Bennett v. United States

• Decision Date: 22 March 2019
• Docket Number: CASE NO. 3:17-cv-5774 RJB
• Parties: Autumn BENNETT, Shannan Hicks, Gentia Jackson, Kellie Lewis, Deanna Marcantel, Renee Mills, Jodi Riddle, Millie Stivers, and Angela Wolfe, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Washington

375 F.Supp.3d 1180

Autumn BENNETT, Shannan Hicks, Gentia Jackson, Kellie Lewis, Deanna Marcantel, Renee Mills, Jodi Riddle, Millie Stivers, and Angela Wolfe, Plaintiffs,

v.UNITED STATES of America, Defendant.

CASE NO. 3:17-cv-5774 RJB

United States District Court, W.D. Washington, at Tacoma.

Signed March 22, 2019

Todd Douglas Tinker, Otorowski Morrow & Golden PLLC, Bainbridge, WA, for Plaintiffs.

Priscilla To-Yin Chan, Whitney Passmore, US Attorney's Office, Seattle, WA, for Defendant.

ORDER ON UNITED STATES' RENEWED MOTION TO DISMISS

ROBERT J. BRYAN, United States District Judge

This matter comes before the Court on the United States' Renewed Motion to Dismiss. Dkt. 35. The Court has considered the pleadings filed regarding the motion and remaining record, and is fully advised.

On September 27, 2017, Plaintiffs filed this case asserting negligence claims under the Federal Torts Claims Act, 28 U.S.C. § 2671 et. seq. ("FTCA") in connection with Darren Chotiner, M.D.’s alleged inappropriate contact with the Plaintiffs, who were female patients at the federally funded Peninsula Community Health Services clinics ("PCHS"). Dkt. 1. PCHS is a health facility that receives federal support through the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233. Under § 233, a lawsuit brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, et. seq. , is the exclusive remedy for personal injury "resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation" by an employee of the Public Health Service, or by parties "deemed" to be such employees, as are the PCHS employees here, and who are acting within the scope of their employment.

On May 31, 2018, the United States' motion to dismiss the Plaintiffs' claims for vicarious liability based on Dr. Chotiner’s negligence, for lack of subject matter jurisdiction, was granted and those claims were dismissed. Dkt. 23. The United States' motion to dismiss Plaintiffs' claims for negligent supervision was denied, without prejudice. Id. The United States now renews its motion to dismiss the negligent supervision claims, pursuant to Fed. R. Civ. P. 12 (b)(1), arguing that this Court is divested of subject matter jurisdiction to consider Plaintiffs' claims because: (1) the claims do not fall within the limited waiver of sovereign immunity found in FSHCAA, 42 U.S.C. § 233, and (2) the discretionary function exception to the FTCA, 28 U.S.C. § 2680 (a), applies. Dkt. 35. For the reasons provided below, the motion (Dkt. 35) should be denied.

I. FACTS AND PROCEDURAL HISTORY

A. FACTS

According to the Complaint, the Defendant was aware that Dr. Chotiner engaged in inappropriate contact (passionate kissing with either a naked or gowned) female patient during an exam in October or November of 2011. Dkt. 1, at 4. He signed a "Performance Improvement Agreement," on November 16, 2011 which provided:

Performance Improvement Agreement

Goal : To meet Peninsula Community Health Services expectations for personal and patient boundaries.

"Providers shall interact and communicate with patients, families, legal guardians, and other visitors within a continuum of professional behavior, having boundaries that support patients and others with dignity and respect."

Specific Actions Required :

1. You will register and complete ‘Professional Boundaries & Boundary Violations: A Primer’, accessed through Professional Boundaries, Inc. This seminar will be completed prior to January 1, 2012.

2. You will voluntarily contact the Washington Physicians Health Program ("WPHP") prior to the end of November 2012. Through their services you will be assessed for any other counseling and will follow through on all recommendations. You will report back and provide documentation to Barbara P. Malich, CEO on your progress and completion of recommendations made by WPHP.

3. You will not provide primary care services to any female patients without a Medical Assistant in attendance. This does not apply to under aged females who are being attended by a parent or guardian during an exam. This will continue until Peninsula Community Health Services is satisfied that you will no longer demonstrate poor judgment when providing primary care to female patients.

Positive Results :

Should Darren Chotiner, MD meet the required expectations of his position as a Physician and comply with the specific actions listed above he will continue his employment with PCHS as a valued employee.

Negative Results :

Should Darren Chotiner, MD not meet the required expectations of his position as a Physician or fails to comply with the specific actions listed above, his employment will be terminated with one month additional pay.

Id. , at 5. The Complaint asserts that the Defendant failed to adequately investigate. Id.

