# Rightmyer v. Philly Pregnancy Center, P.C.

> District Court, E.D. Pennsylvania · March 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10406821

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10406821

## How later opinions describe it (automated extraction)

- explaining that on a motion to dismiss, the court does not “accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation”
- explaining that state law governs substantive state law claims in a federal court when the court’s jurisdiction to hear those claims is based on supplemental or diversity jurisdiction
- noting that Pennsylvania federal courts “have uniformly held that the COM requirement is a substantive rule of law that applies in professional liability actions proceeding in federal court”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JILLIAN RIGHTMYER : CIVIL ACTION
Plaintiff :
: NO. 23-1925
v. :
:
PHILLY PREGNANCY CENTER, :
P.C., et al. :
Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. MARCH 1, 2024

MEMORANDUM OPINION

INTRODUCTION

This matter arises out of the allegations of Plaintiff Jillian Rightmyer (“Plaintiff”)
concerning the negligent medical care she allegedly received from her healthcare providers,
Defendants Philly Pregnancy Center (“Defendant PPC”), Dr. Ozzie Geifman-Holtzman (“Dr.
Geifman-Holtzman”) (collectively, “Moving Defendants”), and Defendant Nurse Theresa Smigo
(“Nurse Smigo”),1 over the course of Plaintiff’s prenatal care. Plaintiff asserts state law claims
for negligence, assault, battery, breach of contract, and negligent and intentional infliction of
emotional distress, as well as federal claims for racial discrimination under 42 U.S.C. § 1981 and
the Affordable Care Act.
Presently, before this Court is Moving Defendants’ motion to dismiss the amended
complaint in which they argue that Plaintiff has failed to allege facts sufficient to assert any viable
claims against them. (ECF 12). Plaintiff opposes the motion. (ECF 13). For the reasons set forth
herein, Moving Defendants’ motion to dismiss is granted.

1 Defendant Nurse Smigo has filed her own motion to dismiss, which will be addressed separately
from this Memorandum Opinion.
BACKGROUND
When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure Rule (“Rule) 12(b)(6), the court “must accept all of the complaint’s well-
pleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Here, the salient facts alleged in Plaintiff’s amended complaint
are summarized as follows:
Plaintiff is an African American, Muslim woman. Defendant Dr. Geifman-
Holtzman is a Caucasian medical doctor and the owner of Defendant PPC. At the
time of her amended complaint, Plaintiff had been a patient of Moving Defendants
for years. In 2022, Plaintiff became pregnant and chose Moving Defendants for
her prenatal care. Throughout her pregnancy, Plaintiff noticed that she was rarely
seen by any medical doctor but instead was seen by a nurse. Plaintiff also noticed
that her prenatal care was “subpar,” but she did not want to change medical
providers in the middle of her pregnancy. (Am. Compl., ECF 9, at ¶ 16).

In early October 2022, Plaintiff began experiencing extreme back pain. She
made an appointment to see “Defendant in person” and conveyed her symptoms to
“Defendant.” (Id. at ¶¶ 18-19). After requesting a “note for work,” Defendant
Nurse Smigo, who is Caucasian, went on a tirade, accused Plaintiff of lying about
her pain, and called Plaintiff a “piece of shit.” (Id. at ¶¶ 19, 21). Defendant Nurse
Smigo also questioned Plaintiff’s motives for getting pregnant and suggested that
taking off from work would be fraud. Defendant Nurse Smigo then called the
police.

Sometime after this incident, Plaintiff went into early labor and delivered
her baby. Plaintiff’s baby had to stay at the hospital “longer than usual.” (Id. at ¶
33).

LEGAL STANDARD
When considering a Rule 12(b)(6) motion to dismiss, courts must determine whether the
complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard
requires more than a “sheer possibility that a defendant has acted unlawfully.” Id. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. To survive a motion to
dismiss under Rule 12(b)(6), “a plaintiff must allege facts sufficient to ‘nudge [her] claims across

the line from conceivable to plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Twombly, 550 U.S. at 570).
DISCUSSION
As noted, Plaintiff asserts various state law and federal racial discrimination claims
premised on the “subpar” medical care she allegedly received from Moving Defendants during her

pregnancy. Moving Defendants move to dismiss each of these claims on the basis that Plaintiff
has failed to allege facts sufficient to plausibly state the claims. Each claim is addressed below.
Negligence (Count I)
At Count I of the amended complaint, Plaintiff asserts a state law claim for negligence
against Moving Defendants premised on allegations that Moving Defendants’ provision of medical
care fell below the requisite standards of care. Moving Defendants move to dismiss this claim on
the basis that Plaintiff failed to include a certificate of merit (“COM”) from an appropriate licensed
professional, as required in all professional negligence claims pursuant to Pennsylvania Rule of
Civil Procedure (“Pennsylvania Rule”) 1042.3. In response to this argument, Plaintiff notes that
her amended complaint included a COM but makes no argument in response to Moving

