Opposition Brief — Abner v. Mobile Infirmary Medical Center, (2008) (No. 632)

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No. 08-632 DEC 4 - 2008

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In The

Supreme Court of the Anited States

JANICE ABNER,

Petitioner,

MOBILE INFIRMARY MEDICAL CENTER;

BRIAN ARCEMENT, M.D.; DONALD KIRBY, M.D.;

GREGORY McGEE, M.D.; TERRY WILSDORF, M.D.;

PHILLIP TRAVIS, M.D.; MAHisR SAHAWNEH, M.D.;

JEFFERY |CKLER, M.D.; and MICHAEL O’DOWD, M.D.,

Respondents.

.

-

On Petition For Writ Of Certiorari

To The Court Of Civil Appeals Of Alabama

¢

BRIEF IN OPPOSITION

¢

W. BoyD REEVES

Counsel of Record

ARMBRECHT JACKSON LLP

Post Office Box 290

Mobile, Alabama 36601

(251) 405-1300

wbr@ajlaw.com

Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

3 :

j QUESTION FOR REVIEW 3

‘ Whether the Petitioner was deprived of her §

4 constitutional and statutory civil rights when the 4

q Supreme Court of Alabama denied her Petition for a 4

é Writ of Certiorari to the Alabama Court of Civil 3

7 Appeals, which court had granted Respondents’ 4

2 motion to dismiss Petitioner’s appeal from the ruling 4

q of the trial court which had dismissed her complaint E

4 against Respondents for the wrongful death of her .

3 decedent for alleged medical malpractice. .

.

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STATEMENT REGARDING COUNSEL

FOR RESPONDENTS - Continued

st eee | PA Te ae eT er See

| In the courts below different Respondents were

: represented by different counsel. Inasmuch as the

issues are identical for the Respondents and in order

to conserve duplicative filings, for purposes of this

Brief in Opposition, all of the Respondents are repre-

sented on this brief by:

W. BoyD REEVES

Attorney of Record

ARMBRECHT JACKSON LLP

Post Office Box 290

Mobile, Alabama 36601

(251) 405-1300

wbr@ajlaw.com

(Attorney for Respondents,

Brian Arcement, M.D.,

Donald Kirby, M.D.,

Terry Wilsdorf, M.D. and

Maher Sahawneh, M.D. in the Courts below)

3

3

7

:

The other attorneys and their respective clients

in the courts below are:

A. DANNER FRAZER, JR.

FRAZER, GREENE, UPCHURCH & BAKER

Post Office Box 1686

Mobile, Alabama 36633

(251) 431-6020

adf@F razerGreene.com

(Attorney for Gregory McGee, M.D.

and Jeffery Ickler, M.D.)

Pee AEP, EEA IBA TF PORES NE wet WO

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STATEMENT REGARDING COUNSEL

FOR RESPONDENTS - Continued

PATRICK M. SHEGON

RUSHTON, STAKELY, JOHNSON & GARRETT

Post Office Box 270

Montgomery, Alabama 36101

(334) 206-3288

PMS@rsjg.com

(Attorney for Phillip Travis, M.D.

and Michael O’Dowd, M.D.)

CLIFFORD C. BRADY

Brapy, RADCLIFF & BROWN

Post Office Box 1668

Mobile, Alabama 36633

(251) 405-0045

cbrady@brblawyers.com

(Attorney for Mobile Infirmary Medical Center)

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iv

LIST OF PARTIES

and

STATEMENT PURSUANT TO RULE 29.6

Parties

Petitioner:

Janice Abner

Respondents:

Brian K. Arcement, M.D.

Jeffery K. Ickler, M.D.

J. Donald Kirby, M.D.

Gregory S. McGee, M.D.

J. Michael O’Dowd, M.D.

Maher N. Sahawneh, M.D.

Phillip S. Travis, M.D.

Terry Wilsdorf, M.D.

Mobile Infirmary Medical Center

Each of the Respondent-Physicians is engaged in

the private practice of medicine either in a partner-

ship or in a privately owned entity. There are no

parent or public corporations involved with these ;

entities. |

The Respondent Mobile Infirmary Medical Cen-

ter is the name under which Mobile Infirmary Asso-

ciation does business and it is a non-profit corporate

entity. Infirmary Health Systems, Inc., a private

corporation, is its parent corporation. There is no

publicly held company that owns 10% or more of its

stock.

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TABLE OF CONTENTS

Page

Question for Review .................:ccccccceeeseeceeeeeeeeeeeees i

Statement Regarding Counsel for Respondents... ii

List of Parties and Statement Pursuant to Rule

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Table of Authorities ...................ccceccseeeeeeceeeeeeeeeeeeees vii

Statement of the Facts ................0...ccceeecceeeeeeeeeeee ees 1

Procedural Background...........................2.s2eeeeeeeee00 1

a st mmaensounsocnines 3

Argument Against Granting Certiorari................. 5

I The Petitioner Has Not Been Denied Any

of Her Civil Rights, and the Petition for

Certiorari Filed in the Supreme Court of

Alabama Was Denied on Applicable Legal

Sih cers sicdthbincninnspenieeiacnabetecqatsicicceices 5

Standing and Capacity to Sue ............... 5

Timeliness of Filing Suit........................ 7

Timeliness of Appeal to the Alabama

I i ictncrecsniebevscontdatdinestuninicans 7

Se IN ods iis ncriibititesicicrnitieanainelbiplabbion 8

Non-Applicability of 42 U.S.C. § 1981(a).... 8

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fi ~TABLE OF CONTENTS — Continued

Page

Appendix

Appendix I — U. S. District Court Order Dated

February 2, 2005 in Clarence Abner, et al. v.

