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Grant v. Alperovich

United States District Court, Ninth Circuit

December 11, 2013



ROBERT S. LASNIK, District Judge.


This matter comes before the Court on "Defendants Pacific Medical Center, Inc., Lisa Oswald, Shoba Krishnamurthy, WM. Richard Ludwig, and U.S. Family Health Plan at Pacific Medical Center's Motion for Summary Judgment" (Dkt. # 54). Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact that would preclude the entry of judgment as a matter of law. L.A. Printex Indus., Inc. v. Aeropostale, Inc. , 676 F.3d 841, 846 (9th Cir. 2012). The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion, " Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), and identifying those portions of the materials in the record that show the absence of a genuine issue of material fact, Fed.R.Civ.P. 56(c)(1). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to identify specific factual disputes that must be resolved at trial. Hexcel Corp. v. Ineos Polymers, Inc. , 681 F.3d 1055, 1059 (9th Cir. 2012). The mere existence of a scintilla of evidence in support of the non-moving party's position will not preclude summary judgment, however, unless a reasonable jury viewing the evidence in the light most favorable to the non-moving party could return a verdict in its favor. United States v. Arango , 670 F.3d 988, 992 (9th Cir. 2012).

Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:[1]


A. Background Facts

As a retired servicemember, Plaintiff was enrolled in U.S. Family Health Plan, ("USFHP"), a TRICARE health insurance provider for military servicemembers and their families. USFHP is administered by Pacific Medical Centers ("PacMed") in Washington State. Dkt. # 54-2 ¶¶ 2-3. Defendant Wm. Richard Ludwig is the Medical Director of USFHP at PacMed. Dkt. # 1-2 at 7-8; Dkt. # 58 ¶ 2.

In June 2009, Plaintiff underwent gastric bypass surgery without complication at St. Francis Hospital in Federal Way, Washington. Dkt. # 1-1 at 10. Even though neither St. Francis Hospital nor the doctor who performed the surgery were USFHP covered providers, USFHP paid for the surgery and related care. Dkt. # 1-2 at 9; Dkt. # 54-2 ¶ 5. Plaintiff's primary care physician, Defendant Lisa Oswald, a PacMed physician, remained informed throughout the process and helped oversee Plaintiff's post-operative care. Id. at 6.

During the months following surgery, Plaintiff saw several doctors and was hospitalized for concerns related to dehydration, id., nausea, and vomiting, id. at 10. She was treated for an oral yeast infection in early July 2009, but remained concerned that the infection was causing her nausea months later. Dkt. # 50-1 at 4, 7. An endoscopy in July 2009 revealed a hernia, but no evidence of an oral yeast infection. Dkt. # 1-1 at 7. Similarly, a CT scan revealed a hematoma and possible afferent loop syndrome, but there was no indication of leakage, obstruction, or infection. Id. at 6, 7.

Despite Plaintiff's many hospitalizations and visits to the emergency room, her nausea and vomiting continued. Dr. Oswald referred Plaintiff to Defendant Shoba Krishnamurthy, a PacMed gastroenterologist, for a consultation. Dkt. # 1-2 at 1. After reviewing her records and meeting with Plaintiff, Dr. Krishnamurthy recommended hospitalizing Plaintiff and performing another endoscopy and CT scan. Id. at 3. Plaintiff expressed an interest in being admitted to the Veterans Administration Hospital ("VA") and Dr. Krishnamurthy wrote a note reflecting her recommendations. Id . Dr. Krishnamurthy assured Plaintiff that she could continue to seek care at PacMed following discharge from the VA. Id . Plaintiff later decided to seek additional care at Virginia Mason Medical Center instead of the VA. See id. at 5, 12-13, 16-21.

Plaintiff was still not satisfied with the treatment she had received so she sought additional treatment from Dr. Elliott Goodman, a surgeon in New York in the winter of 2010. Dkt. # 58 ¶ 8. After USFHP informed Plaintiff that it would not cover treatment by Dr. Goodman, Plaintiff withdrew her enrollment in the USFHP. Id.

B. Procedural History

On June 15, 2012, Plaintiff sued PacMed, Dr. Oswald, Dr. Krishnamurthy, Dr. Ludwig, and U.S. Family Health Plan at Pacific Medical Center (collectively "PacMed Defendants") and the other named defendants for negligence and medical malpractice in King County Superior Court. Dkt. # 53-1 at 4-14. The state court granted PacMed Defendants' motion for summary judgment on November 9, 2012. Dkt. # 54-1 at 4-6.

Plaintiff filed this lawsuit against defendants the same day she filed her state court action. Dkt. # 1. On February 21, 2013, all but two defendants filed dispositive motions in this case. Dkt. # 50; Dkt. # 53, Dkt. # 54, Dkt. # 55, Dkt. # 59, Dkt. # 61. Recognizing that "[r]esponding to six dispositive motions on the same day would be a daunting task for a licensed attorney, much less a plaintiff appearing pro se, " the Court granted Plaintiff's request for additional time in which to respond to the motions and renoted defendants' dispositive motions. Dkt. # 82.

One week after defendants filed their dispositive motions, Plaintiff sought leave to file a third amended complaint. Dkt. # 62. In her third amended complaint, Plaintiff asserts that defendants violated (1) Title II and Title III of the Americans with Disabilities Act ("ADA"); (2) Title II, Title VI, and Title XI of the Civil Rights Act; (3) the Age Discrimination Act of 1975; (4) the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and (5) the Mental Health Bill of Rights, 42 U.S.C. § 9501. Id. at 3-4. Under the liberal pleading standard afforded pro se plaintiffs, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), Plaintiff's third amended complaint also appears to assert claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, as well as claims of libel, slander, defamation, and health care fraud. Dkt. # 62. The ...

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