Begay v. United States

• Decision Date: 18 May 2016
• Docket Number: No. CIV 15-0358 JB/SCY,CIV 15-0358 JB/SCY
• Citation: 188 F.Supp.3d 1047
• Parties: Lydell Marvin Begay, Martin ("Marty") Begay, and Loren Begay, Plaintiffs, v. United States of America, Defendant.
• Court: U.S. District Court — District of New Mexico

188 F.Supp.3d 1047

Lydell Marvin Begay, Martin ("Marty") Begay, and Loren Begay, Plaintiffs,

v.United States of America, Defendant.

No. CIV 15-0358 JB/SCY

United States District Court, D. New Mexico.

Signed May 18, 2016

Seth T. Cohen, Cynthia Zedalis, Cohen & Zedalis LLP, Santa Fe, New Mexico and Turner W. Branch, Margaret Moses Branch, Branch Law Firm, Albuquerque, New Mexico, Attorneys for the Plaintiffs

Damon P. Martinez, United States Attorney, Erin Langenwalter, Assistant United States Attorney, Albuquerque, New Mexico, Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Summary Judgment, and Memorandum in Support, filed October 16, 2015 (Doc. 24)("Motion"). The Court held a hearing on December 15, 2015. The primary issues are: (i) whether, under controlling law, physician Dr. Annicol Marrocco was an employee of the federal government or an employee of an independent contractor at the time she performed medical services that Plaintiffs Lydell Marvin Begay ("L. Begay") and his parents, Martin (Marty) Begay ("Mr. Begay") and Loren Begay ("Mrs. Begay")(collectively "the Begays") allege constituted medical negligence; and (ii) whether the Begays exhausted their administrative remedies with respect to the negligent supervision (Count II) and negligent hiring/credentialing (Count III) claims that they assert. The Court will grant in part and deny in part the Motion. First, the Court concludes that it lacks subject matter jurisdiction over Count I of the Complaint to the extent that it seeks relief for any acts of negligence of Dr. Marrocco on the grounds that Dr. Marrocco was an independent contractor, and not a United States employee. The Court will also deny the Begays' request that the Court postpone ruling on the Motion until additional discovery is conducted with respect to Dr. Marrocco's employment status. Second, with respect to the Begays' allegation that other Northern Navajo Medical Center staff members committed medical negligence, the Court concludes that the Complaint complies with the pleading requirements that Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Iqbal"), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Twombly") set forth, and that amendment is therefore not required. Third, the Court concludes that Mr. and Mrs. Begay, but not L. Begay, have exhausted the administrative remedies for Count II and Count III with respect to the negligent supervision and hiring of other Northern Navajo Medical Center staff, nurses, and doctors in this case. It will allow them to amend the Complaint on Counts II and III to comply with the pleading requirements that Iqbal and Twombly set forth. Finally, at the December 15, 2015, hearing, the United States withdrew its argument about the insufficiency of exhaustion with respect to Dr. Marrocco for Counts II and III.

FACTUAL BACKGROUND

In the body of its Motion, Defendant United States of America invokes rules 12(b)(1), 12(b)(6), and 56. To get as solid a factual basis as possible, the Court will cite only the undisputed material facts. For the most part, the material facts are largely undisputed.

"On March 6, 2014, Lydell Begay presented to the emergency room of Northern Navajo Medical Center ("NNMC")." Motion ¶ 1, at 2 (setting forth this fact). See Plaintiffs' Response to Defendant United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Summary Judgment; Rule 56(D) Affidavit at 3, filed November 16, 2015 (Doc. 39) ("Response")(not disputing this fact). "Lydell Begay was seen by physician Dr. Annicol Marrocco." Motion ¶ 2, at 2 (setting forth this fact). See Response at 3 (not disputing this fact). "On March 6, 2014, Mr. Begay's initial Emergency Department Examination at NNMC was performed by a registered nurse who is identified both by initials and signature on the 'Emergency Primary RN' evaluation form." Response at 5 (setting forth this fact).¹ "That nurse failed to identify any neurological concerns." Response at 5 (setting forth this fact).² "On March 6, 2014, Mr. Begay was also examined at NNMC by Allen Jones, R.N., who also failed to note neurological concerns." Response at 6 (setting forth this fact).³ "Lydell Begay was seen again at NNMC on March 13, 2014." Motion ¶ 3, at 2 (setting forth this fact). See Response at 3 (not disputing this fact). "Dr. Marrocco was not involved in his treatment or care on March 13, 2014." Motion ¶ 3, at 2 (setting forth this fact). See Response at 3 (not disputing this fact). "A CT scan conducted on March 13, 2014, showed a blood clot in the basal ganglia of Lydell Begay's head and neck area." Motion ¶ 4, at 2 (setting forth this fact). See Response at 3 (not disputing this fact).

