Opinion
Civil No. SA-99-CA-1000-FB.
February 7, 2000.
ORDER DENYING PLAINTIFFS' MOTION TO REMAND AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court are the notice of substitution and application for an order (docket no. 2) filed by government seeking to substitute the United States of America in place of defendant Jerome T. Washington, M.D., plaintiffs' objection to the substitution (docket no. 6) based upon their contemporaneously filed motion to remand (docket no. 7), plaintiffs' request for oral hearing (docket no. 9), the government's motion to dismiss or alternatively for summary judgment (docket no. 11) and plaintiffs' response (docket no. 12) and brief in support of their response (docket no. 13). After careful consideration, the Court is of the opinion the United States of America should be substituted in place of Jerome T. Washington, M.D. as defendant, plaintiffs' motion to remand should be denied, defendant's motion to dismiss or for summary judgment should be granted in the alternative such that summary judgment should be entered in favor of defendant and the above-styled and numbered cause should be dismissed.
The doctrine of sovereign immunity comes from the antiquated idea "the King can do no wrong." See Nevada v. Hall, 440 U.S. 410, 415 n. 7 (1979) (citing 1 W. BLACKSTONE, COMMENTARIES *246). One might argue the doctrine of sovereign immunity violates concepts of equity, otherwise known as the "taint right doctrine"; however, whether one agrees or disagrees with the theory, the law is well established the United States can waive its right to be sued, but can impose strict limitations on those seeking damages.See Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981). From the chronology of events, it appears plaintiffs may have waited far too long in order to give their lawyer an ample opportunity to give the requisite notices and follow the proper procedures required by the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 1346(b); 2671; et. seq.
On April 27, 1998, plaintiffs brought suit against Jerome T. Washington, M.D. in Texas state court alleging his failure to properly diagnose and treat the gestational diabetes of Ms. Estrella caused her to deliver a stillborn child on March 22, 1996. Plaintiffs seek to recover damages for personal injuries and wrongful death which allegedly resulted from the negligent acts of Dr. Washington, an employee of the Barrio Comprehensive Family Health Care Clinic (sometimes referred to as "the clinic") in the care and treatment provided Ms. Estrella and her unborn baby Amber Brianna Estrella (deceased). The clinic is a community health center funded by a federal grant and eligible for FTCA coverage under the Federally Supported Health Centers Act of 1992 (Pub.L. 102-501). At the time of the incident, Dr. Washington was under contract with the clinic to provide his OB/GYN services on a part time basis. Plaintiffs do not dispute Dr. Washington and the clinic are therefore deemed eligible for FTCA coverage, see 42 U.S.C. § 233(g)(5)(B), and are considered employees of the Public Health Service, see 42 U.S.C. § 233(g)(1)(A), a federal agency.
Plaintiffs also brought suit against the Women's and Children's Hospital, but later filed a non-suit in state court as to this defendant.
On March 6, 1998, plaintiffs sent notice to Dr. Washington and the Barrio Comprehensive Health Care Center informing them of plaintiffs' intent to bring suit under state law. Dr. Washington received his notice on March 9, 1998; the date of delivery is blank on the clinic's mail receipt. On April 27, 1998, the same day they filed their state court petition, plaintiffs filed an administrative claim with the Department of Health and Human Services.
Roughly six months after plaintiffs filed their administrative claim, on October 18, 1998, the state judge entered a pretrial order and set the case for a jury trial beginning September 13, 1999. Four months later, on February 18, 1999, the judge entered an agreed order granting in part and denying in part defendant's motion for summary judgment. A second motion for summary judgment and motion for reconsideration filed by Dr. Washington were denied on September 2, 1999. Shortly thereafter, on the pre-scheduled trial date, September 13, 1999, an Assistant United States Attorney removed the case to federal court based upon Dr. Washington's eligibility for FTCA coverage. The notice of removal was filed as the parties were awaiting a jury panel. In November of 1999, approximately two months after the case was removed, the Department of Health and Human Services denied plaintiffs' administrative claim. The federal agency notified plaintiffs it was denying their claim based upon limitations, along with a finding there was no evidence of negligence by Dr. Washington.
Along with the notice of removal, the government filed a Notice of Substitution and Application for Order Thereon seeking to substitute the United States of America in place of Dr. Washington as the defendant. Plaintiffs object to the substitution and move to remand. They argue Dr. Washington waived his right to remove by "submitting legal defenses to the state court by way of motions for summary judgment and obtaining rulings thereon." Plaintiffs also note Dr. Washington "consciously elected the state court as his forum by filing motions, special exceptions, written discovery and obtaining rulings of the state court." Although plaintiffs make a persuasive argument vis a vis Dr. Washington, the government is entitled to remove a case "at any time before trial." 28 U.S.C. § 2679(d)(2). Although the parties were awaiting a jury panel, trial had not commenced. Consequently, the government properly removed the case. The motion to remand is therefore denied and the application for an order substituting the United States of America in place of Dr. Washington is granted.