Mobile Infirmary, et al., Case No. 04-0476.....App. 1

Appendix II — Final Order of Trial Court dated

September 29, 2006....................00cccceeeeeeeeeeeees App. 11

Appendix III — Final Order of Trial Court dated

CN HII chbcciivcnncscoverenesncconscsncnecsecsonsacs App. 13

Appendix IV — Alabama Court of Civil Appeals

Order dated January 9, 2007, Granting the

Motions of Respondents Mobile Infirmary,

McGee, Ickler, Kirby, Wilsdorf, Sahawneh,

and Arcement to Dismiss Appeal .................. App. 15 :

Appendix V — Alabama Court of Civil Appeals

Order dated January 23, 2007, Granting the

Motion of Respondents O’Dowd and Travis to

Dismiss Appeal .................cccsseeseeeeseeeeeeeeeeeeeees App. 16

Appendix VI — Supreme Court of Alabama

Order dated August 8, 2008, Denying Peti-

tion for Writ of Certiorari to Alabama Court

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TABLE OF AUTHORITIES

Page

CASES

Abner v. Mobile Infirmary Hospital, 149

Fed.Appx. 857, 2005 WL 2090635 (11th Cir.

RERUN PAB F e ORR NN 2

Altmayer v. Stremmel, 891 So. 2d 305 (Ala.

SII ota sasehcaissdesbatguenacibepiaepecantgubectibiiatieubabimaseescooeres 8

Benefield v. F- Hood Craddeck Clinic, 456

SEE Ry MINED isc sidlinnachadsapectcasabutassonbantadoceccecess 3

Carroll v. Buttram, 758 So. 2d 1097 (Ala. 1999)......... 8

Clarence Abner and Janice Abner v. Mobile

Infirmary, U. S. District Court, S.D. Ala.

I iid. cicdaccsncidencevedabieenliapbisaccobsccocses 1

Downtown Nursing Home, Inc. v. Pool, 375

a i ces hacalntbeaunecotocen 7

Ex parte Ghafary, 738 So. 2d 778 (Ala. 1998) .....2, 4, 6

Hatas v. Partin, 175 So. 2d 759 (Ala. 1965)............. 2,6

Horn v. Citizens Hospital, 425 So. 2d 1065 (Ala.

i ai la a schiemshoussbentonvncs 3

Neal v. Neal, 856 So. 2d 766 (Ala. 2002) ..................... 8

Old Republic Union Ins. Co. v. Tillis Trucking

Co., 124 F.3d 1258, 1997 U.S. App. Lexis

28422 (11th Cir. 1997); cert. denied, 523 U.S.

RRR SERIES BY ESC AS a 9

Waters v. Hipp, 600 So. 2d 981 (Ala. 1992).............. 4,6

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TABLE OF AUTHORITIES — Continued

STATE RULES

Ala. Code § 6-5-410 (1975)

Ala. Code § 6-5-482(a)

Ala. Code § 6-5-551 (1975)

Ala. Code § 12-2-7(6) (1975)

Ala. Code § 34-3-6 (1975)

OTHER AUTHORITIES

42 U.S.C. § 1981(a)

U.S. Constitution Amendments X and XIV

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May It Please This Honorable Court:

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STATEMENT OF THE FACTS

The Respondents submit that a brief background

of proceedings in this case would perhaps be of bene-

fit to the Court in its consideration of the Petition.

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PROCEDURAL BACKGROUND

The Petitioner, together with her father, initially

; filed suit on July 20, 2004, in the United States

District Court for the Southern District of Alabama

against the Respondent hospital and eight (8) Re-

spondent physicians alleging that their wife and

mother, Lillian Abner, died on August 5, 2002 as the

proximate result of medical malpractice by all of the

Respondents.' That case (like this case) was not

brought by the personal representative of Ms. Lillian

Abner’s estate as required by the laws of the State of

Alabama under § 6-5-410, Code of Alabama (1975).

Motions to dismiss were filed by all the Respon-

dents in the U.S. District Court case. Among the issues

raised were (1) improper party plaintiff, (2) jurisdic-

tion under the Medicare Act, and (3) sufficiency of the

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' Clarence Abner and Janice Abner v. Mobile Infirmary,

U.S. District Court, Southern District of Alabama, Civil Action

No. 04-0476 (unreported) (Appendix [).

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allegations of medical malpractice under Section 6-5-

551 of the Code of Alabama. The District Court

granted the motions to dismiss all the Respondents

on February 2, 2005. (A copy of the District Court’s

order is appended hereto as Appendix I.) In its order

the District Court noted that it did not have Federal

jurisdiction because the claims asserted did not arise

under the Medicare Act. The court noted that even if

a federal question existed in the case, it was not

brought by the proper parties. The court stated that:

“Except where the decedent is a minor child,

only the personal representative of a dece-

dent may sue for wrongful death. (Hatas v.

Partin, 175 So. 2d 759, 761 (Ala. 1965).”

It should also be noted that under Alabama law,

; a person must be a licensed attorney to represent a

separate legal entity, such as a corporation or estate.

Ala. Code § 34-3-6 (1975); Ex parte Ghafary, 738

So. 2d 778 (Ala. 1998)

Petitioner appealed the U.S. District Court ruling

to the U.S. Court of Appeals for the Eleventh Circuit,

and, by opinion dated August 31, 2005, the Court of

Appeals affirmed the District Court.’ The Petitioner

took no further action in that particular case.

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* See Abner v. Mobile Infirmary Hospital, 149 Fed.Appx.

857, 2005 WL 2090635 (11th Cir. 2005). (The case was not

selected for publication in the Federal Reporter.)

