AMENDED MEMORANDUM OPINION 1
Patricia Respess committed suicide in 2008. As a result of Ms. Respess’s death, her husband, James Respess, individually and as personal representative of the Estate of Patricia Respess, Plaintiffs, filed suit against Travelers Casualty & Surety Company of America and The Travelers Indemnity Company of America (collectively, “Insurers” or “Defendants”), alleging claims for intentional infliction of emotional distress (Count One); gross negligence (Count Two); and wrongful death (Count Three), based on the Insurers’ refusal to authorize 24-hour supervised care for Ms. Respess. 2 Mr. Respess contends that because Defendants refused to authorize the 24-hour supervised care that Ms. Respess needed, she ingested an overdose of her blood pressure medication on May 5, 2008, and died four days later, on May 9, 2008. See Compl. (ECF 2) ¶¶ 10, 35.
The suit is rooted in an incident that occurred in 1987, when Ms. Respess was physically and sexually assaulted while working for National Medical Cаre, Inc. (“NMC”).
Id.
¶ 7. As a result of the incident, Ms. Respess suffered numerous psychiatric conditions, for which she obtained workers’ compensation benefits.
Id.
¶ 8. Defendants are the insurance companies that insured NMC with respect to the workers’ compensation benefits provided to Ms. Respess. They have moved to dismiss the Complaint, pursuant to Fed.
The issues have been fully briefed, and no hearing is necessary to resolve this matter. See Local Rule 105.6. For the reasons set forth below, the Court shall grant the Defendants’ Motion to Dismiss the Complaint, without prejudice, and shall grant Plaintiffs 20 days leave to amend.
FACTUAL BACKGROUND
As noted, Ms. Respess was physically and sexually assaulted in 1987, while at work. Compl. ¶ 7. As a result of the incident, she suffered from various psychiatric conditions, including Post Traumatic Stress Disorder (“PTSD”), major depressive disorder with severe and recurrent psychotic symptoms, conversion disorder, dissociative identity disorder, and personality disorder. Id. ¶ 8. Ms. Respess “began receiving treatment for these in approximately 1999 to 2000.” 3 Id. ¶¶ 9, 10. From the outset of Ms. Respess’s treatment until her death in 2008, the Insurers “approved and paid” her medical expenses, “pursuant to a worker’s compensation claim.” Id. ¶ 10.
On or about January 2, 2008, Ms. Respess was admitted to the Mental Health Facility at Peninsula Regional Medical Center in Salisbury, Maryland for “depression, anxiety and flashbacks.” Id. ¶ 12. She was transferred to the “Trauma Disorders Program at Sheppard Pratt,” as an in-patient, on January 23, 2008, and remained there until her discharge on April 25, 2008. Id. ¶¶ 12, 13, 16. 4 Upon discharge, Ms. Respess returned to her home. Id. ¶¶ 14,19.
During the weeks preceding her discharge from Sheppard Pratt, Ms. Respess “experienced flashbacks,” and told her physicians and counselors of her fear of discharge and her suicidal thoughts. Id. ¶¶ 15, 16. On April 11, 2008, while still hospitalized, Ms. Respess expressed difficulty in “finding a ‘treatment team’ ” near her Eastern Shore residence. Id. ¶ 17. On April 21, 2008, she told her physiciаns and counselors that “she was discouraged because she did not feel that any outpatient medical providers would give her the care that she needed.” Id. ¶ 18. In addition, two weeks prior to his wife’s discharge, Mr. Respess asked Sheppard Pratt counselors to place his wife in a step-down facility, in lieu of a discharge without any supervision. 5 Id. ¶ 20.
Five days after Ms. Respess’s discharge, Rebecca Rementer, a home health care nurse, visited Ms. Respess to assess her progress.
Id.
¶ 21,
6
Ms. Rementer determined that Ms. Respess had fallen several times since her discharge; was anxious and depressed; and was experiencing paranoid hallucinations as well as recurrent suicidal thoughts.
Id.
¶¶ 22, 25. Ms. Rementer learned from Ms. Respess’s medical history that, in the past, Ms. Respess had attempted suicide by overdosing.
Id.
After Ms. Respess disclosed to Ms. Rementer that she had “accidentally” taken double doses of her medications two nights earlier, Ms. Rementer concluded that Ms.
