Calloway v. Comanche County Facilities Authority The et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VERONICA WARNER 	)
CALLOWAY, as the Personal 	)
Representative of the 	)
Estate of Cari Jamel 	)
Warner, Sr., deceased, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-858-PRW
)
COMANCHE COUNTY 	)
FACILITIES AUTHORITY 	)
et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Before the Court is Defendant U.S. Renal Care Inc.’s Motion to Dismiss.
Doc. 12.1 Plaintiff, personal representative of her son Cari Jamel Warner, Sr.’s
estate, filed a complaint seeking relief under 42 U.S.C. § 1983 and Oklahoma
law, after her son (Mr. Warner) died while a pretrial detainee at the Comanche
County Detention Center (“CCDC” or “jail”). Doc. 1. United States District
Judge Patrick R. Wyrick referred the case to the undersigned Magistrate Judge
for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 32.
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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Upon review, the undersigned recommends the Court grant in part and deny
in part Defendant U.S. Renal Care’s motion to dismiss.
I. 	Factual background.
Mr. Warner, a forty-five-year-old man and Plaintiff’s son, had serious
health issues. Doc. 1, at 4. He was admitted as a patient to the Comanche
County Memorial Hospital in Lawton, Oklahoma on March 5, 2024. Id. at 7.
While there, doctors and staff treated him for “hypertensive emergency, renal
failure (a/k/a acute kidney failure), congestive heart failure, acute and chronic
congestive heart failure exacerbation, interstitial edema, chest pain, chest
pressure, shortness of breath, and other blood pressure issues.” Id. During his
time in the hospital, Mr. Warner received dialysis treatments through a
“permanent catheter port” which doctors had placed on March 8, 2024. Id. at
7-8. Because doctors determined that Mr. Warner “could not recover” his
kidney function, he would require dialysis treatment after the left the hospital.
Id. at 7.
On the morning of March 12, 2024, Plaintiff voluntarily left the hospital
under his own power by stealing a vehicle parked outside. Id. at 8.2 Law
enforcement authorities quickly arrested him. Id. at 8. Before taking him to
2 	To be clear, Mr. Warner was not in custody or a detainee during his
hospitalization. Doc. 1, at 7-8.
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jail, they 	brought 	him back 	to the 	hospital to be “medically cleared for
detention at the CCDC.” Id.3 His two attending physicians medically cleared
him for jail with the caveat he receive “outpatient dialysis [treatment] through
the jail” and that jail personnel should return him to the hospital for any “new
or worsening symptoms.” Id. at 9. To facilitate the dialysis treatment, the
doctors wrote a referral “to nephrologist Sikora ‘in the outpatient setting.’” Id.4
The referral recommended dialysis three times a week to begin the next day
on March 13, 2024. Id.
According to Plaintiff, around 10:30 a.m. on the morning of Mr. Warner’s
arrest, a nurse with U.S. Renal Care opened an admission chart for Mr.
Warner but noted that Defendants Sikora and U.S. Renal Care were refusing
to treat Mr. Warner. Id. at 9-10. The nurse also documented that another U.S.
Renal Care nephrologist “agreed with the refusal to treat.” Id. at 10. U.S. Renal
3 	Plaintiff explains that Defendant Comanche County Facilities Authority
(CCFA) operates the CCDC. Doc. 1, at 5.
4 	Plaintiff describes nephrologist Sikora as “a physician who practices and
is board-certified in nephrology,” and “provides nephrology and related dialysis
healthcare on behalf of Defendant U.S. Renal Care, Inc. and/or Does I-X at 924
SW 38 th Street, Lawton, OK 73505.” Id. at 5. Plaintiff describes Defendant U.S.
Renal Care as a “Delaware corporation that does business in and provides
nephrology 	and 	related 	dialysis 	healthcare 	in 	the 	Western 	District 	of
Oklahoma. Upon information and belief, U.S. Renal Care’s Lawton office (a/k/a
‘Sooner’) is located at 924 SW 38th Street, Lawton, OK 73505.” Id. at 6.
