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Chrispen v. United States

United States District Court, E.D. Kentucky, Southern Division, Pikeville

July 13, 2017

LISA ANN CHRISPEN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          KAREN K.CALDWELL, CHIEF JUDGE

         This matter is before the Court on the motion for partial summary judgment (DE 112) filed by the United States. For the following reasons, the Court will grant the motion and dismiss Counts II and III of the plaintiff's amended complaint.

         I. Background

         The plaintiff Lisa Ann Chrispen alleges that certain staff at Big Sandy Healthcare, Inc. d/b/a Physicians for Women (“Big Sandy”) were negligent in their evaluation, management, diagnosis, treatment, and care of her uterine cancer. She further alleges that, as a result of the staff's negligence, she has suffered various damages including a substantially shortened life expectancy. (DE 80, Amended Complaint.)

         Chrispen originally named Big Sandy and two doctors who practiced there - Dr. Joanna Santiesteban and Dr. Enrico Ascani - as defendants in this action, in addition to the United States. There is no dispute that Big Sandy and the doctors are deemed employees of the federal Public Health Service under 42 U.S.C. § 233(a). The United States has certified that the doctors were acting within the scope of their employment during the events alleged in the indictment. Thus, Chrispen's exclusive remedy for the wrongs she has alleged is through an action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Accordingly, the United States has been named the sole defendant in this action.

         Chrispen asserts three claims against the United States. The first count is for medical negligence. The second and third counts both assert that Big Sandy was negligent in the hiring, supervision and/or retention of Dr. Santiesteban. (DE 80, Amended Complaint, Counts I, II, and II.) She seeks $10 million in damages. The United States has recently stipulated that Dr. Santiesteban breached the duty of care in her medical treatment of Chrispen.

         The United States now moves to dismiss Chrispen's claim of negligent hiring/retention/supervision, arguing that the claim is precluded by the FTCA's discretionary-function exception.

         II. Analysis

         Suits against the United States are generally barred unless it consents to be sued. Kohl v. United States, 699 F.3d 935, 939 (6th Cir.2012). The FTCA reflects a limited waiver of that immunity but there are multiple exceptions to it. Id. The exception at issue here is the “discretionary-function exception.” Under it, the FTCA's waiver of immunity does not apply to “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If the exception applies to a claim, the United States has not waived its immunity for the claim. Thus, “federal courts lack subject-matter jurisdiction, and the claim must be dismissed.” Kohl, 699 F.3d at 940.

         To determine whether Chrispen's negligent hiring/retention/supervision claim falls within the discretionary-function exception, the Court must employ a two-step test. Id. Under the first step, the Court must determine “whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice.” Id. (citing Rosebush v. United States, 119 F.3d 438, 441 (6th Cir. 1997)). If so, then the discretionary-function exception does not apply. Id. The United States has waived its immunity to such claims through the FTCA because the employee had no option except to adhere to the directive. Id. (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If the employee failed to do so, the United States is subject to liability.

         “If, on the other hand, there was room for judgment or choice in the decision made, then the challenged conduct was discretionary.” Id. This means the conduct may be protected. The Court must then proceed to the second step of the test to determine whether the challenged conduct is the kind that the discretionary function was intended to shield from liability. Id. The discretionary-function exception was intended “'to prevent judicial ‘second-guessing' of . . . administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).

         The Sixth Circuit “has consistently held that agency supervisory and hiring decisions fall within the discretionary function exception.” Snyder v. United States, 590 F.App'x 505, 510 (6th Cir. 2014) (citing cases). Absent a specific regulation that constrains the government's judgment on such issues, decisions about training, supervision and retention “require policy judgments-the type that Congress intended to shield from tort liability.” Id.

         In her response, Crispin argues that her claim is specifically for “negligent credentialing.” The parties appear to agree with the definition of credentialing contained in a document published by the Bureau of Primary Health Care dated July 10, 2002, which clarified the bureau's credentialing policy dated July 17, 2001. (DE 112-6, DE 112-7.) The parties refer to the 2002 document as Policy Information Notice (PIN) 2002-22 and the Court will do the same. PIN 2002-22 defines credentialing as “the process of assessing and confirming the qualifications of a licensed or certified health care practitioner.” (DE 112-7, PIN 2002-22, § A.)

         The first problem with Chrispen's negative credentialing claim is that the tort is not currently recognized under Kentucky law. Brown v. Trover, No. 2012-CA-001880-MR, 2016 WL 100311, at *4 (Ky. Ct. App. Jan. 8, 2016). The United States' liability under an FTCA claim “is determined in accordance with the law of the state where the event giving rise to liability occurred.” Young v. United States, 71 F.3d 1238, 1242 (6th Cir.1995). The Kentucky Court of Appeals “briefly recognized the tort” in Estate of Judith Burton v. Trover, 2009-CA-001595, 2011 WL 8318231, at *1 (Ky.App.2011). Brown, 2016 WL 100311 at *4. The Kentucky Supreme Court, however, overturned that decision on other grounds, ...


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