3

SUBJECT CASE

The Petitioner then, on July 31, 2006 (almost a

year later), filed this lawsuit in the Circuit Court of

Mobile County, Alabama against all of the same

Respondents seeking recovery for damages for the

alleged medical malpractice of the Respondents in

causing the wrongful death of Ms. Lillian Abner. The

cause of action for wrongful death under the Alabama

Medical Malpractice statute would have arisen on

August 5, 2002, the date of Ms. Lillian Abner’s death,

and the claim was barred by the two years statute of

limitations of § 6-5-482(a) and §6-5-410, Code of

Alabama (1975). Horn v. Citizens Hospital, 425 So. 2d

1065 (Ala. 1982); Benefield v. F. Hood Craddeck

Clinic, 456 So. 2d 52 (Ala. 1984).

All of the Respondents filed motions to dismiss

this action in the state trial court on the grounds,

among others, of (1) improper party plaintiff, (2) the

statute of limitations of two years had expired, and

(3) res judicata based on the previous U.S. District

Court action. The Petitioner filed a response to the

motions, and the Circuit Court of Mobile County,

Alabama gave notice that the motions were set for

oral argument on September 29, 2006. The Petitioner

advised the trial judge that she would not appear in

court for the hearing on the motions to dismiss. On

September 29, 2006 and October 20, 2006, the trial

judge, after considering arguments and the written

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4

response of the Petitioner, entered final orders grant-

ing the motions of Respondents to dismiss the case.”

The Petitioner, on November 21, 2006, then

appealed to the Supreme Court of Alabama, which

Court transferred the case to the Alabama Court of

Civil Appeals pursuant to § 12-2-7(6), Code of Ala-

bama (1975). Motions to dismiss the appeal were

subsequently filed by all the Respondents in the

Alabama Court of Civil Appeals on the primary

grounds that (1) the appeal was not timely filed; (2)

the appeal was a nullity because (a) the Petitioner

was not authorized, as a matter of law, to represent

the interests of another’s estate, Ex parte Ghafary,

supra, and (b) the Petitioner was not a representative

of the decedent’s estate, § 6-5-410, Code of Alabama

(1975); Waters v. Hipp, 600 So. 2d 981, 982 (Ala.

1992); (3) that the two year statute of limitations of

the Alabama Wrongful Death Action had run, (4) the

doctrine of res judicata applied, and (5) the appeal

was frivolous. Ala.R.App.P. 2(a\2)B. After the filing of

briefs, the motions to dismiss were granted on Janu-

ary 9, 2007 and January 23, 2007 by the Alabama

Court of Civil Appeals. (Appendices IV and V.) The

Petitioner then filed a Petition for a Writ of Certiorari

to the Supreme Court of Alabama. On August 8, 2008,

the Supreme Court of Alabama denied the petition,

* Copies of the orders of dismissal are appended hereto as

Appendices IT and III.

5

and the Petitioner filed the subject petition to this

Honorable Court. (Appendix VI.)

¢

ARGUMENT AGAINST

GRANTING CERTIORARI

I

THE PETITIONER HAS NOT BEEN DENIED

ANY OF HER CIVIL RIGHTS, AND THE

PETITION FOR CERTIORARI FILED IN |

THE SUPREME COURT OF ALABAMA WAS

DENIED ON APPLICABLE LEGAL GROUNDS.

Standing and Capacity to Sue

The questions of civil rights violations or of race

of the parties have never been issues raised in the

courts below. The Petitioner’s lawsuit is one of medi-

cal malpractice in which the Petitioner alleges that

the Respondents negligently treated her mother and

thereby proximately caused her death. Section 6-5-

410 of the Code of Alabama (1975) (commonly re-

ferred to as the “Alabama Wrongful Death” statute)

provides in pertinent part:

“(a) A personal representative may com-

mence an action and recover such damages

as the jury may assess in a court of compe-

tent jurisdiction within the State of Ala-

bama, and not elsewhere, for the wrongful

act, omissions or negligence of any person,

persons, or corporation, his or their servants

or agents, whereby the death of his testator

OY yEnc. Se

6

or intestate was caused, provided the testa-

tor or intestate could have commenced an ac-

tion for such wrongful act, omission, or

negligence if it had not caused death.”

* * *

“(d) Such action must be commenced within

two years from and after the death of the

testator or intestate.”

The Alabama Supreme Court has held that, except

where the decedent is a minor child, only the personal

representative of a decedent may sue for wrongful

death. Hatas v. Partin, supra. The Petitioner does not

dispute that she has never been appointed the per-

sonal representative of her deceased mother. She

argues that there is no estate of her mother as there

are no assets and, consequently, no need to open an

estate in order to file this action. That is simply not

the case as the statutory requirement of being the

personal representative is a prerequisite to filing a

wrongful death action in Alabama. Further, the cause

of action itself (whether meritorious or not) became

an asset of the estate. Inasmuch as the Petitioner was

not the personal representative of the decedent’s

estate, the lawsuit was a nullity, and the court below

properly dismissed the Petitioner’s case. Waters v.

Hipp, supra.

Further, the Alabama Supreme Court has held

that only a licensed attorney can represent a separate

legal entity, such as a corporation or an estate. Ala.

Code § 34-3-6 (1975); Ex parte Ghafary, 738 So. 2d

ye ee ee re fo

7

778 (Ala. 1998). The Petitioner is not a licensed

attorney.

These issues were also raised in the U.S. District

Court case filed by the Petitioner against the same

Respondents and were decided adverse to the peti-

tioner. This decision was affirmed by the Eleventh

Circuit Court of Appeals. (See Appendix I and foot-

note no. 2.)

The Petitioner did not have capacity or standing

to bring this wrongful death action in the Circuit

Court of Mobile County, Alabama.

