O'Brien v. United States

56 F.4th 139

Brad O'BRIEN, Personal Representative of the Estate of Melissa Allen, Plaintiff, Appellant,

v.UNITED STATES et al., Defendants, Appellees, Fernando Roca, MD, Defendant.

No. 22-1014

United States Court of Appeals, First Circuit.

December 19, 2022

Adam R. Satin, with whom Andrew C. Meyer, Jr. and Lubin & Meyer, P.C. were on brief, for appellant.

Dana Kaersvang, Trial Attorney, Civil Division, United States Department of Justice, with whom Rachael S. Rollins, United States Attorney, and Erin E. Brizius, Assistant United States Attorney, were on brief, for appellee United States.

Before Lynch and Selya, Circuit Judges, and McElroy,^* District Judge.

SELYA, Circuit Judge.

In this case, the plaintiff brought a wrongful death action in state court. He alleged medical malpractice against (inter alia) a physician who worked for a federally funded health center. The patient (the plaintiff's decedent) was unaffiliated with the health center. The United States removed the action to federal court and sought to substitute itself as a defendant in the physician's place and stead. To justify removal and substitution, the United States invited the district court to invoke the provisions of the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), 28 U.S.C. § 2679. The district court accepted the government's invitation, invoked the Westfall Act, substituted the United States for the physician, and subsequently granted the government's motion to dismiss the plaintiff's amended complaint for failure to state a claim upon which relief could be granted.

The plaintiff appealed. In this court, the government conceded it had led the district court into a dead end: it repudiated its earlier reliance on the Westfall Act and, instead, attempted to salvage the substitution order under a provision of the Public Health Service Act (PHSA), 42 U.S.C. § 233. This shift in direction brought new issues into play and left gaps in the evidentiary record. Those gaps must be filled by further proceedings in the district court, which can then resolve the new issues that have emerged as a result of the government's about-face. We therefore vacate the substitution order, vacate the partial final judgment entered below, and remand to the district court for further proceedings consistent with this opinion.

I

We begin with the relevant facts. Because this appeal follows the allowance of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we draw those facts from the plaintiff's amended complaint and other materials in the record that may be considered at the motion-to-dismiss stage. See Aguilar v. U.S. Immigr. & Customs Enf't, 510 F.3d 1, 8 (1st Cir. 2007) ; Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial Mortg. Bankers Corp. ), 324 F.3d 12, 14-16 (1st Cir. 2003) ; Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998).

A

Plaintiff-appellant Brad O'Brien is the surviving partner of Melissa Allen and the personal representative of her estate. The sequence of events leading up to Allen's demise is largely undisputed. On July 26, 2016, Allen suffered multiple seizures at her home. She was brought to Lowell General Hospital (the Hospital) in Lowell, Massachusetts, and admitted at 5:00 a.m. There, emergency department staff found that Allen was seven months pregnant and suffering from severe hypertension.¹ Dr. Fernando Roca, an obstetrician who was present in the Hospital, was summoned to consult. At 5:22 a.m., Allen was transferred to the labor and delivery unit, where Dr. Roca oversaw her care. While there, Allen suffered another seizure. At 6:54 a.m., Dr. Roca decided that it was necessary to perform a cesarean section, and a baby girl was delivered approximately ten minutes later.

Following the birth of her baby, Allen was moved to the intensive care unit. By that time, she was unresponsive, her pupils were unequal and non-reactive, and she had no reflexes. A brain scan revealed "devastating neurological injury." Allen was then flown by helicopter to a tertiary care hospital in Boston, where she died eleven days later. The causes of death were listed as "intracranial hemorrhage and eclampsia."

B

Inasmuch as this case started with a state-court suit against Dr. Roca, we add some context about his involvement. Even though he provided care to Allen at the Hospital, Dr. Roca worked for Lowell Community Health Center (the Health Center), an entity that receives federal grant funds under 42 U.S.C. § 254b.

As of a date no later than January 1, 2015, the Health Center was deemed to be a Public Health Service (PHS) "employee" for purposes of 42 U.S.C. § 233. Its "deemed" status was renewed periodically and was in effect at the time of the events giving rise to the plaintiff's complaint.

