Opinion
5:01-CV-0633 (FJS/DEP)
November 7, 2001
HARRIS BEACH LLP, Syracuse, New York, OF COUNSEL: JOHN A. DeFRANCISCO, ESQ., Attorneys for Plaintiff.
OFFICE OF THE UNITED STATES ATTORNEY, Syracuse, New York, WILLIAM F. LARKIN, AUSA, Attorneys for Movant.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On January 30, 2001, Plaintiff filed a complaint in the Onondaga County Supreme Court alleging negligence in the medical care that she received from Defendant Dr. Quarles and the Syracuse Community Health Center ("SCHC"). Plaintiff alleges that Dr. Quarles was responsible for Plaintiff's prenatal care between April 1998 and December 1998. During this period, Dr. Quarles advised Plaintiff to seek inpatient treatment at Defendant Crouse Hospital for the complications she suffered during her pregnancy. Plaintiff contends that Dr. Quarles referred her to Crouse Hospital because he recognized that the SCHC could only provide limited care and could not handle extensive medical treatment of its patients. Plaintiff alleges that while she was at Crouse Hospital, Dr. Quarles and other staff negligently and carelessly treated her prenatal complications. Further, Plaintiff alleges that Dr. Quarles and the staff of Crouse Hospital were negligent in the delivery of her daughter and in the medical complications arising from that delivery. As a result of Defendants' negligence, professional negligence and medical malpractice, Plaintiff alleges that both she and her daughter sustained permanent and serious injuries.
Defendants responded to Plaintiff's complaint by serving an answer and discovery demands on Plaintiff. In their answer, Defendants asserted that Plaintiff must bring actions against Dr. Quarles and the SCHC under the Federal Tort Claims Act ("FTCA"). As a result, Plaintiff filed a Notice of Claim on behalf of herself and her infant daughter with the United States Department of Health and Human Services on or about March 7, 2001. Subsequently, Defendants removed this action from the Onondaga County Supreme Court to the Northern District of New York.
Presently before the Court are the United States' motion to substitute the United States as a Defendant for the SCHC and Dr. Quarles and to dismiss this action and Plaintiff's cross-motion for discovery on the question of the scope of Dr. Quarles' employment. The Court heard oral argument in support of, and in opposition to, these motions on October 26, 2001. At the close of argument, the Court rendered its decision and informed counsel that a written order, setting forth the reasons for its decision, would be forthcoming. The following constitutes the Court's determination of the pending motions.
II. DISCUSSION
A. The United States Should be Substituted as a Defendant As a necessary prerequisite to removal of this action, Assistant United States Attorney William F. Larkin certified that at all times alleged in the Complaint during the period from June 23, 1996 forward, the SCHC and Dr. Quarles were deemed eligible for FTC coverage. This certification appears to be consistent with letters dated April 7, 1994 and June 21, 1996, from Assistant Surgeon General Marilyn Gaston, verifying that the SCHC and its employees and full-time contractors were deemed to be covered by the Federally Supported Healthcare Centers Assistance Act of 1992 and provided liability protection under the FTCA. See United States' Memorandum of Law, Exhibit A. Plaintiff alleges negligence in the medical care and treatment Dr. Quarles and the SCHC provided to her from April through December 1998. This time period was within the period of FTCA coverage.
Section 233(c) requires certification by the Attorney General. However, pursuant to 29 C.F.R. § 15.3(a), "United States attorneys are authorized to make the certifications provided for in . . . 42 U.S.C. § 233(c) . . . with respect to civil actions or proceedings brought against Federal employees in their respective districts." 28 C.F.R. § 15.3(a).
Based on the letters from the Assistant Surgeon General, it appears that the applicable coverage periods were from May 1, 1994 through January 1, 1996 and from June 23, 1996 to the present.
Title 42 U.S.C. § 233(c) provides that upon certification by the Attorney General that a defendant was acting within the scope of his or her federal employment at the relevant time, the action may be removed to federal court any time prior to trial, and further, that the action would thereafter "be `deemed a tort action brought against the United States under the provisions of Title 28 and all references thereto.'" Koehler v. Cortland Mem. Hosp., 65 F. Supp.2d 103, 106 (N.D.N.Y. 1999) (quoting 42 U.S.C. § 233(c)).