In Ms. Rementer’s view, Ms. Respess’s “prognosis was poor.” Id. ¶ 26. Moreover, Ms. Rementer believed that Ms. Respess urgently needed 24-hour supervision and, if psychiatric assistance were not provided, Ms. Respess would further decline. Id. ¶ 26. Accordingly, Ms. Rementer called the Defendants, advising of Ms. Respess’s suicidal thoughts, and stating that Ms. Respess needed 24-hour supervised care. 7 Id. ¶ 27. Nevertheless, the Defendants “refused to authorize the needed treatment.” Id.
Thereafter, Ms. Rementer enlisted the assistance of Martin Book, M.D., a psychiatrist who had previously treated Ms. Respess. Id. ¶ 28. Dr. Book called the Defendants and requested “immediate” 24-hour supervised care for Ms. Respess. 8 Id. However, Defendants again refused to authorize 24-hour supervised care, “even though [they] were aware that Ms. Respess’ psychiatric condition had declined since her discharge from Sheppard Pratt 5 days earlier,” and knеw of her “long history” of psychiatric illness. Id. ¶ 29.
Ms. Respess’s condition continued to decline. Id. ¶ 30. On or about May 4, 2008, Mr. Respess wrote a letter to Sheppard Pratt expressing his concern regarding his wife’s declining health, and requesting that she be placed in a residential setting with 24-hour supervision. Id. ¶ 31. 9 Defendants stated that, although Ms. Respess’s psychiatrist had diagnosed her with PTSD, “they did not believe that [she] actually suffered from PTSD....” Id. ¶ 32. 10 On May 5, 2008, Ms. Respess wrote a suicide note stating that “she did not have any fight in her to challenge the Defendants anymore____” Id. ¶ 34. On that date, she took an overdose of her blood pressure medication, fell into a coma, and died four days later, on May 9, 2008. Id. ¶¶ 10, 34, 35.
STANDARD OF REVIEW
As noted, Defendants have moved to dismiss the Complaint, pursuant to Fed. R.Civ.P. 12(b)(6), alleging that it fails to state a claim. Such a motion tests the sufficiency of the Complaint.
See Edwards v. City of Goldsboro,
Under Fed.R.Civ.P. 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
See Swierkiewicz v. Sorema N.A.,
Dismissal is mandated if the complaint does not allege “enough facts to state a claim to relief that is plausible on its face.”
Twombly,
Nevertheless, “The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims.”
Scheuer v. Rhodes,
DISCUSSION
I. Count One: Intentional Infliction of Emotional Distress
Plaintiffs allege that, in denying 24-hour supervised care to Ms. Respess, the Defendants’ actions “were intentionаl and/or reckless and in deliberate disregard of a high degree of probability that emotional distress would result to Patricia Respess.” See Compl. ¶ 37. Further, they state that “the conduct of the Defendants’ employees, servants and/or agents, was extreme, outrageous and beyond the bounds of decency in society” and “malicious, willful and intentional.” Id. ¶¶ 38, 39. According to Plaintiffs, Ms. Respess would not have committed suicide, “but for the actions of the Defendants’ employees, servants and/or agents.” Id. ¶¶ 40, 41, 42.
Defendants counter: “The Complaint lacks any factual allegations of ‘extreme and outrageous’ conduct necessary to state a claim for intentional infliction of emotional distress.”
See
Defendants’ Memorandum in Support of their Motion to Dismiss the Complaint with Prejudice (“Memorandum,” ECF 9-1) 2. Moreover, Defendants contend that their “decision to deny authorization for payment” is insufficient to state a claim beсause it “was not for the purpose of causing the decedent’s suicide.” Noting that Defendants’ conduct was supported by the Sheppard Pratt physicians who discharged Ms. Respess, Memorandum 2, the Insurers elaborate: “If such symptoms and thoughts of suicide urgently
In addition, Defendants rely on the exclusive remedies set forth in the Maryland Workers’ Compensation Act (the “Act”), Md. Code (2008 Repl. Vol., 2009 Supp.), § 9-101 et seq. of the Labor and Employment Article (“L.E.”). Memorandum 17. In response, Plaintiffs explain that intentional torts provide an exception from the Act’s exclusivity provisions. Plaintiffs’ Opposition tо Defendants’ Motion to Dismiss (“Opposition,” ECF 10) 14.