Timeliness of Filing Suit

The Petitioner’s cause of action, if any, arose on

the date of Ms. Lillian Abner’s death on August 5,

2002. The two year statute of limitations of § 6-5-

410(d), Code of Alabama (1975) expired on August 5,

2004. The subject lawsuit was not filed until July 31,

2006, or almost four (4) years after the cause of action

arose. Clearly, the statute of limitations barred the

Petitioner’s lawsuit. Downtown Nursing Home, Inc. v.

Pool, 375 So. 2d 465 (Ala. 1979).

Timeliness of Appeal to the

Alabama Supreme Court

The trial court entered a final order on Septem-

ber 29, 2006 granting the motions to dismiss the

Petitioner’s complaint as to the Respondents Mobile

Infirmary Medical Center and physicians, McGee,

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Ickler, Kirby, Arcement, Sahawneh and Wilsdorf.

(Appendix II).

Pursuant to Rule 4 of the Alabama Rules of

Appellate Procedure, the Petitioner was required to

file a notice of appeal with the clerk of the court

within 42 days of the entry of the Final Order of

Dismissal. Thus, as to the named Respondents,

Petitioner’s appeal was not timely. A timely notice of

appeal is necessary to invoke the jurisdiction of the

Supreme Court of Alabama. Alitmayer v. Stremmel,

891 So. 2d 305 (Ala. 2004), and Petitioner’s appeal as

to these Respondents was due to be dismissed on the

grounds above.

Res Judicata

The current lawsuit involves the same parties

and the same issues as the lawsuit filed by the Peti-

tioner in the U.S. District Court. That case was

decided against the Petitioner and in favor of the

Respondents. The U.S. District Court case is res

judicata to the case sub judice. Neal v. Neal, 856

So. 2d 766 (Ala. 2002); Carroll v. Buttram, 758 So. 2d

1097 (Ala. 1999).

Non-Applicability of 42 U.S.C. § 1981(a)

The Petitioner argues that her civil rights have

been infringed upon in this case and suggests by her

Petition that an inference can be drawn that the

Alabama Supreme Court denied her Petition for a

9

Writ of Certiorari because she was of a different

racial classification than the Respondents. There is

no basis whatsoever in the records of this case to

suggest such an inference. Clearly, there is nothing in

the records of this case to suggest 42 U.S.C. § 1981(a),

or U.S. Constitution Amendments X and XIV have in

any manner been violated adverse to the Petitioner in

this case.

Regardless of the race of a plaintiff in an Ala-

bama wrongful death action, the lawsuit for that

death can only be brought by the deceased’s personal

representative. The Petitioner, although acting pro se,

must have known this from the opinion issued by the

United States District Court in her first lawsuit filed

for wrongful death against these Respondents. In its

opinion, the Court specifically held: “Because plain-

tiffs are not the personal representative of decedent’s

estate, the case should be dismissed.” (Appendix I.)

However, even in view of this holding, the Petitioner

re-filed her case in the state court (after the two year

statute of limitations had run) without being named

personal representative of the decedent.

Although the Alabama Wrongful Death Act has

been held constitutional,’ the Petitioner argues that

* Old Republic Union Ins. Co. v. Tillis Trucking Co., 124

F.3d 1258, 1997 U.S. App. Lexis 28422 (11th Cir. 1997); cert.

denied, 523 U.S. 1047 (1998).

PSP eT Oe weott e Pee ey See ee are, a eS ee eS

:

10

the court has discriminated against her, and others

similarly situated in the State of Alabama. There is

absolutely no substance to such an argument. Section

6-5-410, Code of Alabama (1975) states: “A personal

representative may commence an action....” The

Petitioner simply did not qualify as a personal repre-

sentative and is not the proper party to bring the

action. In addition, the Alabama law provides that

only a duly licensed atterney can represent a sepa-

rate legal entity such as a corporation or an estate. In

any event, the Alabama Statute of Limitations of two

years (§ 6-5-410(d), Code of Alabama (1975)) had

expired prior to the time the Petitioner filed this

lawsuit in the state court and, in addition, the notice

of appeal as to most of the Respondents was untimely.

There was no discrimination by the Alabama

courts against the Petitioner, and there has been no

violation of the Petitioner’s constitutional rights. The

Petitioner in the court below failed to comply with

Alabama laws which are applicable to all citizens.

¢

11

CONCLUSION

For the reasons stated, the Supreme Court of

Alabama correctly denied the Petitioner’s Petition for

a Writ of Certiorari and the Petitioner was not

discriminated against nor denied any of her constitu-

tional rights. The premises considered, it is respect-

fully submitted that the Petitioner has not presented

any compelling reason for the granting of her Petition

for a Writ of Certiorari and the same should be denied.

Respectfully submitted,

W. Boyp REEVES

ARMBRECHT JACKSON LLP

Post Office Box 290

Mobile, Alabama 36601

(251) 405-1300

Attorney for Respondents

OF COUNSEL:

A. DANNER FRAZER

FRAZER, GREENE, UPCHURCH & BAKER

Post Office Box 1686

Mobile, Alabama 36633

(251) 431-6020

PaTRICK M. SHEGON

RUSHTON, STAKELY, JOHNSTON & GARRETT

| Post Office Box 290

Montgomery, Alabama 36101

4 (334) 206-3288

CLIFFORD C. BRADY

% BRADY, RADCLIFF & BROWN

Post Office Box 1668

‘ Mobile, Alabama 36633

(251) 405-0045

;

4

Z

APPENDIX

Page

Appendix I — U. S. District Court Order Dated

February 2, 2005 in Clarence Abner, et al. v.

