The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DANIELLE KITCHIN, )
Co-Personal Representative )
And Heir of the Estate of )
Dana A. Kitchin, et al., )
)
Plaintiffs, )
)
v. )
) 1:18-cv-00356-JDL
RANDALL LIBERTY, )
in His Individual and Official )
Capacity as Sheriff of Kennebec )
County, et al., )
)
Defendants. )
ORDER ON CORRECTIONAL HEALTH PARTNERS’
SECOND MOTION TO DISMISS
The Plaintiffs, Danielle Kitchin and Dana B. Kitchin (collectively, “the
Kitchins”), bring this suit on behalf of the estate of their father, Dana A. Kitchin, for
claims arising out of his death while he was in pretrial custody at the Kennebec
County Correctional Facility. One of the Defendants, Correctional Health Partners,
LLC, moves to dismiss the state common law claims contained in Counts Five, Seven,
and Eight of the Second Amended Complaint for failure to state a claim under Fed.
R. Civ. P. 12(b)(6) (ECF No. 59).1 For the reasons discussed below, I grant the motion
to dismiss.
1 The motion to dismiss is also brought on behalf of four employees of Correctional Health Partners: Stephen
Krebs, Jennifer Mix, Ann-Marie Ulrich, and Carmen Mulholland. But the Second Amended Complaint does not
name these four employees as defendants in the Counts that Correctional Health Partners moves to dismiss.
I. DISCUSSION
This is Correctional Health Partners’ second motion to dismiss. In its first
(ECF No. 24), Correctional Health Partners asserted that the Kitchins’ state common
law claims against it for negligent supervision, retention, and training (Count Five);
intentional infliction of emotional distress (Count Six); “Survivor Claims” (Count
Seven); and respondeat superior (Count Eight) were barred by the Maine Health
Security Act (“MHSA”), 24 M.R.S.A. § 2501 et seq. (West 2019). In an Order issued
in June 2019 (ECF No. 53), I denied Correctional Health Partners’ first motion to
dismiss as to those Counts.
As explained in the June 2019 Order, the MHSA requires a plaintiff bringing
an “action for professional negligence” to commence the action within three years
after the cause of action accrues and to comply with certain prelitigation screening
requirements. 24 M.R.S.A. §§ 2902, 2903. An “action for professional negligence” is
“(1) an action for damages for injury or death, whether based upon tort or breach of
contract or otherwise; (2) brought against a health care provider or practitioner, or
the agent or employee of a health care provider or practitioner; (3) that arises out of
the provision or failure to provide health care services.” Kitchin v. Liberty, No. 1:18-
cv-00356-JDL, 2019 WL 2527088, at *3 (D. Me. June 19, 2019) (citing 24 M.R.S.A. §
2502(6)).
In the June 2019 Order, I concluded that “the state common law claims
asserted in the First Amended Complaint meet the first and third requirements—
they seek to recover damages for Kitchin’s death and allege that his death was caused
by the [Correctional Health Partners] Defendants’ failure to provide him with health
care services.” Id. However, I found that the state common law claims did not meet
the second requirement—that Correctional Health Partners was a “health care
provider”—because the allegations in the First Amended Complaint did not establish
that the medical services provided by Correctional Health Partners were “‘prescribed
by or performed under the general direction of persons licensed to practice medicine’
in Maine, as required by the MHSA.” Id. (quoting 24 M.R.S.A. § 2502(2)). Therefore,
I denied Correctional Health Partners’ first motion to dismiss as to the state common
law claims in Counts Five, Seven, and Eight.
On August 1, 2019, the Kitchins filed a Second Amended Complaint (ECF No.
57), again bringing Counts Five, Seven, and Eight against Correctional Health
Partners. Correctional Health Partners asserts that new allegations in the Second
Amended Complaint establish that it qualifies as a “health care provider” under the
MHSA. Thus, Correctional Health Partners moves to dismiss the state common law
claims in Counts Five, Seven, and Eight on the grounds that they are “actions for
professional negligence” that fail to meet the MHSA’s statute of limitations and
prelitigation screening requirements.2
The relevant new allegations relate to Stephen Krebs, a defendant named in
the Second Amended Complaint. The Second Amended Complaint alleges that Krebs
acted as the Chief Medical Officer of Correctional Health Partners and Supervising
Physician at the Correctional Facility during the period leading up to Dana A.
