Pomeroy v. United States of America

Filing 28

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES without prejudice Defendants' motion to dismiss, D. 9.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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JANICE POMEROY, as the personal
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representative of the estate of Jane Cristiano,
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Plaintiff,
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v.
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No. 17-cv-10211-DJC
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UNITED STATES OF AMERICA,
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Defendant.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

February 27, 2018

Introduction
Plaintiff Janice Pomeroy (“Pomeroy”), as the personal representative of the estate of Jane

Cristiano (“Cristiano”), has filed this lawsuit against the United States of America under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) et seq., for the wrongful death of Cristiano
resulting from medical negligence by United States employees. D. 1 at 1. The United States now
moves to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1). D. 9. For the reasons stated below, the Court DENIES the government’s motion.
II.

Standard of Review
When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) “[a]t the pleading

stage,” dismissal “is appropriate only when the facts alleged in the complaint, taken as true, do not
justify the exercise of subject matter jurisdiction.” Muniz-Rivera v. United States, 326 F.3d 8, 11
(1st Cir. 2003). As with a Fed. R. Civ. P. 12(b)(6) motion, the Court “must credit the plaintiff’s
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well-pled factual allegations and draw all reasonable inferences in the plaintiff’s favor.”
Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). Unlike a Rule 12(b)(6) motion,
however, the Court may look beyond the pleadings to determine jurisdiction without converting
the motion into a summary judgment motion. Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir. 2002).
The United States is immune from suit without its consent, but the “FTCA is one instance
of such consent; it waives the sovereign immunity of the United States with respect to certain torts
committed by federal employees acting within the scope of their employment” and “gives federal
courts jurisdiction over such claims.” Gordo-González v. United States, 873 F.3d 32, 35 (1st Cir.
2017).
III.

Factual Background
East Boston Neighborhood Health Center (“EBNHC”) is a federally supported community

health center under the Public Health Service Act, 42 U.S.C. § 233(g), and it owns and operates
Winthrop Place,1 a nursing home. D. 1 ¶ 2. Cristiano was transferred to Winthrop Place in October
2013 after developing difficulty swallowing such that her prior home concluded that they could no
longer provide her with sufficient care. D. 1 ¶¶ 6-7. After a two-week probationary period,
Winthrop Place determined it could provide adequate care for Cristiano. D. 1 ¶ 9. At the time,
Cristiano “had dementia, used a walker to ambulate and was unable to eat solid food because of
her difficulty swallowing.” D. 1 ¶ 8.
Cristiano became a full-time resident of Winthrop Place, and under her Resident
Agreement, she “was entitled to various services, including, but not limited to, 24-hour staffing by

1

The government refers to the home as Winthrop PACE in its reply brief, see D. 26 at 1, but the
Court follows the Plaintiff’s labeling for the purposes of this motion.
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licensed nurses and certified health aides, and all meals.” D. 1 ¶ 9. On February 9, 2014, however,
a “new aide gave Ms. Cristiano a chicken sandwich, instead of her usual puree meal,” and Cristiano
began choking. D. 1 ¶ 10. This aide was Jose Andrade, an employee of Dependable Healthcare
Services, which contracted with EBNHC to provide health staffing services. D. 10 at 3, 7; D. 11
¶¶ 2-6. A nurse administered the Heimlich maneuver, but Cristiano “remained in acute distress.”
D. 1 ¶ 10. Cristiano died in route to the hospital and the medical examiner deemed the cause of
death “asphyxia due to aspiration of food bolus.” D. 1 ¶ 11. Following Cristiano’s death, a nurse
at Winthrop Place told Pomeroy that they “take full responsibility” and “fired the employee.” D.
1 ¶ 12.
IV.

Procedural History
Plaintiffs instituted this action on February 7, 2017. D. 1. The United States has now

moved to dismiss. D. 9. The Court heard the parties on the pending motion and took the matter
under advisement. D. 23.
V.

Discussion
The government argues that this Court does not have subject matter jurisdiction because

the case is barred by sovereign immunity. D. 9 at 1. The Federally Supported Health Centers
Assistance Act (“FSHCAA”) establishes a sovereign immunity waiver, setting suits against the
United States under the FTCA as the exclusive remedy “for damage for personal injury, including
death, resulting from the performance of medical, surgical, dental, or related functions, including
the conduct of clinical studies or investigation, by any commissioned officer or employee of the
Public Health Service while acting within the scope of his office or employment.” 42 U.S.C.
§ 233(a) (“Section 233(a)”). The government does not dispute that EBNHC and Winthrop Place
fall within the purview of the FSHCAA. See D. 10 at 5. The government argues, however, that
Section 233(a) does not apply here because first, Pomeroy’s negligence and negligent supervision
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claims do not involve “the performance of medical, surgical, dental, or related functions,” and
second, the aide in question was an independent contractor. D. 10 at 5-8. The Court addresses
each argument in turn.
A.

