Steven Dominic v. Concord Hospital, Inc. et al.

2021 DNH 053

• Court: District Court, D. New Hampshire
• Decided: March 17, 2021
• Docket: 20-cv-448-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven Dominic Case No. 20-cv-448-PB v. Opinion No. 2021 DNH 053

Concord Hospital, Inc. et al.

MEMORANDUM AND ORDER

Steven Dominic claims that his deceased mother Elaine was

the victim of a conspiracy to violate her civil rights and

deprive her of needed medical care. Acting on behalf of the

estate, Steven has sued Elaine’s former attorney, the attorney’s

current and former law firms, and the hospital that treated her.

Construed generously, the complaint asserts federal claims for

conspiracy, in violation of 42 U.S.C § 1985(3), a Medicare claim

under Title XVIII of the Social Security Act, in violation of 42

U.S.C. § 1395cc(a)(1)(F), and state law claims for conspiracy,

medical malpractice, wrongful death, fraudulent concealment,

false statements, and unjust enrichment. The named defendants

have moved to dismiss the complaint in its entirety. For the

following reasons, I dismiss Dominic’s federal claims with

prejudice and decline to exercise supplemental jurisdiction over

his state law claims.

1 I. BACKGROUND

Elaine Dominic died on November 8, 2016. Compl. ¶ 74. For

several years prior to her death, Steven’s older brother

Reginald lived with her at her home in Boscawen and cared for

her physical and mental health needs. Compl. ¶¶ 13, 14.

In 2010, Elaine failed a mental status exam during an

appointment at Concord Hospital. Compl. ¶ 26. APRN Una Folan,

a Concord Hospital employee, responded by recommending that

Elaine seek an evaluation and treatment by a neurologist.

Compl. ¶ 27. Because Elaine did not have a durable power of

attorney for health care (“POA”) on file with the hospital and

her advance directives were “Full Code,” meaning that all

interventions needed to restore her breathing or heart function

were permitted, Folan also suggested that Elaine consider a POA

to cover her future medical decisions and her wishes for her

final days. Compl. ¶¶ 21, 27.

Approximately a year later, Reginald hired Attorney Stephen

Goldman of Goldman & LeBrun Attorneys at Law to represent

Elaine. Compl. ¶ 44. Reginald and Goldman then arranged for

Elaine to undergo a general health exam at Concord Hospital.

Compl. ¶ 50. Following the exam, Elaine was diagnosed with

Alzheimer’s disease and severe dementia. Compl. ¶ 55. This

prompted Folan to refer Elaine to a neurologist or a geriatric

2 psychiatrist and caused her to again suggest that Elaine

consider a POA. Compl. ¶ 55.

Goldman notified Elaine via letter on July 22, 2011 that he

had concluded after speaking with Folan that he did not believe

that Elaine was able to sign any deeds, wills, or powers of

attorney. Compl. ¶ 71. He also recommended that Elaine seek

treatment with a neurologist or psychiatrist to help with her

dementia. Compl. ¶ 71.

On May 25, 2012, Reginald again contacted Goldman and told

him that a judge in Franklin, New Hampshire had informed him

that Elaine needed help and she should sign a power of attorney,

guardianship, or conservatorship. Compl. ¶ 75. The following

week, Reginald and Elaine met with Goldman at his office.

Compl. ¶ 76. Steven alleges that Reginald and Goldman pushed

and threatened Elaine to sign a POA during the meeting. Compl.

¶ 77. On June 8, 2012, Elaine hesitated but ultimately signed a

POA with an advance directive of “zero code.” Compl. ¶¶ 76, 79.

On April 3, 2013, Elaine visited Concord Hospital and was

treated by Dr. Tracy A. Ohara, who discussed Elaine’s code

status with Reginald. Compl. ¶ 107. Dr. Ohara noted that

Elaine’s status at the hospital was “full code,” but that

Reginald should consult his brother Gary and Dr. Niegisch due to

Elaine’s Alzheimer Disease. Compl. ¶ 107.

