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Chipman v. Nelson

United States District Court, E.D. California

September 10, 2014



EDMUND F. BRENNAN, Magistrate Judge.

This case was before the court on January 22, 2014 for hearing on numerous motions to dismiss and to strike plaintiff's fourth amended complaint filed by the remaining defendants.[1] Specifically, defendants Enloe Medical Center ("EMC"), Brenda Boggs, and Marcia F. Nelson, M.D., move to dismiss plaintiff's complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(1), ECF No. 258; defendant THC Orange County dba Kindred Hospital Sacramento ("Kindred"), moves to dismiss the complaint under Rule 12(b)(1) and 12(b)(6) and, in the alternative, moves for a more definite statement under Rule 12(e). ECF No. 259. Defendants Eva Lew, M.D. and Mark Avdalovic, M.D., move to dismiss the complaint under Rule 12(b)(6) and, in the alternative, move for a more definite statement under Rule 12(e), ECF No. 294; as do defendant Attila Kasza, M.D., ECF No. 277, defendants Gerard R. Valcarenghi, M.D., Dale J. Wilms, M.D., and Dinesh Verma, M.D., ECF No. 266, defendant Joseph Matthews, ECF No. 262, and defendant Julie Clark-Martin, ECF No. 257. Defendant Jane Stansell, moves to dismiss the complaint for failure to state a claim, to strike under the anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions set forth in California Civil Procedure Code section 425.16 and, in the alternative, moves for more definite statement under Rule 12(e). ECF No. 248. Defendant Dirk Potter moves to strike the complaint under the anti-SLAPP provisions and, in the alternative, to dismiss under Rule 12(b)(6). ECF No. 249.

Attorney Brian Johnson appeared at the hearing on behalf of Joseph Matthews; attorney Maria Winter appeared on behalf of Gerard Valcarenghi, Dal Wilms, and Dinesh Verma; attorney Tahj Gomes appeared on behalf of Attila Kasza; attorney Robert Lucas appeared on behalf of Jane Stansell; attorney Mary Greene appeared on behalf of Julie Clark-Martin; attorney Wendy Taylor appeared on behalf of Dirk Potter; Valerie Ly appeared on behalf of Enloe Medical Center, Brenda Boggs, and Marcia Nelson; Justin Biddle appeared on behalf of Kindred; attorney Ronald Lamb appeared on behalf of Eva Lew and Mark Avdalovic; plaintiff appeared pro se. For the reasons stated herein, plaintiff's fourth amended complaint must be dismissed under Rule 12(b)(6).


This action was commenced on October 20, 2011. ECF No. 1. Numerous motions to dismiss and to strike the original complaint were filed by various defendants. ECF Nos. 12, 13, 15, 16, 17, 21, 22, 25, 27, 28, 29, 32, 38, 39; see also 20, 40, 41, 44. On February 29, 2012, plaintiff filed a single, consolidated opposition to the multiple motions. ECF No. 49. Plaintiff's pleading purported to provide a "more definitive statement." The pleading was therefore construed as a motion to amend the complaint, which was granted on March 12, 2012. ECF No. 64.

On March 30, 2012, plaintiff filed a first amended complaint. ECF No. 74. The first amended complaint alleged several causes of action against seventeen named defendants. All defendants moved to dismiss the amended complaint. ECF Nos. 76, 77, 78, 79, 80, 83, 85, 87, 94, 95, 96. On March 28, 2013, the first amended complaint was dismissed with leave to amend, except as to claims barred by California's litigation privilege, plaintiff's claim under California Penal Code section 471.5, plaintiff's false imprisonment claim, and all claims against three defendants (Roberts, Calkins, and O'Mahoney), which were dismissed without leave to amend. ECF Nos. 151, 152.

On May 13, 2013, plaintiff filed a second amended complaint. ECF No. 154. Various defendants moved to dismiss that complaint. ECF Nos. 156, 157, 158, 161, 162, 163, 178. In response, plaintiff sent a letter to the court, ECF No. 166, which was construed as a motion to amend the second amended complaint. ECF No. 179. The motion to amend was granted, id., and on July 19, 2013, plaintiff filed a third amended complaint. ECF No. 180. Another round of motions to dismiss ensued, again resulting in plaintiff requesting leave to amend her complaint. ECF No. 221. Plaintiff argued that leave to amend was necessary because her third amended complaint omitted factual allegations necessary to support her claims. Id. at 2. On October 21, 2013, the court again granted her leave to amend. ECF No. 245. However, because plaintiff had been given numerous opportunities to amend, she was admonished that further motions to amend would be looked upon with disfavor. Id. at 3.

On November 20, 2013, plaintiff filed a fourth amended complaint ("FAC"). ECF No. 246. The FAC alleges various federal and state law claims on behalf of plaintiff Rickie Chipman, in her individual capacity ("plaintiff"), plaintiff's deceased mother (the "decedent"), and plaintiff's deceased father ("Mr. Martin"), [2] against fourteen defendants. ECF No. 246. All fourteen defendants have moved to dismiss the FAC. ECF Nos. 248, 249, 257, 258, 259, 262, 266, 277, 294. Plaintiff opposes all of the motions. ECF Nos. 297-305.