Winthrop Place’s Negligent Execution of Cristiano’s Treatment Plan
Qualifies as “Related Functions” Under the FSHCAA_
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Whether the Court has subject matter jurisdiction over Pomeroy’s claims depends upon
whether the conduct in question falls within the scope of the FSHCAA. Specifically, the Court
must determine whether the nursing home’s negligent provision of solid food to a woman with a
known swallowing disability constitutes a “medical . . . or related function[],” 42 U.S.C. § 233(a).
The Court looks first to the text of Section 233(a). “If the statute addresses the question at
issue and is clear in its meaning, then [the Court] ‘must give effect to the unambiguously expressed
intent of Congress.’” Pereira v. Sessions, 866 F.3d 1, 3 (1st Cir. 2017) (quoting Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). The government provides
dictionary definitions of the categories listed in Section 233(a), arguing that “[c]afeteria or food
service does not fall under any of these categories.” D. 10 at 6. This contention, however, seems
to omit the “related functions” language from its textual analysis. See id. The statute must cover
a broader scope of activity than the delineated categories alone, or else “related functions” would
be mere superfluity. See Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 66 (1st Cir. 2011) (noting
that “a statute should ‘be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant’” (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001)). It appears that the “related functions” language may reasonably said to be broad enough
to include the conduct at issue here and certainly does not exclude it.
The government next argues that the purpose and history of the statute suggest that the
FSHCAA was not intended to include negligent provision of food. D. 10 at 6. The government
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explains that Congress enacted the FSHCAA to enable health centers in underserved and
underfunded communities to attract qualified physicians by obtaining malpractice insurance
through the FTCA. Id. (citing 138 Cong. Rec. S1782-01, 1992 WL 279542 (Oct. 8, 1992); 138
Cong. Rec. H11552-01, 1992 WL 280140 (Oct. 5, 1992)). This legislative purpose and history,
however, which Pomeroy does not dispute, does not foreclose an interpretation of Section 233(a)
that includes the circumstances of this case. A wrongful death action arising from the negligent
treatment of a patient—within the walls of the treatment facility and in direct contravention of the
patient’s treatment plan—hardly appears incongruous with this stated purpose.
The government points to Mendez v. Belton, 739 F.2d 15 (1st Cir. 1984), for the
proposition that, at least in the First Circuit, Section 233(a) is limited to claims that sound in
medical malpractice. D. 10 at 5-6. In Mendez, the First Circuit held that the FSHCAA did not
establish immunity for an individual doctor who allegedly engaged in acts of race and sex
discrimination in the peer review process, explaining that the statute instead protects “employees
from suits that sound in medical malpractice.” Mendez, 739 F.2d at 19-20. The government argues
that negligent food services is not medical malpractice, foreclosing the government’s liability here.
D. 10 at 5-6.
First, the Court is not convinced that the First Circuit intended its language to have the
sweeping effect that the government proposes. In Mendez, the First Circuit addressed a claim
arising out of an employment relationship, which is a far cry from the categories in Section 233(a)
and the activity with which Congress was concerned when enacting the FSHCAA. See Mendez,
739 F.2d at 19.2 For one example, the Second Circuit has construed Mendez’s holding narrowly

2

Indeed, where courts have followed Mendez and dismissed claims brought under the FTCA, the
claims arose out of the employment relationship rather than a physician-patient relationship. See,
e.g., Gallagher v. Penobscot Cmty. Healthcare, No. 1:15-cv-244-DBH, 2016 U.S. Dist. LEXIS
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on this basis, explaining that the First Circuit’s focus was not on interpreting Section 233(a)
because the conduct there “had nothing to do with the ‘performance of medical . . . or related
functions.’” Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir. 2000) (quoting 42 U.S.C. § 233(a))
(holding that physicians’ refusal to authorize estrogen treatments for a preoperative transgender
prisoner fell within Section 233(a)’s scope).