“Intentional infliction of emotional distress is a cognizable tort in Maryland.”
Abrams v. City of Rockville,
To recover in Maryland for the tort of intentional infliction of emotional distress,
12
a plaintiff must show that a defendant’s conduct was (1) intentional or reckless, (2) extreme and outrageous, (3) causally connected to plaintiffs emotional distress, and (4) that the resulting distress was severe.
Crouch v. City of Hyattsville,
The “extreme and outrageous” standard is quite high.
See generally Bagwell,
Several provisions of the Act are also relevant here. The Act imposes liability upon an employer, without regard to fault, for “an accidental personal injury sustained by the covered employee,” L.E. § 9 — 501(a)(1) and (b), if the accidental injury “arises out of and in the course of employment____” L.E. § 9 — 101(b). Generally, under L.E. § 9-506(a), a covered employee “is not entitled to compensation or benefits under this title as a result of: (1)an intentional, self-inflicted accidental personal injury ...” Nevertheless, the Maryland Court of Appeals “hаs held that, depending on the circumstances, death benefits under the Act may be paid where the worker has in fact committed suicide.”
Young v. Hartford Accident and Indemnity Co.,
L.E. § 9-660 obligates the employer/insurer to provide medical benefits to a covered employee. It states, in part:
(a) In general. — In addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, ... the employer or its insurer promptly shall provide to the covered employee, as the Commission [i.e., the State Workers’ Compensation Commission] may require:
(1) medical, surgical, or other attendance or treatment;
(2) hospital and nursing services;
(3) medicine;
(b) Duration. — The employer or its insurer shall provide the medical services and treatment required under subsection (a) of this section for the period required by the nature of the accidental personal injury, compensable hernia, or occupational disease____[ 13 ]
L.E. § 9-509 is particularly noteworthy. It provides:
§ 9-509. Exclusivity of compensation
(a) Employers. — Except as otherwise provided in this title, the liability of an emplоyer under this title is exclusive.
(b) Covered employees and dependents. — Except as otherwise provided in this title, the compensation provided under this title to a covered employee or the dependents of a covered employee is in place of any right of action against any person.
(d) Exception — Deliberate act. — If a covered employee is injured or killed as the result of the deliberate intent of the employer to injure or kill the covered employee, the covered employee or, in the case of death, a surviving spouse, child, or dependent of the covered employee may:
(1) bring a claim for compensation under this title; or
(2) bring an action for damages against the employer.
Notably, “Insurance carriers who contract as authorized by [the Act] to assume an employer’s liability under the Act, ‘. stand in the position of the employer.’ ”
Donohue v. Maryland Cas. Co.,
Young, supra,
After a hearing, the Commission entered an order of May 10, 1979, requiring the employer and Hartford to “ ‘provide medical treatment unto the
claimant....’” Id.
(quoting the Commission’s order). In August 1979, Dr. Peck informed Hartford that Young had attempted to commit suicide, and that any “ ‘pressure by [Hartford] for an outside medical evaluation would only put more tension on her and lead to a collapse.’ ”
Id.
at 187-88,
Young subsequently sued Hartford for negligence and intentional infliction of emotional distress.
Id.
at 186,
The Maryland Court of Appeals said,
id.
at 189,
[T]he fact that the declaration before us admits that the plaintiffs injuries are self-inflicted in an attempted suicide does not, in and of itself, mean that Hartford’s exclusivity argument is foreclosed.[ ] A suicide attempt is not always an intervening cause which breaks the nexus between the accidental injury and the injury suffered in the suicide attempt. The issue turns on the facts in a given case.
[T]he allegations set forth an unbroken chain of proximate causation which continues from the emotional trauma suffered in the assault arising out of and in the course of Young’s employment on to and through the attempted suicide. Under Young’s pleading the injuries suffered in the suicide attempt are an aggravation of the work-related injury. Under the allegations, the entire emotional illness is compensable under the Act. The next question is whether Hartford, which is not the employer, enjoys an exclusivity defense to Young’s negligence claim.
