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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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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
SE ah Ala icin dadinitinnncticedicedcrsacesinabissecbenstivenestbanesecenh iv
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
A. inicisotininitnsiondinshinndiassindanmpsaneneaumdidbedauna 11

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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
Oe Ce I oe cscs5505 oscccscccscccsccencscceccosesvecce App. 18

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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:

®

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.

SJ

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

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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

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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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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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App. 6

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

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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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:
;

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0395%3A2. Public record. Not legal advice.