Kitchin’s death. It further alleges that Krebs was “responsible for overseeing” the
2 Correctional Health Partners moves to dismiss the survivor claim in Count Seven only to the extent that it
arises out of the state common law claims asserted against Correctional Health Partners in Counts Five and
Eight. Thus, Correctional Health Partners does not challenge Count Seven to the extent that it arises out of the
provision of medical services by Correctional Health Partners in the Correctional
Facility and that medical staff in the Correctional Facility “reported to Krebs” at the
time of Kitchin’s death. ECF No. 57 at 27. These allegations, if true, establish that
the medical services provided by Correctional Health Partners during the relevant
time period were “performed under the general direction of” Krebs. See 24 M.R.S.A.
§ 2502(2).
Though the Second Amended Complaint does not allege that Krebs was
“licensed to practice medicine” in Maine at the time of Kitchin’s death, a court may
consider documents outside of the complaint if the parties do not dispute their
authenticity or if they are official public records. Alternative Energy, Inc. v. St. Paul
Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); see also Ironshore Specialty
Ins. Co. v. United States, 871 F.3d 131, 135−36 (1st Cir. 2017). Here, Correctional
Health Partners submitted a copy of Krebs’ official board-sealed license verification
from the Maine Board of Licensure in Medicine, and the Kitchins do not dispute its
authenticity. The document indicates that Krebs was licensed to practice medicine
in Maine at the time of Kitchin’s death in 2014. See ECF No. 59-1. Because the
allegations in the Second Amended Complaint establish that Correctional Health
Partners’ medical services were “performed under the general direction” of Krebs,
and Krebs was “licensed to practice medicine” in Maine at the time of Kitchin’s death,
Correctional Health Partners qualifies as a “health care provider” under the MHSA.
See 24 M.R.S.A. § 2502(2).
The Kitchins assert that Correctional Health Partners is not a “health care
provider” because it is “more than just a health care provider” offering “an array of
services” aside from medical services, and “[t]he extent of the services that
[Correctional Health Partners] provided to the [Correctional Facility] . . . has not yet
been developed through the discovery process.” ECF No. 60 at 3−4. However, the
Second Amended Complaint specifically alleges that Correctional Health Partners
employed doctors and nurses to provide services and “took over responsibilities for
providing medical services” at the Correctional Facility in November 2014. ECF No.
57 at 24. On a motion to dismiss, I accept all allegations in the complaint as true.
Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49, 52−53 (1st Cir. 2013). Thus, the
Kitchins cannot avoid the conclusion that Correctional Health Partners is a “health
care provider” by arguing that it did not provide medical services at the Correctional
Facility.
Nor can the Kitchins avoid this result by citing to D.S. v. Spurwink Services,
Inc., 65 A.3d 1196 (Me. 2013). In Spurwink, a licensed mental health agency provided
services under the general direction of licensed clinical social workers, not licensed
physicians. Id. at 1201 n.9. The only licensed physician associated with Spurwink
was a consultant, not a supervisor or employee, and he did not prescribe medical
services. Id. at 1201−02. Here, by contrast, the allegations in the Second Amended
Complaint establish that medical services in the Correctional Facility were
performed under the general direction of Krebs, a licensed physician.
Notwithstanding these differences, the Kitchins argue that Correctional
Health Partners cannot be considered a “health care provider” after Spurwink
because the state common law claims in Counts Five, Seven, and Eight do not name
any individual “health care practitioners” as defendants. But this argument
misreads Spurwink. That case explains that the terms “health care provider” and
“health care practitioner” are independent. Spurwink, 65 A.3d at 1201 & n.8.