3 On August 16, 2016, Dr. Peter Gayed of Concord Hospital

treated Elaine and noted her history of advanced dementia,

multiple falls, urinary tract infections, and pneumonia and

admitted her to the hospital. Compl. ¶ 121. Elaine was

discharged three days later and was transferred to a nursing

home. Compl. ¶ 122. On September 26, 2016, Reginald informed

the nursing home that he could not afford for Elaine to remain

in its care. Compl. ¶ 123. He then took her home where she

died less than 45 days later. Compl. ¶ 124.

II. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a

claim, a plaintiff must make factual allegations sufficient to

“state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. A claim is facially plausible if it

pleads “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

In testing a complaint’s sufficiency, I employ a two-step

approach. See Ocasio–Hernández v. Fortuño-Burset, 640 F.3d 1,

12 (1st Cir. 2011). First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact

4 or threadbare recitals of the elements of a cause of action.”

Id. (internal quotation marks and alterations omitted). A claim

consisting of little more than “allegations that merely parrot

the elements of the cause of action” may be dismissed. Id.

Second, I credit as true all non-conclusory factual allegations

and the reasonable inferences drawn from those allegations, and

then determine if the claim is plausible. Id. The plausibility

requirement “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of illegal

conduct. Twombly, 550 U.S. at 556. The “make-or-break

standard” is that those allegations and inferences, “taken as

true, must state a plausible, not a merely conceivable, case for

relief.” Sepúlveda–Villarini v. Dep’t of Educ. of P.R., 628

F.3d 25, 29 (1st Cir. 2010).

III. ANALYSIS

Defendants contend that Steven’s complaint must be

dismissed because his two federal claims are fatally flawed and

the court should decline to exercise supplemental jurisdiction

over his state law claims. I assess this argument by examining

each federal claim in turn and then considering whether to

retain supplemental jurisdiction over Steven’s state law claims.

A. § 1985(3) Conspiracy Claim

“[A] section 1985(3) claim must contain four elements:

‘First, the plaintiff must allege a conspiracy; second, [s]he

5 must allege a conspiratorial purpose to deprive the plaintiff of

the equal protection of the laws; third, [s]he must identify an

overt act in furtherance of the conspiracy; and finally, [s]he

must show either injury to person or property, or a deprivation

of a constitutionally protected right.’” Parker v. Landry, 935

F.3d 9, 17-18 (1st Cir. 2019) (quoting Pérez-Sánchez v. Pub.

Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008)). “It has long

been established that a claim under § 1985(3) requires ‘some

racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action.’” Pérez-

Sánchez, 531 F.3d at 107 (quoting Griffin v. Breckenridge, 403

U.S. 88, 102 (1971)); see also Aulson v. Blanchard, 83 F.3d 1, 4

(1st Cir. 1996) (“We have previously interpreted the Griffin

gloss to denote that plaintiffs must allege facts showing that

(1) the defendants conspired against them because of their

membership in a class, and (2) the criteria defining the class

are invidious.”).

Here, Steven alleges that Elaine was a member of a class of

people who lack mental capacity, as defined by § 12102 of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102. The

First Circuit has held, however, that § 1985(3) does not provide

a remedy for ADA violations. D.B. ex rel. Elizabeth B. v.

Esposito, 675 F.3d 26, 44 (1st Cir. 2012); see also Bartell v.

Lohiser, 215 F.3d 550, 560 (6th Cir. 2000) (plaintiff’s “claim

6 that Defendants discriminated against her on account of her

mental disabilities . . . is not actionable.”); D’Amato v. Wis.

Gas Co., 760 F.2d 1474, 1485-87 (7th Cir. 1985) (“The

handicapped as a class differ radically from the racially-based

animus motivating the Ku Klux Klan and white supremacists

against which Congress directed Section 1985(3).”); Wilhelm v.