As a Health Center employee, Dr. Roca was purportedly "permitted," at least "[i]n case[s] of emergency, ... to do everything possible to save the patient's life or to save the patient from serious harm." Separately, Dr. Roca's employment contract with the Health Center required him to "maintain [clinical] privileges at a hospital within a reasonable vicinity of [the Health Center]" — a radius that included the Hospital. Moreover, the contract required that he comply with "all rules, regulations and by-laws promulgated by [the Health Center] and such other hospitals at which [he] ha[d] clinical privileges."

In an apparent effort to satisfy the first requirement, Dr. Roca applied for — and received — clinical privileges at the Hospital. To satisfy the second requirement, Dr. Roca needed to comply with "all rules, regulations and by-laws" of both the Health Center and the Hospital. The record does not contain any compendia of these rules, regulations, and by-laws — but it does contain evidence that the Health Center required Dr. Roca to participate in the Health Center's "departmental call schedule," which included responsibility for "addressing all [Health Center] patient care responsibilities when such patients ... present[ed] at [the Hospital]." In addition, there is evidence that the Health Center allowed Dr. Roca to set aside "[o]ne day of the week or a portion thereof" to perform "operative procedures" at the Hospital.

The record is silent as to the capacity in which Dr. Roca came to attend to Allen's care in the Hospital. We do know, however, that Allen was not a Health Center patient.

C

This brings us to the travel of the case. On June 20, 2019, the plaintiff — on behalf of Allen's estate — brought suit in a Massachusetts state court. He alleged, among other things, that the Hospital and Dr. Roca negligently caused Allen's death.

In due course, the Department of Health and Human Services (HHS) notified the Attorney General's representative, the United States Attorney for the District of Massachusetts, that a claim had been brought "against [Dr. Roca], a former employee of [the Health Center]." The government subsequently appeared in the state court "for the limited purpose of notifying the court regarding whether or not the Secretary of HHS has concluded that [Dr. Roca] was ‘deemed’ to be an ‘employee of the Public Health Service’ with respect to the actions or omissions that are the subject of this civil action." See 42 U.S.C. § 233(l)(1). The government represented that "HHS ha[d] not yet provided its full report as to whether [Dr. Roca] has deemed status under 42 U.S.C. §§ 233(g) and (h) [and] whether that extends to the acts or omissions that are the subject of this civil action." See id. Nor had the Attorney General yet "been provided with sufficient information" to determine "whether the acts alleged fall within the scope of 42 U.S.C. § 233(a), the applicable provisions of the [Federally Supported Health Centers Assistance Act], and/or were otherwise within the scope of the entity or individual's ‘deemed’ employment." The government assured the court that the Attorney General would make such a determination "[o]nce HHS has completed its review and provided its report." The record does not contain anything indicating whether the HHS review was ever completed or whether such a report was ever compiled.

On March 23, 2021, the plaintiff filed an amended complaint, adding claims and defendants. As relevant here, the amended complaint alleged eight counts against Dr. Roca for, among other things, wrongful death. All eight counts implicated Dr. Roca's allegedly negligent treatment of Allen at the Hospital and sought damages for that alleged malpractice.

Three weeks after the amended complaint was filed, the government removed the case to the federal district court pursuant to 42 U.S.C. § 233(c). In its notice of removal, the government represented that Dr. Roca "was at all relevant times employed by" the Health Center and "acting within the scope of such employment." See 42 U.S.C. § 233(c). The plaintiff did not challenge the propriety of the removal through a motion for remand. See id. ²

The government then moved to substitute itself as the named defendant in place of Dr. Roca. The notice of substitution represented that "Dr. Roca was an employee of [the Health Center] during the time alleged in the Amended Complaint" and that "[the Health Center] and its employees were deemed eligible for Federal Tort Claims Act malpractice coverage effective January 1, 2015." Thus, the government concluded:

Dr. Roca was, at the time of the acts alleged in th[e] Amended Complaint, acting in the course and scope of his employment pursuant to the Federally Supported Health Care Centers Assistance Act of 1995 ( Pub. L. 102-501 ) and 42 U.S.C. § 233(a). As such, any claims for negligence related to alleged acts or omissions of Dr. Roca fall within the [Federal Tort Claims Act], and the exclusive remedy for the plaintiff in this case is against the United States of America.

In further support of substitution, the government filed a certification signed by the Acting United States Attorney for the District of Massachusetts. This...