The opinion of the court was delivered by: LESLIE G. FOSCHIO
This matter was referred to the undersigned by the Hon. Richard J. Arcara on March 21, 1991 for report and recommendation on any dispositive motions. The matter is presently before the court on Defendants' motions to dismiss the complaint.
Plaintiff, Marie S. Reynolds, individually and as the Executrix of the Estate of Lester J. Reynolds, filed this action on February 28, 1991. Plaintiff alleged a cause of action under 42 U.S.C. § 1395dd, claiming that Defendants negligently failed to provide an appropriate medical screening examination, failed to determine whether or not an emergency medical condition existed for Mr. Reynolds, failed to supply stabilizing treatment to Mr. Reynolds, and failed to provide for transfer of Mr. Reynolds to another medical facility. Plaintiff also asserted claims for loss of consortium against all Defendants. In addition, Plaintiff raised individual negligence claims against each of the Defendants.
Defendants filed their answers, with Defendants Mercy Hospital and Millard Fillmore Hospital raising cross-claims against the other Defendants for indemnification and contribution.
On February 23, 1993, Defendant Mercy Hospital filed a motion to dismiss the complaint for failure to state a claim under 42 U.S.C. § 1395dd. Mercy Hospital claims that, in the absence of a viable claim under 42 U.S.C. § 1395dd, there is no subject matter jurisdiction as there is no federal question at issue, and there is no diversity between the parties. On May 28, 1993, Defendants Guarino, Aldridge, and Cardio-Thoracic Associates of Western New York, P.C. ("CTA") also moved to dismiss the complaint on the same grounds. Defendant Millard Fillmore Hospital filed a similar motion to dismiss the complaint on June 28, 1993. On September 7, 1993, Defendants Basalyga and Medical Associates of Hamburg, P.C. ("Medical Associates") filed a dismissal motion, also arguing the same ground to dismiss, i.e., lack of subject matter jurisdiction.
On May 28, 1993, Plaintiff filed an affidavit in opposition to Mercy Hospital's motion to dismiss the complaint.
Oral argument on the motions was held on September 15, 1993.
For the reasons as set forth below, Defendant Mercy Hospital's motion to dismiss/motion for summary judgment should be GRANTED; Defendant Millard Fillmore Hospital's motion to dismiss/motion for summary judgment should be GRANTED; Defendants Guarino, Aldridge, and CTA's motion to dismiss/motion for summary judgment should be GRANTED; and, Defendant Basalyga and Medical Associates' motion to dismiss/motion for summary judgment should be GRANTED.
Dr. Ronald Basylyga of the Medical Associates of Hamburg, P.C. arranged for the admission of Lester J. Reynolds into Mercy Hospital during the first week in March, 1989 for the purpose of performing a preliminary upper endoscopy and a pneumatic dilatation. See Exhibit F, Defendant Mercy Hospital's Motion to Dismiss, Deposition of Dr. Basylyga, at p. 57. On March 3, 1989, Lester J. Reynolds was admitted into a hospital room at Mercy Hospital for the scheduled procedure. See Exhibit E, Defendant Mercy Hospital's Motion to Dismiss, Nurses Notes, dated March 3, 1989.
At approximately 2:00 p.m., following the procedure, Reynolds complained of mild pressure below the rib cage. See Exhibit F, Mercy Hospital's Motion to Dismiss, Deposition of Dr. Basylyga, at p. 100. Tests showed that Reynolds had an esophageal perforation. See Exhibit F, Mercy Hospital's Motion to Dismiss, Deposition of Dr. Basylyga, at pp. 101-105, 107. Defendant Ross Guarino, M.D. of the CTA was called for a surgical consultation, see Exhibit F, Mercy Hospital's Motion to Dismiss, Deposition of Dr. Basylyga, at pp. 113-114, and a decision was made by Dr. Guarino to transfer Reynolds to Millard Fillmore Hospital for surgery. See Exhibit F, Mercy Hospital's Motion to Dismiss, Deposition of Dr. Basylyga, at pp. 121, 123. According to Dr. Guarino, the transfer to Millard Fillmore was made because of his belief that the post-operative care at Millard Fillmore would be more appropriate for Reynolds given the existence of a surgical house staff and the fact that a member of the CTA is almost always in the intensive care unit at Millard Fillmore. See Exhibit G, Mercy Hospital's Motion to Dismiss, Deposition of Dr. Guarino, at pp. 53, 57. Dr. Guarino did not consult with the administration of Mercy Hospital prior to the transfer. See Exhibit G, Mercy Hospital's Motion to Dismiss, Deposition of Dr. Guarino, at p. 97.
The transfer of Reynolds from Mercy Hospital to Millard Fillmore Hospital was completed at approximately 7:30 p.m. that same evening with surgery scheduled for later that evening. See Exhibit E, Mercy Hospital's Motion to Dismiss, Discharge Summary by Dr. Basylyga. Upon his arrival at Millard Fillmore, Reynolds was examined by Dr. Aldridge, and Dr. Aldridge later performed surgery to repair the esophageal perforation, a condition he characterized as "urgent," but not an "emergency." See Millard Fillmore's Motion to Dismiss, Exhibit F, Deposition of Dr. Aldridge, at pp. 65-66 and Exhibit J, Deposition of Dr. Aldridge, at p. 62-63, 73, 130.
Reynolds subsequently died on May 20, 1989. It is not disputed that Reynolds had health insurance coverage during his hospital stays at both Mercy and Millard Fillmore
1. Procedure: Motions to Dismiss/Motions for Summary Judgment
As a preliminary matter, the court notes that, although each Defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b), they have all filed supporting affidavits and documents with their motions. Such documents may not be considered on a motion to dismiss, but may only be considered on a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff objected to considering these motions to be summary judgment motions on the ground that, at the time of the filing of Plaintiff's affidavit in opposition, discovery had not yet been completed because of a dispute which arose during a depositions of Drs. Guarino and Aldridge. Subsequently, on December 3, 1993, this court received notice from Plaintiff's counsel that the deposition dispute had been resolved. As of the date of this Report and Recommendation, however, Plaintiff has not submitted any further papers in opposition to Defendants' motions.
As a general rule, in deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court may not consider extraneous documents or affidavits not attached to or incorporated by reference in the complaint. See Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, 47-48 (2d Cir. 1991). In other words, a court may not consider matters submitted outside the pleading at issue unless notice is given to all parties that the motion is being converted to a motion for summary judgment and the parties are afforded a reasonable opportunity to present additional pertinent material. Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990). In determining the adequacy of the notice of the conversion of a motion to dismiss into a motion for summary judgment, "the essential inquiry is whether the [opposing party] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (quoting In re G. & A. Books, 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, 475 U.S. 1015 (1986)). However, "even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted." National Association of Pharmaceutical Manufacturers, Inc. v. Ayerst Laboratories, Division of/and American Home Products Corp., 850 F.2d 904, 911 (2d Cir. 1988).
In this case, Defendants all filed their motions to dismiss on or prior to September 7, 1993. Attached to each motion were copies of transcripts from depositions and relevant documents. Plaintiff noted as much when, in the response to Mercy Hospital's motion, an objection was made to considering the motions as summary judgment motions on the ground that the depositions of Dr. Guarino and Dr. Aldridge had not been completed because of a dispute. As ...