Defendants’ substantive challenge to the attached certificate of merit.
Plaintiff’s state law claims are governed by substantive Pennsylvania state law under the
Erie Doctrine. See Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008) (explaining that state
law governs substantive state law claims in a federal court when the court’s jurisdiction to hear
those claims is based on supplemental or diversity jurisdiction). Pennsylvania Rule 1042.3
requires a plaintiff alleging professional negligence to file a COM affirming that the allegations
are supported by an expert’s opinion, within sixty days of filing the complaint. Pa. R. Civ. P.
1042.3. The United States Court of Appeals for the Third Circuit (the “Third Circuit”) has held

that Pennsylvania Rule 1042.3 is a substantive law that must be applied in professional liability
cases arising under Pennsylvania common law in federal court. Liggon-Redding v. Estate of
Sugarman, 659 F.3d 258, 265 (3d Cir. 2011); see also Stroud v. Abington Mem’l Hosp., 546 F.
Supp. 2d 238, 248 (E.D. Pa. 2008) (noting that Pennsylvania federal courts “have uniformly held
that the COM requirement is a substantive rule of law that applies in professional liability actions
proceeding in federal court”). Accordingly, Plaintiff’s professional negligence claims must be
supported with a proper certificate of merit.
Here, Plaintiff’s amended complaint includes a COM from Tiffany Swann, a licensed
professional registered nurse who specializes in care management. Moving Defendants argue,
however, that Ms. Swann’s COM fails to meet the substantive requirements of Pennsylvania Rule

1042.3 with respect to the negligence claims asserted against Moving Defendants, i.e., a physician
and his professional clinic, because Ms. Swann, a registered nurse, is not an appropriate licensed
professional with respect to the negligence claims asserted against Moving Defendants, a medical
doctor and his professional clinic.
The note to Pennsylvania Rule 1042.3(a)(1) provides:
It is not required that the “appropriate licensed professional” who
supplies the necessary statement in support of a certificate of merit
required by subdivision (a)(1) be the same person who will actually
testify at trial. It is required, however, that the “appropriate licensed
professional” who supplies such a statement be an expert with
sufficient education, training, knowledge and experience to provide
credible, competent testimony, or stated another way, the expert
who supplies the statement must have qualifications such that the
trial court would find them sufficient to allow that expert to testify
at trial. For example, in a medical professional liability action
against a physician, the expert who provides the statement in
support of a certificate of merit should meet the qualifications set
forth in Section 512 of the Medical Care Availability and
Reduction of Error (MCARE) Act, 40 P.S. § 1303.512.

Pa. R. Civ. P. No. 1042.3(a)(1) (emphasis added). Section 512 of the MCARE Act provides:
(a) General rule.--No person shall be competent to offer an expert
medical opinion in a medical professional liability action against a
physician unless that person possesses sufficient education, training,
knowledge and experience to provide credible, competent testimony
and fulfills the additional qualifications set forth in this section as
applicable.
(b) Medical testimony.--An expert testifying on a medical matter,
including the standard of care, risks and alternatives, causation and
the nature and extent of the injury, must meet the following
qualifications:
(1) Possess an unrestricted physician’s license to practice medicine
in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years from
active clinical practice or teaching.

Provided, however, the court may waive the requirements of this
subsection for an expert on a matter other than the standard of care
if the court determines that the expert is otherwise competent to
testify about medical or scientific issues by virtue of education,
training or experience.
(c) Standard of care.--In addition to the requirements set forth in
subsections (a) and (b), an expert testifying as to a physician’s
standard of care also must meet the following qualifications:
(1) Be substantially familiar with the applicable standard of care for
the specific care at issue as of the time of the alleged breach of the
standard of care.
(2) Practice in the same subspecialty as the defendant physician or
in a subspecialty which has a substantially similar standard of care
for the specific care at issue, except as provided in subsection (d) or
(e).
(3) In the event the defendant physician is certified by an approved
board, be board certified by the same or a similar approved board,
except as provided in subsection (e).

