REPORT AND RECOMMENDATION
JOSEPH H.L. PEREZ-MONTES, Magistrate Judge.
Before the Court is a Motion to Remand (Doc. 11) filed by Plaintiffs, Stacey and Heather Aultman. Plaintiffs claim that Defendant St. Francis Medical Center ("St. Francis") — the only non-diverse Defendant — was properly joined. However, because Plaintiffs failed to exhaust their administrative remedies against St. Francis before filing suit, Plaintiffs did not have a cognizable claim against St. Francis at the time of removal. Remand is unwarranted.
Plaintiffs are residents of West Carroll Parish, Louisiana. On October 10, —, Plaintiff Stacey Aultman underwent an extreme lateral interbody fusion at St. Francis Medical Center. Plaintiffs allege that, after the surgery, Stacey Aultman remained paralyzed in his bilateral lower extremities, and is now bound to a wheelchair.
Drs. Bernie McHugh and Walter Sartor performed the surgery. Neither are parties to this lawsuit.
Defendants Dr. Vijay Maggio ("Dr. Maggio"), Amanda Schaefer ("Schaefer"), and Biotronic National, LLC ("Biotronic") (collectively, "Diverse Defendants") performed assistive roles in the surgery. Biotronic provided remote nervous system monitoring services to the surgeons who actually performed Stacey Aultman's surgery. Dr. Maggio and Schaefer were Biotronic employees who assisted in providing those monitoring services. Plaintiffs maintain that each of the participants in Stacey Aultman's surgery were negligent, and thus, caused or contributed to his current condition.
On August 20, 2015, Plaintiffs filed a medical malpractice complaint with the Louisiana Patients' Compensation Fund (the "PCF Proceeding"). In their original PCF complaint, Plaintiffs requested review of the treatment provided by St. Francis, Ouachita Neurosurgery Center, Dr. McHugh, and Dr. Sartor. Plaintiffs supplemented on May 16, 2016, adding Diverse Defendants to their PCF complaint. Nine days later, the PCF informed Plaintiffs that Diverse Defendants were not "qualified health care providers" under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. ("LMMA"). St. Francis remains a party to the PCF Proceeding.
On June 23, 2016 — less than a month after being informed that Diverse Defendants were not "qualified health care providers" — Plaintiffs filed this lawsuit in the Fourth Judicial District Court in Ouachita Parish, Louisiana. Plaintiffs named Diverse Defendants and St. Francis. Plaintiffs' allegations are nearly identical to those made in the PCF Proceeding. Defendants removed, alleging St. Francis was improperly joined. Plaintiffs then filed the instant motion, seeking remand to the Fourth JDC, costs, and attorney's fees.
Law and Analysis
Standards governing the Motion to Remand.
A federal court's jurisdiction is limited to areas authorized by the United States Constitution and acts of Congress.
A federal court has "diversity jurisdiction" where the amount-in-controversy exceeds $75,000, exclusive of interest and costs, and where complete diversity exists.
The doctrine of improper joinder is a narrow exception to the complete diversity requirement.
"To establish improper joinder, the removing party must demonstrate either: `(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'"
Because the PCF Proceeding against St. Francis was ongoing at the time of removal, joinder was improper.
It is clear that "a non-diverse defendant is improperly joined if the plaintiff fails to exhaust his claims before filing suit."
On face, these rules appear decisive. Plaintiffs filed the PCF Proceeding and named St. Francis. Plaintiffs did so before filing this lawsuit. In instituting the PCF Proceeding, and in stating nearly identical allegations against St. Francis in the PCF Proceeding, Plaintiffs effectively admitted their claims against St. Francis are subject to the LMMA.
On face, therefore, removal seems to have been clearly proper. Plaintiffs nevertheless advance several arguments to justify remand. None is persuasive.
First, Plaintiffs attempt to distance this case from the Fifth Circuit's decision in
Second, Plaintiffs allege their claims are not — or at least not all — medical malpractice claims. Specifically, Plaintiffs claim St. Francis made "ministerial" decisions outside the scope of Stacey Aultman's treatment, and later suggest a possible "negligent hiring" claim.
However, Plaintiffs' pleadings at the time of removal do not reflect these distinctions. Instead, Plaintiffs allege that all named defendants committed a litany of "negligent" acts, including failure to evaluate, treat, and diagnose Stacey Aultman; failure to consult and communicate; failure to act reasonably within the standard of care; and all other acts of negligence which may be seen by an "objective reviewer" or later discovered. (Doc. 1-1, pp. 3-4).
In the Petition, Plaintiffs do not claim that St. Francis engaged in "ministerial acts" or negligently hired anyone. Plaintiffs would have to now amend the Petition to assert that claim.
It is well settled that "[t]he jurisdictional facts that support removal must be judged at the time of the removal."
Further, Plaintiffs argue that their claims sound in ordinary negligence rather than malpractice. But Plaintiffs ignore "[t]he general rule . . . that any conduct by a hospital of which a patient complains is within the scope of the MMA if it comes within the definitions of the MMA, even if there are alternative theories of liability."
Finally, Plaintiffs maintain "there are ample questions left to be resolved on the issue of borrowed employees and negligent hiring." (Doc. 11-1, p. 6). However, any such "questions" were not raised by pleadings. Therefore, like a suggested negligent hiring claim, any argument regarding borrowed employees constitutes a post-removal event which would not affect this Court's jurisdiction. Moreover, Plaintiffs fail to explain how any such argument would establish that St. Francis was not improperly joined. St. Francis would remain a qualified healthcare provider under the LMMA, and the claims against it would necessarily be subject to a medical panel review under the LMMA.
Because Plaintiffs failed to exhaust their remedies in the PCF Proceeding before filing suit, St. Frances was improperly joined.
For the foregoing reasons, IT IS RECOMMENDED that the Motion to Remand (Doc. 11) filed by Plaintiffs, Stacey and Heather Aultman, be DENIED.
IT IS FURTHER RECOMMENDED that the claims against Defendant St. Francis Medical Center be DISMISSED WITHOUT PREJUDICE.
Under the provisions of 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), parties aggrieved by this Report and Recommendation have fourteen (14) calendar days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs, etc.) may be filed. Providing a courtesy copy of the objection to the undersigned is neither required nor encouraged. Timely objections will be considered by the District Judge before a final ruling.
Failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Judge, except upon grounds of plain error.
First, Plaintiffs clearly maintain St. Francis's liability is "treatment related." Second, expert testimony would likely be required to determine, among other things, whether St. Francis breached the standard of care in facilitating communications between the surgeons and Diverse Defendants. Third, Plaintiffs allege St. Francis failed to properly monitor and/or treat Stacey Aultman, and to facilitate communication regarding Stacey Aultman's condition. Fourth, Stacey Aultman's surgery plainly took place within the scope of activities that St. Francis is licensed to perform. Fifth, Plaintiffs allege Stacey Aultman's injury would not have occurred had Stacey Aultman not sought treatment at St. Francis. And sixth, Stacey Aultman does not allege that St. Francis committed an intentional tort.