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Care personnel then closed Mr. Warner’s chart that afternoon with a discharge
note. Id.5
Plaintiff alleges that, after this discharge and despite their knowledge of
Mr. Warner’s condition, neither Dr. Sikora nor U.S. Renal Care arranged for
or “transfer[red] [Mr.] Warner’s care as needed, and/or failed to properly
communicate [his] status and their involvement in a reasonable and timely
manner.” Id. at 10.
After hospital doctors medically cleared Mr. Warner on the morning of
March 12, 2024, CCDC personnel transported him to jail, where he stayed until
he was transported back to the hospital in an unresponsive state on March 24,
2024. Id. at 12, 14-15, 24. During his time at the jail, Plaintiff alleges that no
one 	at 	CCDC 	provided 	Mr. 	Warner 	with 	dialysis 	treatment 	or 	medical
treatment of any kind. Id. at 12-23. And no one contacted either Dr. Sikora or
Mr. Warner’s other physicians about his medical needs. Id. at 13. Mr. Warner
died at the hospital on March 24, 2024, of a “hemorrhagic stroke.” Id. at 24.
Plaintiff asserts a state-law claim of negligence against Defendant U.S.
Renal Care. Id. at 75-78. Plaintiff alleges it owed Mr. Warner “duties” to
“handle and monitor” his care, provide him with “reasonable medical care and
5 	Plaintiff does not allege Mr. Warner presented himself for treatment or
was ever physically present at the U.S. Renal Care clinic on this date.
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access to medical care given [his] appearance and condition,” and to “work with
and communicate with the CCDC and other parties involved in Mr. Warner’s
medical care and detention in a reasonable, clear, and prompt manner.” Id. at
75-76.
“[I]n the alternative,” Plaintiff alleges “violations of the Fourteenth
Amendment via 42 U.S.C. § 1983” against Defendant U.S. Renal Care and its
“medical personnel [who were] acting under color of law while treating [Mr.]
Warner.” Id. at 82-84. Plaintiff states that U.S. Renal Care personnel acted
with deliberate indifference to Mr. Warner’s serious medical needs. Id. at 82.
Defendant U.S. Renal Care moves to dismiss both claims against it. Doc.
12. Regarding Plaintiff’s § 1983 claim, Defendant U.S. Renal Care argues
Plaintiff has failed to sufficiently allege that it is a state actor but, even if she
had, Plaintiff has not sufficiently alleged Defendant U.S. Renal Care acted
with 	deliberate 	indifference. 	Id. 	at 	15-21. 	As 	for 	the 	negligence 	claim,
Defendant U.S. Renal Care argues it owed no duty of care to Mr. Warner, and
the claim against it is barred under the Oklahoma Governmental Tort Claims
Act (OGTCA). Id. at 11-14.
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II. 	Analysis.
A. 	Stating a claim under 42 U.S.C. § 1983.
“To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added); see also
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995)
(“[T]he only proper defendants in a [§] 1983 claim are those who represent the
state in some capacity . . . .” (citation and internal brackets omitted)). “The
ultimate issue in determining whether a person is subject to suit under § 1983
is whether the alleged infringement of federal rights is ‘fairly attributable to
the state.’” Beedle v. Wilson, 422 F.3d 1059, 1065 (10th Cir. 2005) (quoting
Tarabishi v. McAlester Reg’l Hosp., 827 F.2d 648, 651 (10th Cir. 1987)); see also
Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (“[A] person acts under
color of state law only when exercising powers possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of
state law.” (internal quotation marks omitted)).
“[A] complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010).
B. 	Plaintiff fails to sufficiently allege Defendant U.S. Renal
Care is a state actor under § 1983.