Plaintiff alleges that she is a registered nurse in Washington State, and is one of three daughters of the decedent and Mr. Martin. Fourth Am. Compl., ECF No. 246 at 22.[3] Plaintiff's two sisters, Theresa Smith and Lorraine Coots, resided in Chico, California, and lived near their parents so they could assist their father in caring for their mother, who was disabled. Id. On May 3, 2010, the decedent was admitted to EMC. Id. at 23. At the time of admission, plaintiff's mother, the decedent, suffered from dementia, respiratory problems, and lacked the ability to effectively communicate with others. Id. at 23-24. The decedent's family had her admitted to EMC based on their concern over sepsis from a urinary tract infection, possible pneumonia, and a small stage II decubitus ulcer (bedsore). Id. at 23. Apparently because of her mother's inability to make health care decisions on her own at the time, plaintiff alleges that her mother's family, at the direction of defendant Nelson (decedent's personal physician and Vice President of Medical Affairs for EMC), formally designated plaintiff as the person authorized to make medical decisions for her mother. Id. at 23-24, Pl.'s Ex. A.

On June 14, 2010, plaintiff arranged to have her mother transferred from EMC to the University of Washington Medical Center ("UWMC"), a facility that allegedly had the ability to provide a higher level of care. Id. at 24-25. However, according to plaintiff, defendants EMC, Matthews (a surgeon and member of the Board of Trustees of EMC), Verma, Valcarenghi, Wilms, Boggs-Hargis (EMC's Risk Manager), and Clark-Martin (EMC's Litigation Prevention Attorney) falsely accused plaintiff and her family of abuse and interference with her mother's medical care. Id. at 24. Defendants EMC, Nelson, Matthews, and Verma also allegedly conveyed false statements regarding the decedent's medical history to UWMC transfer team. Id. at 25. The false representation by these defendants resulted in cancelation of the decedent's transfer to UWMC. Id. at 24-25.

On May 4, 2010, a nurse misplaced a PICC intravenous line in the decedent's right arm. Id. at 29. The next day the decedent's right arm was swollen, numb, cold, and purple in color. Id. Notwithstanding the increased pain and swelling in the decedent's right arm, Valcarenghi ordered hospital staff to continue administering intravenous fluid. Id. at 30. Plaintiff alleges that "[d]efendant Valcarenghi and defendant ENLOE committed Medical Battery and violated the ADA and the Rehabilitation Act of 1973 by not honoring the decedent's request to stop the painful and injurious ineffective procedure." Id.

On May 5, 2010, a new PICC line was placed in the decedent's left arm. Id. Due to concerns over possible blood clots, Valcarenghi prescribed the decedent extremely high doses of two anti-coagulants. Id. On May 8, 2010, the decedent was given injections by a nurse, which caused the decedent to lose consciousness. Id. at 30-31. On the same date, the decedent suffered a gastro-intestinal bleed, which was caused by excessive anti-coagulants. Id. at 27, 31. Plaintiff claims that her sisters alerted Verma "of the crisis, " but "Defendant Verma inaccurately ordered a cat scan of [the decedent's] head while she lay in a pool of blood." Id. at 31. Medical notes indicated the decedent had a "GI Bleed secondary to anticoagulants." Id. Plaintiff alleges that prior to being admitted to EMC, the decedent "was never on anticoagulant therapy..., nor had she ever had any bleeding from her bowels." Id. at 26.

On May 19, 2010, defendant Matthews removed part of the decedent's bowel and jejunum. Id. at 26. Plaintiff claims the procedure was an "unnecessary, mutilating, and debilitating dangerous [sic] surgical procedure, " id. at 27, which amounted to "Medical Battery, " id. at 26. Plaintiff claims that the surgery was unnecessary because the decedent's bleeding could have been controlled by ceasing all anti-coagulants. Id. Plaintiff claims that performing the surgery on the decedent while she was on high levels of anticoagulants fell below "published medical standards." Id. at 33.

On July 7, 2010, EMC, Nelson, Matthews, Verma, Clark-Martin, and Boggs-Hargis allegedly attempted to take the decedent away from her family by filing a petition for a temporary restraining order ("TRO") and requesting a state court appoint a temporary guardian for the decedent. Id. at 48, Pl.'s Ex. B. The TRO was subsequently granted and a restraining order issued, which provided that only one visitor could see the decedent at one time, that visitations were limited to 15 minutes every hour, and that there could be no verbal challenges or physical contact with EMC's staff. Id.

Plaintiff also alleged that on June 13, 2010, plaintiff's family fired defendant Wilms as the decedent's physician because he initially declined to perform a thorcentesis procedure. Id. at 46. Wilms eventually performed the procedure on an emergency basis, but according to plaintiff the delay in performing the procedure caused the decedent to ...

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