C.H. v. United States

C.H., a minor, by and through his Next Friend,Natural Guardian, and Parent, AMANDA SHIELDS PLAINTIFF v. UNITED STATES OF AMERICA DEFENDANT

CIVIL ACTION NO. 1:19-CV-00017-GNS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

October 15, 2019

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Motion to Dismiss (DN 10), and Plaintiff's Motion for Leave to Serve Discovery (DN 12). The motions are ripe for adjudication. For the reasons that follow, Defendant's motion is GRANTED and Plaintiff's motion is DENIED.

I. BACKGROUND

C.H. is the child of Plaintiff Amanda Shields ("Plaintiff"), who has brought this lawsuit on behalf of C.H. claiming that several medical professionals negligently provided services during C.H.'s birth at the Fairview Community Health Center ("Fairview") in Bowling Green, Kentucky. (Compl. ¶¶ 6, 15, 23-25, DN 1). Allegedly as a result of the complications, C.H. suffers from cerebral palsy, epilepsy, development delay, and cognitive impairment. (Compl. ¶¶ 23-25).

In the Complaint, Plaintiff asserts that three specific medical professionals gave Shields and him improper care: Heather Finney ("Finney"), a certified nurse midwife; Leigh Lindsey ("Lindsey"), a certified nurse midwife; and Dr. Devin Trevor ("Dr. Trevor"), an obstetrician gynecologist who was listed as Shields's attending physician. (Compl. ¶ 19). Plaintiff contends that these individuals were "employee[s] and/or agent[s] of Fairview Community Health Center." (Compl. ¶¶ 20-22). Plaintiff also asserts that Fairview is a health center program grantee under 42 U.S.C. § 254b and a Federal Tort Claims Act "deemed" Public Health Service employee under 42 U.S.C. § 233(g-n). (Compl. ¶ 9). Because of Fairview's status as a federal governmental entity, Plaintiff claims the Federal Tort Claims Act ("FTCA") applies here to afford a monetary recovery from Defendant United States of America ("Defendant"), something that would otherwise be barred by the principle of sovereign immunity.

Defendant has moved to dismiss the claim alleging that this Court lacks subject matter jurisdiction because Defendant has not waived its sovereign immunity. (Def.'s Mot. Dismiss 5-9, DN 10). Plaintiff has moved for leave to conduct additional discovery prior to ruling on Defendant's dispositive motion. (Pl.'s Mot. Leave Conduct Disc. 1-5, DN 12).

II. DISCUSSION

"The FTCA provides 'a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.'" Zion v. United States, 913 F. Supp. 2d 379, 383 (W.D. Ky. 2012) (emphasis added) (quoting United States v. Orleans, 425 U.S. 807, 813 (1976)). The dispute between the parties at this stage of the case rests on whether Finney, Lindsey, and Dr. Trevor constitute federal "employees" for purposes of the application of the FTCA to make the United States liable for their actions. "This is a question of subject matter jurisdiction. Federal law governs this issue. Under federal law, the burden to establish jurisdiction rests on the Plaintiff." Id. at 383 (citations omitted).

As the Sixth Circuit has stated:

A Rule 12(b)(1) motion [for lack of subject matter jurisdiction] can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.

DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citing RMI Titanium Co. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. 1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Ohio Nat'l Life Ins. Co. v. United States, 992 F.2d 320, 325 (6th Cir. 1990)). The United States makes a factual attack here, so Plaintiff "is not entitled to any presumptive truthfulness as to her factual allegations. Rather, 'this Court may weigh the evidence and resolve any factual disputes when adjudicating such a jurisdictional challenge.'" Zion, 913 F. Supp. 2d at 383 (citations omitted).

