Silva Jaquez v. USA
Filing
29
ORDER granting 20 Motion to Dismiss; denying as moot 27 Join Motion to Stay Discovery and Vacate the Scheduling Conference. By Judge Robert E. Blackburn on 1/27/25.(jdyne)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 24-cv-03053-REB-KAS
MARCELA J. SILVA JAQUEZ,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
ORDER RE: DEFENDANTS’ MOTION TO DISMISS
Blackburn, J.
The matter before me is the Motion To Dismiss [#20],1 filed December 9, 2024,
by defendant the United States of America. Although plaintiff was granted an extension
of time in which to respond (see Order [#25], filed December 27, 2024), she did not file
a response within the extended deadline. I putatively have jurisdiction over this matter
pursuant to 42 U.S.C. § 233(a) (suit for personal injury in the performance of medical
functions against employees of the Public Health Service acting in the course and
scope of their employment). I grant the motion and dismiss this case without prejudice
for lack of subject matter jurisdiction.
This case was initiated in state court in the District Court of Boulder County,
Colorado, on March 22, 2024. Plaintiff Marcela Jaquez brought claims of professional
negligence against two of her medical providers – Drs. Madeline Lahman Cole and
1
“[#20]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
Phillip Jeffrey Keppler – and the medical facility with which they were associated.2
Represented by private counsel, Drs. Cole and Keppler removed the case to this court,
alleging that because the clinic at which the surgery was performed is a Federally
Qualified Health Center (“FQHC”), 25 U.S.C. § 5321(d), they were “deemed
employees” of the Public Health Service (“PHS”) under the Federally Supported Health
Centers Assistance Act of 1992, 42 U.S.C. § 233(g) et seq. (“FSHCAA”).3 Further, Drs.
Cole and Keppler claimed that, as employees of the PHS, they were immune from suit
for actions taken within the scope of their employment. Instead, they asserted, Ms.
Jaquez’s claims were cognizable exclusively against the United States under the
Federal Tort Claims Act (“FTCA”).4 (See Notice of Removal ¶ 13-16 at 4-6 [#1], filed
2
Although Ms. Jaquez named Portercare Adventist Health System d/b/a/ Avista Adventist
Hospital (“Avista”) as the party defendant, the United States avers the surgery which forms the basis of
Ms. Jaquez’s claims took place at Clinica Campesina Family Health Services. The nature of the
relationship between Avista and the clinic is not apparent on the record before me, although I note that
Avista is located at 100 Health Park Drive in Louisville, Colorado (see Advent Health Avista, Our
Location (available at: https://www.adventhealth.com/hospital/adventhealth-avista/our-location) (last
accessed: January 23, 2025)), while the clinic’s address is 90 Health Park Drive (see NPI Profile, Clinica
Campesina Family Health Services (available at: https://npiprofile.com/npi/1376574228) (last
accessed: January 2,3 2025)), suggesting they may be part of the same medical campus. Regardless,
the magistrate judge ultimately granted Ms. Jaquez’s motion to dismiss Avista (filed in state court prior to
removal) as a party defendant. (See Minute Order [#31], filed September 11, 2024.)
3
“The FSHCAA seeks to ‘ameliorate the financial burden on . . . medical providers’ at certain
federally supported health centers in ‘underserved areas’ by allowing them to be deemed Public Health
Service employees for whom the United States is substituted as a defendant in certain medical
malpractice actions, with the Federal Tort Claims Act (‘FTCA’) as the exclusive remedy.” J.Z.A. by &
through Fierro v. Centura Health Corp., 2019 WL 13196114 at *1 n.2 (D. Colo. Nov. 12, 2019)
(citation and internal quotation marks omitted).
4
Federal courts are courts of limited jurisdiction and, thus, may only adjudicate claims that the
Constitution or Congress have given them authority to hear and determine. Morris v. City of Hobart, 39
F.3d 1105, 1110 (10th Cir. 1994), cert. denied, 115 S.Ct. 1960 (1995); Fritz v. Colorado, 223 F.Supp.2d
1197, 1199 (D.Colo. 2002). The Federal Tort Claims Act constitutes a limited waiver of the United
States’ sovereign immunity from any suit seeking money damages
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
2
June 12, 2004, in Civil Action No. 24-cv-01696-KAS.)
Once removed, the case was filed as Civil Action No. 24-cv-01646-KAS, and
proceeded before United States magistrate judge Kathryn A. Starnella on consent of
the parties. (See Notice of Consent [## 23 & 24], filed August 26, 2024, in Civil Action
No. 24-cv-01696-KAS.) The United States subsequently filed a notice of substitution,
stating it deemed Drs. Cole and Keppler as employees of the PHS who acted in the
scope of their employment with respect to all acts and omissions alleged in the
complaint. (Notice of Substitution [#18], filed July 22, 2024, in Civil Action No. 24-cv01696-KAS). See Estate of Cummings by & through Montoya v. Community
Health Systems, Inc., 881 F.3d 793, 795-96 (10th Cir. 2018) (following substitution,
sole remedy for alleged negligence of physicians deemed employees of United States
is under the FTCA).
