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Estate of Schwartz v. Assisted Recovery Centers of America, LLC

United States District Court, E.D. Missouri, Eastern Division

March 3, 2017

THE ESTATE OF MICHAEL SCHWARTZ and BRENDA FISCHER, Plaintiffs,
v.
ASSISTED RECOVERY CENTERS OF AMERICA, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

         This matter relates to the unfortunate drug-related death of Michael Schwartz. All matters are pending before the undersigned United States Magistrate Judge, with the consent of the parties, pursuant to 28 U.S.C. § 636(c).

         Plaintiffs are the Estate of Michael Schwartz (“Schwartz or Decedent”) and his mother, Brenda Fischer. Currently before the Court is a four-count First Amended Complaint. Defendants are Assisted Recovery Centers of America, LLC (“ARCA”), Percy Menzies, Judealyne Menzies, Suneal Menzies, Tim Dalavias, Andrea Shaw, Katherine Kruse, (collectively “ARCA Defendants”), Dr. Paul Selvadurai (“Selvadurai”), Dr. Shannon Jennings (“Jennings”), and Sheryl Castro (“Castro”) (all Defendants collectively “Defendants”).[1]

         The First Amended Complaint includes four claims-two federal claims and two supplemental Missouri tort claims. The focus of the present Memorandum and Order is Counts I and II, which assert federal claims against all Defendants under 42 U.S.C. §§ 1983 and 1988. Broadly speaking, Counts I and II allege violations of Schwartz's substantive due process rights under the Fourteenth Amendment to the Constitution, including deliberate indifference, and failure to train and/or supervise. In Count III, Plaintiffs assert a wrongful death claim under RSMo § 537.080 against all Defendants except Drs. Selvadurai and Jennings. Count III alleges that Defendants owed Schwartz a duty to use the highest degree of care and seeks compensatory damages exceeding $10 million. In Count IV, Plaintiffs assert a medical malpractice claim under RSMo § 538.205 against Drs. Selvadurai and Jennings. (ECF No. 63, First Am. Compl.)

         Currently pending before the Court are the following six motions:

1. ARCA Defendants' Motion to Dismiss Counts I, II, and III of Plaintiffs' First Amended Complaint for Failure to State a Claim (ECF No. 73);
2. Dr. Selvadurai's Motion to Dismiss All Counts of Plaintiffs' Amended Complaint for Failure to State a Claim (ECF No. 75);
3. Dr. Selvadurai's Motion to Dismiss Count IV of Plaintiffs' First Amended Complaint for Failure to File a Healthcare Affidavit in Compliance with Mo. Rev. Stat. § 538.225 (ECF No. 77);
4. Castro's Motion to Dismiss Counts I, II, and III of Plaintiffs' First Amended Complaint for Failure to State a Claim (ECF No. 88);
5. Dr. Jennings' Motion to Dismiss Counts I, II, and IV of Plaintiffs' Amended Complaint for Insufficient Service of Process under Rule 12(b)(5) and Failure to State a Claim under Rule 12(b)(6) (ECF No. 91); and
6. Dr. Selvadurai's Motion to Strike All Exhibits Attached to Plaintiffs' Consolidated Memorandum of Law in Opposition to All Defendants' Motion to Dismiss and/or Summary Judgment (ECF No. 102).

         I. Relevant Factual Background

         ARCA operates multiple addiction-recovery clinics and offers two programs relevant to this matter, the Comprehensive Substance Treatment and Rehabilitation program (“CSTAR”) and the Medication Assisted Treatment program (“MAT”). (Id. at ¶¶ 7, 25-26) CSTAR and MAT are programs defined by the Missouri Department of Mental Health, Division of Alcohol and Drug Abuse. (Id. at ¶ 26) Plaintiffs allege that ARCA obtained state-mandated certifications to practice CSTAR and MAT, and that compliance with state regulations is required to maintain the certifications. (Id. at ¶ 24-25) Plaintiffs allege that ARCA is not only required to be certified by the State of Missouri, it must also contract with the Department of Mental Health to provide community-based services. (Id. at ¶¶ 23, 30)

         ARCA is one of the authorized, community-based addiction service providers for the Missouri Department of Corrections. (Id. at ¶ 38) According to Plaintiffs' First Amended Complaint, on July 21, 2014, Schwartz entered into a contract with ARCA as a mandatory condition of his Missouri probation and parole. (Id. at ¶ 36; ECF No. 76-1, ARCA's Release of Information) Schwartz's participation in ARCA's outpatient drug treatment program was pursuant to multiple court orders following a period of incarceration in the Missouri Department of Corrections for drug-related offenses.

