United States District Court, D. Nebraska
NATASHA CARRIZALES, individually and on behalf of NINA CARRIZALES, a minor, as her guardian and next friend, Plaintiff,
UNITED STATES OF AMERICA, Defendant. NATASHA CARRIZALES, individually and on behalf of NINA CARRIZALES, a minor, as her guardian and next friend, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, District Judge.
On October 30, 2013, the plaintiff, Natasha Carrizales, individually and on behalf of her 2-year-old daughter, Nina Carrizales, filed two medical malpractice actions in the District Court of Douglas County, Nebraska. On May 19, 2014, both actions were removed to this court when the United States Attorney certified that the named defendants, OneWorld Community Health Centers, Inc., d/b/a OneWorld Community Health Center ("OneWorld"), and Maribel R. Hamm ("Hamm"), were acting within the scope of their employment as employees of the United States. Immediately following the removal, the United States filed a notice of substitution in each case which was acted upon by the clerk of the court. The United States now seeks a formal order substituting it as the sole defendant in each case and moves for dismissal of the actions because the plaintiff failed to exhaust her administrative remedies under the Federal Tort Claims Act before bringing suit. For the reasons discussed below, the substitution of parties will be ordered and the government's motions to dismiss will be granted.
A. The Federal Tort Claims Act
The Federal Tort Claims Act ("FTCA") confers exclusive jurisdiction upon United States district courts over civil actions for money damages alleged to have been caused by the negligent or wrongful act or omission of any employee of the government acting within the scope of his or her employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). However, the Act provides:
An action shall not be instituted upon a claim against the United States for money damages for... 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, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 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.
28 U.S.C. § 2675(a). This is a jurisdictional requirement. See Mader v. United States, 654 F.3d 794, 808 (8th Cir. 2011) ("[C]onformity with § 2675(a) is a jurisdictional term of the FTCA's limited waiver of sovereign immunity.").
B. The Federally Supported Health Centers Assistance Act
Under the Federally Supported Health Centers Assistance Act of 1992 ("FSHCAA"), as amended at 42 U.S.C. § 233(g)-(n), the United States has made itself liable for the medical malpractice of federally supported community health centers, their officers, employees, and, in limited circumstances, those who contract to perform medical services for those centers. See Dedrick v. Youngblood, 200 F.3d 744, 744-45 (11th Cir. 2000). Where such a community health center or individual is covered by the FTCA, the exclusive remedy for damages for personal injury or death resulting from the performance of medical or related functions within the scope of office or employment is an FTCA action against the United States. See 42 U.S.C. § 233(a) and (g); see also 28 U.S.C. §§ 1346, 2671.
In 1995, Congress amended the FSHCAA, see Pub. L. No. 104-73, 109 Stat. 777-781 (Dec. 26, 1995), and delegated to the Secretary of Health and Human Services ("HHS") the authority to determine whether a community health center is deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. § 233 and the FTCA. See 42 U.S.C. § 233(g)-(h). "Once the Secretary makes a determination that an entity... is deemed to be an employee of the Public Health Services for purposes of [section 233], the determination shall be final and binding upon the Secretary and the Attorney General and other parties to any civil action or proceeding." 42 U.S.C § 233(g)(1)(F). "[Such] an entity... or employee of such an entity, ... shall be deemed to be an employee of the Public Health Service [and]... [t]he remedy against the United States for an entity... and... employee... of such an entity who is deemed to be an employee of the Public Health Service... shall be exclusive of any other civil action or proceeding to the same extent as the remedy against the United States is exclusive pursuant to [section 233(a)]." 42 U.S.C. § 233(g)(1)(A).
42 U.S.C. § 233(b) provides that the Attorney General shall defend any civil action brought in court against any officer or employee of the Public Health Service acting in the scope of his employment. "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 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...." 42 U.S.C. § 233(c); see also 28 C.F.R. § 15.4(a) & (b) ("The United States Attorney for the district where the civil action or proceeding is brought... is authorized to make the statutory certification that the Federal employee was acting within the scope of his office or employment with the Federal Government at the time of the incident out of which the suit arose... [and] that the covered person was acting at the time of the incident out of which the suit arose under circumstances in which Congress has provided by statute that the remedy provided by the Federal Tort Claims Act is made the exclusive remedy.").
C. The Plaintiff's Claims
The plaintiff alleges that on October 30, 2011, she was provided negligent medical treatment by Hamm, a certified nurse midwife, during labor and delivery of her daughter Nina at the Creighton University Medical Center - St. Joseph Hospital, and, as a consequence, that Nina is now severely disabled from hypoxic-ischemic encephalopathy. The government has produced evidence that two administrative tort claims were filed on October 29, 2013, on behalf of the plaintiff and her daughter, relating ...