The government moves for dismissal or summary judgment arguing plaintiffs' suit is barred by limitations because their administrative claim was not filed with the Department of Health and Human Services until April 27, 1998, after the statute of limitations had run on March 22, 1998. Having considered matters outside the record, the Court construes the motion as one for summary judgment. See FED. R. Civ. P. 12(b). Plaintiffs do not dispute limitations ran on March 22nd, but argue they fall within the applicable period because they presented their claims to the clinic and Dr. Washington prior to March 22, 1998.
It is unclear when the clinic received plaintiffs' notice due to the blank date on the mail receipt. Viewed in a light most favorable to plaintiffs, Baton Rouge Bldg. Constr. Trades Council v. Jacobs Constructors. Inc., 804 F.2d 879, 881 (5th cir. 1986), and in the absence of controverting argument or evidence from defendant, the Court presumes the notice reached the clinic prior to March 22, 1998.
An administrative claim must be filed with "the appropriate federal agency", 28 U.S.C. § 2675(a), within two years after the claim accrues, 28 U.S.C. § 2401(b), and the claim must have been finally denied by the agency before suit is filed. 28 U.S.C. § 2675 (a), As of March 22, 1998, the date limitations ran, plaintiffs had neither presented their claim to the Department of Health and Human Services, nor had their claim been finally denied by the agency. It appears limitations operates to bar plaintiffs' lawsuit.
Implicit in plaintiffs' response is the contention that presenting their claim to Dr. Washington and the clinic was equivalent to filing an administrative claim with the "appropriate federal agency" for purposes of the FTCA. District courts have jurisdiction over "civil actions on claims against the United States for money damages . . . or personal injury . . 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." 28 U.S.C. § 1346(b). "As used in . . . section 1346(b) the term `Employee of the government' includes . . . employees of any federal agency." 28 U.S.C. § 2671. "Federal agency [however] does not include any contractor with the United States. Id. In accordance with FTCA statutory language, the clinic and Dr. Washington are "employees of a federal agency" but not "the appropriate agency." It appears the contractual relationship between Dr. Washington and the clinic renders the medical providers eligible for FTCA coverage, but ineligible to be "the appropriate federal agency" with which to file an FTCA claim because the term does not include "any contractor with the United States."
Courts considering the question of how to ascertain the appropriate federal agency for the purpose of determining where to file an FTCA administrative claim have concluded there is only one appropriate agency in each case. See Hejl v. United States, 449 F.2d 124, 126 (5th Cir. 1971) (United States Public Health Service, not Texas State Department of Health, is appropriate federal agency); Lotrionte v. United States, 560 F. Supp. 41, 43 (S.D.N.Y.) (Veterans Administration, not United States Public Health Service, is appropriate federal agency in claim arising from negligence at a Veterans Administration hospital), aff'd 742 F.2d 1436 (2d Cir. 1983); Barnson v. United States, 531 F. Supp. 614, 622-24 (D. Utah 1982) (Department of Energy, not Department of Health and Human Services, is appropriate agency in complex FTCA case arising from death of several persons employed at Utah uranium mines). It is undisputed the Department of Health and Human Services is the appropriate federal agency pursuant to the facts of this case. Under the analysis of the cited authorities, presentation of the claim otherwise is insufficient. The Court concludes plaintiffs did not file their administrative claim within the applicable period. Defendant's motion is therefore granted in the alternative such that summary judgment is granted in favor of defendant.
"An" appropriate federal agency may have a duty to transfer a claim to the appropriate federal agency in the case of misdelivery. See 28 C.R.F. § 14.2(b)(1). As noted above, however, Dr. Washington and the clinic do not qualify to be an appropriate federal agency because of their contractor status. See 28 U.S.C. § 2671. Moreover, it is questionable whether there would have been time to effect a transfer as plaintiffs gave notice on March 9, 1998, and the statute of limitations ran on March 22, 1998. See Lotrionte, 560 F. Supp. at 43 (length of time between time claim was filed and time statute of limitations ran was too short to effectuate transfer to "the appropriate federal agency").
IT IS THEREFORE ORDERED that the application for an order substituting the United States of America in place of defendant Jerome T. Washington, M.D. (contained within docket no. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiffs' motion to remand (docket no. 7) and request for oral hearing (docket no. 9) are DENIED.
IT IS FINALLY ORDERED that the government's motion to dismiss or alternatively for summary judgment (docket no. 11) is GRANTED in the Alternative such that summary judgment is entered in favor of defendant. The above-styled and numbered cause is DISMISSED. Motions pending with the Court, if any, are denied. Each side is to bear its respective Costs.
It is so ORDERED.