J.G. v. Rick Simons et al

Filing 29

STIPULATION AND ORDER OF DISMISSAL OF TRINA BOWEN, M.D. AND WEST COUNTY HEALTH CENTERS, INC. WITH PREJUDICE #28 . Signed by Judge Samuel Conti on 5/1/12. (tdm, COURT STAFF) (Filed on 5/1/2012) Modified on 5/1/2012 (tdm, COURT STAFF).

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MELINDA HAAG (CABN 132612)
United States Attorney
JOANN M. SWANSON (CABN 88143)
Chief, Civil Division
JENNIFER S WANG (CABN 233155)
Assistant United States Attorney
U.S. Attorney’s Office/Civil Division
450 Golden Gate Avenue, 9th Floor
San Francisco, California 94102-3495
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
Attorneys for the United States of America

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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JASPER GONZALES, by his Guardian Ad )
)
Litem, JENNA GONZALES,
)
)
Plaintiffs,
)
)
v.
)
RICK SIMONS, FURTADO, JASPOVICE )
& SIMONS, a law corporation, SUTTER )
)
BAY HOSPITALS dba SUTTER
MEDICAL CENTER OF SANTA ROSA, )
)
and DOES 1 through 20,
)
)
Defendants.
)
SUTTER BAY HOSPITALS dba SUTTER )
MEDICAL CENTER OF SANTA ROSA, )
)
Cross-Complainant, )
)
v.
)
)
TRINA BOWEN, M.D., WEST COUNTY )
HEALTH CENTERS, INC., and ROES 1- )
10,
)
)
Cross-Defendants.
)
____________________________________)

Civil Action No. C11-4319 SC

STIPULATION AND [PROPOSED]
ORDER OF DISMISSAL OF TRINA
BOWEN, M.D. AND WEST COUNTY
HEALTH CENTERS, INC. WITH
PREJUDICE

Subject to the approval of the Court, the parties, by and through their counsel of record, stipulate

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STIP. & [PROPOSED] ORDER DISMISSING TRINA BOWEN, M.D.
& WEST COUNTY HEALTH CENTERS WITH PREJUDICE
C11-4319 SC
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as follows:

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1. This is a legal and medical malpractice action related to the birth of Jasper Gonzales in

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August 2004. Plaintiff is Jasper Gonzales, a minor, by and through his Guardian Ad Litem, Jenna

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Gonzales. Plaintiff filed a complaint alleging legal malpractice by defendant Rick Simons and

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Furtado, Jaspovice & Simons on or about December 21, 2010. On or about February 2, 2011,

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plaintiff filed an amended complaint alleging medical malpractice by defendant Sutter Bay

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Hospitals dba Sutter Medical Center of Santa Rosa (“Sutter”).

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2. Around June 17, 2011, defendant Sutter brought a third-party complaint naming Trina
Bowen, M.D. and West County Health Centers, Inc. as third-party defendants.
3. Sutter’s third-party complaint is an action against a federally funded health center and

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health center doctor. The plaintiff and Sutter allege in this action that third-party defendant Trina

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Bowen, M.D. was at the time of the events alleged in the amended complaint and third-party

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complaint acting in the scope of her employment at West County Health Centers, Inc. Under the

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Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C § 233(g)-(n), third-

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party defendant West County Health Centers, Inc. is deemed part of the Public Health Service of

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the United States Department of Health and Human Services (“HHS”), and the Federal Tort

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Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680 (“FTCA”), is the exclusive remedy for

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alleged torts committed by health center employees while acting within the course and scope of

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their employment. See 28 U.S.C. §§ 1346(b)(1), 2676, 2679.

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4. The FTCA provides an exclusive remedy for Sutter, if there is any at all, and limits

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Sutter to an action against the United States of America, not against the individual federal actor

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or agency. 28 U.S.C. §§ 2679, 2676.

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5. As a result of the foregoing, the parties hereby stipulate and agree that (1) Trina

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Bowen, M.D. and West County Health Centers, Inc. shall be dismissed with prejudice from the

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action; and (2) the United States of America shall be substituted into the action as the third-party

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defendant.

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6. The caption for the third-party complaint shall be changed to SUTTER BAY

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STIP. & [PROPOSED] ORDER DISMISSING TRINA BOWEN, M.D.
& WEST COUNTY HEALTH CENTERS WITH PREJUDICE
C11-4319 SC
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HOSPITALS dba SUTTER MEDICAL CENTER OF SANTA ROSA, Third-Party Complainant

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v. UNITED STATES OF AMERICA, Third-Party Defendant.

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Dated: April 30, 2012

Respectfully submitted,

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MELINDA HAAG
United States Attorney

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/s/ Jennifer S Wang
JENNIFER S WANG
Assistant United States Attorney

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Dated: April 27, 2012

TEAL MONTGOMERY & HENDERSON
/s/ Michael S. Henderson
MICHAEL S. HENDERSON
Attorney for Plaintiff Jasper Gonzales, by
his Guardian Ad Litem, Jenna Gonzales

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Dated: April 30, 2012

MURPHY PEARSON BRADLEY & FEENEY

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/s/ Arthur J. Harris
ARTHUR J. HARRIS
Attorneys for Defendants Rick Simons and
Furtado, Jaspovice & Simons

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Dated: April 30, 2012

LA FOLLETTE, JOHNSON, DE HAAS,
FESLER & AMES

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/s/ Larry Thornton
BARRY VOGEL / LARRY THORNTON
Attorneys for Defendant and Third-Party
Complainant Sutter West Bay Hospitals dba Sutter
Medical Center of Santa Rosa

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[PROPOSED] ORDER

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5/1/12
Dated: _________________________

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ER

H

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onti

amuel C

Judge S

RT

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________________________________________
HON. SAMUEL CONTI SO ORDERED
IT IS
United States District Court Judge
NO

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ISTRIC
ES D
TC
AT
T

UNIT
ED

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S

IT IS SO ORDERED.

RT
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R NIA

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STIP. & [PROPOSED] ORDER DISMISSING TRINA BOWEN, M.D.
& WEST COUNTY HEALTH CENTERS WITH PREJUDICE
C11-4319 SC
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