"Upon a certification by the Attorney General that the defendant was acting in the course of his employment at the time of the incident out of which the suit arose, any civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of Title 28 and all references thereto." 42 U.S.C. § 233(a).
The Court finds that the Surgeon General and the Assistant United States Attorney properly certified the SCHC and Dr. Quarles and that, therefore, they are eligible for FTCA coverage, assuming that they were acting within the scope of their employment when they treated Plaintiff.
B. Plaintiff's Remedies Against the United States are Limited to the FTCA.
Plaintiff does not dispute that the SCHC is covered by the FTCA or that the United States should be substituted as a party for the SCHC. Therefore, Plaintiff's available remedies are limited to those provided by 42 U.S.C. § 233(a), which dictates that Plaintiff's exclusive remedy is an action under the FTCA:
[t]he remedy against the United States . . . for damage for personal injury, including death, resulting from medical, surgical, dental or related functions, including the conduct of clinical studies or investigation, by any commissioned . . . employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the . . . employee . . . whose act or omission gave rise to the claim.
Id. The FTCA, 28 U.S.C. § 2675(a), requires that as a prerequisite to suit, a plaintiff file an administrative complaint "to the appropriate Federal agency." 28 U.S.C. § 2675(a); see also Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990) (citing Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986) (finding that "the requirement of the filing of a claim by 28 U.S.C. § 2675(a) was `jurisdictional and may not be waived'")). Moreover, the FTCA precludes a plaintiff from bringing a suit in federal court until her claim "`ha[s] been finally denied by the agency'" Id. (quoting 28 U.S.C. § 2675(a)). This administrative exhaustion requirement has only one exception. If the agency fails "to make final disposition of a claim within six months after it is filed" the plaintiff may opt to have the agency's delay "deemed a final denial of the claim for purposes of this section." Id. (quoting 28 U.S.C. § 2675(a)).
Generally, the United States, as a sovereign, is immune from suit. See Millares Guiraldes De Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998). However, the United States has consented to a limited waiver of its sovereign immunity under the FTCA. See United States v. Orleans, 425 U.S. 807, 813 (1976).
In the present case, Plaintiff did not exhaust her administrative remedies before filing suit against the SCHC. Plaintiff attributes this oversight to her lack of knowledge about Dr. Quarles' and the SCHC's eligibility for coverage under the FTCA. See Plaintiff's Memorandum of Law at 3. Plaintiff claims that she became aware of Defendants' eligibility only upon receiving their Answer in the initial state court action. Id. Once she became aware of Dr. Quarles' and the SCHC's status, Plaintiff filed a Notice of Claim with the United States Department of Health and Human Services on March 7, 2001. Id. However, she did not wait the required six-month period after submitting the administrative claim, as required by 28 U.S.C. § 2675(a), before commencing this action. Thus this Court does not have jurisdiction over this action with respect to the United States.
Nor can this Court stay the present action until Plaintiff has exhausted her administrative remedies because the Court lacked jurisdiction in the first place to entertain the suit. See Plyler, 900 F.2d at 42 ("Since the district court had no jurisdiction at the time the action was filed, [the Court] could not obtain jurisdiction by simply not acting on the motion to dismiss until the requisite period had expired." (citation omitted")). Accordingly, this Court dismisses Plaintiff's claims against the United States without prejudice.
C. Further Discovery is Necessary to Determine Whether Dr. Quarles was Acting within the Scope of his Employment
As noted, Plaintiff concedes that the SCHC is a public health facility and, therefore, covered by the FTCA. Nevertheless, she contends that the exclusive remedy provision of the FTCA does not limit her recovery against Dr. Quarles because, at all relevant times, his treatment of her was outside the scope of his federal employment. Plaintiff asserts that Dr. Quarles was acting outside the scope of his federal employment when he treated her during her pregnancy, delivered her daughter and provided Plaintiff with medical care for her complications after her delivery.