         Plaintiffs assert that Schwartz, ARCA, and the Department of Corrections, through Schwartz's supervising probation officer, completed a mandatory form (“Referral Form”) that eliminated the physician/patient privilege and required ARCA to act as an agent and arm of the Department of Probation and Parole by providing prompt notice, within two business days, of any violations related to Schwartz's treatment, including missed appointments, positive drug or alcohol tests, and any failure to comply with treatment. (Id. at ¶¶ 39-42, 61-62; ECF No. 98-11, Missouri Department of Corrections and Department of Mental Health - Community Treatment and Recovery Services Referral Form/Community-Based Mental Health and Substance Abuse Treatment and Recovery Services - Client Treatment and Recovery Services Guidelines)[2] Based on this contract, Plaintiffs contend that ARCA “agree[d] … to act as an agent and arm of the Department of Probation and Parole by providing notice to them of any violations or conditions of the offender related to his treatment.” (Id. at ¶ 40) Plaintiffs allege that if ARCA failed to make probation violation reports, the probation officer and the sentencing courts would not have knowledge of the violations of the court orders, resulting in Schwartz's probation not being revoked. (Id. at ¶ 61)

         Plaintiffs further allege that ARCA's agents and employees were aware of their responsibilities to Schwartz's probation officer as evidenced by ARCA's own release. That release required ARCA and its agents and employees to disclose specified, confidential medical, substance abuse/dependence, and/or information obtained in the treatment at ARCA to Schwartz's probation officer. According to Plaintiffs, the information to be disclosed included lab results and a treatment plan. (Id. at ¶ 65-67)

         As noted above, Plaintiffs allege that Schwartz commenced outpatient treatment with ARCA in July 2014. This was not, however, the first time Schwartz received treatment with ARCA. In this regard, Plaintiffs allege that, after Schwartz was released on probation in 2011, he also registered with ARCA. In Schwartz's prior stint with ARCA, his substance abuse counselor was Ned Presnall. (Id. 68-69) On November 22, 2011, Presnall contacted Schwartz's Probation Officer, Jeffrey Martin (now deceased), and informed him that Schwartz had taken at least 45 lithium tablets, resulting in Schwartz's hospitalization. On November 29, 2011, Presnall again contacted Martin, advising him that Schwartz had taken ten Xanax and had again been hospitalized. (Id.) Plaintiffs allege that Martin sought to have Schwartz's probation revoked. Martin justified the revocation, noting that Schwartz's ARCA counselor did not believe there was anything more that could be offered to Schwartz because he had exhausted all the community based resources available. (Id. at ¶ 70) According to Plaintiff, Martin decided the only recourse available was to revoke Schwartz's probation and execute his sentence. (Id.)

         Regarding Schwartz's treatment at issue in this case, which commenced in 2014, Plaintiffs allege that, although ARCA, its staff, and employees were contractually obligated to report various aspects of Schwartz's treatment to his probation officer and/or his mother, they failed to do so. (Id. at ¶¶ 71-72) According to Plaintiffs, Schwartz incurred numerous violations of his treatment with ARCA that Defendants allegedly failed to report to Schwartz's probation officer. (See, e.g., id. at 62-64) Schwartz eventually died of a heroin overdose. Plaintiffs contend that the cause of Schwartz's death by heroin overdose was due to Defendants' failure to notify the Missouri Department of Probation and Parole of his addiction related violations and/or his mother of his ongoing failures so that an intervention could have occurred as had occurred in November 2011. (Id. at ¶¶ 71-74)

         II. Legal Standard - ...


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