According to the Defendant, after the Performance Improvement Agreement was signed, in December 2011, PCHS received notice that Dr. Chotiner had been evaluated by the WPHP, and that it recommended that Dr. Chotiner self-report his boundary violation to the Washington Medical Quality Assurance Commission. Dkt. 36-6. WPHP confirmed that Dr. Chotiner did self-report the kissing incident. Id. Dr. Chotiner completed the professional boundaries course in December. Dkt. 36-7.

Washington’s Medical Quality Assurance Commission initiated an investigation (Dkt. 36-8) which eventually culminated in it and Dr. Chotiner entering a Stipulation of Informal Disposition under which he was required to undergo additional training and pay a fine (Dkt. 36-9). On December 2012, the Medical Quality Assurance Commission notified Dr. Chotiner that he had completed the terms of their agreement. Dkt. 36-10.

On March 13, 2013, Barbra Malich, CEO of PCHS notified Dr. Chotiner that he met all the requirements of the November 16, 2011 Performance Improvement Agreement. Dkt. 36-11. He was informed that "there are no longer parameters set for your attendance to patients." Id. From November 16, 2011 to March 13, 2013, PCHS had to allot extra staff to be present with Dr. Chotiner when he saw female patients. Dkt. 42-4, at 3-4. Based on what she hoped he learned from the experience and with the additional education that he received, Ms. Malich felt that by March of 2013, Dr. Chotiner would no longer "demonstrate poor judgment when providing primary care to female patients." Dkt. 42-4, at 9.

According to the Complaint, each of the Plaintiffs were Dr. Chotiner’s female patients after March 2013. Dkt. 1. None of the patients were offered chaperones, and no chaperone was present for any of the visits. Id.

The following are facts taken from the May 31, 2018, Order on Motion to Dismiss (Dkt. 23, at 3-6) and are repeated here for ease of reference.

According to the Complaint, in August 2014, Plaintiff Bennett was seen by Dr. Chotiner for knee pain, and alleges that:

Dr. Chotiner began massaging her knee, then moved up her thigh, ultimately pushing her skirt up around her waist and pulling her underwear aside to expose her buttocks and massage there. No chaperone was present or offered to Ms. Bennett. Ms. Bennett was not given privacy to undress or provided with a drape or gown. Id., at 5.

Plaintiff Hicks went to PCHS in August of 2014 for a breast exam, and asserts that she was initially seen by a medical assistant who assured her a chaperone would be present during the exam with Dr. Chotiner, but none was provided. Id. , at 6. She alleges that Dr. Chotiner then entered the room by himself and began the exam. Id. While he began the exam with gloves, Plaintiff Hicks asserts that Dr. Chotiner "removed the gloves and continued touching her breasts ... [and] palpated each breast for an extended period ... in a manner inconsistent with a typical breast exam." Id.

Plaintiff Jackson saw Dr. Chotiner twice in August 2014 for pain in her low back and thighs. Id. She relates:

Dr. Chotiner massaged her left thigh over her jeans, then pulled her jeans down to just above her knees and massaged her left thigh and groin area. At a subsequent visit, Ms. Jackson reported back pain. Dr. Chotiner instructed her to lay prone on the exam table. He pulled her pants and underwear down away from her hips. She was startled and jumped to pull her pants up. At neither visit was a chaperone present or offered to Ms. Jackson. She was not given privacy to undress or provided with a gown or drape. Dr. Chotiner used his bare hands during the exam. Id.

Plaintiff Lewis was seen by Dr. Chotiner in September and October 2014 for pain in her chest, shoulders, neck, and low back. Id., at 7. In the September visit, Plaintiff Lewis alleges that "Dr. Chotiner manipulated her breast through her shirt for 10-15 minutes," and commented on the size of her breasts. Id. During the October visit, she asserts that, while she was seated on the exam table, Dr. Chotiner "stood between her legs, leaned into her as if hugging her, and massaged her back, neck, and chest for several minutes." Id. He then had her bend over and touch her toes from a standing position, long enough for her to get dizzy, while he sat directly behind her. Id. She was not given privacy to undress or provided a drape or gown. Id. He used his bare hands. Id.

Plaintiff Marcantel was also Dr. Chotiner’s patient. Id. She asserts that he had her undress and dress in front of him, conducted exams and massages, including of her lower back, hip, chest, and breast area with his bare hands, without a chaperone present and without offering one. Id. She asserts she was not offered a drape or gown, and at one point, believes that he ejaculated after rubbing against her. Id.

Plaintiff Mills was also a patient of Dr. Chotiner at PCHS. Id., at 8. She asserts that he "regularly used his bare hands during [trigger point] injections, massages and examinations, including breast examinations." Id. She alleges that, while she was partially undressed, without a chaperone present, Dr. Chotiner would

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