The United States then moved to remand because Drs. Cole and Keppler had
not been affirmatively deemed employees of PHS by the Secretary of Health and
Human Services at the time the case was removed, which constituted a jurisdictional
defect. Because the only proper basis for removal arose under the FSHCAA, remand
was required to allow the government to remove on a jurisdictionally sound basis. The
magistrate judge granted that motion and remanded the case to the state district court
under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b). Ms. Jaquez does not contest that her claims of professional negligence against
Drs. Cole and Keppler are properly brought under the FTCA.
3
in Boulder County, which terminated Civil Action No. 24-cv-01696-KAS. (See Order
[#32], filed October 22, 2024.)
Six days later, the United States removed the case again, this time alleging
jurisdiction under the FSHCAA. (Notice of Removal ¶ 6 at 2-3 [#1], filed October 30,
2024, in Civil Action No. 24-cv-03053-REB-KAS.) It now moves to dismiss for lack of
subject matter jurisdiction, contending Ms. Jaquez failed to exhaust her administrative
remedies prior to filing suit.
The FTCA requires claimants to exhaust their administrative remedies prior to
filing suit.5 See 28 U.S.C. § 2675(a)6; McNeil v. United States, 508 U.S. 106, 113,
113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993). “Congress intended to require complete
exhaustion . . . before invocation of the judicial process.” McNeil, 113 S.Ct. at 1984.
There is no dispute that Ms. Jaquez did not file an administrative complaint with the
United States Department of Health and Human Services until October 22, 2024, the
day Civil Action No. 24-cv-01696-KAS was remanded to state court. That claim was
denied on October 30, 2024. (See Motion App., Exh. A ¶ 4 at 1-2.)
5
The government is simply wrong, however, that the FTCA’s exhaustion requirement is
jurisdictional. The United States Supreme Court has held otherwise, construing the FTCA’s statute of
limitations as merely a claim-processing rule which may be subject to equitable tolling. See United
States v. Wong, 575 U.S. 402, 408-12, 135 S.Ct. 1625, 1631-33, 191 L.Ed.2d 533 (2015).
6
That section provides, in relevant part,
An action shall not be instituted upon a claim against the United States
for money damages for injury or loss of property or personal injury or
death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office
or employment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a).
4
“As a general rule, a premature complaint cannot be cured through amendment,
but instead, plaintiff must file a new suit.” Duplan v. Harper, 188 F.3d 1195, 1199 (10th
Cir. 1999) (citation and internal quotation marks omitted). To allow otherwise “would
render the exhaustion requirement meaningless and impose an unnecessary burden on
the judicial system.” Id.7 As that procedure was not followed in this case, the court
lacks subject matter jurisdiction of Ms. Jaquez’s claims, and this suit must be
dismissed. McNeil, 113 S.Ct. at 1984; Haceesa v. United States, 309 F.3d 722, 733
(10th Cir. 2002), cert. denied, 124 S.Ct. 65 (2003).
In dismissing this case, I recognize that a claim is barred unless the claimant
makes a claim in writing to the appropriate federal agency for consideration within two
years of the date the cause of action accrues. 28 U.S.C. § 2401(b); United States v.
Kubrick, 444 U.S. 111, 111, 100 S.Ct. 352, 353, 62 L.Ed.2d 259 (1979); Haceesa, 309
F.3d at 733. “The general accrual rule for FTCA claims is the ‘injury-occurrence rule,’
where the tort claim accrues on the date of injury.” Bayless v. United States, 767
F.3d 958, 965 (10th Cir. 2014). Ms. Jaquez’s injuries allegedly occurred during a
surgical procedure performed on March 24, 2022. As her administrative complaint was
not filed until October 2024, there is a distinct possibility Ms. Jaquez’s claims are time
barred.
7
Although the Tenth Circuit has recognized a limited exception when the United States agrees
that the filing of an amended complaint constitutes a new action, see Duplan, 188 F.3d at 1199-1200,
that exception is not implicated on the facts before me. Although this case was filed under a new case
number following the second, jurisdictionally-sound removal, Ms. Jaquez did not file a new amended
complaint, nor is there any evidence the government agreed to treat this case as a new case following
the second removal. This case therefore is essentially the same case as Civil Action No. 24-cv-01696KAS.
5
Nevertheless, the Tenth Circuit has recognized a discovery rule in “exceptional”
FTCA cases “to protect plaintiffs who are blamelessly unaware of their claim because
the injury has not yet manifested itself or because the facts establishing a causal link
between the injury and the medical malpractice are in the control of the tortfeasor or
otherwise not evident.” Id. (citations and internal quotation marks omitted). The record
before me is insufficient to determine how soon after surgery Ms. Jaquez became (or
should have become) aware of her injuries; if there was some lag time, she might be
able to take advantage of this rule to refile her claim. That is a question for another
day, however. For now, I dismiss this case without prejudice to allow for the possibility
of refiling should the facts warrant.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion To Dismiss [#20], filed December 9, 2024, is granted;
2. That this case is dismissed without prejudice for lack of subject matter
jurisdiction;
3. That all pending deadlines are vacated; and
4. That all pending motions, including but not limited to the parties’ Joint
Motion To Stay Discovery and Vacate the Scheduling Conference [#27], filed
January 8, 2025, are denied as moot.
Dated January 27, 2025, at Denver, Colorado.
BY THE COURT:
6
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