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Lofland v. Cloney

Superior Court of Delaware, Kent

January 23, 2014

TERRY Y. LOFLAND and, JOHN J. LOFLAND, Plaintiffs,
v.
DAVID J. CLONEY, M.D., individually, and ATLANTIC SURGICAL ASSOCIATES, LLC, a Delaware limited liability company, Defendants.

Submitted: October 30, 2013

Upon Defendants' Partial Motion to Dismiss the Amended Complaint. Granted.

William D. Fletcher, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiffs.

Colleen D. Shields, Esquire and Christopher C. Popper, Esquire of Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware; attorneys for Defendants.

ORDER

William L. Witham, Jr. Resident Judge

INTRODUCTION

Before the Court is Defendants' Motion to Dismiss the Amended Complaint. Specifically, the Court must decide whether to dismiss Count III of Plaintiffs' Amended Complaint, which asserts a private cause of action for double damages pursuant to 42 U.S.C. § 1359y(b)(3)(A).

BACKGROUND

On September 26, 2012 Plaintiffs Terryl Y. Lofland (hereinafter "Terryl") and John J. Lofland (collectively "Plaintiffs") filed a complaint against Defendants David J. Cloney and Atlantic Surgical Associates, LLC (collectively "Defendants") asserting claims of medical negligence and loss of consortium. Plaintiffs allege that Terryl suffered injuries as a result of a series of surgeries Defendants negligently performed on her. On September 5, 2013, the Court granted Plaintiffs' motion to amend the complaint.

Plaintiffs' Amended Complaint includes an additional count (Count III) asserting a private cause of action pursuant to the Medicare As Secondary Payer statute (hereinafter "MSP"). Specifically, Plaintiffs allege that Terryl is a Medicare beneficiary, and Medicare has paid approximately $42, 185.23 towards Terryl's medical expenses arising from the surgeries. Plaintiffs assert that Defendants' medical negligence caused Medicare to pay out this amount, and Plaintiffs now seek double recovery of this amount ($84, 370.46) "as a private attorney general" pursuant to the private cause of action provision of the MSP.

Defendants filed the instant Partial Motion to Dismiss on October 14, 2013. Defendants argue that Count III of the Amended Complaint should be dismissed because Plaintiffs are not permitted to assert a private cause of action under the MSP. Plaintiffs respond that because a finding in favor of Plaintiffs on the state tort claims would give rise to a private cause of action under the MSP, this Court should either stay or sever the MSP claim until the tort claims are resolved.

STANDARD OF REVIEW

When deciding a motion to dismiss under Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted as true.[1] The test for sufficiency is a broad one: the complaint will survive the motion to dismiss so long as "a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[2] Stated ...


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