Mobile Infirmary, et al., Case No. 04-0476.....App. 1

Appendix II — Final Order of Trial Court Dated

September 29, 200G6............ccccecsecsseeeressereeeneees App. 11

Appendix III — Final Order of Trial Court dated

October 20, 2006 .2.2.2........ccccccececeeeeeeeeeeeeeeeeeees App. 13

Appendix IV — Alabama Court of Civil Appeals

Order dated January 9, 2007, Granting the

Motions of Respondents Mobile Infirmary,

McGee, Ickler, Kirby, Wilsdorf, Sahawneh,

and Arcement to Dismiss Appeal .................. App. 15

Appendix V — Alabama Court of Civil Appeals

Order dated January 23, 2007, Granting the

Motion of Respondents O’Dowd and Travis to

NI i icnietacscscccnssctereocenssecseusseneuseceus App. 16

Appendix VI — Supreme Court of Alabama

Order dated August 8, 2008, Denying

Petition for Writ of Certiorari to Alabama

Court of Civil Appeals....................ccccecceeeeeeeees App. 18

App. 1

Appendix I

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CLARENCE ABNER )

and JANICE ABNER, )

Plaintiffs,

a ) CIVIL ACTION NO.

04-0476-CG-M

MOBILE INFIRMARY,

et al., .

Defendants. )

ORDER

This matter is before the court on motions of

defendants to dismiss (Docs. 7, 11, 14, 20, 22), plain-

tiffs’ responses thereto (Docs. 17, 26, 29, 30), defen-

dants’ replies (Docs. 27, 31, 33) and plaintiffs’

response to the replies (Doc. 40). The court finds that

federal question jurisdiction does not exist in this

case, and further, that the action was not brought by

the proper parties. Therefore, defendants’ motions to

dismiss are due to be granted.

BACKGROUND

Plaintiffs, Clarence and Janice Abner, proceeding

pro se, brought this action seeking damages for the

wrongful death of Lillian Abner. The complaint

asserts federal question jurisdiction arising from

Le tt eS e en ied ee el 6 i er TO ns i ell el te i" ib fee Beek ee eee Bi dete ee: te ee hk es ee) BG ie a

App. 2

defendants’ alleged violation of a Medicare statute, 42

CFR § 35.15, which requires written consent of Medi-

care patients prior to performing certain medical

procedures. The complaint also states that the action

is also brought pursuant to Alabama Code § 22-8-1,

which concerns consent requirements for medical

treatment Plaintiffs are the husband and daughter of

decedent, Lillian Abner. The personal representative

of decedent’s estate has not appeared in this action as

a party plaintiff or in any other capacity. Defendants

are the medical facility where decedent was a patient

and the doctors who, according to plaintiffs, “either

ordered diagnostic intervention, served as consultant,

or ordered the treatment of decedent while a patient

at Mobile Hospital, without the informed consent of

decedent, nor gave notice thereof, or received authori-

zation from the family . . .” (Doc. 17 at p.3).

DISCUSSION

Rule 8 of the Federal Rules of Civil Procedure

requires that federal courts give pleadings a liberal

reading in the face of a motion to dismiss. G/R In-

vestments, Inc. v. County of Escambia, 132 F.3d 1359,

1369 (llth Cir. 1998). “This admonition is particu-

larly true when the parties are proceeding pro se.” Id.

As the Eleventh Circuit has noted:

Courts do and should show a leniency to pro

se litigants not enjoyed by those with the

benefit of a legal education. See, e.g., Powell

v. Lennon, 914 F2d 1459, 1463 (11th

wl pr vee trae ante 6 eRe ek ren Bini Mk te: de, pele ee i Re ed ee Panta el ee ee” io ee ee el fo Ba a

: ‘ts Ps ;

App. 3

Cir.1990). Yet even in the case of pro se liti-

; gants this leniency does not give a court li-

cense to serve as de facto counsel for a party,

see Hall v. Bellmon, 935 F.2d 1106, 1109 ;

(10th Cir.1991), or to rewrite an otherwise :

| deficient pleading in order to sustain an ac- 1

tion, see Pontier v. City of Clearwater, 881 :

F.Supp. 1565, 1568 (M.D.Fla.1995). .

|

?

GJR Investments Inc. v. County of Escambia, Fla.,

132 F.3d 1359, 1369 (11th Cir. 1998). Thus, while

plaintiffs’ complaint should be read liberally, the |

court will not fabricate a jurisdictional basis that is :

not apparent from the complaint.

Defendants assert that plaintiffs have not estab-

lished federal question jurisdiction. “Federal courts

are courts of limited jurisdiction.” Burns v. Windsor

| Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

Under the federal question jurisdiction stat-

ute, 28 U.S.C. § 1331, a district court has

subject matter jurisdiction over “all civil ac-

tions arising under the Constitution, laws, or

treaties of the United States.” Whether a

claim arises under federal law for purposes

of 28 U.S.C. § 1331 is generally determined

by the well-pleaded complaint rule, “which

provides that federal jurisdiction exists only

when a federal question is presented on the

face of the plaintiffs properly pleaded com-

plaint” Caterpillar. Inc. v. Williams, 482 U.S.

386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d

318 (1987). A well-pleaded complaint pre-

sents a federal question where it “establishes

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App. 4

either that federal law creates the cause of

action or that the plaintiffs right to relief

necessarily depends on resolution of a sub-

stantial question of federal law.” Franchise

Tax Bd. v. Construction Laborers Vacation

Trust for S. Cal., 463 U.S. 1, 27-28, 103 S.Ct.

2841, 2856, 77 L.Ed.2d 420 (1983).

Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir.

2001). Plaintiffs assert that this court has federal

question jurisdiction because the case is brought

under the Medicare Act. However, the complaint does

not seek benefits under the Medicare Act. The com-

plaint seeks “compensatory and general damages” for

alleged “physical injury caused by misdiagnosis and

wrongful suffering and immediate death due to

misdiagnosis and negligence leading to said injury.”

The court finds that the claims do not arise under the

Medicare Act, nor is plaintiffs’ right to relief necessar-

ily dependant on the resolution of a substantial

question of federal law.

