Washington v. United States

668 F.Supp.3d 816

Cotina WASHINGTON, Individually andas Independent Administrator of the Estate ofTony O. Washington, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. 22 C 4416

United States District Court, N.D. Illinois, Eastern Division

Signed April 3, 2023

Farris Michael Alkaraki, Leahy & Hoste, Chicago, IL, for Plaintiff.

AUSA, Nigel B. Cooney, United States Attorney's Office, Chicago, IL, for Defendant.

OPINION AND ORDER

SARA L. ELLIS, United States District Judge

On February 19, 2021, Plaintiff Cotina Washington filed suit against PrimeCare Community Health Clinic ("PrimeCare"), Dr. Javier Guevara, and other Defendants in Cook County Circuit Court alleging medical negligence and wrongful death. Washington v. PrimeCare Community Health, Inc., No. 21 L 1908 (Ill. Cir. Ct. Feb. 19, 2021). The United States substituted itself in the place of Defendants PrimeCare and Dr. Guevara, and removed the case to federal court pursuant to the Public Health Service Act ("PHSA"), 42 U.S.C. § 233(c). Washington v. United States, No. 21 C 5696, Doc. 1 (N.D. Ill. Oct. 26, 2021). The Court dismissed Washington's complaint without prejudice for failure to exhaust administrative remedies as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a). Id. at Doc. 11.

After exhausting her claims against the United States, Washington filed the present suit. The United States now moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because Washington failed to exhaust administrative remedies within the statutory limit and the Westfall Act's savings provision does not protect her claims, the Court grants the Unites States' motion to dismiss.¹

BACKGROUND²

On February 20, 2019, Tony Washington, Washington's father, went to see Dr. Guevara at PrimeCare Wicker Park complaining of left lower leg pain. His vital signs appeared abnormal. Dr. Guevara diagnosed Mr. Washington with a strained Achilles tendon and discharged him with a prescription for muscle relaxers and instructions to return for a follow-up appointment on February 27, 2019. On February 26, Mr. Washington died from a pulmonary embolism resulting from deep vein thrombosis.

Nearly two years later, on February 19, 2021, Washington filed suit in state court individually and as an independent administrator of her father's estate against PrimeCare, Dr. Guevara, and other Defendants. Washington, No. 21 L 1908. Because PrimeCare receives federal funds and Dr. Guevara acted within the scope of his employment during the events in question, the United States substituted itself as Defendant in place of PrimeCare and Dr. Guevara, and on October 26, 2021, removed the case to federal court. Washington, No. 21 C 5696, Doc. 1; see also Doc. 1 ¶ 6. On December 1, 2021, the Court dismissed Washington's complaint as to the federal Defendants without prejudice for failure to exhaust administrative remedies and stayed the case as to the state Defendants.³ Id. at Doc. 11; see also 28 U.S.C. §§ 2401(b), 2675.

In an effort to exhaust administrative remedies, Washington presented her claims to the Department of Health and Human Services ("HHS"), which confirmed receipt on January 14, 2022. After six months passed without disposition of the claims, Washington deemed her claims denied. 28 U.S.C. § 2675(a) ("The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section."). Accordingly, on August 19, 2022, Washington filed the present suit against the United States, alleging medical negligence and wrongful death.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016). To survive a Rule 12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to the defendant of the claim's basis. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728-29 (7th Cir. 2014). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

ANALYSIS

Under the Federally Supported Health Centers Assistance Act ("FSHCAA"), community health centers (such as PrimeCare) and their employees can be deemed Public Health Service ("PHS") employees pursuant to the PHSA. 42 U.S.C. § 233(g); Chronis v. United States, 932 F.3d 544, 546 n.1 (7th Cir. 2019) ("The [FSHCAA] permits the Secretary of Health and Human Services to deem certain federally funded community health centers, along with certain individuals affiliated with them, to be employees of the federal [PHS] for purposes of the [FTCA].") (citing 42 U.S.C. §§ 254b & 233(g)). PrimeCare, a private enterprise that receives federal grant money, operates as one of such centers, and Dr. Guevara acted within the scope of his employment at PrimeCare with respect to the allegations in the complaint. See Doc. 1 ¶ 6. Therefore, Washington's remedy against PrimeCare and Dr. Guevara lies in an action against the United States under the FTCA. 42 U.S.C. § 233(a), (g); see also Evans, 2022 WL 17976165, at *2 (where defendant health center received federal funding and doctor at the health center acted within the scope of his employment, the plaintiff's "remedy for alleged torts committed . . . lie[d] in a cause of action against the United States under the FTCA").

The FTCA "constitutes a limited waiver of the United States' sovereign immunity and allows individuals to bring an action for damages against the federal government for 'personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.' " Arroyo v. United States, 656 F.3d 663, 668 (7th Cir. 2011) (citing 28 U.S.C. § 1346(b)(1)). Its statute of limitations, which the United States contends bars this lawsuit, cabins the federal government's liability. Id. Under the FTCA, "a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." Blanche v. United States, 811 F.3d 953, 957-58 (7th Cir. 2016) (citing 28 U.S.C. § 2401(b)). "An FTCA claim accrues when: (A) an individual actually knows enough to tip him off that a governmental act (or omission) may have caused his injury; or (B) a reasonable person in the individual's position would have known enough to prompt a deeper inquiry." Id. at 958 (quoting Arroyo, 656 F.3d at 669). The United States asserts, and Washington does not appear to dispute, that Washington's FTCA claims accrued at the date of her father's death, February 26, 2019. Therefore, to comply with the FTCA, Washington needed to present her claims to HHS by February 26, 2021. The United States argues that because she waited until January 12, 2022—more than ten months after the FTCA deadline—the statute of limitations bars her claims.

Rather than disputing when HHS received her claims, Washington argues that the Westfall Act's savings provision (the "Savings Provision") permits her claims to move forward. 28 U.S.C. § 2679(d)(5). The Westfall Act, "Congress's 1988 amendment to the FTCA," Huertero v. United States, 601 F. App'x 169, 171 (3d Cir. 2015), contains a Savings Provision that allows a plaintiff's claims to proceed as timely when an action "in which the United States is substituted as the party defendant under this subsection is dismissed for failure to first" exhaust administrative remedies, "the claim would have been timely had it been filed on the date the underlying civil action was commenced," and "the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action," 28 U.S.C. § 2679(d)(5); see also Blanche, 811 F.3d at 958 ("[T]he FTCA's 'savings provision' allows a plaintiff's claims to proceed as timely if she filed a civil action within two years of her claim's accrual and presented the complaint to the appropriate federal agency within 60 days of her claim's dismissal."). The United States agrees that if the Savings Provision applies to this case, it would protect Washington's claims because she filed a civil action in state court within two years of her claims' accrual and presented her complaint to HHS within 60 days of her claims' dismissal. However, the United States contends that the Savings Provision does not apply because a plaintiff proceeding against PHS employees under 42 U.S.C. § 233(a) does not enjoy all the protections of the FTCA and because the Savings Provision applies only in cases removed under the FTCA's removal provision, 28 U.S.C. § 2679—and the United States removed this case pursuant to 42 U.S.C. § 233(c), the FSHCAA's removal provision.⁴ See 42 U.S.C. § 233(c) ("Upon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed . . . to the district court of the United States . . . and the proceeding deemed a tort action brought against the United States.").

The Court agrees that the Savings Provision does not apply in this case. As a threshold matter, the Supreme Court has made clear that 42 U.S.C. § 233 does...