In analyzing this issue, the Southern District of Florida's decision in Del Valle v. Sanchez, 170 F. Supp. 2d 1254 (S.D. Fla. 2001), is instructive because the facts there closely mirror the case.¹ In Sanchez, the plaintiffs brought suit against three medical professionals for negligence in the prenatal and delivery care related to the birth of the plaintiffs' child. Id. at 1259. Liability on the part of the United States was sought pursuant to the FTCA and the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233. That court identified the issue before it as follows:

The exclusive remedy for claims against the United States for the tortious or negligent conduct of its employees is under the FTCA. Suits under the FTCA are limited to those that involve claims arising from "the negligent or wrongful act or omission of any employee of the Government . . . acting within the scope of his office or employment." The FSHCAA, 42 U.S.C. § 233(g), provides an exclusive remedy under the FTCA, 28 U.S.C. § 1346(b), for medical malpractice of employees or contractors of the Public Health Service. The FTCA specifically excludes "any contractor with the United States" from its coverage, but the FSHCAA expands the definition of employee under the FTCA to include contractors, subject to certain qualifications. Thus, prior to the enactment of the FSHCAA, the United States was not liable under the FTCA for the acts or omissions of contractors. The issue presented, therefore, is whether [the medical professionals] qualify under the statutory language of the FTCA and FSHCAA as employees or contractors of the Public Health Service.

Sanchez, 170 F. Supp. 2d at 1263-64 (citations omitted). The court then further expounded on the application of the FTCA:

The FTCA was not intended to apply to all persons or groups that are in any way associated or receive funding from the federal government. As stated above, the FTCA applies to employees of the federal government. An "'[e]mployee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States."

The standard for determining whether a party is an employee of the federal government or an independent contractor was established in United States v. Orleans, 425 U.S. 807 (1976). In that case, the court held that the determining factor was the level of control exercised by the federal government over the individual or agency. The government's ability to compel compliance with standards, rules, and regulations was not important. Rather, in order to be considered a federal employee, the government had to have some level of control or supervision over the person's physical conduct and his or her day-to-day functions.

. . . "[T]he contract and the terms in fixing the relationship of the offending party are critical[.]"

. . . Aside from the contract itself, courts have examined other factors to determine the degree of control exercised by the government. These factors include: (1) the payment of salary and insurance premiums; (2) the payment of taxes; (3) the intent of the parties; and (4) whether the government controlled the manner and method in which the doctor conducted his or her activities.

. . .

Other courts have had occasion to apply the principles of Orleans to private physicians working under contractual relationships with medical facilities operated by or receiving funds from the United States. All of the circuits consistently have held that physicians in private practice or associated with an organization under contract to provide medical services to facilities operated by the federal government are independent contractors, not employees of the government for FTCA purposes. It is noteworthy that, in the few instances when courts have found the physicians to be employees rather than contractors, the United States was the party arguing that the physician was an employee under the FTCA.

Sanchez, 170 F. Supp. 2d at 1264-68 (emphasis in original) (citations omitted). The Court applied these rules, finding that the three medical professionals did not constitute "employees" for purposes of the FTCA and concluding that the United States could not be held liable for the acts of the medical professionals.²

On the same issue of whether certain individuals constitute employees or contractors for FTCA purposes, this Court in Zion conducted a more cursory analysis, only focusing on the language of the contract, in coming to the same conclusion as the Court in Sanchez on the United States's motion to dismiss. Zion, 913 F. Supp. 2d at 382-84.

As in Sanchez and in Zion, the analysis here starts with the pertinent contract which evidences no right of the necessary control over Finney, Lindsey, and Dr. Trevor by Fairview so as to afford application of the FTCA. (Def.'s Mot. Dismiss Ex. A, at 2-9). Like Sanchez, the contract here is between Fairview—i.e., the public health entity—and Finney, Lindsey, and Dr. Trevor's actual employer, "Commonwealth Health Corporation d/b/a Women's Health Specialists ("WHS")[,]" a physician group practice specializing in obstetrics and gynecology, not between Fairview and the individual medical professionals. (Def.'s Mot. Dismiss Ex. A, at 3). Just like the contract in Sanchez, the contract here "makes no reference to the individual [medical professionals.]" Sanchez, 170 F. Supp. 2d at 1265. Also like Sanchez, "[n]owhere does theagreement state that the professional association or the doctors will be subject to the [eligible entity's] control or supervision." Id. In fact, as in Sanchez, "the opposite appears to be true[,]"...