In Ardary v. Aetna Health Plans of California,

Inc., 98 F.3d 496 (9th Cir. 1996) certiorari denied

(1997) 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174

(cited by both plaintiffs and defendants), the plain-

tiffs brought an action seeking compensatory and

punitive damages for the improper denial of emer-

gency medical services and misrepresentation of

managed care to a Medicare patient. The Court found

that the claims did not arise under the Medicare Act

and that the action was improperly removed to fed-

eral court for the following reasons:

|

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we gt ee i ce ee i i te ti i al i ee ee , es = a ie ltt Me le ee te es el a ad at 6a nt &

App. 5

First, the Ardary’s complaint does not “in-

clude any claims in which ‘both the standing

and the substantive basis for the presenta-

tion’ of the claims” is the Act. Heckler uv.

Ringer, 466 U.S. 602, 615, 104 S.Ct. 2013,

2021-22, 80 L.Ed.2d 622 (1984) (citing

Weinberger v. Salfi, 422 U.S. 749, 760-61, 95

S.Ct. 2457, 2464-65, 45 L.Ed.2d 522 (1975))

(emphasis added). The Ardarys seek general

and punitive damages on the basis of negli-

gence, intentional and/or negligent infliction

of emotional distress, intentional and/or neg-

ligent misrepresentation, and professional

negligence. The standing for these six claims

are state common law theories and not the

Act. Second, the state law claims are not “in-

extricably intertwined” with the denial of

benefits. Although the Ardarys concede that

their wrongful death complaint is “predi-

cated on” Arrowest’s failure to authorize the

airlift transfer, the claims are not “inextrica-

bly intertwined” because the Ardarys are at

bottom not seeking to recover benefits.

Ringer, 466 U.S. at 614, 104 S.Ct. at 2021.

Ardary, 98 F.3d at 499-500. The claims asserted and

damages sought by plaintiffs in the instant case are

similar to the claims asserted and damages sought in

Ardary.

Similarly, in Merrell Dow Pharmaceuticals Inc. v.

Thompson, 478 U.S. 804, 106 S.Ct. 3229 (1986) (also

cited by both plaintiffs and defendants), the Supreme

Court held that the district court did not have juris-

diction under 28 U.S.C. § 1331 where the plaintiff

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alleged a state tort claim but pointed to federal law as

evidence of the standard of care. Given that there was

no private right of action under the federal law in

question, the Court examined whether a substantial

question of law was implicated. It held that “the

presence of the federal issue as an element of the

state tort is not the kind of adjudication for which

jurisdiction would serve congressional purposes and

the federal system.” Jd. at 814, 106 S.Ct 3229. The

Court found no federal subject matter jurisdiction.

The Eleventh Circuit, following the rational of

Merrell Dow, found no federal subject-matter jurisdic-

tion over a discrimination claim based upon a breach

of a duty created under the Americans with Disabili-

ties Act. Jairath v. Dyer, 154 F.3d 1280 (11th Cir.

1998) (again cited by both sides). There the appeals

court found that the district court lacked subject-

matter jurisdiction over the case because the claims

did not “arise under” federal law. The plaintiff had no

standing to pursue the only federal private cause of

action available under the ADA (i.e., for injunctive

relief). Jd., at 1284.

In the instant case, as in Ardary, Merrell Dow

and Jairath, plaintiffs do not have standing to pursue

a private cause of action under the federal statute in

question. The Medicare Act provides for the Office of

Inspector General to impose penalties and assess-

ments, but does not create a private cause of action.

See 42 C.F.R. § 1003.100 et seg. Such penalties and

assessments may be judicially reviewed under certain

circumstances. See 42 C.F.R. § 1003.127. However, in

App. 7

the instant case, plaintiffs do not seek review of

penalties or assessments and there is no allegation

that any penalties or assessments were even imposed.

Therefore, the court finds that plaintiffs’ causes of

action do not arise under the Medicare Act.

Plaintiffs also raise the doctrine of res ipso loqui-

tur, however the court finds the doctrine inapplicable

to the jurisdictional determination in this case.

Evidence that defendants were negligent does not

provide federal jurisdiction.

Plaintiffs also mention the Rooker-Feldman

doctrine which precludes federal review by district

courts when a state court judgment is challenged by a

party to the state court action. Johnson v. De Grandy,

512 U.S. 997, 1005, 114 S.Ct. 2647, 129 L.Ed.2d 775

(1994). That doctrine is also inapplicable as there is

no state court judgment to be reviewed in this case.

Plaintiffs further argue that their constitutional

rights were violated, but it is not clear to what consti-

tutional rights they refer. Plaintiffs assert that their

claims are premised on the victim’s Fourteenth

Amendment right to due process. However, it is

unclear what due process rights could have been

violated. The Due Process Clause of the 14th

Amendment protects individuals against governmen-

tal action that either “‘shocks the conscience,’ Rochin

v. California, 342 U.S. 165, 172, 72 S.Ct, 205, 96

L.Ed. 183 (1952), or interferes with rights ‘implicit in

the concept of ordered liberty,’ Palko v. Connecticut,

302 U.S. 319, 325-326, 58 S.Ct. 149, 82 L.Ed. 288

App. 8

(1937).” United States v. Salerno, 481 U.S. 739, 746,

107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The defen-

dants in this case consist of a private, non-profit

hospital and private individuals. The court is not

aware of any constitutional right that would be

impinged by defendants’ alleged action or inaction

which is the subject of the instant complaint. The

court finds mere reference by the plaintiffs to due

process violations and to constitutional violations is

insufficient to assert a federal claim. See Adams v.