In its discussion, the
Young
Court referred to 2A Arthur Larson, The Law of Workmen’s Compensation § 72.97 (1985), which provides: “ ‘[A] distinction should be drawn between the carrier’s function of
payment
for benefits and services, on the one hand, and, on the other, any function it assumes in the way of direct or physical performance of services related to the [Act]. For negligent performance of the latter it should be liable in tort as a “person other than the employer”....’”
Young,
The court explained,
id.
at 195-96,
[W]e shall assume that the referral by Hartford of Young to Dr. Henderson for an examination and report is properly to be classified as claims investigation activity by the insurer, even though a substantial argument could be made that such examinations and evaluations may contribute to diagnosis and treatment as well. Claims investigation is one of the services which the employer buys from the compensation insurance carrier. Young’s declaration treats Dr. Henderson as an independent contractor vis-a-vis Hartford. Hartford did not render the subject claim evaluation service through its employees for Young’s employer. Consequently, even under the test suggested by Professor Larson, benefits under the Act would be the exclusive remedy for Young against Hartford under count I [i.e., negligence]. As tо count I we hold that the trial court properly entered judgment for Hartford.
But, the
Young
Court reversed the trial court as to the claim for intentional infliction of emotional distress.
Id.
at 186,
In reviewing the elements of the tort of the intentional infliction of emotional distress, the court recognized “a limitation on the tort.”
Id.
at 197,
If the “sole purpose of Doctor Henderson’s examination” is proven and found to be as alleged, then the physician conspired with Hartford to harass Young into abandoning her claim or into committing suicide because the allegation excludes any proper medical or claims-evaluation motive for the examination. Under such a finding Hartford would not have been exercising its legal rights in a permissible way. Conversely, if Dr. Henderson is found to have conducted a bona fide examination, the privilege would apply, even if Hartford intentionally proceeded knowing the examination would cause Young such severe emotional distress as to satisfy the elements of the tort.
Gallagher,
The Maryland Court of Appeals determined that the trial court’s “holding was too broad” because the plaintiffs’ claim of intentional infliction of emotional distress was “not legally precluded by the exclusivity of compensation.”
Id.
Thus, the court rejected the insurer’s contention “that the insurer enjoys an exclusivity defense for all activity in the claims process, including intentional torts.”
Id.
at 208,
The court accepted that the insurer “made a deliberate decision not to pay” benefits, in violation of a Commission order.
Id.
at 210,
Abrams v. City of Rockville, supra,
[R]easoning minds could perhaps differ over whether the showing of this movie to a seven-year-old, or to Andrea in pаrticular, was a wise or unwise, prudent or negligent thing to do; but a reasoning mind could not properly conclude that the defendants desired to inflict emotional distress on Andrea, or that they knew that such distress was substantially certain to occur, or that they acted in deliberate disregard of a high probability that such distress would follow. Indeed, it demonstrates quite the opposite-that there was some concern over the possible effect of some parts of the movie on the children, but that efforts were made to assure that the young viewers would not be adversely affected, and that there was no indication during the showing of the movie that those efforts were unavailing.
The cases discussed above teach that the allegations of Count One, in the light most favorable to Plaintiffs, are woefully deficient in satisfying the exacting burden of being “extreme and outrageous” so as to “ ‘go beyond all possible bоunds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’ ”
Farasat,
To be sure, Defendants had knowledge of Ms. Respess’s long history of mental illness, including her suicidal ideations; the Insurers paid her medical claims, apparently without dispute, for years. Of relevance here, Ms. Respess was hospitalized at Sheppard Pratt from early January through late April of 2008, and there is no contention that the Insurers played any role in the decision to discharge her. Moreover, shortly before her discharge, Ms. Respess repeatedly expressed concerns to hospital personnel about her impending discharge, her ability to obtain adequate care at home, and her suicidal ideations. Her husband unsuccessfully sought supervised care. Nevertheless, Ms. Respess was discharged on April 25, 2008.