Cont’l Title Co., 720 F.2d 1173, 1177 (10th Cir. 1983) (“We must

conclude that a class of ‘handicapped persons’ was not in the

contemplation of Congress in 1871, and was not included as a

class in what is now § 1985(3).”); but cf. Lake v. Arnold, 112

F.3d 682, 685-88 (3d Cir. 1997) (given that “the reach of

section 1985(3) is not fixed at any given point in time, we

cannot conclude, in light of these statements by Congress and

research compiled by academicians, that the mentally retarded

are excluded from section 1985(3) protection.”). Because

Steven’s § 1985(3) claim is based upon a non-cognizable class

for the purposes of § 1985(3), it must be dismissed.

B. § 1395cc Claim

Section 1395cc specifies that service providers must enter

into a contract with the Secretary of the Department of Health

and Human Services to receive payments from Medicare. When a

hospital enters into this contract, it must agree to contract

with a professional standards review organization to review the

adequacy and quality of the care provided by the hospital. 42

7 U.S.C. § 1395cc(a)(1)(F)(i). Steven argues that Concord

Hospital is liable for damages under § 1395cc because its

professional standards review contract was substandard and

caused Elaine to receive inadequate medical care.

As the hospital correctly argues, this claim fails because

§ 1395cc does not give rise to either an express or an implied

private right of action for damages. See e.g., Massey v. Health

First, Inc., No. 605CV480ORL31DAB, 2005 WL 1243772, at *2 (M.D.

Fla. May 25, 2005) (“This Court finds the analysis in Wentz

persuasive and concludes that Section 1395cc does not create an

express or implied right of action.”); Ratmansky ex rel.

Ratmansky v. Plymouth House Nursing Home, Inc., No. Civ.A. 05-

0610, 2005 WL 770628, at *3 (E.D. Pa. Apr. 5, 2005) (“[T]he

Eastern District of Pennsylvania has not recognized an implied

right of action under the Social Security Act.”); Wentz v.

Kindred Hospitals East, L.L.C., 333 F. Supp. 2d 1298, 1301-03

(S.D. Fla. 2004) (extended analysis of private right of action

under § 1395cc, concluding that no private right of action

exists under the statute); Olsen v. Quality Continuum Hospice,

Inc., 380 F.Supp.2d 1225, 1230 (D.N.M. 2004) (“[T]he Social

Security Act of 1965 does not provide for any private right of

action for a patient to seek redress against a provider for

allegedly improper medical treatment.”); Asselin v. Shawnee

Mission Med. Ctr., Inc., 894 F.Supp. 1479, 1485 (D. Kan. 1995)

8 (“[T]he Court held that 42 U.S.C. § 1395cc(f)(1)(A) and §

1395cc(f)(2)(A) . . . do not afford plaintiff a private cause of

action.”). Accordingly, I dismiss Steven’s § 1395cc claim.

C. State Law Claims

“When the parties to a federal lawsuit have citizens of the

same state on both sides, and the court has dismissed all of the

federal claims, the court generally should dismiss, without

prejudice, pendent state law claims for lack of subject matter

jurisdiction.” Ginsberg v. DeHart, No. 1:10-cv-00452, 2011 WL

1100989, at *2 (D.N.H. Mar. 22, 2011) (citing Lares Grp. II v.

Tobin, 221 F.3d 41, 45 (1st Cir. 2000)).

I do not have diversity of citizenship jurisdiction over

Steven’s state law claims because all of the parties are New

Hampshire residents. Further, because this case is in its early

stages, I decline to exercise my discretion to retain

supplemental jurisdiction over the state law claims.

Accordingly, these claims are dismissed without prejudice to

Steven’s right to refile them in state court.

IV. CONCLUSION

For the foregoing reasons, defendants’ motions to dismiss

(Doc. Nos. 12, 14, 15) are granted. All federal claims are

dismissed with prejudice and all state claims are dismissed

without prejudice to Steven’s right to renew his claims in state

court. Steven’s motion to amend the complaint (Doc. No. 26) is

9 denied because it does not cure the deficiencies I have

identified in this Memorandum and Order. I direct the clerk of

court to enter judgment and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 17, 2021

cc: Steve Dominic, pro se Melissa M. Hanlon, Esq. Marrielle B. Van Rossum, Esq. Simon R. Brown, Esq. Edwin F. Landers, Jr., Esq. Linda M. Smith, Esq.