Robertson, 520 U.S. 83, 89, n. 3, 117 S.Ct. 1028, 137

L.Ed.2d 203 (1997) (per curiam) (concluding that

“passing invocations of ‘due process’” that “fail to cite

the Federal Constitution or any cases relying on the

Fourteenth Amendment” do not “meet our minimal

requirement that it must be clear that a federal claim

was presented”); Webb v. Webb, 451 U.S. 493, 496, 101

S.Ct. 1889, 68 L.Ed.2d 392 (1981) (finding a reference

to “full faith and credit” insufficient to raise a federal

claim without a reference to the U.S. Constitution or

to any cases relying on it); New York Central R. Co. v.

New York, 186 U.S. 269, 273, 22 S.Ct. 916, 46 L.Ed.

1158 (1902) (“{I]t is well settled in this court that it

must be made to appear that some provision of the

Federal, as distinguished from the state, Constitution

was relied upon, and that such provision must be set

forth”); Oxley Stave Co. v. Butler County, 166 U.S.

648, 655, 17 S.Ct. 709, 41 L.Ed. 1149 (1897) (a party’s

intent to invoke the Federal Constitution must be

unmistakably” declared, and the statutory require-

ment is not met if “the purpose of the party to assert

a Federal right is left to mere inference”).

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App. 9

Even if federal question jurisdiction existed in

this case, defendants argue that this case has not

been brought by the proper parties. Alabama’s wrong-

ful death statute, provides that “[a] personal repre-

sentative may commence an action and recover such

. damages ... for the wrongful act, omission, or negli-

| gence of any person, persons, or corporation, his or

their servants or agents, whereby the death of his

testator or intestate was caused .. .” ALA. CODE § 6-5-

410. Except where the decedent is a minor child, only

the personal representative of a decedent may sue for

wrongful death. Hatas v. Partin 175 So.2d 759, 761

(Ala. 1965). Defendants assert that under Alabama

law, a person must be a licensed attorney to represent

a separate legal entity, such as a corporation or

estate. See ALA. CODE § 34-3-6; Ex parte Ghafary, 738

So.2d 778 (Ala. 1998). Plaintiffs’ only response is that

they diligently sought legal representation for the

action but were unable to find an attorney to repre-

sent the decedent. Because plaintiffs are not the

personal representative of decedent’s estate, the case

should be dismissed. See Waters v. Hipp, 600 So.2d

981, 982 (Ala. 1992) (“One who sues under this sec-

tion without having been appointed executor or

administrator does not qualify under this section as a

personal representative, and the suit is a nullity.”

citations omitted).

Plaintiff requests additional time to amend his

complaint and to join additional parties. (Doc. 40).

However, there has been no showing that an amend-

ment would cure the jurisdictional defects in this

App. 10

case. The court finds it would be futile to allow plain-

tiffs to amend their complaint and/or join additional

parties.

CONCLUSION

For the reasons stated above, defendants’ mo-

tions to dismiss (Docs. 7, 11, 14, 20, 22) are

GRANTED and this case is hereby DISMISSED.

DONE and ORDERED this 2nd day of Feb-

ruary, 2005.

/s/ Callie V. S. Granade

CHIEF UNITED STATES

DISTRICT JUDGE

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App. 11

Appendix II

IN THE CIRCUIT COURT OF MOBILE

COUNTY, ALABAMA

JANICE ABNER,

Plaintiff,

v.

MOBILE INFIRMARY

MEDICAL CENTER, et al.,

Defendants.

CIVIL ACTION

NO. CV-06-2673

Nee Nee eee ee ee”

FINAL O R OF DISMISSAL

The Court convened a hearing-on September 29,

2006, on the following Motions:

1. Rule 12(b)6) Motion to Dismiss for Failure to

State a Claim filed by Defendants Gregory McGee

and Jeffery Ickler;

2. Motion of Defendants Donald Kirby, M.D.,

Terry Wilsdorf, M.D., Maher Sahawneh, M.D. and

Brian Arcement, M.D. to Dismiss; and

3. Defendant Mobile Infirmary Association d/b/a

Mobile Infirmary Medical Center’s Motion to Dismiss.

The Court had notified Plaintiff of the date and time

of this hearing, and plaintiff had spoken to the Court

by telephone on two occasions regarding the hearing.

In her most recent communication to the Court, the

Plaintiff stated that she would not attend the hearing

for these Motions to Dismiss. Defense counsel advised

App. 12

the Court during the hearing that Plaintiff had also

spoken to two defense counsel, that one of the defense

counsel had sent a notice of the hearing schedule to

Plaintiff and that Plaintiff had also told defense

counsel that she would not attend the hearing. Plain-

tiff had filed a response to the Motions to Dismiss

which the Court received on September 28, 2006 and

read and considered before ruling on the pending

Motions to Dismiss. Having considered oral argument

of counsel and the response of Plaintiff, it is hereby

ORDERED, ADJUDGED and DECREED that the

Motions to Dismiss referenced above are GRANTED.

The Court has determined that there is no just reason

to delay an entry of final judgment and the Court

does hereby direct entry of final judgment of dis-

missal of all claims against Gregory McGee, Jeffery

Ickler, Donald Kirby, M.D., Terry Wilsdorf, M.D.,

Maher Sahawneh, M.D., Brian Arcement, M.D., and

Mobile Infirmary Association d/b/a Mobile Infirmary

Tae es at ee ek

Medical Center.

DONE this 29th day of September, 2006.

/s/

Judge Herman Thomas

Circuit Judge

COPY TO: A. Danner Frazer, Esq.

Ms. Janice Abner (Certified Mail)

Patrick Shegon, Esq.

Cifford Brady, Esq.

W. Boyd Reeves, Esq.

App. 13

Appendix III

IN THE CIRCUIT COURT OF

MOBILE COUNTY, ALABAMA

JANICE ABNER,

Plaintiff,

V.

