Opinion
CIVIL ACTION 01-T-1468-S.
May 29, 2002.
ORDER
Plaintiff April M. Yon, a citizen of Florida, brings this lawsuit against defendants Dr. Earnest C. Riley, a citizen of Alabama, and Houston County Healthcare Authority, d/b/a/ Southeast Alabama Medical Center, an Alabama corporation with its principal place of business in Dothan, Alabama. Yon charges two counts of medical negligence under the Alabama Medical Liability Act (AMLA), 1975 Ala. Code §§ 6-5-480 to 6-5-488 6-5-540 to 6-5-552 and two counts of breach of contract, all arising from an exploratory tympanotomy performed by Riley at the Medical Center in December 1999. Jurisdiction is proper under 28 U.S.C. § 1332, because the citizenship of all defendants is completely diverse from that of all plaintiffs and the amount in controversy is over $75,000. This lawsuit case is now before the court on defendants' motions to dismiss or, in the alternative, for a more definite statement. For the reasons stated below, the motions are denied in part and granted in part.
I. MOTION-TO-DISMISS STANDARD
In considering a Rule 12(b)(6) dismissal motion, the court accepts the non-moving party's allegations as true, Fed.R.Civ.P. 12(h);Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir. 1990), and construes the complaint liberally in that party's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974). Therefore, this lawsuit may not be dismissed unless Yon can prove no set of facts supporting the relief requested. Id. at 236, 94 S.Ct. at 1686; Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).
II. BACKGROUND
In December 1999, Dr. Riley performed a right exploratory tympanatomy on Yon. A tympanotomy is an incision in the tympanic membrane, which, in turn, is defined by Merriam-Webster's Medical Desk Dictionary as a "a thin membrane separating the middle ear from the inner part of the external auditory meatus that vibrates in response to sound energy and transmits the resulting mechanical vibrations to the structures of the middle ear, called also eardrum." Merriam-Webster's Medical Desk Dictionary (LEXIS.com).
Yon alleges that Riley failed to protect the facial nerve and other nerves from damage, and also failed to diagnose properly his facial nerve paralysis in the immediate post-operative period, thus preventing immediate and appropriate intervention. As a result, Yon suffered paralysis on the right side of her face, she is permanently disfigured, and her right eye is prevented from functioning properly. Yon further alleges that the Medical Center, acting by and through its employees, failed to notify the attending physician of a change in Yon's neurological status. Yon claims that both defendants breached a contract to her by failing to perform the procedure correctly and failing to provide hospital and nursing care.
III. ANALYSIS
Because the defendants have filed virtually identical motions to dismiss, the court will treat them together, distinguishing between them only where they differ or require separate analysis.
A. AMLA Claim: Failure to Meet Pleading Requirements
Both defendants allege that counts I and II of Yon's original and amended complaints fail to comply with the pleading requirements of the AMLA. The AMLA provides in relevant part:
"In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts. . . . Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief may be granted.
1975 Ala. Code § 6-5-551.
The Alabama Supreme Court has held that this statute requires plaintiffs to give fair notice of the nature of the complaint. InMikkelsen v. Salama, 619 So.2d 1382 (Ala. 1993), the Alabama Supreme Court upheld the specificity of the plaintiff's complaint, holding that, "although every element of the cause of action need not be stated with particularity, the plaintiff must give the defendant health care provider fair notice of the allegedly negligent act and must identify the time and place it occurred and the resulting harm." 619 So.2d at 1384. If "the complaint affords the defendant health care provider fair notice of these essential elements, the courts should strive to find that the complaint includes the necessary detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff." Id. (internal punctuation omitted). See also Baptist Medical Ctr., Montclair v. Wilson, 618 So.2d 1335 (Ala. 1993) (upholding plaintiff's pleadings as sufficiently specific); Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208 (Ala. 2000) (same).
This court must therefore determine whether Yon's original and amended complaints provide "fair notice" of the "essential elements" of Yon's cause of action. The court finds they do. Although the defendants make much ado about the allegation that acts or omissions occurred "on or about" December 17, 1999, it is clear from the face of the complaints that it deals with the right-side tympanotomy, a very specific procedure, and that this detail puts defendants on notice of the source of Yon's complaint.
Regarding Riley, the complaints allege he failed to protect the facial nerve and other nerves, and to diagnose the problem with the nerve immediately following surgery, resulting in paralysis, disfigurement, and damage to right-eye functioning. The court finds this sufficiently specific to meet the AMLD requirements and to give defendant Riley notice of Yon's claims. See Mikkelsen, 619 So.2d at 1384.
