M.L.A. v. Maisels

Background

M.L.A., a minor represented by a guardian ad litem, asserted one claim against M. Jeffrey Maisels, M.D., for negligent undertaking. The case was removed from state court based on diversity jurisdiction. M.L.A. was born in December 2017 and was identified as being at high risk for hyperbilirubinemia, meaning excessive bilirubin in the blood. The complaint alleged that untreated hyperbilirubinemia can cause kernicterus, a form of brain damage.

Dr. Maisels chaired the American Academy of Pediatrics Subcommittee on Hyperbilirubinemia and co-authored the Academy’s 2004 clinical guideline concerning hyperbilirubinemia in newborns. The complaint alleged that the 2009 update did not clearly state that a newborn who received phototherapy during the birth hospitalization should receive a follow-up bilirubin test within 24 hours after discharge.

M.L.A. received phototherapy after an elevated bilirubin reading. After another reading, the complaint alleged that the treating pediatrician and nurses followed the updated guideline by arranging follow-up in two days. M.L.A. was not seen at a pediatric clinic and was instead readmitted to the hospital on the third day after discharge with a bilirubin level of 41.4. He was later diagnosed with kernicterus.

In a separate state-court medical-malpractice case, Dr. Maisels testified as a defense expert. During a deposition, he acknowledged that the guidelines did not clearly say that the follow-up chart did not apply to a baby who had received phototherapy and accepted some responsibility because he had helped write both guidelines. M.L.A.’s complaint alleged that Dr. Maisels negligently undertook to provide services to the treating pediatrician and hospital nurses by publishing and failing to clarify the updated guideline.

Motion to Dismiss

Dr. Maisels moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. He made two principal arguments: that California Civil Code section 47(b), the litigation privilege, protected him from liability based on his deposition testimony, and that the complaint did not plead the elements of negligent undertaking.

The court rejected the privilege argument. Although statements made by a witness during a deposition are privileged communications, the court concluded that M.L.A.’s claim was not based on what Dr. Maisels said in the deposition. Instead, the claim was based on his alleged failure to provide accurate guidelines while serving as chair of the subcommittee responsible for formulating and publishing them. The court noted that the deposition testimony might or might not be admissible evidence of the alleged negligence, but it was not the basis of the claim.

Negligent Undertaking

The court stated that a negligent-undertaking claim required allegations that: (1) Dr. Maisels undertook, gratuitously or for payment, to provide services to another; (2) the services were of a type he should have recognized as necessary to protect M.L.A.; (3) he failed to use reasonable care; (4) that failure resulted in physical harm to M.L.A.; and (5) the failure increased the risk of harm, involved undertaking a duty owed by someone else, or caused harm because another person or M.L.A. relied on the undertaking.

The court found that the complaint failed to plead the first element. Although the complaint alleged that the guideline was sent to all pediatrician members of the American Academy of Pediatrics in the United States, it did not allege that Dr. Deyro was one of those pediatricians. It also did not describe another way in which Dr. Maisels allegedly provided services to Dr. Deyro.

The court further held that the complaint did not adequately describe the nature of the alleged undertaking. It did not explain the role the Academy’s guidelines played in treatment decisions by pediatricians such as Dr. Deyro. The court declined to hold that publishing treatment guidelines by a national pediatricians’ organization could never constitute an actionable undertaking, stating that this question depends in part on the nature of the undertaking.

The court also found that the complaint failed to adequately plead causation. It did not allege that Dr. Deyro knew of or relied on the updated guidelines. M.L.A. argued in opposition that the pediatrician’s decision was based in significant part on the standard of care, which itself was based on the guideline, but those allegations did not appear in the complaint.

Disposition

The court concluded that M.L.A.’s complaint failed to state a negligent-undertaking claim against Dr. Maisels. It granted Dr. Maisels’s motion to dismiss the first amended complaint and granted M.L.A. leave to amend because the court did not find that amendment would be futile. The court set January 24, 2022, as the deadline for an amended complaint and continued the initial case-management conference to March 1, 2022.