Plaintiff alleges that Defendant U.S. Renal Care may have acted “under
color of law for any of the medical care at issue on behalf of the CCFA.” Doc. 1,
at 82. Although U.S. Renal Care is a private entity, Plaintiff can bring a § 1983
claim against it under a theory of municipal liability. See Monell v. Dep’t of
Soc. Servs., 436 	U.S. 658, 690-91 	(1978) (establishing 	municipalities 	are
“included among those persons to whom § 1983 applies”); Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (“Although the Supreme Court’s
interpretation of § 1983 in Monell applied to municipal governments and not
to private entities acting under color of state law, caselaw from this and other
circuits has extended the Monell doctrine to private § 1983 defendants.”). But
to sustain this claim, Plaintiff must sufficiently allege U.S. Renal Care was a
state actor. This she fails to do.
Plaintiff does not allege Defendant U.S. Renal Care is a state or county
facility or that state or county actors control the medical decisions made there.
And nowhere in the complaint does Plaintiff allege Defendant U.S. Renal Care
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contracted with the CCFA, the entity she alleges operates the jail, to provide
medical care to jail inmates. She also does not allege Defendant U.S. Renal
Care’s personnel interacted in any capacity with jail personnel before or after
Mr. Warner was detained there.
The “under color of state law” requirement is a “jurisdictional requisite
for a § 1983 action.” West, 487 U.S. at 46. And it “excludes from its reach
‘merely private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457
U.S. 991, 1002 (1982)). This Court “cannot enforce a federal constitutional
right as against a private actor.” Wideman v. Watson, 617 F. App’x 891, 893
(10th Cir. 2015) (citing Hill v. Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007)).
Defendant U.S. Renal Care states it is a “private entity.” Doc. 12, at 15.6
A private entity may act “under color of state law” but only when they “have
exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” West, 487
U.S. at 49 (internal quotation marks omitted). Defendant U.S. Renal Care
6 	Defendant U.S. Renal Care notes it has a contract with the county
hospital to provide it with dialysis services. Doc. 12, at 13-14, 16. But this case,
as Plaintiff points out, “simply does not concern medical care at or through”
the hospital. Doc. 15, at 13. And Plaintiff makes no suggestion otherwise in her
complaint. Both parties are inconsistent in their arguments on this point. Still
the Court can determine this issue based on the allegations in the complaint.
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argues Plaintiff fails to sufficiently allege that it acted under color of law and
so the Court should dismiss Plaintiff’s § 1983 claim against it. Doc. 12, at 16.
In response, Plaintiff argues that her allegations about Defendant U.S.
Renal Care’s “role in the medical care and transition of medical care” suffice to
plead state action. Doc. 15, at 16. The undersigned disagrees.
To determine whether Defendant U.S. Renal Care acted under color of
state law at the time Plaintiff alleges it declined the referral for treatment, the
Court may apply “various analyses” under “the ‘nexus test,’ the ‘public function
test,’ the ‘joint action test,’ and the ‘symbiotic relationship test.’” Barnett v.
Hall, Estill, Hardwick, Gable Golden & Nelson, P.C., 956 F.3d 1228, 1235 (10th
Cir. 2020) (quoting Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir.
2013)). “At the heart of each test is ‘whether the conduct allegedly causing the
deprivation of a federal right [is] fairly attributable to the State.’” Id. (quoting
Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 387 (10th Cir. 2016)).
Plaintiff first argues the public function test is met because the state is
required to provide healthcare to detainees and if a private party shares that
function their action is attributable to the state. Doc. 15, at 17-18. Plaintiff
generally presents a well-established premise. See, e.g., Sullivan, 526 U.S. at
55 (“[In West,] the State was constitutionally obligated to provide medical
treatment to injured inmates, and the delegation of that traditionally exclusive
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public function to a private physician gave rise to a finding of state action.”).
But she fails to connect that premise to Defendant U.S. Renal Care’s actions.
As stated, Plaintiff does not allege Defendant U.S. Renal Care had any
connection with the CCDC much less a contractual obligation to provide
medical care to its inmates. Plaintiff also does not allege U.S. Renal Care
personnel communicated with CCDC personnel either before or during Mr.
Warner’s detention or freely assumed responsibility for CCDC’s obligation to
provide medical care to Mr. Warner as a detainee. In short, Defendant U.S.