Regarding the Medical Center, Yon's complaints allege that, acting by and through its employees, it failed to notify the attending physician of a change in Yon's neurological status "immediately after surgery," and that this failure contributed to Yon's damages. Because they specify what the Medical Center failed to do and when it failed to do it, the court finds the complaints sufficiently specific to meet the AMLA pleading requirements. Id.
The complaints give "fair notice of the allegedly negligent act," and identify "the time and place it occurred" and the resulting harm, id., and therefore the court finds that counts I and II of Yon's complaints are sufficiently specific to survive the defendants' motions to dismiss.
B. Contract Claims
In counts III and IV, Yon asserts breach-of-contract claims against both defendants. The defendants have moved to dismiss, alleging that Yon's claims sound only in tort and not in contract.
Count III of the original and amended complaints allege that Yon "contracted with . . . Riley. . . . to perform a proper exploratory tympanotomy upon her." Yon alleges Riley breached the contract, with the result that essentially the same damages as under the tort claim resulted, with the addition that Yon's "self-esteem" was "damaged." Count IV claims a breach of contract by the Medical Center, and claims the same damages as for the breach-of-contract claim against Riley.
The Alabama Supreme Court has held that a medical-malpractice-contract claim cannot be based on a legal duty. For instance, Lemmond v. Sewell, 473 So.2d 1047 (Ala. 1985), the court examined the relationship between contract and tort claims for medical malpractice. In Lemmond, the plaintiff sought to recover damages for an alleged promise by physicians to render medical care. The trial court granted the physician's motion to dismiss, and the Alabama Supreme Court affirmed.
The Lemmond court first examined Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala. 1976). The Berry case held that "the law does not imply a contract to exercise due care in the delivery of medical services . . . but does impose a duty to do so, the breach of which gives rise to a tort action." Lemmond, 473 So.2d 1048-49. The Lemmond court endorsed this view, holding that when either a doctor or a hospital breaches the duty of due care in delivery of medical services, resulting in injury, "a tort claim, but not a contract claim, arises." Id. at 1049.
In Marsh v. St. Margaret's Hospital, 535 So.2d 147 (Ala. 1988), the Alabama Supreme Court again held that there was no breach of contract action against a physician and hospital for injuries allegedly resulting from treatment and care provided after a car accident. The court citedBerry and Lemmond, and held that "we find no express contract existed" and therefore defendants were entitled to judgment as a matter of law.Marsh, 535 So.2d at 150.
Earlier, in Bonds v. Brown, 368 So.2d 536 (Ala. 1979), the Alabama Supreme Court held that the defendant hospital was not liable for injuries based on a contract theory. The plaintiff contended that the hospital had agreed to provide "safe and sufficient surroundings" and breached the contract by failing to maintain the room properly, causing the plaintiff to fall. Bonds, 368 So.2d at 537. The court found plaintiff's contract claim "did no more than restate in contract terms a breach of duty imposed by law, i.e., it simply restated the negligence claim." Id. at 538. Although the dissent in Bonds argued that a contract claim could be brought based on a legal duty, when Lemmond was decided the Bonds dissenting justice recognized that this view was not the view of the court and concurred in Lemmond's holding. Lemmond, 473 So.2d at 1049 (Beatty, J. concurring specially). It is therefore clear that, in Alabama, an implied-contract claim may not be based on a legal duty.
In general, contract claims for malpractice arise when the physician has guaranteed a certain result rather than agreed to provide a standard of case. See 61 Am. Jur.2d Physicians, Surgeons, and Other Healers § 287 (2002) ("Absent an allegation that a defendant physician has undertaken a special contractual obligation other than to provide adequate medical service, no cause of action for breach of contract is stated."). See also Monroe v. Long Is. Coll. Hosp., 84 A.D.2d 576 (N.Y.A.D. 1981) (cause of action for breach of contract will not be sustained where it is merely a redundant pleading of plaintiff's malpractice claim or an attempt to plead as a contract action one which is essentially a malpractice action). Yon makes no such allegation here.
Yon's breach-of-contract claims are based on the legal duty to provide adequate care and therefore do not state a claim upon which relief may be granted under Alabama law. The court will dismiss counts III and IV of the original and amended complaints, which are based on breach of contract.
IV. CONCLUSION
For the above reasons, it is ORDERED as follows:
(1) The motions to dismiss, filed by defendants Earnest C. Riley and Southeast Alabama Medical Center on January 22, 2002 (doc. nos. 4 5), are granted as to counts III and IV of plaintiff April M. Yon's original and amended complaints, and said counts are dismissed.
(2) The motions are denied as to counts I and II of plaintiff Yon's original and amended complaints.
It is further ORDERED that the "motion in opposition," filed by plaintiff Yon on February 8, 2002 (doc. no. 9), is denied.
DONE, this the 29th day of May, 2002.