Turner v. Granite City Illinois Hospital Company, LLC et al

Filing 29

ORDER granting #3 Motion to Substitute Party; denying #16 Motion to Remand; denying #20 Motion for Extension of Time to Answer. Signed by Magistrate Judge Gilbert C. Sison on 2/17/2021. (mjf)

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
A.W., a Minor, by and through her
mother and next friend, HEATHER
TURNER,
Plaintiff,
vs.
GRANITE CITY ILLINOIS
HOSPITAL COMPANY, LLC,
SOUTHERN ILLINOIS
HEALTHCARE FOUNDATION, INC.,
and MELVIN MERRITT,
Defendants.

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Case No. 3:20-cv-01302-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
INTRODUCTION AND BACKGROUND
On September 2, 2020, minor Plaintiff A.W. filed a complaint against Defendants
Dr. Melvin Merritt and Southern Illinois Healthcare Foundation, Inc. (“SIHF”), by and
through her mother and Next Friend, Heather Turner. (Doc. 1, Exh. A). In her complaint,
Plaintiff alleges medical malpractice and negligence against both defendants.
Specifically, Plaintiff states that, as an employee and agent of SIHF, Defendant Merritt
negligently employed a vacuum procedure to induce A.W.’s labor even though A.W.’s
large size made such a procedure dangerous. See (Doc. 1, Exh. A). As a result of the
dangerous procedure, A.W. was deprived of oxygen and suffered hypoxia and brain
injuries at birth. (Doc. 1, Exh. A, Counts I & II). Plaintiff seeks monetary damages from

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both defendants for A.W.’s extensive medical care and treatment, physical and mental
pain and suffering, and the deprivation of A.W.’s normal enjoyments of life. (Doc. 1, Exh.
A, Count III).
Plaintiff initially brought this claim in the Third Judicial Circuit of Madison
County, Illinois. (Doc. 3). However, on or before January 1, 2015, the Associate
Administrator, Bureau of Primary Health Care, Health Resources and Services
Administration, Department of Health and Human Services deemed Defendant SIHF a
Public Health Service employee under 42 U.S.C. § 233(g). (Doc. 1, Exh. B). Since that date
and pursuant to the Federally Supported Health Centers Assistance Act (“FSHCAA”),
SIHF was covered by Federal Tort Claims Act malpractice coverage; as an employee or
contractor of SIHF, Defendant Merritt was also covered. (Doc. 1, Exh. B).1 On December
7, 2020, Defendants removed the case to this Court pursuant to 42 U.S.C. § 233(c). (Doc.
1). At the same time, and on behalf of the defendants, the United States of America moved
to dismiss the defendants with prejudice and to substitute the United States as a
defendant. (Doc. 3).
On January 7, 2021, Plaintiff filed a motion to remand the case back to the Third
Judicial Circuit of Madison County, Illinois, alleging that Defendants’ motion to remove
lacked the evidence required by the statutory language of 42 U.S.C. § 233(g)(2)(5)(B).
(Doc. 16). Shortly thereafter, on January 15, 2021, Plaintiff filed a motion for an extension
of time to respond to Defendants’ motion to substitute and for limited discovery, arguing
Plaintiff rejects this contention of fact, alleging that Defendant Merritt may not meet the criteria
required by § 233 to qualify for coverage and substitution. (Doc. 23, p. 2). For the reasons outlined below,
the Court finds that Defendant Merritt is qualified for coverage under § 233.
1