40 Pa. Cons. Stat. § 1303.512. As a licensed registered nurse and not a licensed physician, Ms.
Swann does not meet the substantive requirements of § 1303.512 and, thus, her COM is does not
meet the requirements of Pennsylvania Rule 1042.3 with respect to Plaintiff’s professional
negligence claims against Moving Defendants. Accordingly, Moving Defendants’ motion to
dismiss the professional negligence claim is granted.
Moving Defendants also move to dismiss Plaintiff’s professional negligence claims on the
basis that Plaintiff has not pled facts sufficient to assert a plausible negligence claim against them.
In response, Plaintiff merely points to her COM—which, as discussed above, fails to meet the
substantive requirements of Pennsylvania Rule 1042.3—and to a statement purportedly released
by the American Nurses Association and Pennsylvania Nurses Association to the effect that
Defendants’ conduct was “unethical, unprofessional, and unacceptable.” (See Pl.’s Resp., ECF
13, at p. 6). It is well-settled, of course, that Plaintiff must allege facts, not conclusions, to support
her claims. See Iqbal, 556 U.S. at 678. The COM—which fails to meet the substantive
requirements of Pennsylvania Rule 1042.3—and the public statement of the referenced nurses’
associations contain only conclusions, not alleged facts. As such, Plaintiff’s reliance on these
collections of conclusions is insufficient to meet her pleading burden.
Negligent Infliction of Emotional Distress (Count II)
At Count II of the amended complaint, Plaintiff asserts a claim for negligent infliction of
emotional distress (“NIED”) against Moving Defendants premised on the same allegations as
Plaintiff’s negligence claims. Moving Defendants argue that Plaintiff’s allegations do not satisfy
the narrow circumstances or requirements necessary for an NIED claim under Pennsylvania law.
Pennsylvania courts have recognized claims for NIED in four distinct circumstances. That
is, a plaintiff must allege facts to plausibly show that (1) the defendant “had a contractual or
fiduciary duty toward him,” (2) the plaintiff “suffered a physical impact,” (3) the plaintiff “was in
a ‘zone of danger’ and at risk of an immediate physical injury,” or (4) the plaintiff “had a

contemporaneous perception of tortious injury to a close relative.” Doe v. Phila. Cmty. Health
Alts. Aids Task Force, 745 A.2d 25, 27 (Pa. Super. Ct. 2000), aff’d, 767 A.2d 548 (Pa. 2001). A
plaintiff must also plead severe emotional distress. Id.
In Toney v. Chester County Hospital, the Supreme Court of Pennsylvania split evenly as
to whether to allow NIED claims based on contractual or fiduciary duties absent a physical impact.
36 A.3d 83 (Pa. 2011). The leading opinion in Toney concluded that claims premised on such
“special relationships” do not require a physical impact. Id. at 85.2 However, as the court further
explained:
NIED is not available in garden-variety “breach of contractual or
fiduciary duty” cases, but only in those cases where there exists a
special relationship where it is foreseeable that a breach of the
relevant duty would result in emotional harm so extreme that a
reasonable person should not be expected to endure the resulting
distress.

Id. Such a special relationship “must encompass an implied duty to care for the plaintiff’s
emotional well-being.” Id. at 95. Guided by Toney, Pennsylvania courts have recognized
qualifying special relationships only in extremely limited circumstances, including doctor-patient

2 While Toney is not binding precedent, federal and state courts have consistently looked to the state
Supreme Court Justice Max Baer’s opinion as persuasive authority on the scope of this tort under
Pennsylvania law. See, e.g., Snyder v. West Penn Allegheny Health Sys., 2014 Pa. Dist. & Cnty. Dec.
LEXIS 10808, at *4 (Pa. Ct. Com. Pl. Feb. 19, 2014) (“Subsequent Courts have not hesitated to rely upon
and apply both the holding of Toney and Justice Baer’s language and analysis.”); Hershman v. Muhlenberg
Coll., 17 F. Supp. 3d 454, 460 (E.D. Pa. 2014) (“If the Supreme Court were to permit special relationship
NIED claims, I predict it would do so by adopting the narrow grounds announced by the lead justices in
Toney.”).
relationships. See MDB v. Punxsutawney Christian Sch., 386 F. Supp. 3d 565, 593 (W.D. Pa.
2019) (“Since Toney, Pennsylvania courts have only found certain doctor/patient relationships . .
. and one between an adoption agency and adoptive parents to support such a claim, declining to
extend liability any further.”).

