The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on the defendants' Motion for Partial Dismissal [Doc. 10], Motion for Partial Judgment on Pleadings [Doc. 11], and Motion for Hearing to Present Oral Arguments [Doc. 27]. The defendants assert that plaintiff's claims of common law negligence, negligence per se, and breach of contract should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). The plaintiff opposes the defendants' motions. [Docs. 18 and 24]. The Court has carefully considered the motions, as well as the entire record, in light of the applicable law. For the reasons set forth herein, the defendants' motion to dismiss [Doc. 10] will be GRANTED in part and DENIED in part and defendants' motion for partial judgment on the pleadings [Doc. 11] and motion for oral arguments [Doc. 27] will be DENIED.
Plaintiff's decedent, Harold Brown ("Mr. Brown"), was admitted to the Marshall C. Voss Rehabilitation Center ("Voss"), a licensed nursing home, in September 2002, and resided there until August 2005. [Doc. 1 at ¶ 25]. While staying at Voss, Mr. Brown developed severe decubitus ulcers and suffered from dehydration and malnutrition, all because of an alleged failure on the part of the staff of Voss to properly care for Mr. Brown. [Id. at ¶¶ 26 - 28]. As a result of these injuries, Mr. Brown required medical attention and endured great pain and hardship. [Id. at ¶ 29]. It appears that these injuries eventually resulted in Mr. Brown's death. [Id at ¶¶ 39, 45].
On June 15, 2006, plaintiff, the surviving wife of Mr. Brown, filed the instant action, suing under theories of medical malpractice, negligence per se, and third party beneficiary breach of contract. On August 23, 2006, the defendants filed their answers, generally denying the plaintiff's allegations. On August 24, 2006, the defendants filed their motion to dismiss [Doc. 10], arguing that the plaintiff's claims of common law negligence, negligence per se, and breach of contract should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). On October 3, 2006, the defendants filed their motion for partial judgment on the pleadings [Doc. 11], arguing that the plaintiff had failed to respond to the motion to dismiss, thereby waiving any argument, and that the motion to dismiss should be granted. The plaintiff was subsequently granted an extension of time to respond to the motion to dismiss [Doc. 16], and the matter is now ready for the Court's consideration.
II. Motion for Partial Dismissal
The defendants filed their motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the non-movant. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003). While a court may not grant a Rule 12(b)(6) motion based on disbelief of a complaint's factual allegations, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990), the court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made, the facts alleged are insufficient to state a claim, or there is an insurmountable bar on the face of the complaint.
B. Plaintiff's Negligence Per Se Claims
The defendants argue that the plaintiff's common law negligence and negligence per se claims ("negligence claims") should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief can be granted. Specifically, the defendants contend that the state and federal regulations the plaintiff relies upon do not create an independent cause of action, that the negligence claims more properly fall under the aegis of the Tennessee Medical Malpractice Act ("TMMA"), Tenn. Code Ann. §§ 29-26-115 to 120, and that the TMMA establishes the burden of proof the plaintiff must meet in this case. The plaintiff argues that state and federal regulations*fn1 establish a minimum standard of care for nursing homes operating in Tennessee and that a breach of that minimum standard of care can support her negligence claims.
The Court notes that a District Court in the Northern District of Georgia addressed a similar issue in the case of Brogdon v. National Healthcare Corp., 103 F. Supp. 2d 1322 (N.D. Ga. 2000). The Brogdon court, citing to the decisions of several other federal courts, found that Congress did not intend to create a private cause of action against nursing homes when it passed the Medicare and Medicaid acts. Id. at 1330-31; see also Wheat v. Mass, 994 F.2d 273, 276 (5th Cir. 1993); Stewart v. Bernstein, 769 F.2d 1088, 1092-93 (5th Cir. 1985); Estate of Ayres v. Beaver, 48 F. Supp. 2d 1335, 1339-40 (M.D. Fla. 1999); Nichols v. St. Luke Ctr., 800 F. Supp. 1564, 1568 (S.D. Ohio 1992); Chalfin v. Beverly Enters., Inc., 741 F. Supp. 1162, 1170-71 (E.D. Pa. 1989); Fuzie v. Manor Care, Inc., 461 F. Supp. 689, 697 (N.D. Ohio 1977); but see Roberson v. Wood, 464 F. Supp. 983, 988-89 (E.D. Ill. 1979).
The Court further notes that the Tennessee Court of Appeals also recently addressed a similar issue in Conley v. Life Care Centers of America, Inc., No. M2004-00270-COA-R3-CV, 2007 Tenn. App. LEXIS 13 (Tenn. Ct. App. Jan. 4, 2007), finding that a plaintiff could not state a claim for negligence per se under the federal regulations found in 42 C.F.R. § 483. Id. at *45. The Conley court, also citing to several other courts, held that "[t]he federal regulations are simply too vague and general to constitute a standard of care by which a jury, or for that matter a court, can effectively judge the acts or omissions of health care providers and nursing home operators." Id. at *47; see also Smith v. Bowen, 656 F. Supp. 1093, 1097 (D. Colo. 1987); Makas v. Hillhaven, Inc., 589 F. Supp. 736, 742 (M.D.N.C. 1984); Stogsdill v. Manor Convalescent Home, Inc., 343 N.E.2d 589, 611-612 (Ill. 1976). The Conley court further found that the plaintiff's negligence per se claim fell under the purview of the TMMA, that the plaintiff's would be held to the local standard of care mandated by the TMMA, and that the plaintiff's attempt to rely upon the federal regulations to establish a "national standard of care" must fail. Conley, 2007 Tenn. App. LEXIS 13, at *49.
The Court agrees with the reasoning of Brogdon and Conley and finds that Congress did not intend to create a private cause of action against nursing homes under the Medicare and Medicaid Acts. Similarly, the Court finds that the Tennessee Legislature did not intend to create a private cause of action under the Nursing Home Resident's Rights Act, nor under the regulations governing nursing homes in Tennessee. See Tenn. Code Ann. § 68-11-901; Tenn. Comp. R. & Regs. 1200-8-6-.01. In the absence of a specific cause of ...