) and for lack of jurisdiction under Rule 12(b)(1). Dckt. No. 77. Defendant Attila Kasza, M.D., moves to dismiss for failure to state a claim and for failure to join a necessary party and, in the alternative, moves for a more definite statement. Dckt. No. 78. Defendant Dirk Potter, Dckt. No. 94, and defendant Jane E. Stansell, Dckt. No. 96,² move to dismiss the first amended complaint for failure to state a claim and also move to strike under the anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions set forth in California Civil Procedure Code section 425.16.³ Plaintiff opposes all of the motions. Dckt. Nos. 99-110.

For the reasons stated herein, plaintiff's entire first amended complaint should be dismissed under Rule 12(b)(6) for failure to state a claim.⁴

I. FACTUAL ALLEGATIONS⁵

Plaintiff, Ricki Chipman, alleges that she is a registered nurse in Washington State, and is the eldest daughter and heir of Mary A. Martin ("decedent"), who died on October 20, 2010. First Am. Compl. ("FAC"), Dckt. No. 74, at 3.⁶ Prior to decedent's death, decedent suffered from Parkinsonism and early-stage dementia, and was being treated at EMC. Id. at 3-4. Because decedent was unable to make health care decisions on her own, plaintiff alleges that decedent's family designated plaintiff as the "Medical Decision Maker" in a signed and witnessed document. Id. Plaintiff alleges that "defendants" did not comport with health care informed consent standards for medical procedures, and when plaintiff disagreed with EMC staff on decedent's treatment plan, "a confrontational environment ensued, and the EMC medical staff no longer honored medical decision-making by plaintiff." Id. at 4.

Plaintiff alleges that EMC, its doctors, and its staff "conspired to remove plaintiff without sufficient or defensible cause as the medical decision-maker for [decedent]." Id., Pl.'s Ex. A. According to plaintiff, defendants Matthews (a surgeon and member of the Board of Trustees of EMC), Nelson (decedent's personal physician and Vice President of Medical Affairs for EMC), Clark-Martin (EMC's Litigation Prevention Attorney), and Boggs (EMC's Risk Manager) falsely accused plaintiff and her family of elder abuse, physical violence, and of interfering with EMC doctors and staff. Id., Pl.'s Ex. B. Based on those accusations, on July 2, 2010, EMC restricted plaintiff's family's visitation rights to 15 minutes per hour between the hours of 10:00a.m. and 9:00 p.m., with no more than one visitor at a time. Id. at 4-5, Pl.'s Ex. C Plaintiff alleges that this "was intentionally designed by defendants to reduce scrutiny" on EMC's practices and to circumvent the proper process of obtaining informed consent from the designated health care decision-maker. Id. at 5. Plaintiff further alleges that if the allegations of elder abuse were true, defendants were required to report it, but no agency contacted her about the purported charges.⁷ Id. Accordingly, plaintiff contends the accusations were intentionally defamatory and false, and were never reported. Id.

Plaintiff further alleges that defendants filed a Strategic Lawsuit Against Public Participation (hereafter "SLAPP") in order to circumvent informed consent. Id. Specifically, plaintiff alleges that on July 7, 2010, defendants filed a petition for a temporary restraining order ("TRO") and appointment of a temporary guardian for decedent, predicated on defamatory and false accusations. Id. at 6, Pl.'s Ex. D. Although it is unclear who precisely filed for injunctive relief as plaintiff's first amended complaint merely states that "defendants" filed the petition, plaintiff alleges that the petition included false statements from defendants Clark-Martin and Boggs. Id. The case was first heard as an ex parte motion in Butte County Superior Court by defendant Judge Barbara Roberts. Id. Plaintiff alleges that she was unaware of this hearing. Id. During the hearing, Judge Roberts appointed defendants Calkins and O'Mahoney as temporary guardians for decedent conservators and defendant Stansell as an attorney to represent decedent. Id. Plaintiff contends that those appointed individuals remained as decision-makers for decedent until her wrongful death. Id. Plaintiff contends that defendants Nelson, EMC, Matthews, Roberts, Clark-Martin, and Boggs violated plaintiff's due process rights under the Fifth and Fourteenth Amendments by hearing and issuing the restraining order ex parte. Id. at 7.

Plaintiff further alleges that defendant Dirk Potter, who was retained by plaintiff's sister, Lorraine Coots, as an attorney to help Ms. Coots gain conservatorship of decedent, became aware of the July 7 hearing hours before it took place, but made no effort to notify Coots or plaintiff, in violation of California Rule of Professional Conduct 3-500. Id. at 8. Plaintiff alleges that Potter's explanation for not informing them was that he "was swamped." Id.

At the July 7 hearing, Judge Roberts also set a status conference for July 15, 2010. Id. Plaintiff alleges that prior to that hearing, Potter drafted a stipulation which agreed with EMC's restrictions, which accepted defendants Calkins and O'Mahoney's appointment as temporary guardians of decedent, and which recognized defendant Stansell as decedent's attorney. Id. Plaintiff alleges that this document was presented to plaintiff's family only five minutes before the July 15 hearing and when plaintiff was not present, and that Potter "coerced [plaintiff's] sisters to sign the stipulation against [their] will (as they did protest) and under the duress of last minute time restraints" by telling them that they needed to sign the document if they wanted to see their mother. Id. at 8-9. Plaintiff alleges that it was improper for Potter to push her family to sign this document, and that Potter was really representing the interests of defendant EMC. Id. at 9. Plaintiff claims that Potter then said "Now I gotta get [plaintiff] to sign one," but that plaintiff never signed the document; nonetheless, plaintiff alleges she was forced to abide by it. Id. at 9.

Plaintiff further alleges that the SLAPP lawsuit against her was also intended to obscure defendants' substandard care in order to avoid being sued for the following alleged malpractice. Id. at 9-12. Plaintiff alleges that, prior to the litigation, on May 6, 2010, a nurse misplaced a PICC intravenous line in decedent's right forearm, and the nurse was concerned about a possible blood clot. Id. at 9. Valcarenghi ordered two anticoagulants; later, Valcarenghi ordered a hold on the anticoagulant, but the hold was not put in place. Id. at 9-10. Later that day, decedent suffered gastro-intestinal bleeding, and required blood transfusions and stabilization. Id. at 10.Plaintiff alleges that Valcarenghi "documented that this emergency was secondary to anticoagulant administration." Id. On May 19, decedent began to bleed once more, and Matthews removed more than half of decedent's jejunum (small bowel where food is digested) in response to the bleeding. Id. Plaintiff alleges that this operation was dangerous and harmful because the doctors did not first address her anti-coagulation status, which had been (according to plaintiff) at abnormal levels due to the use of anticoagulants. Id. Plaintiff further claims that these actions were below "published medical standards," and that decedent "would never absorb nutrition the same again." Id.

Plaintiff also alleges that on June 14, 2010, defendant Kasza falsified medical records by falsely reporting that decedent had aspirated, causing a need for CPR. Id. According to plaintiff, she witnesses decedent's airway being blocked by a mucous plug and that Kasza's false report "took the blame off EMC, as [decedent] did aspirate during their aggressive CPR, causing aspiration pneumonia in [her] already compromised lungs." Id. at 11. Plaintiff contends that Valcarenghi "had caused an earlier aspiration and code secondary to giving [decedent] medication that [plaintiff] had advised, if given, could cause her to stop breathing." Id. Plaintiff alleges that she informed defendant Wilms of a "proven procedure" that would give decedent "great relief" (a thorencentesis), but Wilms would not conduct the procedure. Id. According to plaintiff, as fluid continued to build in decedent's lungs, decedent...