Cheromiah v. U.S.

Decision Date29 June 1999
Docket NumberNo. CIV 97-1418 MV/RLP.,CIV 97-1418 MV/RLP.
Citation55 F.Supp.2d 1295
PartiesMichael CHEROMIAH, Individually, and Diane M. Cheromiah, Individually, and as personal representative of the estate of Michael Cheromiah, Deceased, Plaintiffs, v. UNITED STATES of America and Acoma Canoncito Laguna Hospital, Defendants.
CourtU.S. District Court — District of New Mexico

Randi McGinn, William B. Towle, Albuquerque, NM, James S. Bromberg, Albuquerque, NM, for Plaintiff.

Ronald Ross, U.S. Attorney's Office, Albuquerque, NM, Madeline Henley, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss Counts I and II of the First Amended Complaint for Lack of Subject Matter Jurisdiction and to Dismiss ACL Hospital as a Party, filed June 10, 1999 [Doc. No. 105]; Plaintiff's Motion for Partial Summary Judgment that Plaintiff Prevails on her [Emergency Medical Treatment and Active Labor Act] EMTLA Claims Against ACL Hospital, filed June 10, 1999 [Doc. No. 113]; Defendant's Motion for Judgment on the Pleadings, filed June 10, 1999 [Doc. No. 109]; Defendants' Motion for Partial Summary Judgment that the New Mexico Medical Malpractice Cap Does Not Apply to the U.S. Government, filed June 10, 1999 [Doc. No. 117]; Unopposed Motion by Defendant United States to File Surreply, filed June 21, 1999 [Doc. No. 126]; and United States' Motion to Strike Unsigned Changes to Plaintiffs' Expert's Deposition Testimony, filed June 28, 1999 [Doc. No. 134]. The Court having considered the motions, responses, replies, relevant law, and being otherwise fully informed, finds that Defendant's Motion to Dismiss Counts I and II and Plaintiffs' Motion for Partial Summary Judgement that the New Mexico Medical Malpractice Cap Does Not Apply to the U.S. Government are well taken and will be GRANTED; that Plaintiffs' Motion for Partial Summary Judgement that Plaintiff Prevails on her EMTLA Claims, Defendant's Unopposed Motion to File a Surreply, and Defendant's Motion to Strike Unsigned Changes will be DENIED AS MOOT; and that Defendant's Motion for Judgment on the Pleadings is not well taken and will be DENIED.

BACKGROUND

Plaintiffs Michael Cheromiah (senior) and Dianne Cheromiah here bring suit against the United States Government, seeking damages for the death of their adult son, Michael Cheromiah (junior). Plaintiffs assert a claim for medical malpractice under the Federal Tort Claims Act, two claims under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), and a claim for loss of consortium.

For the purposes of resolving these motions, the Court finds that the following are the undisputed material facts:

Indian Health Services ("IHS"), an agency of the United States government, owns and operates the Acoma Canoncito Laguna Hospital ("ACL Hospital"), located within the bounds of Acoma tribal land. IHS operates ACL Hospital pursuant to a lease agreement with the Acoma Tribe. The hospital provides 24-hour emergency service primarily to members of the Acoma Tribe and residents of other neighboring reservations. ACL Hospital participates in the Medicare system, routinely making claims on behalf of its many Medicare eligible patients.

Michael Cheromiah (junior) went to the emergency room at ACL Hospital four times between October 31 and November 4, 1995, seeking treatment for an acute respiratory problem. Doctors at ACL Hospital failed to diagnose or treat what later turned out to be a bacterial infection, even after having been informed that Cheromiah's family physician suspected such an infection. When Cheromiah made his fourth and final trip to the emergency room, his condition was so dire that the attending physician ordered his immediate transfer to a hospital in Albuquerque offering more complete services. By the time Cheromiah arrived at the Albuquerque hospital he was in cardiac arrest. During the attempts to save his life, doctors discovered a hole in his heart caused by the undiagnosed and untreated bacterial infection. Despite the efforts to save him, Michael Cheromiah (junior) died on November 4, 1995. He was 20 years old.

Michael Cheromiah (junior) was an enrolled member of the Laguna Tribe. Dianne Cheromiah is an enrolled member of the Acoma Tribe and Michael Cheromiah (senior) is an enrolled member of the Laguna Tribe.1

Currently before the Court are numerous motions of the parties. The United States moves to dismiss the two claims pled under the EMTLA, arguing that the United States has not waived immunity from suit under these provisions and that this Court is therefore without jurisdiction to entertain these claims. Plaintiffs, for their part, have moved for summary judgment on the EMTLA claims and the United States has moved to file a surreply to this motion. Additionally, Plaintiffs seek partial summary judgment in their favor that the New Mexico Medical Malpractice Cap does not apply to the United States government, arguing in this context that Acoma tribal law should control this case. Finally, the United States seeks judgement on the pleadings as to Plaintiffs' claim for loss of consortium and seeks to substitute itself in place of ACL Hospital as a named defendant in the case.

STANDARD OF REVIEW
A. Motion to Dismiss for Lack of Jurisdiction Under Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). The party seeking to invoke a federal court's jurisdiction sustains the burden of establishing that such jurisdiction is proper. Penteco Corp. v. Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir.1991).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction typically take two forms: a facial challenge or a factual challenge. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). A facial challenge is an attack on jurisdiction that questions the sufficiency of the complaint. Id. In reviewing a facial attack on a complaint, the court must accept the allegations in the complaint as true. A factual attack on subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends. Id. In reviewing a factual attack on subject matter jurisdiction, a court may not presume the truthfulness of the complaint's factual allegations but must go beyond the allegations and evaluate the evidence presented by the parties. Id. While the court may refer to evidence extraneous to the complaint in making appropriate factual findings on jurisdictional issues, it generally cannot convert a 12(b)(1) motion into one for summary judgment. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987).

A court, however, is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when "resolution of the jurisdictional question is intertwined with the merits of the case." Holt, 46 F.3d at 1003; Wheeler, 825 F.2d at 259 n. 5. "The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case." Holt, 46 F.3d at 1003.

B. Motion for Judgement on the Pleadings Under Rule 12(c)

A Rule 12(c) motion for judgment on the pleadings is governed by the same standards as a Rule 12(b)(6) motion to dismiss. Mock v. T.G. & Y., 971 F.2d 522, 528 (10th Cir.1992). In reviewing a defendant's Rule 12(c) motion, the court assumes the veracity of the "well-pleaded factual allegations" in the complaint and draws all reasonable inferences in the plaintiff's favor. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987); see Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The issue is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). The court may dismiss a case for failure to state a claim only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his theory of recovery that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The harsh remedy of dismissal is to be used cautiously; courts have an obligation to promote the liberal rules of pleading as well as to protect the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989) When granting Rule 12(c) motions, courts may give leave to amend and "may dismiss causes of action rather than grant judgment." Moran v. Peralta Community College Dist., 825 F.Supp. 891, 893 (N.D.Cal.1993) (citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.1979)).

C. Motion for Summary Judgment Under Rule 56

Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "`secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). Under Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that "there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Thrasher v. B & B Chemical Co., 2 F.3d 995, 996 (10th Cir.1993).

The movant bears the initial burden of showing "there is an absence of evidence to...

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