Renal Care personnel never treated Mr. Warner at CCDC and CCDC personnel
never delegated his care to Defendant U.S. Renal Care during his detention.
Given that U.S. Renal Care personnel never saw or interacted with Mr. Warner
in the jail setting, or while he was in custody, the Court cannot conclude that
it functioned 	within the 	public system in 	failing to accept a 	referral 	to
administer dialysis to Mr. Warner. See, e.g., Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 827 (7th Cir. 2009) (“[P]rivate organizations and their
employees that have only an incidental and transitory relationship with the
state’s penal system usually cannot be said to have accepted, voluntarily, the
responsibility of acting for the state and assuming the state’s responsibility for
incarcerated persons. For instance, an emergency medical system that has a
preexisting 	obligation 	to 	serve 	all 	persons 	who 	present 	themselves 	for
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emergency treatment hardly can be said to have entered into a specific
voluntary 	undertaking 	to 	assume 	the 	state’s 	special 	responsibility 	to
incarcerated persons.”).
Plaintiff asserts “[t]he nexus test is satisfied for the same reasons as the
public 	function 	test 	– 	detainees 	have 	mandated 	rights 	to 	medical 	care
associated with the correctional setting, and the provisions of the same by an
otherwise private party does not shield or negate a finding of state action.” Doc.
15, at 19. “Under the nexus test, a plaintiff must demonstrate that there is a
sufficiently close nexus between the government and the challenged conduct
such that the conduct may be fairly treated as that of the State itself.”
Gallagher, 49 F.3d at 1448 (internal quotation marks omitted). “[O]nly when
[the state] has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be deemed
to be that of the State,” can a court hold the state responsible for a private
decision. Id.
Again, Plaintiff does not connect this test with Defendant U.S. Renal
Care’s actions. She does not allege state actors influenced the decision to
decline the referral, either overtly or covertly, or that any official had the power
to do so because of some special relationship. “Mere approval of or acquiescence
in the initiatives of a private party is not sufficient to justify holding the State
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responsible 	for 	those 	initiatives 	under 	the 	terms 	of 	the 	Fourteenth
Amendment.” Blum, 457 U.S. at 1004-05. Plaintiff does not satisfy the nexus
test.
Plaintiff also asserts the “symbiotic relationship test” is met due to “the
intertwinement of constitutionally mandated healthcare for a detainee with
serious and life-threatening medical needs with providers such as [U.S. Renal
Care].” Doc. 15, at 19. Plaintiff essentially repeats the same argument for each
test. She provides no factual support establishing the CCDC and Defendant
U.S. Renal Care had any type of mutually beneficial relationship related to
detainee healthcare. She does not allege the CCDC had insinuated itself into
Defendant 	U.S. 	Renal 	Care’s 	clinical 	practice 	or 	that 	the 	clinic 	was
indispensable 	to 	the 	CCDC. 	So 	the 	allegations 	of 	her 	complaint 	cannot
establish a symbiotic relationship between the two.
Lastly, Plaintiff asserts Defendant U.S. Renal Care’s actions satisfy the
joint action test because it and the other Defendants knew Mr. Warner was not
receiving adequate medical care during his detention. Id. at 19-20.
In applying the joint-action test, this Court asks, “whether the private
party was a ‘willful participant in joint action with the State or its agents.’”
Barnett, 956 F.3d at 1235 (quoting Gallagher, 49 F.3d at 1453). But Plaintiff
has not alleged joint action. Rather, she refers to the “respective failures” of
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both Defendant U.S. Renal Care and CCDC personnel in caring for Mr.
Warner. 	Doc. 	15, 	at 	20. 	And, 	if 	anything, 	Plaintiff’s 	allegations 	suggest
Defendant U.S. Renal Care personnel failed to jointly act with officials in
transferring Mr. Warner’s care. So Plaintiff has not satisfied the joint-action
test. See, e.g., Wittner, 720 F.3d at 777 (finding joint-action test had not been
satisfied where Plaintiff had “not alleged that any state officials conspired with
or acted jointly in making the decision to medicate [the decedent]”).