A few days after Ms. Respess’s discharge, the home health care nurse and a former treating physician asked the Insurers to approve 24 hour supervised care for Ms. Respess. The Insurers’ refusal to approve that request is at issue here. But, significantly, there is no allegation that, after her discharge, a treating physician sought 24-hour supervision, and that the Insurers declined that request. Moreover, there is no allegation (such as was alleged in Young) that the Insurers’ “sole purpose” in denying the request for 24-hour supervision was “to harass” Ms. Respess “into abandoning her claim or into committing suicide.... ”
The Insurers are not health care providers. Under the facts alleged, and all reasonable inferences drawn from the facts, their failure to authorize 24-hour supervised care, as requested by a nurse, as well as a doctor who had not examined Ms. Respess in connection with the request, does not amount to the kind of extreme and outrageous conduct necessary to constitute the tort of intentional infliction of emotional distress.
See, e.g., Moore v. W. Forge Corp.,
Plaintiffs allege that Defendants “had a duty to employ reasonable measures” when “managing the medical and psychiatric treatment of Patricia Respess.” Compl. ¶ 45. They aver that Mr. and Ms. Respess experienced “severe and extreme emotional distress” as a result of the Insurers’ “gross and reckless” conduct in refusing to authorize 24-hour supervised care for Ms. Respess, and that this distress led Ms. Respess “to take her life, which would not have occurred but for the actions of the Defendants’ employees, servants and/or agents.” Id. ¶¶ 45, 46, 47, 49, 50. According to Plаintiffs, “Defendants’ employees, servants and/or agentsf] conduct was wanton, extraordinary, outrageous and in utter disregard of plaintiff Patricia Respess’ life.” Id. ¶ 48. 16
Defendants counter that, under Maryland law, there is no cause of action for grossly negligent infliction of emotional distress. Moreover, Defendants maintain that they “do not owe any tort duties to Plaintiff or decedent” and that their denial of authorization for 24-hour care “was not the proximate cause of decedent’s death.” See Memorandum 2; see also Reply 7. Accordingly, they argue that Plaintiffs have not stated a viable cause of action for gross negligence.
In Maryland, “[gjross negligence has been equated with ‘wilful and wanton misconduct,’ a ‘wanton or reckless disregard for human life or the rights of others.’ ”
Foor, supra,
McCoy v. Hatmaker,
Officer Schwaab, who was qualified as a first responder and EMT, arrived on the scene within a minute of hearing the call for assistance.
Id.
Officer Schwaab did not feel a pulse and was about to start cardiopulmonary resuscitation (“CPR”) when he noticed an ambulance rounding the corner.
Id.
Officer Schwaab then “greeted the ambulance crew with the news that McCoy was in full cardiac arrest” and “Paramedic Hatmaker ran to McCoy’s car and assessed his condition.”
Id.
at 701,
McCoy’s wife, individually and as personal representative of McCoy’s estate, brought a wrongful death and survival action, claiming that Hatmaker, Schwaab, and others were grossly negligent in failing to render appropriate aid to McCoy.
Id.
at 701-02,
The trial court granted summary judgment to the defendants on the ground that the plaintiff failed to set forth a prima facie case of gross negligence, the standard for determining liability under the Good Samaritan Act, Md. Code (1998 Repl. Vol.), § 5-603 of the Courts and Judicial Proceedings Article (“C.J.”).
Id.
at 705,
We agree with the [trial] court’s reasoning and believe it to be consistent with the standard we expressed in Tatum [v. Gigliotti,80 Md.App. 559 , 568,565 A.2d 354 , 358 (1989) (emphasizing the standard that “gross negligence has been equated with “wilful and wanton misconduct,’ a ‘wanton or reckless disregard for human life or for the rights of others.’ ”) (citation omitted) 17 ]. Were we Baltimore City officials responsible for Hatmaker’s job performance, we might recommend retraining in the protocols of emergency care, or even disciplinary action. As judges, however, we cannot equate a well-intended error in medical judgment — even if it costs the patient’s life — with wanton and reckless disregard for the life of that patient. Medical protocols seek to establish best practices for successfully treating certain conditions. Failure to follow such protocols might sometimes be deliberate, but more often than not, we believe, such failure to heed them during an emergency would be purely accidental and, therefore, at most simple negligence.[ ] Even resolving all inferences inappellant’s favor, the undisputed facts here simply do not show that Hatmaker’s failure falls into the former category. Appellant cannot point to any facts that show he made a deliberate choice not to give McCoy a chance to survive, and, at the еnd of the day, it is deliberateness that lies at the core of the Tatum standard of willfulness and wantonness.