MOBILE INFIRMARY

MEDICAL CENTER;

BRIAN ARCEMENT, M.D.;

JEFFERY ICKLER, M.D.;

DONALD KIRBY, M.D.;

GREGORY McGEE, M.D.;

MICHAEL O’DOWD, M.D.;

PHILLIP TRAVIS, M.D.;

MAHER SAHAWNAH, M.D.;

TERRY WILSDORF, M.D.,

et al.,

e

a

E NO.:

V-06-2673

Or Or WP OP COP COP CO OP UO OP > GO

Or On Lr MP

Defendants.

ORDER OF DISMISSAL

This mater comes before the Court on the motion

to dismiss filed by defendants, Michael O’Dowd, M.D.

and Phillip Travis, M.D. These defendants raised

grounds for dismissal like those of the co-defendants

who were all dismissed by order of this Court dated

September 29, 2006. A hearing on the motion to

dismiss filed by defendants O’Dowd and Travis was

held on October 20, 2006. The Court notes that the

plaintiff was given sufficient notice of the date and

time of this hearing, but the plaintiff did not attend.

ee ee a eS ee Te ee ee ee ee eee ee

App. 14

The Court has received the plaintiff’s reply in opposi-

tion to these defendants’ motion to dismiss and has

read and considered same before ruling on the pend-

ing motion to dismiss. Having considered oral argu-

ment of counsel and the response of plaintiff, it is

hereby ORDERED, ADJUDGED and DECREED

that the motion to dismiss on behalf of defendants

O’Dowd and Travis is hereby GRANTED. The Court

has determined that there is no just reason to delay

an entry of final judgment and the Court does hereby

direct entry of final judgment of dismissal with

prejudice of all claims against defendants, Michael

O’Dowd, M.D. and Phillip Travis, M.D.

DONE this 20th day of October, 2006.

/s/

: HERMAN THOMAS

Circuit Judge

|

;

;

.

;

7

5

cc: Ms. Janice Abner

Patrick M. Shegon, Esq.

A. Danner Frazer, Esq.

W. Boyd Reeves, Esq.

Clifford Brady, Esq.

SE Pe OE Oe Oe RS, Oe ee EP AR SS ty ee ee ee ee ee PRD ey See

App. 15

Appendix IV

STATE OF ALABAMA

COURT OF CIVIL APPEALS

[SEAL]

John H. Wilkerson, Jr. 300 Dexter Avenue

Clerk Montgomery, AL 36104-3741

Rebecca C. Oates Phone (334) 242-4093

Assistant Clerk Fax (334) 242-4017

January 9, 2007

2060218

Janice Abner v. Mobile Infirmary Medical Center et

al. (Appeal from Mobile Circuit Court: CV 06-2673)

You are hereby notified that the following action

was taken in the above cause, by the Court of Civil

Appeals

Motions to dismiss filed by appellees Gregory

McGee, Jeffery Ickler, Donald Kirby, M.D., Terry

Wilsdorf, M.D., Maher Sawawneh, M.D., Brian Arce-

ment, M.D., and Mobile Infirmary Association d/b/a/

Mobile Infirmary Medical Center are granted. They

are dismissed as appellees in this appeal.

/s/ John H. Wilkerson, Jr.

John H. Wilkerson, Jr.

Clerk, Court of Civil Appeals

ee aS ee ee eee

os te ee

ee PE IN aD PE Re RD a ES Paes, ATTA PAA ane VRS. Bee SAE OV Ae aE GP I Re oy eRe: Ee. | | eR” ea ee

App. 16

Appendix V

STATE OF ALABAMA

COURT OF CIVIL APPEALS

[SEAL]

John H. Wilkerson, Jr. 300 Dexter Avenue

Clerk Montgomery, AL 36104-3741

Rebecca C. Oates Phone (334) 242-4093

Assistant Clerk Fax (334) 242-4017

January 23, 2007

2060218

Janice Abner v. Mobile Infirmary Medical Center et

al. (Appeal from Mobile Circuit Court: CV 06-2673)

IT IS ORDERED, by the Court of Civil Appeals

that the appeal in the above styled cause be, and the

same is hereby Dismissed On Motion Of Appellees,

Michael O’Dowd, M.D., and Phillip Travis, M.D. — No

Opinion.

IT IS FURTHER ORDERED that the appellant

and sureties for the costs of appeal, pay the costs of

appeal in the court below.

I, John H. Wilkerson, Jr., Clerk of

the Court of Civil Appeals of Alabama,

do hereby certify that the foregoing is a

full, true, and correct copy of the in-

strument(s) herewith set out as same

appear(s) of record in said Court.

17

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:

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ary, 2007

/s/ John H. ‘Wilkerson, Jr.

John H. Wilkerson, Jr.

App. 18

Ex parte Janice Abner, PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF CIVIL APPEALS

(In re: Janice Abner v. Mobile Infirmary Medical

Center et al.) (Mobile Circuit Court: CV 06-2673;

Civil Appeals : 2060218).

Appendix VI

IN THE SUPREME COURT OF ALABAMA

[SEAL] j

August 8, 2008 ;

1060813

:

7 RTIFICATE OF JUDGMENT

| Writ Denied

The above cause having been duly submitted, IT

IS CONSIDERED AND ORDERED that the petition

for writ of certiorari is denied.

PARKER, J. — Cobb, C.J., and See, Woodall, and

Smith, JJ., concur.

I Robert G. Esdale, Sr., as Clerk of the

Supreme Court of Alabama, do hereby

certify that the foregoing is a full, true

and correct copy of the instrument(s)

herewith set out as same appear(s) of re-

cord in said Court.

*

*

App. 19

Witness my hand this 8th day of

2008.

/s/ Robert G. Esdale, Sr.

Clerk, Supreme Court of

Alabama

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