The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
Now before the Court are several motions: (i) plaintiffs' motion to
dismiss the lawyer-defendants (LynchGilardi & Grummer, Robert Lynch
and Matthew Miller) from the complaint; and (ii) various defendants'
motions to dismiss plaintiffs' current action. On September 26, 2003,
this Court heard argument on defendants' 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted. At that time,
the Court gave both parties an opportunity to resolve the procedural
conflict posed in the current action for an ongoing case involving
plaintiffs, defendant Schug and his counsel, Robert Lynch and Matthew
Miller of Lynch Gilardi & Grummer. See Burrows v. Redbud Cmty,
Hosp., C-96-4345 SI, (N.D. Cal. filed Dec. 3, 1996) ("Burrows
I"). In order to remedy this procedural conflict, plaintiffs filed
their motion to dismiss the lawyer-defendants. Finding that the
resolution of this motion will not adequately remedy the procedural
conflicts between this case and the earlier filed case, the Court finds
it necessary to address and resolve defendants' earlier motion regarding
the merits of plaintiffs' claims at this time.
Having carefully considered the papers submitted and the arguments of
counsel, the Court GRANTS defendants' motions to dismiss plaintiffs'
actions for failure to state a claim upon which relief can be granted.
Plaintiffs filed this action on May 13, 2003, seeking monetary damages
and injunctive relief against
defendants for their alleged illegal conduct in conspiring to deny
plaintiffs their civil rights by, inter alia, fraudulently
altering medical records and obstructing justice in plaintiffs' attempts
to seek redress for the wrongful death of their infant son, Cody Burrows.
Below is a detailed discussion of the factual and procedural background
of both the present case and Burrows I, on which the current
action is based.
This actionarose out of the death of Cody Burrows, an eleven-month old
infant, on February 26, 1996. Order, C-96-4345 SI, at 1-2 (filed Oct. 22,
1997). Plaintiffs David Burrows and Rhoda Thomas, the parents of Cody
Burrows, alleged the following facts and incidents in their complaint: On
February 23, 1996, plaintiffs took Cody to the emergency department of
Redbud Community Hospital in Clearlake, California, for care and
treatment of their son. Id. Cody was examined at the hospital
and subsequently released. Id. On February 25, 1996, in the
early morning hours, plaintiffs brought Cody back to Redbud Community
Hospital because he was still ill. Id. Plaintiffs alleged that
doctors failed to perform an appropriate or competent screening exam,
failed to render competent medical care, and discharged Cody
notwithstanding his unstable condition. Id.
On February 25, 1996, at about 11 a.m., plaintiffs returned with Cody
to Redbud Community Hospital for further care and treatment.
Id. Medical records showed that Cody was dehydrated and his
fever ranged from 101 to 105 degrees. Order, C-96-4345, at 2 (filed Nov.
10, 1999). Attempts to administer fluids intravenously, through both his
femoral and jugular veins, were unsuccessful Id. Throughout his
stay in the emergency room, Cody continued to vomit, and ingested only
three ounces of Pedialyte fluid. At 7:00 p.m., Cody's chart indicated
that he "remain[ed] very lethargic." Id. After nearly eight and
a half hours in the emergency room and no apparent improvement, Cody was
discharged by the hospital. Plaintiffs were given a map and told to take
Cody to Santa Rosa Community Hospital, a drive of over two hours.
Id. When plaintiffs arrived at Santa Rosa, Cody was no longer
breathing. Id. A few hours later, after being transferred
to the University of California Medical Center in San Francisco, Cody
died of a cardiac arrest. Id.
The following day, February 27, 1996, Nurse DeLashmutt, an employee of
Redbud Hospital, recorded additional notations on Cody's chart, one
stating that he was "active in the sink . . . drinking [water] from the
faucet . . ." Id. Also that day, Dr. Schug composed an
addendum to Cody's medical records, describing the child's treatment.
Id. To prepare this addendum, Dr. Schug copied notes in pencil
from Cody's chart to yellow post-it slips, which he took home with him.
Id. He drafted in his own handwriting and also dictated the
addendum, added it to Cody's medical records, and destroyed the yellow
notes and draft addendum by burning them. Id. Dr. Schug's
addendum described Cody as active, "playful," and "splashing" in a bath.
These descriptions appeared to contradict most contemporaneous
descriptions of the child as listless and tired. Id.