Plaintiff 	has 	not 	adequately 	alleged 	Defendant 	U.S. 	Renal 	Care’s
conduct in declining the referral to treat Mr. Warner is fairly attributable to
the state. As a result, Plaintiff’s complaints about its private conduct are not
subject to liability under § 1983. The Court should therefore dismiss the claim
without prejudice. See, e.g., Lay v. Otto, 530 F. App’x 800, 802-803 (10th Cir.
2013) (remanding case to district court for an order of dismissal “‘without
prejudice’ for lack of subject matter jurisdiction” where plaintiff failed to show
that the named defendants were acting “under color of state law” under
§ 1983).
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C. 	Plaintiff’s negligence claim against Defendant U.S. Renal
Care.
1. 	Plaintiff’s negligence claim against Defendant U.S.
Renal Care is not barred by the OGTCA.
Defendant U.S. Renal Care argues the Court should dismiss Plaintiff’s
state-law negligence claim against it because it is immune from liability under
the OGTCA based on its contractual relationship with the county hospital to
provide dialysis services. Doc. 12, at 13-14 (citing Okla. Stat. tit. 51, § 152.1(A)
(“The 	State 	of 	Oklahoma 	does 	hereby 	adopt 	the 	doctrine 	of 	sovereign
immunity. The state, its political subdivisions, and all of their employees
acting 	within 	the 	scope 	of 	their 	employment, 	whether 	performing
governmental or proprietary functions, shall be immune from liability for
torts.”) and § 152(7)(b)(7) (identifying as employees of the state those “licensed
medical professionals under contract with city, county, or state entities who
provide medical care to inmates or detainees in the custody or control of law
enforcement agencies”)).7 Plaintiff urges the Court to deny this basis for
dismissal because Defendant U.S. Renal Care’s “reliance on its contract with
7 	Defendant U.S. Renal Care attaches its contract with the hospital to its
response. Doc. 12, Att. 3. That contract identifies it as an “independent
contractor” exclusively performing “acute dialysis services” at and for the
hospital but with “no authority to bind [the] Hospital to any commitment,
contract, agreement or other obligation.” Id. at 2, 7.
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[the hospital] is not relevant to any portion of the underlying facts of the
lawsuit.” Doc. 15, at 13. The Court agrees with Plaintiff.
Plaintiff neither sues the hospital nor alleges a chain of agency between
it and Defendant U.S. Renal Care for the care of inmates. Neither has Plaintiff
alleged Defendant U.S. Renal Care has any type of professional relationship or
contract with Defendant CCFA—the political subdivision Plaintiff actually
sues and alleges is the county authority in charge of the jail and the care and
keeping of its inmates.
Defendant provides the Court with no relevant authority establishing
across-the-board 	immunity 	under 	the 	OGTCA 	based 	on 	an 	unrelated
relationship with a separate county entity. So the Court should conclude, based
on the allegations in the complaint, that the OGTCA’s immunity does not apply
to Defendant U.S. Renal Care here. See, e.g., id. at 13 (“The negligence alleged
does not arise under [U.S. Renal Care’s] contract with [the hospital]” and “does
not concern medical care at or through” the hospital); see also Doc. 12, at 16
(noting U.S. Renal Care is a “private” entity with no connection to the CCDC);
Doc. 21, at 4 (no presumption of a duty because U.S. Renal Care “is not
contracted to provide medical services specifically within the jail.”).
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2. 	Plaintiff has sufficiently alleged a negligence claim
against Defendant U.S. Renal Care.
Defendant U.S. Renal Care argues Plaintiff has failed to sufficiently
plead it owed a duty of care to Mr. Warner that it breached. Doc. 12, at 11-13;
see also Doc. 21, at 4 (“Without a duty, there can be no negligence liability.”).
Defendant asserts “there was no patient-provider relationship between [Mr.
Warner] and a [U.S. Renal Care] medical provider” because it never consented
to treat Mr. Warner “due to the safety risk he posed to staff.” Doc. 12, at 13.
