JULIAN PEACOCK et al.
PENINSULA REGIONAL MEDICAL CENTER et al.
CATHERINE C. BLAKE, United States District Judge.
Plaintiffs Julian Peacock and Denise Peacock have filed this action against Dr. John R. McLean and John R. McLean and Associates, P.A. (“Dr. McLean”) and Peninsula Regional Medical Center and Peninsula Regional Health System, Inc. (“PRMC”) for damages related to allegedly fraudulent and unnecessary heart procedures Dr. McLean performed on Mr. Peacock at PRMC. Dr. McLean is currently serving a term in federal prison for criminal health care fraud related to heart procedures he performed at PRMC between 2003 and 2006, during the time he treated Mr. Peacock. See United States v. McLean, --- F.3d ---, 2013 WL 1735232 (4th Cir. 2013). Dr. McLean has filed a motion for judgment on the pleadings and PRMC has filed a motion to dismiss, both primarily arguing that the Peacocks’ claims are barred by Maryland’s medical malpractice statute of limitations. For the reasons set forth below, the motions will be denied.
In July 2004, Mr. Peacock went to the emergency room complaining of chest pain, nausea, and vomiting. (Compl., ECF No. 1, ¶ 13). After receiving treatment for his pain, which did not subside, Mr. Peacock was transferred to PRMC to undergo a cardiac catheterization. (Id.) He was taken directly to the cardiac catheterization lab at PRMC where he was seen by Dr. McLean. (Compl. ¶ 14). A catheterization was performed, and Dr. McLean also placed a stent in Mr. Peacock’s heart. (Id.). Two months later, in September 2004, Mr. Peacock again experienced chest pain and was admitted to PRMC. (Compl. ¶ 15). Dr. McLean performed another catheterization and placed three stents in Mr. Peacock’s heart. (Compl. ¶ 16). He was discharged and returned to PRMC in October for another catheterization. (Compl. ¶¶ 17-18). In July 2006, Mr. Peacock was again admitted to PRMC and Dr. McLean performed angioplasty and placed another stent in Mr. Peacock’s heart. (Compl. ¶ 19).
In March 2007, Mr. Peacock became aware of a fraud investigation of Dr. McLean related to unnecessary cardiac testing and treatment he allegedly performed on his patients. (Compl. ¶ 20). Mr. Peacock discovered a telephone number PRMC patients were instructed to call to determine whether they received any unnecessary treatment. (Id.). Mr. Peacock called the number and, after providing information about himself, was told “the matter would be investigated and that he could expect a return call.” (Id.). The following day, a female PRMC representative “called Mr. Peacock to inform him that the stenting procedures performed by Dr. McLean were indeed necessary.” (Id.). Mr. Peacock relied on this information and did not pursue the matter. (Id.).
On September 19, 2011, however, Mr. Peacock received a letter from the Department of Justice “informing him that a review of his medical records indicated that cardiac stenting and certain other procedures performed on him at PRMC by Dr. McLean were unnecessary.” (Compl. ¶ 21; Ex. B). Mr. Peacock, with his wife, subsequently filed this action in August 2012 against Dr. McLean and PRMC, alleging negligence, lack of informed consent, negligent supervision and privileging, loss of consortium, and fraud by intentional misrepresentation.
I. Standard of Review
When ruling on a motion under Rule 12(b)(6) (or Rule 12(c)), the court must “accept the well-pled allegations of the complaint as true, ” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the elements of the claim . . . . However, the complaint must allege sufficient facts to establish those elements.” Walters, 684 F.3d at 439 (quotations and citation omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is ‘probable, ’ the complaint must advance the plaintiff’s claim ‘across the line from conceivable to plausible.’” Id. (quoting Twombly, 550 U.S. at 570).
I. Statute of Limitations
Both Dr. McLean and PRMC argue that the Peacocks’ claims are time barred under Maryland’s statute of limitations for medical malpractice actions, which states:
An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of:
(1) Five years of the time the injury was committed; or
(2) Three years of the date the injury was ...