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that limited discovery was necessary to determine whether Defendant Merritt was a
contractor or employee of SIHF, though Plaintiff conceded that SIHF itself was covered
by § 233. (Doc. 20).2 All three motions before the Court involve the same argument
regarding Defendant Merritt’s status as an employee or a contractor. As such, the Court
proceeds to consider Defendants’ motion to substitute (Doc. 3), Plaintiff’s motion to
remand (Doc. 16), and Plaintiff’s motion for limited discovery. (Doc. 20).
For the following reasons, Defendants’ motion to substitute is GRANTED.
Plaintiff’s motion for limited discovery and Plaintiff’s motion to remand are DENIED.
ANALYSIS
When a Public Health Service’s employee or officer’s performance of medical
functions causes damages, including personal injury or death, the only available remedy
is a Federal Torts Claims Act lawsuit against the United States. See 42 U.S.C. § 233(a).
However, the Secretary of Health and Human Services, or the Secretary’s designee (the
“Secretary”), may provide liability insurance for any officer or employee of a Public
Health Service acting within the scope of their employment. See 42 U.S.C. § 233(f). The
Secretary may deem an entity a Public Health Service and may deem an individual to be
a covered employee of that Public Health Service if certain conditions are met. See 42
U.S.C. § 233(g).

Although the United States asserts that it provided Plaintiff with limited discovery pertaining to
Defendant Merritt’s employment status with SIHF shortly after Plaintiff’s motion for discovery (Doc. 21,
3), Plaintiff still alleges that further discovery is necessary to determine whether Defendant Merritt is a
contractor for, rather than an employee of, SIHF. (Doc. 24, p. 2).
2

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If a plaintiff files suit against a covered employee or Public Health Service in state
court, upon certification by the Attorney General that the defendants acted within the
scope of their employment during the incident in question, the proceeding must be
removed to the United States district court covering the area where the suit was initially
pending. See 42 U.S.C. § 233(c). That proceeding is also “deemed a tort action brought
against the United States under the provisions of Title 28 and all references thereto.” Id.
After removal, the court must dismiss the certified parties from the case and substitute
the United States; the case then proceeds under the Federal Tort Claims Act (commonly
referred to as the “Westfall Act”). See 28 U.S.C. § 2679(d)(2); Alexander v. Mount Sinai Hosp.
Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). Such certification also extends to employees
of the certified federally-funded public health center. See Helms v. Atrium Health Care, et
al., No. 10-547-GPM, 2010 WL 3937606, at *2 (S.D. Ill. Oct. 5, 2010).
Though similar, the FSHCAA is in addition to and distinct from the Westfall Act,
which provides a limited waiver of the sovereign immunity of the United States in cases
concerning federal employees. Whereas the FSHCAA provides specific protections for
covered public health service employees, the Westfall Act provides broader coverage for
covered “government employees.” 28 U.S.C. § 2679(b)(1). Just as in the FSHCAA, the
Attorney General may deem a defendant employee of a federal agency a “government
employee;” that defendant would then be substituted with the United States in pending
litigation. See generally, 28 U.S.C. § 2679.
Plaintiff correctly points out that the Westfall Act explicitly excludes contractors
from coverage. (Doc. 23, p. 2, citing 28 U.S.C. § 2671). However, unlike the Westfall Act,
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the FSHCAA specifically includes contractors as individuals that qualify for potential
protection. For instance, Section 233 provides that the “deeming of any entity or officer,
governing board member, employee, or contractor of the entity to be an employee of the
Public Health Service for purposes of this section shall apply with respect to services
provided . . .” 42 U.S.C. § 233(g)(1)(B) (emphasis added). Subsection (D) of that same
section further states that the government “may not . . . deem an entity or an officer,
governing board member, employee, or contractor of the entity” for coverage unless that
party first appropriately applies for such coverage. 42 U.S.C. § 233(g)(1)(D) (emphasis
added). Finally, subsection (E) mandates that the government’s determination that “an
entity or an officer, governing board member, employee, or contractor of the entity is
deemed to be an employee of the Public Health Service for purposes of this section shall
apply for the period specified by the Secretary under subparagraph (A).” 42 U.S.C. §
233(g)(1)(E) (emphasis added).
Defendants removed this case from the Third Judicial Circuit to this Court
pursuant to certification under 42 U.S.C. § 233(c). (Doc. 1). Furthermore, the Chief of the
Civil Division for the United States Attorney’s Office for the Southern District of Illinois3
has certified that SIHF and Defendant Merritt are “deemed” to be federal employees
acting within the scope of their employment at the time of the incident giving rise to
Plaintiff’s complaint. See (Doc. 1, Exh. C). Accordingly, the only remedy available to