In reaching its decision, the court pointed to the undisputed facts concerning the efforts to assess the decedent’s condition and save his life. These included an extensive physical examination of the victim, despite the failure to follow other protocols.
Id.
at 708,
Here, as already discussed, the Act is the exclusive remedy,
except
if “a covered employee is injured or killed as the result of the deliberate intent of the employer [or insurer] to injure or kill the covered employee ...” L.E. § 9 — 509(d). As previously discussed in the context of Count I, the Complaint fails to allege facts that, if proved, would establish the egregious and deliberate wantonness required to set forth a claim for gross negligence.
See, e.g., Flood, supra,
III. Count Three: Wrongful Death
As the spouse of the Decedent, Mr. Respess has brought a claim for wrongful death. 18 He avers:
That as a direct and proximate result of the breaches of the duties by the Defendants in causing the death of Patricia Respess, the Plaintiff James Respess as the husbаnd of Patricia Respess suffered pecuniary loss, mental anguish, emotional pain and suffering, loss of society, loss of companionship, loss of comfort, loss of protection, loss of marital care, loss of attention, loss of advice, loss of counsel, loss of training and loss of guidance.
Compl. ¶ 56.
In their Memorandum, Defendants did not specifically focus on the wrongful death claim. In their Opposition, Plaintiffs briefly address the wrongful death claim, stating:
Plaintiff understands that in order to prove the count of gross negligence and sustain the wrongful death action against the Defendants, Plaintiff “must prove that the defendant’s action ... resulted in the decedent’s having an uncontrollable impulse to commit suicide, ‘in the sense that the decedent could not have decided against and refrained from killing [herself], and because of such uncontrollable impulse, the decedent committed suicided’]”
Opposition 17 (quoting
District of Columbia v. Peters,
Maryland’s Wrongful Death Act is set forth in C.J. (2006 Repl. Vol., 2010 Supp.) §§ 3-901 through 3-904. C.J. § 3-902, titled “Liability notwithstanding death,” provides that wrongful death actions “may be maintained against a person whose wrongful act causes the death of another.” C.J. § 3-902(a). “[A] wrongful death action is brought by the relatives of the decedent, seeking recovery for their loss as a result of the victim’s death.”
Jones v. Prince George’s Cnty.,
In order for a beneficiary to maintain a wrongful death action, there must have been a “wrongful act,” defined as “an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” C.J. § 3-901(e). In
Benjamin v. Union Carbide Corp.,
Austin v. Thrifty Diversified, Inc.,
Here, the plaintiffs have not set forth viable claims for intentional infliction of emotional distress or gross negligence. But, even assuming that the Complaint adequately alleged that the Insurer was negligent, then the remedies provided to the spouse of a deceased worker under the Maryland Workers’ Compensation Act would be exclusive. See, e.g., L.E. § 9-501 (requiring compensation to “the dependents of the covered employee for death of the covered employee” resulting from accidental injury); L.E. § 9-502 (requiring compensation to dependents of the covered employee for death of the covered employee resulting from an occupational disease); L.E. § 9-678 (“A dependent of a covered employeе who is entitled to compensation for the death of the covered employee resulting from an accidental personal injury or occupational disease shall be paid compensation in accordance with this Part XII of this subtitle.”); L.E. § 9-681 (establishing the amount of death benefits to be paid “individuals who were wholly dependent on a deceased covered employee at the time of death resulting from an accidental personal injury or occupational disease”); L.E. § 9-682 (establishing the amount of death benefits to be paid individuals who were partly dependent). Given that the allegations of Counts I and II are deficient, as explained, Mr. Respess has failed to allege conduct outside the purview of the exclusivity provision of the Maryland Workers’ Compensation Act. It follows that his Wrongful Death Claim must also fail.
CONCLUSION
The Defendants’ Motion to Dismiss the Complaint is GRANTED, without prejudicе. Leave to amend the Complaint shall be granted. See Fed.R.Civ.P. 15(a) (leave to amend “shall be freely given when justice so requires”). A separate Amended Order follows.
