Perez-Rodriguez v. United States

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DAMARIS PEREZ-RODRIGUEZ AND THE ESTATE OF MARIA A. RODRIGUEZ-FERRER, Plaintiffs, v. UNITED STATES OF AMERICA AND SALUD INTEGRAL EN LA MONTANA, INC., Defendants.

CIV. No. 22-1135 (SCC)

United States District Court, D. Puerto Rico

March 31, 2023

OPINION AND ORDER

SILVIA CARRENO-COLL UNITED STATES DISTRICT COURT JUDGE

In this medical malpractice action, the defendants have moved to dismiss the plaintiffs' complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and failure to state a claim. Docket No. 15. For the reasons below, we grant their motion in part and deny it in part.

I. The Plaintiffs' Complaint

Mana A Rodriguez-Ferrer visited Salud Integral de la Montana (SIM) a federally funded health center in Puerto Rico, complaining of chest pain. Docket No. 1 at ¶ 16. Dr. Erick A. Casanova-Rivera evaluated her. He ordered several tests, including an electrocardiogram (EKG). Id. at ¶ 17. Later that day, Dr. Casanova diagnosed Rodriguez with atypical chest pain and discharged her. Id. at ¶ 20. SiM did not call her back in even though her EKG was positive: it “showed an anterior infarct, possibly acute, suggesting myocardial injury.” Id. at ¶¶ 18, 28.

Two days later, Rodriguez was admitted to HIMA San Pablo Hospital, complaining of severe chest pain that radiated to her left arm. Id. at ¶ 21. She was diagnosed with a heart attack. Id. After emergency surgery, she developed hypoxia and respiratory distress. Id. at ¶¶ 22-23. She was then transferred to the intensive Care Unit, where she experienced progressive multi-organ failure and died. Id. at ¶ 24.

Rodriguez's estate and Damaris Perez-Rodriguez, Rodriguez's daughter, filed this action against the United States of America and SiM under the Federal Tort Claims Act (FTCA), alleging that SiM's medical personnel acted negligently by discharging her instead of referring her for treatment. Id. at ¶¶ 28-30. Although the plaintiffs' complaint is not perfectly clear at times, we discern three FTCA claims against the United States: (1) a medical malpractice claim based on Dr. Casanova's personal liability for his negligence, (2) a medical malpractice claim based on SiM's liability for the negligence of its medical personnel, and (3) a negligent infliction of emotional distress claim based on SIM's liability for the negligence of its medical personnel.

II. Procedural History

The defendants^[1] have filed a motion to dismiss the plaintiffs' complaint under Rules 12(b)(1) and 12(b)(6), arguing that the plaintiffs have failed to show that the Court has subject-matter jurisdiction over their claims and failed to state a claim based on the conduct of any actor other than Dr. Casanova. Docket No. 15. The defendants contend that Dr. Casanova is not a Public Health Service employee and that therefore the United States' waiver of sovereign immunity in the Public Health Service Act (PHSA), 42 U.S.C. § 233, and FTCA does not cover his conduct. Docket No. 15, pgs. 8-12. The defendants attached evidence to their motion showing that Dr. Casanova was employed by Platinum Emergency Group (“Platinum”), which had contracted with SiM to provide medical services. Docket No. 15-3; Docket No. 28-1. Because Dr. Casanova and SiM do not have a direct contractual relationship, the government argues that the PHSA and FTCA do not cover his conduct. The defendants also discern a negligent supervision claim in the complaint and argue that the claim is barred by the FTCA's discretionary function exception. Docket No. 15, pgs. 12-17.

In response to the defendants' motion to dismiss, the plaintiffs filed a motion for jurisdictional discovery, asking for the contract between Platinum and SiM. Docket No. 23. The defendants attached a copy of it to their opposition. Docket No. 28-1. We denied the plaintiffs' motion on the ground that it was moot. Docket No. 31.^[2] The plaintiffs then filed an opposition to the defendants' motion to dismiss. Docket No. 34. They argue first that the motion to dismiss must be converted into a motion for summary judgement. Id. at pgs. 4-7. Next, they contend that Dr. Casanova and Platinum are covered by the PHSA and FTCA. Id. at pgs. 8-12. Finally, they assert that the discretionary function exception does not apply. Id. at pgs. 12-18.