Plaintiff disagrees, arguing she sufficiently stated in her complaint that Mr.
Warner was a patient of U.S. Renal Care and it had a duty to “treat, transfer,
communicate, and handoff [Mr. Warner’s] care to the CCFA or another dialysis
and medication provider given [Mr. Warner’s] emergent medical condition.”
Doc. 15, at 10.
In reviewing a motion to dismiss, this Court “accept[s] the well-pleaded
facts alleged as true and view[s] them in the light most favorable to the
plaintiff.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th
Cir. 2023). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does 	not 	need 	detailed 	factual 	allegations,” 	Twombly, 	550 	U.S. 	at 	555,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “‘An allegation
is conclusory where it states an inference without stating underlying facts or
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is devoid of any factual enhancement.’” Clinton, 63 F.4th at 1275 (quoting
Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021)).
“The nature and specificity of the allegations required to state a plausible
claim will vary based on context.” Id. (quoting Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). But this Court’s “task is to
consider the complaint’s allegations ‘taken as a whole.’” Id. (quoting U.S. ex
rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1173 (10th Cir. 2010)).
“‘[G]ranting [a] motion to dismiss is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal rules of pleading but also
to protect the interests of justice.’” Id. at 1276 (quoting Dias v. City & Cnty. of
Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). So, “a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Twombly, 550
U.S. at 556 (internal quotation marks omitted).
The elements of a negligence claim under Oklahoma law “are: (a) a duty
owed by the defendant to protect the plaintiff from injury, (b) a failure to
properly 	exercise 	or 	perform 	that 	duty 	and 	(c) 	plaintiff’s 	injuries 	[were]
proximately caused by the defendant’s failure to exercise the duty of care.”
Franklin v. Toal, 19 P.3d 834, 837 (Okla. 2000) (internal quotation marks and
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alteration omitted). “A medical provider has a duty to exercise ordinary care in
delivery of professional services.” Id.
Citing Jennings v. Badgett, 230 P.3d 861 (Okla. 2010), Defendant U.S.
Renal Care argues Plaintiff does not sufficiently allege a patient-provider
relationship between it and Mr. Warner because it “did not consent to provide
dialysis services to [Mr. Warner].” Doc. 12, at 11-12. In Jennings, the court
addressed 	on 	summary 	judgment 	whether 	a 	physician, 	who 	gave 	his
professional opinion to another doctor over the phone on how to care for a
patient, had established a physician-patient relationship. 230 P.3d at 864-65.
Finding 	this 	to 	be 	a 	necessity 	in 	a 	medical 	malpractice 	case, 	the 	court
concluded the physician never established such a relationship with the patient
and so did not owe them a duty of care. Id. at 868 (“A telephone conversation
between a non-treating physician and the treating physician concerning the
patient, 	even 	when 	the 	treating 	physician 	relies 	on 	the 	non-treating
physician’s opinion, without more, is insufficient to establish a physician-
patient relationship.”); see also id. at 866 (“Because the duty in a medical
malpractice action is born out of a physician-patient contract, the relationship
is essential to an action for a breach of the duty giving rise to the malpractice
action.”).
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“[T]he question of the formation of a physician-patient relationship is a
question 	of 	fact, 	turning 	upon 	a 	determination 	of 	whether 	the 	patient
entrusted his treatment to the physician and the physician accepted the case.”
Id. at 866-67 (internal quotation marks omitted). Plaintiff alleges here that
Defendant U.S. Renal Care received a referral to treat Mr. Warner, which its
personnel refused. Doc. 1, at 9-10. Plaintiff further alleges that, despite its
knowledge of Mr. 	Warner’s serious and time-sensitive 	medical condition,
Defendant U.S. Renal Care did not arrange alternative care for Mr. Warner or
communicate its refusal to care for him to the appropriate parties. Id. at 9-11.
