The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present action, Plaintiff Charles Shlegel ("Plaintiff") alleges Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Permanente Medical Group, and Does 1 through 100, inclusive (collectively "Kaiser") improperly cared for Plaintiff while he awaited a kidney transplant. Specifically, Plaintiff alleges breach of the duty of good faith and fair dealing, breach of contract, negligence, fraud, negligent misrepresentation, negligent infliction of severe emotional distress, and intentional infliction of severe emotional distress.
Presently before the Court is Kaiser's Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). For the reasons stated below, Kaiser's Motion to Dismiss is DENIED.*fn1
Plaintiff enrolled in Kaiser's health plan through an individual policy on or about December 18, 2001. On or about December 12, 2005, Plaintiff enrolled in Kaiser's group health plan through his employer, Vacaville Towing, and has been continuously covered under that group plan to the present day. (Decl. of Thomas Webb ¶ 6.) Plaintiff does not dispute these facts. (Pl. Opp'n 5:9.)
In June of 2003, a Kaiser physician diagnosed Plaintiff as in need of a kidney transplant. Because Kaiser at that time did not operate a kidney transplant program, Kaiser referred Plaintiff to the UC Davis Medical Center ("UC Davis"). UC Davis then listed Plaintiff on the national kidney transplant list.
In June of 2004, Kaiser informed Plaintiff that it was opening a kidney transplant center in San Francisco and that the new center would be able to perform the transplant surgery as well as provide for his postoperative treatment and care.
Kaiser instructed Plaintiff to remove his name from any nonKaiser (UC Davis) waiting list and to enroll with Kaiser's transplant center inasmuch as it would no longer be necessary for Plaintiff to receive medical services outside of Kaiser.
Kaiser informed Plaintiff that the authorization for kidney transplant services provided by UC Davis would expire on September 1, 2004. Kaiser assured Plaintiff that he would not lose his place on the national kidney transplant list by changing medical providers and that the transition from UC Davis to the Kaiser transplant center would be smooth and seamless.
On September 1, 2004, Kaiser opened its transplant center. On or about the same day, Plaintiff's transplant authorization from UC Davis expired. At this point, Kaiser had not obtained the authorization needed to provide Plaintiff with appropriate medical care, nor had they transferred Plaintiff to the Kaiser kidney transplant waiting list. Plaintiff alleges Kaiser's delay in obtaining this authorization led to significant delays in treatment and substantially lengthened the waiting time for receiving a kidney.
Throughout this time, Kaiser continued to assure Plaintiff that the delay in transition would not diminish his chance of obtaining a kidney. In reliance on those assurances, Plaintiff continued to pay his health insurance premiums to Kaiser and removed himself from the UC Davis transplant list. In September 2005, approximately one year after Kaiser opened the transplant center, Plaintiff was transferred from the UC Davis' kidney transplant list to the Kaiser kidney transplant list.
For a period of one year, Plaintiff could not be considered for a kidney transplant.
Plaintiff alleges that all representations made to him by Kaiser concerning the opening of a transplant center were false and that Kaiser did not have sufficient resources to treat the number of transplant patients expected.
Plaintiff alleges further that Kaiser's lack of resources and its decisions regarding his care prevented him from obtaining a kidney transplant. For example, Plaintiff alleges that Kaiser failed to examine a ...