Here, Plaintiff has alleged the existence of such a special relationship, i.e., a physician-
patient relationship between Plaintiff and Dr. Geifman-Holtzman. However, an NIED claim also
requires factual allegations sufficient to plausibly show a breach of the duty of care owed by the
medical provider to the patient. Id. at 84-85. To meet this requirement, Plaintiff again relies solely
on her reference to the conclusions and opinions contained in the Nurses Association statement
referenced in the amended complaint. (See Pl.’s Resp., ECF 13, at p. 7). Such conclusions and
opinions are not facts and, thus, are insufficient to meet Plaintiff’s pleading burden. Accordingly,
Moving Defendants’ motion to dismiss Count II is granted.
Breach of Contract (Count III)
At Count III of the amended complaint, Plaintiff asserts a breach of contract claim against

Moving Defendants premised on her allegation that these Defendants failed to provide her proper
medical treatment. Moving Defendants move to dismiss this claim on the basis that Plaintiff has
failed to allege facts to meet any of the pleading requirements, including those particular to contract
claims asserted against physicians.
To state a claim for breach of contract under Pennsylvania law, a plaintiff must allege facts
sufficient to plausibly show “(1) the existence of a contract, including its essential terms; (2) a
breach of a duty imposed by the contract; and (3) resultant damages.” Telwell v. Grandbridge
Real Estate Cap., LLC, 143 A.3d 421, 427 (Pa. Super. Ct. 2016). In the context of a medical
professional negligence action (like this case), a breach of contract claim against a medical
provider is only recognized where the parties have contracted for a specific result. Kershak v. Pa.
Hosp., 1995 WL 50056, at *3 (E.D. Pa. Feb. 3, 1995) (citing Murray v. Univ. of Pa. Hosp., 490
A.2d 839, 841 (Pa. Super. Ct. 1985)).
A careful review of Plaintiff’s amended complaint reveals that it is devoid of any facts

from which one could discern either the essential terms of a contract or a breach by either of the
Moving Defendants of any contractual terms. Further, Plaintiff does not allege any facts that could
plausibly show a contract for a specific result. Notably, in response to Moving Defendants’
arguments, Plaintiff again merely relies upon her reference to the conclusions and opinions
contained in the Nurses Association statement referenced in the amended complaint. (See Pl.’s
Resp., ECF 13, at pp. 7-8). Such conclusions and opinions are not facts and, thus, are insufficient
to meet Plaintiff’s pleading burden. Accordingly, Moving Defendants’ motion to dismiss Count
III is granted.
Racial Discrimination in Violation of § 1981 (Count IV)
At Count IV of the amended complaint, Plaintiff asserts claims for racial discrimination

under 42 U.S.C. § 1981 premised on Plaintiff’s allegation that Moving Defendants discriminated
against her on the basis of her race in providing inadequate medical care. Moving Defendants
move to dismiss these claims arguing that Plaintiff has failed to allege facts to plausibly show or
from which one could reasonably infer that Moving Defendants deprived her of adequate medical
care because of her race.
Under § 1981, “[a]ll persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts . . . .” 42 U.S.C. § 1981. To state
a claim under § 1981, a plaintiff must allege facts sufficient to meet each of the following elements:
(1) that Plaintiff “is a member of a racial minority; (2) intent to discriminate on the basis of race
by the defendant; and (3) discrimination concerning one or more of the activities enumerated” in
§ 1981. Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001). “The Supreme Court has
made clear that Section 1981 reaches only purposeful discrimination.” Tucker v. City of Phila.,
2017 WL 5010032, at *3 (E.D. Pa. Nov. 2, 2017) (citing Gen. Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 389, 391 (1982)). “Conclusory allegations of generalized racial bias
do not establish discriminatory intent.” Flagg v. Control Data, 806 F. Supp. 1218, 1223 (E.D. Pa.
1992), aff’d, 998 F.2d 1002 (3d Cir. 1993). The requisite inference of discrimination can be
supported in a number of ways, including pleading facts of similar racial discrimination of others
in the same protected class, similarly situated individuals of an unprotected class being treated
differently, or direct discrimination. See Golod v. Bank of Am. Corp., 403 F. App’x 699, 703 n.2
(3d Cir. 2010).
Moving Defendants argue that Plaintiff has failed to allege facts sufficient to plausibly
show or from which one could reasonably infer that Moving Defendants subjected Plaintiff to
negligent medical care because of her race. In response, Plaintiff argues that she satisfied her