III.The Defendants' Motion to Dismiss

A. FTCA, PHSA, & FSHCAA

“Federal courts lack subject-matter jurisdiction over claims against the United States absent a waiver of sovereign immunity.” Davallou v. United States, 998 F.3d 502, 504 (1st Cir. 2021). The FTCA provides “a limited congressional waiver of the sovereign immunity of the United States for tortious acts and omissions committed by federal employees acting within the scope of their employment.” Escalona-Salgado v. United States, 911 F.3d 38, 40 (1st Cir. 2018) (quoting Diaz-Nieves v. United States, 858 F.3d 678, 683 (1st Cir. 2017)). The PHSA makes a tort action against the United States under the FTCA the “‘exclusive' remedy for certain ‘act[s] or omission[s]' on the part of [Public Health Service] employees resulting in personal injury or death.” O'Brien v. United States, 56 F.4th 139, 147 (1st Cir. 2022) (quoting 42 U.S.C. § 233(a)). The Federally Supported Health Centers Assistance Act (FSHCAA) amended the PHSA so that “private health centers receiving federal funds under 42 U.S.C. § 254b-as well as officers, board members, employees, and certain contractors of such entities-are eligible for the same PHSA and FTCA protections as are enjoyed by [Public Health Service] employees.” Id. at 148. To gain these protections, health centers or the individuals associated with them must be “deemed” a Public Health Service employee. Id. (quoting § 233(g)(1)(A)).

The Secretary of Health and Human Services holds the power to deem a health center or affiliated individual a Public Health Service employee. Id. But that the Secretary has deemed a health center a Public Health Service employee “does not conclusively establish PHSA and FTCA coverage with respect to a particular lawsuit when . . . an action is brought against a physician affiliated with a federally funded health center.” Id. at 148-49. A physician affiliated with a federally funded health center is considered a contractor of the health center-and is therefore covered by the PHSA and FTCA-if he "normally performs on average at least 32% hours of service per week for the entity for the period of the contract” or, if he works less than that “for the period of the contract,” “is a licensed or certified provider of services in the fields of family practice, general internal medicine, general pediatrics, or obstetrics and gynecology.” § 233(g)(5).

It is undisputed that SIM is a federally funded health center under § 254b and that the Secretary of Health and Human Services had deemed it a Public Health Service employee at the time Rodriguez received care there. Docket No. 15, pg. 15; see also Docket No. 15-1. It is further undisputed that SIM is therefore covered by the PHSA and FTCA. Docket No. 15, pg. 15. So there is no dispute that the United States stands in SIM's shoes with respect to claims brought against it that are within the scope of the United States' waiver of sovereign immunity in the PHSA and FTCA. The issue is whether the United States also stands in Dr. Casanova's shoes, which turns on whether he is SIM's contractor within the meaning of § 233(g) of the PHSA. Because this issue is tied to the United States' sovereign immunity, it implicates our subject-matter jurisdiction. See Davallou, 998 F.3d at 504.

That brings us to the defendants' motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. See FED. R. CIV. P. 12(b)(1). There are two broad types of jurisdictional challenges: facial and factual. Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 69 (1st Cir. 2021). in facial challenges, sometimes called sufficiency challenges, the movant accepts the nonmovant's jurisdictionally significant facts but challenges their sufficiency to confer subject-matter jurisdiction. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

“The analysis is essentially the same as a Rule 12(b)(6) analysis: we accept the well-pleaded facts alleged in the complaint as true and ask whether the plaintiff has stated a plausible claim that the court has subject matter jurisdiction.” CeboHero-Bertran, 4 F.4th at 69. But in factual challenges, the movant contests the nonmovant's jurisdictionally significant facts, requiring the court to “engage in judicial factfinding to resolve the merits of the jurisdictional claim.” Id. in conducting this analysis, we have “broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings.” Valentin, 254 F.3d at 363. The reason for this is simple: “[W]hen a factbound jurisdictional question looms, a court must be allowed considerable leeway in weighing the proof, drawing reasonable inferences, and satisfying itself that subject-matter jurisdiction has attached.” Id. at 364.

We decline the plaintiffs' invitation to evaluate the defendants' motion to dismiss as a motion for summary judgment under Rule 56 merely because the defendants attached extrinsic evidence to their motion. For as we said, we enjoy broad authority to consider extrinsic evidence to verify that we have jurisdiction. See Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002) (“attach[ing] . . . exhibits to a Rule 12(b)(1) motion does not convert it to a Rule 56 motion”). To be sure, there are some circumstances where the merits of the case and the jurisdictional challenge are so intertwined that the motion to dismiss should be evaluated under Rule 56. Torres-Negron v. J & N Records, LLC, 504 F.3d...