The opinion of the court was delivered by: Roger W. Titus United States District Judge
Pending before the Court is Defendants' Motion to Dismiss or, in the alternative, Motion to Strike. Upon review of the papers filed, the Court grants Defendants' Motion to Dismiss because Plaintiff failed to meet the condition precedent to filing a malpractice lawsuit as required by Maryland law.
On April 14, 1999, Rajesh K. Rajpal M.D. ("Dr. Rajpal") performed Lasik surgery on Plaintiff John B. Kimble ("Plaintiff"), a resident of Maryland, at the See Clearly Vision center in McLean, VA. See Compl. ¶ 6, May 27, 2011, ECF No. 1. Plaintiff alleges that at a pre-surgery consultation when he signed the release form, he was only informed that "dry eyes" were a potential side effect, and was not alerted to a condition known as ectasia. Id.
Plaintiff asserts that approximately two to three years after the surgery he began to experience difficulty with vision in his left eye. Id. Between 2004 and 2008, Plaintiff visited Dr. Rajpal on "many" occasions at the See Clearly Vision center in Rockville, MD to complain of this difficulty. Id. At these appointments, corneal topographies were taken of Plaintiff's eyes.
Compl. ¶ 7. Plaintiff emphasizes that the topography reports indicated "Suspect Keratoconus," but alleges that Dr. Rajpal did not alert him to this condition. Id.
On May 29, 2008, Dr. Rajpal informed Plaintiff that he had corneal ectasia in the left eye. Id. Plaintiff alleges that ectasia has the same effect of keratoconus-astigmatism of the eye that is very difficult to treat and irreversible once developed. Compl. ¶ 8. Plaintiff claims he visited a specialist in New Jersey who informed him that had he been notified of this condition prior to 2008, the ectasia could have been slowed or stopped. Id. Plaintiff asserts that he is disabled because of his troubled vision and this disability has caused him and his family mental and emotional distress and economic loss. Compl. ¶ 14.
On May 27, 2011, Plaintiff initiated a lawsuit against Dr. Rajpal and See Clearly Vision of Rockville, LLC, MD. Compl. ¶ 2. Plaintiff properly served Dr. Rajpal in McLean, VA, and the resident agent of See Clearly Vision of Rockville, LLC in Monrovia, MD. See Summons 1, 3, May 31, 2011, ECF No. 3-2. Plaintiff alleges: 1) negligence and malpractice; 2) breach of informed consent; and 3) common law fraud and misrepresentation of the facts. Compl. ¶¶ 16-20, 23-24, 29. Plaintiff seeks actual, compensatory, and punitive damages no less than $3 million dollars, lifetime care for his impaired vision, and a requirement that Defendants inform all their prospective patients of the potential side effect of ectasia. Compl. 9-10.
On September 14, 2011, Defendants filed a Motion to Dismiss arguing Plaintiff failed to establish complete diversity of parties and failed to meet the condition precedent of the Maryland Health Care Malpractice Claims Act ("HCMCA"). See Defs.' Mot. to Dismiss, Sept. 14, 2011, Ex. 1 at 2, 4, ECF No. 3-1. On September 30, 2011, Plaintiff responded and asked the Court to allow for an "interlineation or substitution" of parties to cure lack of complete diversity, and denied HCMCA applies in federal court. See Opp'n to Mot. to Dismiss 2, Sept. 30, 2011, ECF No. 6. The matter is fully briefed and ready for adjudication.
A. The Court does not have enough information to dismiss this action for lack of ...