"Lydell Begay was transferred to University of New Mexico Hospital (UNMH) on March 13, 2014." Motion ¶ 5, at 2-3 (setting forth this fact). See Response at 3 (not disputing this fact). "Following his admission to UNMH, Lydell Begay was diagnosed with left posterior cerebral artery, left posterior inferior cerebral artery, and left acute focal cerebral arteriopathy infraction, and there was an abnormal signal within the intradural left vertebral artery." Motion ¶ 5, at 2-3 (setting forth this fact). See Response at 3 (not disputing this fact). "The presumptive diagnosis was made at UNMH of left cervical vertebral artery dissection, leading to his complete quadriparesis, the need for intubation and respiratory support, and the loss of speech, also known as 'locked in' syndrome." Motion ¶ 5, at 3 (setting forth this fact). See Response at 3 (not disputing this fact).

"Dr. Annicol Marrocco was not an employee of the Department of Health and Human Services or the Northern Navajo Medical Center on March 6, 2014." Motion ¶ 9, at 4 (setting forth this fact)(citing Declaration of Sue Ann Nichols, MMA, RN ¶ 5, at 1 (executed August 31, 2015), filed October 16, 2015 (Doc. 24-3) ("Nichols Decl."). See Response at 4 (not disputing this fact).⁴ "Dr. Annicol Marrocco worked as a contractor at Northern New Mexico Medical Center from January 1, 2014 to December 31, 2014, pursuant to a contract between NNMC and Medicus Healthcare Solutions, LLC." Motion ¶ 10, at 4 (setting forth this fact). See Nichols Decl. ¶ 3, at 1; Solicitation/Contract/Order for Commercial Items at 6, filed October 16, 2015 (Doc. 24-3)("Contract").⁵ "Medicus Healthcare Solutions, LLC provided the services of Dr. Marrocco pursuant to the contract." Motion ¶ 11, at 4 (setting forth this fact). See Response at 4 (not disputing this fact). "The contract was a 'non-personal service contract.' " Motion ¶ 12, at 4 (setting forth this fact); Response at 4 (not disputing this fact).⁶ "Dr. Annicol Marrocco was not designated as an employee of the Federal Government for purpose of the Federal Tort Claims Act." Motion ¶ 13, at 4 (setting forth this fact). See Response at 4 (not disputing this fact).⁷ "The contract provided for the provision of Emergency Room Physician service for the ER Department at Northern Navajo Medical Center on an 'as needed' basis." Motion ¶ 14, at 4 (setting forth this fact). See Response at 4 (not disputing this fact).⁸ "The contract specifically stated that the Government did not guarantee that the contractor would work the number of hours ordered and was clear it would pay the contractor only the actual hours the contractor worked." Motion ¶ 15, at 4 (setting forth this fact). See Response at 4 (not disputing this fact).⁹ "The contractor submitted invoices to NNMC for payment for services and was paid for those services." Motion ¶ 16, at 5 (setting forth this fact). See Response at 4 (not disputing this fact).¹⁰ "The contractor was responsible for paying for necessary travel, per diem, housing, and applicable taxes." Motion ¶ 17, at 5 (setting forth this fact). See Response at 4 (not disputing this fact).¹¹ "The Government declined to provide health benefits, paid leave, thrift savings plan, educational benefits, housing, meals, or transportation to and from the job site." Motion ¶ 18, at 5 (setting forth this fact). See Response at 4 (not disputing this fact).¹² "The Government reserved the right to cancel the contract when it was in the Government's best interest." Motion ¶ 19, at 5 (setting forth this fact). See Response at 4 (not disputing this fact).¹³ Under the contract, "[t]he Government may evaluate the quality of professional and administrative services provided, but retains no control over professional aspects of the services rendered, including by example, the Contractors professional medical judgment, diagnosis, or specific medical treatments." Contract at 6.¹⁴

"The contractor agreed to be 'solely liable for and expressly agrees to indemnify the Government with respect to any liability producing acts or omissions by it or its employees or agents,' including Dr. Marrocco." Motion ¶ 21, at 5 (setting forth this fact). See Contract at 6; Response at 5 (not disputing this fact).¹⁵ "The Contract specified the parties' express agreement that 'the professional services rendered by the Contractor are rendered in its capacity as an independent contractor.' " Motion ¶ 22, at 5 (setting forth this fact). See Contract at 6 ("It is expressly agreed and understood that this is a nonpersonal services contract ... under which the professional services rendered by the Contractor are rendered in its capacity as an independent contractor."); Response at 5 (not disputing this fact).¹⁶ "Medicus Healthcare Solutions, LLC purchased medical malpractice insurance covering Dr. Marrocco, which was in effect at all relevant times." Motion ¶ 23, at 5 (setting forth this fact). See Response at 5 (not disputing this fact).¹⁷

"On May 19, 2014, Marty Begay, Father,...