AMENDED ORDER 19
For the reasons set forth in the accompanying Amended Memorandum Opinion, it is this 15th day of March, 2011, by the United States District Court for the District of Maryland, ORDERED:
1. Defendants’ motion to dismiss (ECF 9) is granted as to all counts of the Complaint (ECF 2), without prejudice.
2. Plaintiffs shall have an additional ten (10) days, beginning from the date of this Amended Order, to amend their Complaint.
Notes
. The Amended Memorandum Opinion supersedes this Court's Memorandum Opinion (ECF 12). The Court has made minor corrections to the earlier Memorandum Opinion that do not alter its substance.
. Suit was filed in the Circuit Court for Baltimore City in August 2010, and was subsequently removed to the federal court, based on diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441, and 1446.
. The Complaint is silent as to whether Ms. Respess was treated in the period between 1987 and 1999.
. Paragraph fourteen of the Complaint statеs that Ms. Respess was discharged "on April 25, 2008,” while paragraph nineteen provides that Ms. Respess was discharged "[o]n or about April 25, 2008.”
. The Complaint does not indicate how the Sheppard Pratt counselors responded to Mr. Respess’s request.
. The Complaint does not identify who dispatched Ms. Rementer.
. The Complaint does not allege that Ms. Rementer contacted Ms. Respess's physicians at Sheppard Pratt regarding Ms. Respess’s condition.
. The Complaint does not specify when Dr. Book last treated Ms. Respess, nor does it indicate that he personally examined Ms. Respess before calling the Insurers.
. The Complaint does not reflect the identify of the person(s) to whom Mr. Respess wrote, or the response, if any.
. The Complaint does not specify to whom Defendants made the statement.
. Specifically, Defendants contend: "[M]edical professionals at Sheppard Pratt determined that [Ms. Respеss] could live at home over her and Plaintiff’s objections.” Memorandum 8. Defendants further state, id. at 9:
The health care nurse observed similar conditions to those observed by the medical professionals at Sheppard Pratt. The only difference is that the medical professionals at Sheppard Pratt determined (after three months of treatment) that Mrs. Respess did not need 24-hour supervised care and could be at home, while the health care nurse reached a different conclusion.
In their Reply, the Defendants add: "Defendants’ conduct is supported by the decisions made by medical professionals a few days earlier that — based upon the same symptoms and similar thoughts of suicide — the decedent no longer needed 24-hour care.” Reply 2.
. In an action based upon diversity of citizenship, the law of the forum state controls.
Erie R.R. Co. v. Tompkins,
. L.E. § 9-664 provides, in part, that if the Commission finds that the employer or insurer
failed, without good cause, to pay for treatment or services required by § 9-660 ... within 45 days after the Commission, by order, finally approves the fee or charge for the treatment or services, the Commission may impose a fine on the employer or insurer, not exceeding 20% of the amount of the approved fee or charge....
. In Gallagher, the Maryland Court of Appeals relied upon Md. Code (1957, 1979 Repl. Vol.), Art. 101, titled "Workmen’s Compensation,” the predecessor to the Act. In 1991, the Maryland Legislature repealed Article 101, amended it, and reenacted it in the new Labor and Employment Article. Of import here, Art. 101, § 15, provided:
[Ejvery employer subject to the provision of this article, shall pay or provide as required herein compensation ... for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in course of his employment without regard to fault as a cause of such injury ...
The liability prescribed by the last preceding paragraph shall be exclusive....
The Act contains analogous provisions. See L.E. § 9-501(a), supra; L.E. § 9-509(a), supra.
. The insurer relied on the predecessor statute, Md. Code (1957, 1979 Repl. Vol.), art. 101, § 15, supra.
. Count Two is captioned "Gross Negligence.” However, Plaintiffs do not use the words "gross negligence” in the text of their Complaint or in their Opposition. Rather, Plaintiffs state that Defendants’ conduct was "gross and reckless.”
. In
Tatum,
an individual suffering from a severe asthma attack requested emergency aid and subsequently died.
On appeal, the court discussed whether the actions of Paramedic Gigliotti constituted gross negligence under the Good Samaritan Statute.
Id.
at 565,
. Mr. Respess has not cited any statutory authority for his claim.
. This Amended Order supersedes the Court's previous Order (ECF 13), although the content is substantively the same.