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C.H. v. United States

United States District Court, W.D. Kentucky, Bowling Green Division

October 15, 2019

C.H., a minor, by and through his Next Friend, Natural Guardian, and Parent, AMANDA SHIELDS PLAINTIFF
v.
UNITED STATES OF AMERICA DEFENDANT

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss (DN 10), and Plaintiffs Motion for Leave to Serve Discovery (DN 12). The motions are ripe for adjudication. For the reasons that follow, Defendant's motion is GRANTED and Plaintiffs motion is DENIED.

         I. BACKGROUND

         C.H. is the child of Plaintiff Amanda Shields ("Plaintiff), who has brought this lawsuit on behalf of C.H. claiming that several medical professionals negligently provided services during C.H.'s birth at the Fairview Community Health Center ("Fairview") in Bowling Green, Kentucky. (Compl. ¶¶ 6, 15, 23-25, DN 1). Allegedly as a result of the complications, C.H. suffers from cerebral palsy, epilepsy, development delay, and cognitive impairment. (Compl. ¶¶ 23-25).

         In the Complaint, Plaintiff asserts that three specific medical professionals gave Shields and him improper care: Heather Finney ("Finney"), a certified nurse midwife; Leigh Lindsey ("Lindsey"), a certified nurse midwife; and Dr. Devin Trevor ("Dr. Trevor"), an obstetrician gynecologist who was listed as Shields's attending physician. (Compl. ¶ 19). Plaintiff contends that these individuals were "employee[s] and/or agent[s] of Fairview Community Health Center." (Compl. ¶¶ 20-22). Plaintiff also asserts that Fairview is a health center program grantee under 42 U.S.C. § 254b and a Federal Tort Claims Act "deemed" Public Health Service employee under 42 U.S.C. § 233(g-n). (Compl. ¶ 9). Because of Fairview's status as a federal governmental entity, Plaintiff claims the Federal Tort Claims Act ("FTC A") applies here to afford a monetary recovery from Defendant United States of America ("Defendant"), something that would otherwise be barred by the principle of sovereign immunity. DEFENDANT has moved to dismiss the claim alleging that this Court lacks subject matter jurisdiction because Defendant has not waived its sovereign immunity. (Def's Mot. Dismiss 5-9, DN 10). Plaintiff has moved for leave to conduct additional discovery prior to ruling on Defendant's dispositive motion. (Pl's Mot. Leave Conduct Disc. 1-5, DN 12).

         II. DISCUSSION

         "The FTC A provides 'a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.'" Zion v. United States, 913 F.Supp.2d 379, 383 (W.D. Ky. 2012) (emphasis added) (quoting United States v. Orleans, 425 U.S. 807, 813 (1976)). The dispute between the parties at this stage of the case rests on whether Finney, Lindsey, and Dr. Trevor constitute federal "employees" for purposes of the application of the FTCA to make the United States liable for their actions. "This is a question of subject matter jurisdiction. Federal law governs this issue. Under federal law, the burden to establish jurisdiction rests on the Plaintiff." Id. at 383 (citations omitted).

         As the Sixth Circuit has stated:

A Rule 12(b)(1) motion [for lack of subject matter jurisdiction] can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.

DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citing RMI Titanium Co. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. 1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Ohio Nat'l Life Ins. Co. v. United States, 992 F.2d 320, 325 (6th Cir. 1990)). The United States makes a factual attack here, so Plaintiff "is not entitled to any presumptive truthfulness as to her factual allegations. Rather, 'this Court may weigh the evidence and resolve any factual disputes when adjudicating such a jurisdictional challenge.'" Zion, 913 F.Supp.2d at 383 (citations omitted).

         In analyzing this issue, the Southern District of Florida's decision in Del Valle v. Sanchez, 170 F.Supp.2d 1254 (S.D. Fla. 2001), is instructive because the facts there closely mirror the case.[1] In Sanchez, the plaintiffs brought suit against three medical professionals for negligence in the prenatal and delivery care related to the birth of the plaintiffs' child. Id. at 1259. Liability on the part of the United States was sought pursuant to the FTC A and the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233. That court identified the issue before it as follows:

The exclusive remedy for claims against the United States for the tortious or negligent conduct of its employees is under the FTCA. Suits under the FTCA are limited to those that involve claims arising from "the negligent or wrongful act or omission of any employee of the Government . . . acting within the scope of his office or employment." The FSHCAA, 42 U.S.C. § 233(g), provides an exclusive remedy under the FTCA, 28 U.S.C. § 1346(b), for medical malpractice of employees or contractors of the Public Health Service. The FTCA specifically excludes "any contractor with the United States" from its coverage, but the FSHCAA expands the definition of employee under the FTCA to include contractors, subject to certain qualifications. Thus, prior to the enactment of the FSHCAA, the United States was not liable under the FTCA for the acts or omissions of contractors. The issue presented, therefore, is whether [the medical professionals] qualify under the statutory language of the FTCA and FSHCAA as employees or contractors of the Public Health Service.

Sanchez, 170 F.Supp.2d at 1263-64 (citations omitted). The court then further expounded on the application of the FTC A:

The FTCA was not intended to apply to all persons or groups that are in any way associated or receive funding from the federal government. As stated above, the FTCA applies to employees of the federal government. An "'[e]mployee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, . . . and persons acting on behalf of a federal ...

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