United States District Court, W.D. Kentucky, Bowling Green Division
C.H., a minor, by and through his Next Friend, Natural Guardian, and Parent, AMANDA SHIELDS PLAINTIFF
UNITED STATES OF AMERICA DEFENDANT
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE
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.
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).
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).
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
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
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
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. 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