United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K.CALDWELL, CHIEF JUDGE
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
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
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.
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.
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
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.
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.
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)).
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
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,
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, ...