Whether an entity is a “health care provider” depends on whether “medical services
are prescribed by or performed under the general direction of persons licensed to
practice medicine” in Maine. Id. at 1201 & n.9 (citing 24 M.R.S.A. § 2502(2)). It does
not depend upon whether the employees of the entity qualify as “health care
practitioners.” Id. at 1201 (citing 24 M.R.S.A. § 2502(1-A)). Nor does it depend on
whether the action names any individual “health care practitioners” as defendants:
The term “‘health care practitioner’ . . . has no application” to whether an entity
qualifies as a “health care provider.” See id. at 1201 n.8 (quoting 24 M.R.S.A. §
2502(1-A)). Thus, even though the state common law claims in Counts Five, Seven,
and Eight do not name any defendants who qualify as “health care practitioners,” the
allegations related to Krebs establish that Correctional Health Partners qualifies as
a “health care provider” under the MHSA, as discussed above.
Though the Kitchins also cite Salerno v. Spectrum Medical Group, P.A., 215
A.3d 804 (Me. 2019) to support the argument that Correctional Health Partners is
not a “health care provider,” that case is inapposite. Salerno dealt with whether an
action “aris[es] out of the provision or failure to provide health care services,” not
whether the action was brought against a “health care provider.” Id. at 811−12.
These two questions are “clear and distinct.” Id. at 811 (citing Spurwink, 65 A.3d at
1201−02).
To the extent that the Kitchins cite Salerno to challenge the June 2019 Order’s
conclusion that the state common law claims in Counts Five, Seven, and Eight arise
out of Correctional Health Partners’ failure to provide health care services, this
argument also fails. The state common law claims in the Second Amended Complaint
are nearly identical to those in the First Amended Complaint, and the Kitchins
concede that the Second Amended Complaint “realleges most of the same factual
allegations as . . . [the] First Amended Complaint, while adding additional facts and
additional defendants.” ECF No. 60 at 2. Thus, I conclude that the Second Amended
Complaint, like the First, alleges that Kitchin’s death was caused by Correctional
Health Partners’ failure to provide health care services.
Again, Salerno does not change the result. In that case, the Law Court held
that the defendant’s allegedly negligent placement of a rubber mat in the locker room
of a physical therapy facility was a “circumstance unrelated to the provision of health
care.” Salerno, 215 A.3d at 811. The Kitchins argue that Correctional Health
Partners’ alleged negligent supervision, retention, and training of its employees are
similarly unrelated to the provision of health care because these are “administrative”
services, not “actual medical services.” ECF No. 60 at 5. But the Second Amended
Complaint alleges that these “administrative” failings caused the failure to provide
medical care which led to Kitchin’s death. Thus, unlike the alleged negligence in
Salerno, the alleged negligence in the Second Amended Complaint directly relates to
and thus “arise[s] out of” the failure to provide health care services. See 24 M.R.S.A.
2502(6).
Because this is an “action for damages for injury or death,” and I have
determined, based on the allegations in the Second Amended Complaint, both that
Correctional Health Partners is a “health care provider” and that the state common
law claims in Counts Five, Seven, and Eight “aris[e] out of the . . . failure to provide
health care services,” I conclude that these claims constitute “actions for professional
negligence” under the MHSA. See 24 M.R.S.A. 2502(6).
The only remaining question is whether the Kitchins complied with the
MHSA’s statute of limitations and prelitigation screening requirements. With
respect to the statute of limitations, the MHSA provides that “actions for professional
negligence must be commenced within 3 years after the cause of action accrues.” 24
M.R.S.A. § 2902. “[A] cause of action accrues on the date of the act or omission giving
rise to the injury.” Id. Here, the cause of action accrued, at the latest, on December
12, 2014, the date of Dana A. Kitchin’s death. The Kitchins commenced this action
when they filed their complaint (ECF No. 1) with the Court on September 6, 2018—
nearly four years later. See Fed. R. Civ. Pro. 3. Because the Kitchins did not
commence this action within three years after the cause of action accrued as required
by the MHSA, the state common law claims against Correctional Health Partners in
Counts Five, Seven, and Eight must be dismissed. Accordingly, I need not reach the
additional question of whether the Kitchins complied with the MHSA’s prelitigation
screening requirements.
III. CONCLUSION
For the reasons stated above, it is ORDERED that Defendant Correctional
Health Partners, LLC’s Motion to Dismiss (ECF No. 59) is GRANTED.
SO ORDERED.
Dated: November 22, 2019
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE