Tyson v. United States

• Decision Date: 22 January 2020
• Docket Number: CIVIL ACTION NO. 1:19-CV-00058-GNS
• Parties: KERSSEL TYSON and OHSSEL TYSON, Individually and as Parents, Natural Guardians, and Next Friends of K.T., a minor child PLAINTIFFS v. UNITED STATES OF AMERICA; MANMEET K. SANDHU, M.D.; and HEATHER FINNEY, C.N.M. DEFENDANTS
• Court: U.S. District Court — Western District of Kentucky

KERSSEL TYSON and OHSSEL TYSON,Individually and as Parents, Natural Guardians,and Next Friends of K.T., a minor child PLAINTIFFS v. UNITED STATES OF AMERICA; MANMEET K. SANDHU, M.D.;and HEATHER FINNEY, C.N.M. DEFENDANTS

CIVIL ACTION NO. 1:19-CV-00058-GNS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

January 22, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' Motions to Dismiss (DN 21, 35), Defendants' Motions to Stay Discovery (DN 31, 34), and Plaintiffs' Motion for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss (DN 23). These motions are ripe for adjudication. For the reasons that follow, Defendants' motions to dismiss are GRANTED. All other motions are DENIED.

I. BACKGROUND

Beginning on November 6, 2017, Plaintiff Kerssel Tyson ("Kerssel") received routine prenatal care and treatment from Defendant Certified Nurse Midwife Heather Finney ("Finney") at Fairview Community Health Center ("Fairview"). (Compl. ¶ 18, DN 1). On February 8, 2018, Kerssel was admitted to The Medical Center at Bowling Green ("Medical Center") due to the onset of labor. (Compl. ¶ 23). Defendant Doctor Manmeet K. Sandhu ("Dr. Sandhu") was her admitting and attending physician. (Compl. ¶ 23). Plaintiffs allege medical negligence on the part of Finney and Dr. Sandhu resulting in a multitude of medical ailments suffered by Plaintiffs' child, K.T., from which K.T. will continue to suffer in the future. (Compl. ¶¶ 193-210). Plaintiffs also assert a cause of action against the United States under the Federal Tort Claims Act ("FTCA") and the Federally Supported Health Centers Assistance Act ("FSHCAA"). (Compl. ¶ 9). Plaintiffs allege Finney and Dr. Sandhu are employees of Fairview, which is alleged to be a federal qualified health care center operated by the United States. (Compl. ¶¶ 4-5).

Plaintiffs filed their Complaint on May 14, 2019.¹ (Compl. 31). The United States subsequently moved to dismiss the claims asserted against it. (Def.'s Mot. Dismiss 12, DN 21). In addition to responding to the United States' Motion to Dismiss, Plaintiffs moved for an extension to time to respond to the United States' motion, asking for more time to conduct discovery. (Pls.' Resp. Def's Mot. Dismiss, DN 26; Pls.' Mot. Extension Time, DN 23). On November 8, 2019, the United States moved to stay discovery. (Def.'s Mot. Stay Disc. 5, DN 31). On November 13, 2019, Finney and Dr. Sandhu moved to dismiss Plaintiffs' claims and to stay discovery. (Defs.' Mot. Dismiss 5, DN 35; Defs.' Mot. Stay Disc. 2, DN 34).

II. DISCUSSION

A. United States' Motion to Dismiss, Plaintiffs' Motion for Extension of Time, and United States' Motion to Stay Discovery

The United States moves under Fed. R. Civ. P. 12(b)(1) to dismiss Plaintiffs' claims against it for lack of subject matter jurisdiction. (Def.'s Mot. Dismiss 1). Plaintiffs move for an extension of time to respond to the United States' motion, arguing that more discovery is needed; Plaintiffs have nevertheless responded to the United States' motion. (Pls.' Mot. Extension Time ¶ 8; Pls.'Resp. Def.'s Mot. Dismiss 1). The United States also moves to stay discovery. (Def.'s Mot. Stay Disc. 1).

"The FTCA 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 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." Del Valle v. Sanchez, 170 F. Supp. 2d 1254, 1264 (S.D. Fla. 2001) (citing Tisdale v. United States, 62 F.3d 1367, 1371 (11th Cir. 1995)).

The dispute between the parties at this stage of the case rests on whether Finney and Dr. Sandhu constitute federal employees under the FTCA or covered contractors under the FSHCAA to make the United States liable for their actions. "This is a question of subject matter jurisdiction.² 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 Plaintiffs are not "entitled to any presumptive truthfulness as to [their] 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 (internal citation omitted) (citation omitted).

In analyzing this issue, the Southern District of Florida's decision in Sanchez is instructive because the facts there closely mirror this case.³ 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. Sanchez, 170 F. Supp. 2d at 1259. Liability on the part of the United States was sought pursuant to the FTCA and FSHCAA. Id. at 1263-64. 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.

Id. (internal citations omitted). The court then further expounded on the application of the FTCA:

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 thegovernment' 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 agency in an official capacity, temporarily or permanently in the service of the United States."

The standard for determining whether a party is an employee of the federal government or an independent contractor was established in United States v. Orleans, 425 U.S. 807 (1976). In that case, the court held that the determining factor was the level of control exercised by the federal government over the individual or agency. The government's ability to compel compliance with standards, rules, and regulations was not important. Rather, in order to be considered a federal employee, the government had to have some level of control or supervision over the person's physical conduct and his or her day-to-day functions.

. . . "[T]he contract and the terms in fixing the relationship of the offending party are critical[.]"

. . . Aside from the contract itself, courts have examined other factors to determine the degree of control exercised by the government. These factors include: (1) the payment of salary and insurance premiums; (2) the payment of taxes; (3) the intent of the parties; and (4) whether the government controlled the manner and method in which the doctor conducted his or her activities.

. . .

Other courts have had occasion to apply the principles of Orleans to private physicians working under contractual relationships with medical facilities operated by or receiving funds from the United States. All of the circuits consistently have held that physicians in private practice or associated with an organization under contract to provide medical services to facilities operated by the federal government are independent contractors, not employees of the government for FTCA purposes. It is noteworthy that, in the few instances when courts have found the physicians to be employees rather than contractors, the United States was the party arguing that the physician was an employee under the FTCA.

Id. at 1264-68 (emphasis in original) (internal citations omitted) (citations omitted). The court applied these rules, finding that the three medical professionals did not constitute "employees" for purposes of the FTCA and concluding that the United States could not be held liable for the acts of the medical professionals. Id. at 1268.

On the same issue of whether certain individuals constitute employees or contractors for FTCA purposes, this Court in Zion focused on the language of the pertinent contract to reach the same conclusion as the Court in Sanchez on the United...