pleading burden by pleading that “Defendants’ acts and omissions occurred because she is an
African American woman.” (See Pl.’s Resp., ECF 13, at p. 9). At best, Plaintiff’s allegations of
racial discrimination amount to mere legal conclusions, not the factual allegations necessary to
meet her pleading burden. Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (explaining
that on a motion to dismiss, the court does not “accept unsupported conclusions and unwarranted
inferences, or a legal conclusion couched as a factual allegation”). Because Plaintiff has alleged
no facts that could plausibly give rise to the inference that Moving Defendants discriminated
against her on the basis of her race, she has not stated a claim for racial discrimination under §
1981.
Affordable Care Act Claim (Count V)
At Count V of the amended complaint, Plaintiff asserts a claim of discrimination under §
1557 of the Affordable Care Act that is identical to her claim for racial discrimination. Like
Plaintiff’s claim under § 1981, Plaintiff’s Affordable Care Act claim requires the allegation of

facts sufficient to plausibly show or from which one could reasonably infer that Moving
Defendants discriminated against her on the basis of her race when providing inadequate medical
care. See Se. Pa. Transp. Auth. v. Gilead Scis., Inc., 102 F. Supp. 3d 688, 701 (E.D. Pa. 2015).
For the same reasons set forth above, Plaintiff’s amended complaint is devoid of any such facts.
Accordingly, Moving Defendants’ motion to dismiss this claim is granted.
Assault, Battery, and Intentional Infliction of Emotional Distress (Counts VI, VII, and IX)
At Counts VI, VII, and IX of the amended complaint, Plaintiff asserts claims for assault,
battery, and intentional infliction of emotional distress against Moving Defendants premised on
allegation that Moving Defendants are vicariously liable for the alleged intentional torts committed
by Defendant Nurse Smigo. Moving Defendants move to dismiss these claims on the basis that

Plaintiff has not alleged facts sufficient to assert these claims under a vicarious liability theory.
Notably, Plaintiff provides no response to this argument.
Under Pennsylvania law, an employer may only be liable for the intentional torts of its
employee where the employee’s tortious conduct was conducted within the scope of that
employee’s employment and the employer has control over the employee’s physical conduct in
the performance of the services. Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1276 (3d
Cir. 1979); Black v. Field Asset Servs., LLC, 2018 WL 5264319, at *3 (E.D. Pa. Oct. 23, 2018).
Here, Plaintiff alleges in conclusory fashion that Defendant Nurse Smigo was Moving Defendants’
“employee.” (Am. Compl., ECF 9, at ¶ 19). Plaintiff’s amended complaint is devoid, however,
of any facts to substantiate that conclusion or to plausibly show that Moving Defendants controlled
Defendant Nurse Smigo’s physical conduct or that her conduct occurred within the scope of her
employment. In the absence of any such facts, Plaintiff’s intentional tort claims (assault, battery,
and intentional infliction of emotional distress) against Moving Defendants are insufficiently pled.

Accordingly, Moving Defendants’ motion to dismiss these claims is granted.
Negligent Hiring, Training, Supervision, and Retention (Count VIII)
At Count VIII of the amended complaint, Plaintiff asserts a claim against Moving
Defendants for negligent hiring, training, supervision, and retention, premised on Moving
Defendants’ purported negligence in hiring, training, supervising, and retaining Defendant Nurse
Smigo. While Pennsylvania courts have recognized such claims, they are grounded on the same
requirements as ordinary negligence claims premised on omissions. See Coath v. Jones, 419 A.2d
1249, 1250 (Pa. Super Ct. 1980); Burns v. SeaWorld Parks & Entertainment, Inc., 2023 WL
3821810, at *10 (E.D. Pa. June 5, 2023). To assert a viable claim, a plaintiff must allege, inter
alia, that the defendant employer knew or should have known of the unreasonable risk of harm

posed by hiring or retaining the employee or failing to train or supervise the employee. Coath,
419 A.2d at 1250; Burns, 2023 WL 3821810, at *10-11. Plaintiff alleges no such facts here, instead
focusing solely on her allegation that she rarely saw Dr. Geifman-Holtzman at the clinic. (Pl.’s
Opp., ECF 13, at p. 10). Dr. Geifman-Holtzman’s alleged absence from the health care facility
alone falls woefully short of meeting Plaintiff’s pleading burden with respect to this claim.
Accordingly, Moving Defendants’ motion to dismiss this claim is granted.
CONCLUSION
For the reasons set forth above, Moving Defendants’ motion to dismiss is granted with
respect to Plaintiff’s claims. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10406821. Public record. Not legal advice.