On December 2, 1996, plaintiffs filed a complaint in federal court
against: Dr. Wolfgang Schug, a doctor on call with the emergency room at
Redbud Community Hospital who examined Cody; Dr. M. Fred Brewer, a
pediatrician on call and available for consultation with the emergency
room at Santa Rosa who examined Cody; Redbud Community Hospital District
("Redbud"/"District"), the owner and operator of Redbud Community
Hospital; Emergency Medical Management Services, Inc.; and unnamed
physicians, nurses, and health care professionals who, plaintiffs allege,
negligently treated Cody prior to his death. The original complaint
alleged negligence, spoliation of evidence, and violations of the
Emergency Medical Treatment and Active Labor Act ("EMTALA"),
42 U.S.C. § 1395dd, and Cal. Health & Safety Code § 1317. Order,
C-96-4345 SI, Oct. 22, 1997 at 2.
On January 24, 1997, plaintiffs filed an amended complaint, naming as
an additional defendant Adventist Health, Inc. ("Adventist Health") and
substituting J. J. & R. Emergency Management Group, Inc. ("J. J.
& R.") in lieu of Emergency Medical Management Services, Inc. The
first amended complaint alleged the following causes of action: Count One
(EMTALA), Count Two (EMTALA emotional distress), Count Three
(wrongful death), Count Four (wrongful death emotional distress),
Count Five (personal injuries claim brought on behalf of Cody
Burrows), Count Six (spoliation of evidence), Count Seven (Cal. Health
& Safety Code § 1317), Count Eight (Cal. Health & Safety Code
§ 1317 emotional distress), and Count Nine (injunctive
relief). Defendants filed separate answers to the first amended complaint
in March 1997.
Plaintiffs amended the initial complaint twice more during the pleading
stage. The third amended
complaint, most relevant to the case at hand, was filed by
plaintiffs on June 23, 1998.*fn1 By order dated March 24, 1999, this
Court dismissed Count Six of plaintiffs' third amended complaint, which
was captioned "violation of Cal. Penal Code § 471.5, obstruction of
justice and conspiracy." Order Re: Mots. Concerning Third Am. Compl. at
2:2-4, C-96-4345 SI (March 24, 1999). This count substituted for what had
previously been charged as "spoliation of evidence, obstruction of
justice and conspiracy" in the Second Amended Complaint. Id. at
2:3-5. The Court found that under the circumstances of the case,
plaintiffs did not and could not state a private cause of action premised
on Penal Code § 471.5, because no private right was included by the
Legislature when it enacted the statute. 14 at 2:13-14, The Court
dismissed Count Six of the Third Amended Complaint and struck the
accompanying allegations as unnecessary to the remaining causes of
action. Id. at 2:19-21.
Plaintiffs filed a Fourth Amended Complaint on July 6, 1999, in which
they set forth Count Six for the sole purpose of preserving the cause of
action and the allegations for possible appeal. Plaintiffs did appeal
this case to the Ninth Circuit in David Burrows v. Redbud Community
Hospital, 34 Fed. Appx. 363, 2002 WL 857873 (9th Cir. 2002). The
status of the case at the time of appeal was as follows:
On June 17, 1998, Dr. Brewer was dismissed from this case. Order,
C-96-4345 SI, at 1-2 (filed July 23, 2003). On March 17, 1999, this Court
granted summary judgment in favor of defendant J.J. & R. on the
grounds that it was not liable vicariously, directly under statute, or
under theories of general negligence. 14. This Court also granted summary
judgment in favor of defendant Adventist Health, Inc. on the grounds that
it was not liable directly or vicariously. Id. On March 21,
2000, this Court granted summary judgment in favor of defendant Adventist
Health, Inc. on the grounds that it did not have successor liability to
Redbud Community Hospital. On March 22, 2000, this Court granted
plaintiffs' motion for voluntary dismissal of their claims against the
Redbud Community Hospital District with prejudice. 14 Plaintiffs no
longer had pending EMTALA claims because the remaining defendant, Dr.
Schug, is not a "hospital" as defined under EMTALA.
42 U.S.C. § 1395dd. Id. Likewise, plaintiffs no longer had pending §
1317 claims because Dr. Schug is not a "healthcare facility" under
thatstatute. However, this Court retained jurisdiction of the remaining
state law claims. Id. citing
Order Den. Defs.' Mot. to Dismiss State Claims, May 8, 2000. The
Redbud District settled with plaintiffs for $750,000. Burrows,
34 Fed. Appx. 363, 364, 2002 WL 857873 at * 1. Plaintiffs' settlement