A United States Attorney is permitted to issue such certification in lieu of the Attorney General, or
to delegate that authority. See 28 C.F.R. § 15.4(a). Here, a United States Attorney delegated that authority
to the Chief of the Civil Division for the United States Attorney’s Office for the Southern District of Illinois.
(Doc. 3, p. 2).
3

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Plaintiff is a Federal Torts Claims Act lawsuit against the United States pursuant to 42
U.S.C. § 233(a) and (c).
Plaintiff argues that limited discovery is necessary to determine Defendant
Merritt’s employment status and that this discovery could support remanding the case
and denying Defendants’ motion to substitute. Specifically, Plaintiff asserts that it is
possible that Defendant Merritt works less than the 32.5 hours per week at SIHF required
for contractors to receive coverage under the FSHCAA. (Doc. 16, p. 2); see also 42 U.S.C.
§ 233(g)(5)(A)). Plaintiff additionally contends that further discovery could reveal
whether Defendant Merritt should correctly be excluded from coverage under the
FSHCAA. (Doc. 24, p. 3). Section 233(i), for instance, outlines the factors the Attorney
General considers in disqualifying someone from protection or coverage after a deeming
determination has been made. 42 U.S.C. § 233(i). However, because the Court cannot
review the Secretary’s determination, both arguments fail.
Once the Secretary deems an individual to be an employee of a Public Health
Service, that determination is binding on the Secretary, the Attorney General, and all
other parties to the civil action, including the Court. See 42 U.S.C. § 233(g)(1)(F); see also
Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). Such a
determination also includes contractors. For instance, in Alexander, the Secretary deemed
the defendant doctor a contractor of a Public Health Service under the FSHCAA. Id. at
890. However, the plaintiff challenged the district court’s subject matter jurisdiction on
the grounds the United States was improperly substituted for the defendant. Specifically,
the plaintiff argued that the defendant did not personally contract with a federallyPage 6 of 10

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funded health center, as required by the FSHCAA. Id. During the litigation, the
government admitted that the defendant was mistakenly deemed a contractor of a Public
Health Service without meeting the FSHCAA’s qualifications. Id. at 892-893.
Nevertheless, the Seventh Circuit Court of Appeals affirmed the district court’s finding
of subject matter jurisdiction. Id. at 895. The Court noted that the “final and binding
nature of the government’s determination would be meaningless if the losing party could
challenge the government’s interpretation of each word in § 233(g)(1)(F).” Moreover, the
Court held that even if the United States were no longer a defendant in the case, the
district court would properly retain subject matter jurisdiction. Id. (analogizing remand
after the Attorney General certification under the FSHCAA to Osborn v. Haley, 127 S. Ct.
881, 895 (2007), in which the Supreme Court held that the Westfall Act ensured a case in
which the Attorney General certified a defendant as acting within the scope of their
employment would never be remanded to the state system). Accordingly, even if Plaintiff
is correct in her contention that Defendant Merritt does not work enough hours to qualify
as a contractor under the FSHCAA, or that Defendant Merritt is excluded from
consideration under § 233(i), the Court cannot invalidate the Secretary’s decision to deem
Defendant Merritt a contractor of SIHF.4

4
The Court further notes that even if Defendant Merritt works less than 32.5 hours per week with
SIHF, the FSHCAA provides exceptions to this requirement for those working in obstetrics and gynecology.
See 42 U.S.C. § 233(g)(5)(B). Defendant Merritt is an OBGYN, qualifying for this exception. Furthermore,
the United States contends that it provided Plaintiff with documentation showing that Defendant Merritt
qualifies as a contractor under the FSHCAA. (Doc. 21, p. 4). Plaintiff does not respond to this contention
despite being directed by the Court to address the discovery it received after filing her request for limited
discovery. (Doc. 22).

