M.L.A. v. Maisels

Background

M.L.A., a minor represented by a guardian, asserted one claim for negligent undertaking against M. Jeffrey Maisels, M.D. The action had been removed from state court based on diversity jurisdiction. Dr. Maisels previously moved to dismiss the first amended complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. The court granted that motion and allowed amendment. M.L.A. filed a second amended complaint, and Dr. Maisels again moved to dismiss.

M.L.A. alleged that Dr. Maisels assumed responsibility for educating pediatricians by publishing and distributing guidelines concerning the identification and treatment of newborns at risk of kernicterus. M.L.A. further alleged that the guidelines did not warn that the follow-up chart should not be used after phototherapy and that Dr. Deyro used the guidelines and an online program called Bilitool when making follow-up-care decisions. M.L.A. alleged that the lack of a 24-hour follow-up recommendation contributed to delayed testing and M.L.A.’s later return to the hospital with a bilirubin level that caused bilirubin encephalopathy, also called kernicterus.

Legal standard and analysis

To state a negligent-undertaking claim, M.L.A. had to plausibly allege that Dr. Maisels undertook to provide services, that the services were necessary to protect M.L.A., that Dr. Maisels failed to use reasonable care, that this failure caused physical harm, and that the failure increased the risk of harm, replaced another person’s duty, or caused harm through reliance on the undertaking.

The court concluded that the second amended complaint did not plausibly allege an actionable negligent undertaking. Although the amended complaint alleged that Dr. Deyro received the guidelines and used the Bilitool and guidelines in making treatment decisions, it did not allege that Dr. Maisels supervised or controlled Dr. Deyro’s treatment of M.L.A. The court observed that the alleged undertaking appeared educational rather than one involving direct supervision and control.

The court also relied on M.L.A.’s concession at the hearing that Dr. Maisels did not create or control the Bilitool, which was offered by an unrelated third party. Therefore, to the extent the claim depended on Dr. Deyro’s use of the Bilitool, the complaint did not allege an undertaking by Dr. Maisels.

Finally, the court held that the complaint’s allegations of negligence were contradicted by the guideline incorporated into the complaint. The 2004 guideline included an appendix on phototherapy stating that, when phototherapy is used for infants with hemolytic diseases or is started early and stopped before the infant is three to four days old, a follow-up bilirubin measurement within 24 hours after discharge is recommended. The court therefore rejected the allegation that the guideline omitted the necessary 24-hour follow-up guidance and found it implausible that any selective reading of the guideline could reasonably be attributed to Dr. Maisels.

Disposition

Judge Virginia K. Demarchi granted Dr. Maisels’s motion to dismiss the second amended complaint. The court stated that further amendment would be futile and dismissed the action with prejudice.