Particular to the negligence claim, Plaintiff alleges Defendant U.S. Renal Care
failed to “handle and monitor [Mr.] Warner’s medical care in an objectively
reasonable and prudent manner,” to provide him “reasonable medical care and
access to medical care given [his] appearance and condition,” and to “work and
communicate with the CCDC and other parties involved in [Mr.] Warner’s care
and detention in a reasonable, clear, and prompt manner.” Id. at 75-76. She
also 	complains 	Defendant 	U.S. 	Renal 	Care 	generally 	failed 	to 	maintain
appropriate policies, procedures, and practices for its staff to follow before
abandoning 	or 	discharging 	a 	patient 	without 	treatment. 	Id. 	at 	76. 	And
elsewhere, Plaintiff alleges Defendant U.S. Renal Care’s personnel “observed
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or interacted” with Mr. Warner at an unspecified time before refusing the
referral. Id. at 82.
While slim, the Court concludes Plaintiff’s allegations, which the Court
accepts as true and views in a light most favorable to Plaintiff, sufficiently
state a patient-provider relationship between Defendant U.S. Renal Care and
Mr. Warner. Unlike in Jennings, Plaintiff alleges Defendant U.S. Renal Care’s
personnel interacted with Mr. Warner, observed his condition, and knew he
needed access to care “given [his] appearance and condition.” Id. at 75; see, e.g.,
Brisco v. Gerard, 530 P.3d 75, 78 (Okla. Civ. App. 2022) (“Unlike the question
of duty, the question of the formation of a physician-patient relationship is one
of fact, turning on a determination of whether the patient entrusted his
treatment to the physician and whether the physician accepted the case.”).
And, based on this relationship, Defendant U.S. Renal Care owed Mr. Warner
a duty, as Plaintiff puts it, to not “abandon” him without care. See Brisco, 530
P.3d 	at 	80 	(“[A] 	duty 	of 	care 	only 	arises 	when 	the 	patient-physician
relationship has been established.”);8 Doc. 15, at 10-11 (citing Jackson v. Okla.
Mem. 	Hosp., 	909 	P.2d 	765, 	774 	(Okla. 	1995) 	(holding 	that, 	absent 	“an
8 	As the Court reads the complaint, Plaintiff alleges Defendant U.S. Renal
Care and Dr. Sikora were obliged to treat him not because he was a detainee
but because he had already established a patient-provider relationship with
them.
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emergency or special circumstances a physician is generally under the duty to
give a patient all necessary and continued attention as long as the case
requires it.”)). Under Oklahoma law, [“a] physician should not leave a patient
at 	a 	critical 	stage 	without 	giving 	reasonable 	notice 	or 	making 	suitable
arrangements for the attendance of another equally competent substitute.”
Jackson, 909 P.2d at 774. And the “[f]ailure to observe that professional
obligation may subject the physician to liability for patient abandonment.” Id.
It may well be that Defendant U.S. Renal Care can prove that “special
circumstances” existed making it reasonable for its personnel to decline to
treat Mr. Warner on that day. But at this early stage in the proceedings, the
Court should find Plaintiff has sufficiently alleged Defendant U.S. Renal Care
acted with negligence. See, e.g., Quintana v. Santa Fe Cnty. Bd. of Comm’rs,
973 F.3d 1022, 1034 (10th Cir. 2020) (“Although [the Court is] not sure whether
[Plaintiff] can prove each of [these] elements at trial or even survive summary
judgment, [she] allege[s] sufficient facts supporting each element for [her]
claim 	to 	proceed 	past 	the 	motion-to-dismiss 	stage.”). 	The 	undersigned
therefore recommends the Court deny Defendant U.S. Renal Care’s motion to
dismiss Plaintiff’s state-law negligence claim against it for failure to state a
claim.
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III. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant in part and deny in part Defendant U.S. Renal Care’s motion to dismiss.
Doc. 12.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court on or before
March 12, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2). The undersigned further advises the parties that failure to make a
timely objection to this Report and Recommendation waives the right to
appellate review of both factual and legal questions contained herein. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred
to the undersigned Magistrate Judge in this matter.
ENTERED this 26th day of February, 2026.
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