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Plaintiff urges the Court to consider Alexander as indicative of a circuit-split
regarding the FSHCAA. Plaintiff alleges that the Fifth Circuit applies the “strict control
test” in examining whether an individual requesting coverage through a qualified Public
Health Service is an employee or a contractor. (Doc. 24, p. 3). Specifically, Plaintiff points
to Creel v. United States as outlining the appropriate test for courts to determine whether
an individual is a contractor or employee for purposes of litigation under the Federal Tort
Claims Act. 598 F.3d 210 (5th Cir. 2010). However, this case considered whether an
individual qualified for coverage under the Westfall Act, rather than under the FSHCAA.
Id. at 212, n.1 (emphasis added). Unlike the FSHCAA, the Westfall Act excludes
contractors from coverage. Therefore, the motion to substitute considered by the Fifth
Circuit analyzed whether an individual was a contractor or employee of a covered entity
under the Westfall Act. This test is inapplicable here because Defendants filed their
motion to substitute under the FSHCAA.5
Plaintiff also points to Ezekiel v. Michel as an example of a contrary Seventh Circuit
case in which the Seventh Circuit Court of Appeals held that the plaintiff bears the burden
of contradicting the Attorney General’s certification that a physician was acting within
the scope of their employment. 66 F.3d 894, 899 (7th Cir. 1995)(citing Hamrick v. Franklin,
931 F.2d 1209 (7th Cir. 1991) cert. denied 502 U.S. 869 (1991)), overruled by Osborn v. Haley,

5
The same analysis applies with equal force to Plaintiff’s citations to United States v. Orleans, 425 U.S.
807, 813-814 (1976); Woodruff v. United States, 389 F.3d 1117, 1128 (10th Cir. 2004); Robb v. United States, 80
F.3d 884, 888 (4th Cir. 1995); U.S. Tobacco Cooperative, Inc. v. Big South Wholehouse of Virginia, LLC, 899 F.3d
236, 248 (4th Cir. 2018); and Bryant v. United States, No. CIV 98–1495 PCT RCB, 2000 WL 33201357 (D. Ariz.
Jan. 11, 2000), each of which cite to the Westfall Act.

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127 S. Ct. 881 (2007). However, in this case, the Court again examined a motion to dismiss
the defendants under the Westfall Act. Id. (emphasis added).
Moreover, even if this case were applicable to the FSHCAA, the Supreme Court
overruled this standard in Osborn v. Haley. In that case, the Court held that the Attorney
General’s certification conclusively establishes that a physician was acting within the
scope of employment at the time of the events underlying the litigation. See Osborn, 127
S. Ct. at 894 (citing 28 U.S.C. § 2679 (d)(2)). Through its designee, the Attorney General
has certified that Defendant Merritt acted within the scope of his employment while
treating Plaintiff; that certification is conclusive of the issue. (Doc. 1, Exh. C). The parties
do not require further discovery into Defendant Merritt’s status as an employer or
contractor under the FSHCAA because such discovery would be futile. The Court finds
that the Attorney General’s certification conclusively establishes both that the United
States should be substituted for Defendant Merritt and that this case cannot be remanded
to the Third Judicial Circuit of Madison County, Illinois.
CONCLUSION
For the foregoing reasons, Defendants’ motion to substitute (Doc. 3) is
GRANTED. The Court directs the Clerk of the Court to dismiss Defendants Merritt and
Southern Illinois Healthcare Foundation, Inc., with prejudice and add the United States
as a defendant to this case. Plaintiff’s motion to remand (Doc. 16) and motion for an
extension of time to conduct limited discovery (Doc. 20) are DENIED.

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Digitally signed
by Judge Sison 2
Date: 2021.02.17
16:24:01 -06'00'

IT IS SO ORDERED.
Dated: February 17, 2021.

______________________________
GILBERT C. SISON
United States Magistrate Judge

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