Dr. Quarles was certified as a federal employee under the Federal Employees Liability Reform and Tort Compensation Act, ("FELRTCA") which amended the FTCA, 28 U.S.C. § 1346(b), 2671-2680. Certification decisions under the FELRTCA are prima facie evidence that the employee's challenged conduct occurred within the "scope of the employee's federal employment." See Rendon v. United States, 91 F. Supp.2d 817, 820 (E.D.Pa. 2000). However, certification of the scope of employment of a federal employee is reviewable in the context of the FELRTCA. See id. At 819 (citation omitted). The courts have interpreted the statute to allow for limited review of whether the litigated incident "occurred within the scope of employment." Id. (citing 42 U.S.C. § 233 (b), (c)).
In a letter dated June 21, 1996, the Assistant Surgeon General stated the following:
The "FTCA" coverage is applicable to deemed entities and their [. . .] including officers, governing board members, employees, and contractors who are physicians or other licensed or certified health care practitioners working full-time (minimum of 32.5 hours per week) or part-time providing family practice, general internal medicine, general pediatrics or obstetrical/gynecological services.
See United States' Memorandum of Law, at Exhibit A.
Plaintiff points to a letter in which the United States Surgeon General states that "such determination or certification is subject to judicial review." See United States' Memorandum of Law, at Exhibit A
Once the Attorney General has certified that a particular employee was acting within the scope of his employment, the burden then shifts to the plaintiff to rebut this certification by a preponderance of the evidence. See Maron v. United States, 126 F.3d 317, 323 (4th Cir. 1997) (finding that the plaintiff must refute certification of scope of employment by preponderance of the evidence that defendants were not acting within the scope of their employment); Melo v. Hafer, 912 F.2d 628, 641-42 (3d Cir. 1994) (finding that a plaintiff has a right to contest certification determinations, but that plaintiff must present competent evidence to rebut certification decisions). The Third Circuit has found that if a court finds a "genuine issue of fact material to the employment question, the district court should permit discovery and conduct a hearing, if necessary." Schrob v. Catterson, 967 F.2d 929, 936 (3d Cir. 1992).
In the present case, Plaintiff requests an opportunity to conduct limited discovery to determine whether Dr. Quarles was working outside the scope of his employment with the SCHC when he referred, and then treated, Plaintiff at Crouse Hospital. In support of her request, Plaintiff points to her medical records to demonstrate that at all relevant times she was a patient of Crouse Hospital and that Dr. Quarles sought medical care for her at Crouse Hospital, not the SCHC. Plaintiff claims that Dr. Quarles' decision to send her to Crouse Hospital whenever she needed urgent care indicates that he recognized the limits of the SCHC's ability to care for its patients in severe medical crises. In addition, Plaintiff argues that these referrals demonstrate the limited scope of the SCHC in treating and caring for its patients and the limited scope of the employment of its physicians and contractors.
Furthermore, Plaintiff asserts that if she is provided with the opportunity to engage in discovery with respect to the issue of the scope of Dr. Quarles' employment, she may be able to demonstrate that Dr. Quarles was in a separate employment situation with Crouse Hospital or that he had some other employment arrangement beyond the scope of his employment with the SCHC. Plaintiff requests that she be permitted to undertake limited discovery so that she might depose Dr. Quarles and request documents pertaining to his employment arrangements with both the SCHC and Crouse Hospital. The Court finds that because Plaintiff has raised a legitimate question about Dr. Quarles' scope of employment, she should be permitted the opportunity to conduct limited discovery. Accordingly, the Court grants Plaintiff's cross-motion for discovery and will provide Plaintiff with sixty days in which to depose Dr. Quarles and request documents pertinent to his employment relationship with the SCHC and Crouse Hospital.
III. CONCLUSION
After carefully considering the file in this matter, the parties' submissions and oral arguments and the applicable law, and for the reasons stated herein as well as at oral argument, it is hereby
ORDERED that the United States' motion to be substituted as a Defendant for the SCHC and Frankie Quarles, M.D., to the extent he was acting within his scope of employment is
GRANTED; and it is further
ORDERED that Plaintiff's claims against the United States are DISMISSED
WITHOUT PREJUDICE; and it is further
ORDERED that Plaintiff's cross-motion for discovery is GRANTED and Plaintiff has sixty days in which to depose Dr. Quarles and request documents regarding the issue of the scope of Dr. Quarles' employment.
IT IS SO ORDERED.