Other courts have also adopted a broader

understanding of Section 233(a).3 See, e.g., Houck v. Bagwell, No. 17-cv-474-JPG-SCW, 2017
U.S. Dist. LEXIS 200891, at *3-4 (S.D. Ill. Nov. 9, 2017) (holding that providing ineffective pain
medication and taking away plaintiff’s cane that he had been prescribed fell within Section 233(a));
Robinson v. Knibbs, No. 16-cv-3826 (NSR), 2017 U.S. Dist. LEXIS 131629, at *7-9 (S.D.N.Y.
Aug. 17, 2017) (holding same for a claim against a physician’s assistant for turning plaintiff away
from sick call rather than treating); De La Cruz v. Graber, No. 16-cv-1294-VBF, 2017 U.S. Dist.
LEXIS 156805, at *7 (C.D. Cal. June 15, 2017) (holding that the defendant was entitled to
immunity under Section 233(a) from plaintiff’s claims that he was harmed “by the manner in which
[defendant] performed her duties as Medical Administrator”); Berryman v. Mullen, No. 1:16-cv47, 2017 U.S. Dist. LEXIS 141247, at *42 (N.D. W. Va. May 15, 2017) (holding that the
physician’s assistant was entitled to absolute immunity “for all claims arising from the medical
care he provided to Plaintiff”). The claims here “aris[e] from the medical care” Winthrop Place
provided Cristiano, see Berryman, 2017 U.S. Dist. LEXIS 141247, at *42, and allege that nursing
staff failed to follow its plan of care for Cristiano, see Houck, 2017 U.S. Dist. LEXIS 200891, at
33465, at *13-14 (D. Me. Mar. 15, 2016) (holding that a physician plaintiff’s wrongful termination
claim did not fall within Section 233(a)).
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Many of these courts address Section 233(a)’s breadth to determine the viability of claims against
federal officers or employees, pursuant to Bivens v. Six Unknown Named Agents, 456 F.2d 1339
(1972), because Section 233(a) dictates that the FTCA is the “exclusive remedy” for claims falling
within its ambit, 42 U.S.C. § 233(a). In these cases, therefore, a broad interpretation of Section
233 generally leads to dismissal for want of subject matter jurisdiction.
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*4, falling within the range of conduct courts have deemed covered by Section 233(a). At
minimum, the Court is unconvinced that Mendez limits viable FSHCAA claims in this Circuit to
medical malpractice claims alone.
Second, even if the Court accepts this narrower interpretation of Section 233(a), Pomeroy
has sufficiently shown that the circumstances of this case sound in medical malpractice. See D. 15
at 7-8. The Court looks to Massachusetts law to define medical malpractice and, thus, the activity
to which the United States has waived sovereign immunity.4 See 28 U.S.C. § 1346(b)(1)
(explaining that FTCA liability is determined “in accordance with the law of the place where the
act or omission occurred”). Massachusetts defines medical malpractice “broadly to encompass
‘all treatment-related claims.’” Vasa v. Compass Med., P.C., 456 Mass. 175, 177 (2010) (quoting
Little v. Rosenthal, 376 Mass. 573, 576 (1978)). Massachusetts law’s definition of medical
malpractice claims is consistent with FSHCAA law. As with the federal statute, the Massachusetts
medical malpractice statute does not limit malpractice claims to those against physicians. See
Mass. Gen. Laws c. 231, §60B. Moreover, Massachusetts’s “treatment-related claims” language
also appears consistent with Section 233’s language and jurisprudence. In Mendez, the First
Circuit explained that cases in which defendant physicians had successfully invoked FSHCAA to
provide them with immunity were those involving “damages caused by improper medical
treatment,” and cited, among other cases, Flickinger v. United States, in which the court explained
that the plaintiff’s exclusive remedy for alleged negligence by a nurse practitioner misreading

4

The government, in its reply brief, relies upon cases in which state courts in New York,
Tennessee, Georgia and Kansas “characterized allegations like Plaintiff’s as sounding in ordinary
negligence.” D. 26 at 2. Even if these cases did stand for the proposition the government alleges,
which Pomeroy disputes, D. 27 at 2, these cases are obviously not binding on the Court’s
interpretation of medical malpractice under Massachusetts law.
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medical symptoms was under the FTCA and Section 233(a), Flickinger, 523 F. Supp. 1372, 137374 (W.D. Pa. 1981). Mendez, 739 F.2d at 20.
Negligent supervision of and provision of food to Cristiano, as alleged here, sounds in
medical malpractice, as Massachusetts courts have defined it. For one example, a Massachusetts
Appeals Court held that a nursing home was liable for medical malpractice when a nurse’s aide
negligently allowed a patient to fall to the floor while transferring her from the toilet to a
wheelchair. Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 287-90 (2012). The court
pointed out that upon intake, the nursing home noted that the patient presented a “potential for
falls,” and her care plan thus directly addressed that need, and that the nurse who transferred the
plaintiff to her wheelchair “deviated from the applicable standard of care” in multiple respects. Id.
at 287. Likewise, here, Pomeroy has alleged that Winthrop Place was alerted to Cristiano’s
heightened risk with the intake of solid foods, established an explicit care plan to ensure Cristiano’s
safety by providing 24-hour supervision and pureed foods and deviated from that standard of care
by failing to supervise and aid Cristiano adequately during mealtime.5 Such allegations sound in
medical malpractice in Massachusetts and arise from “performance of medical . . . or related
functions” to which the United States has consented to suit in Section 233(a).
B.

Andrade’s Employment Status Does Not Defeat Subject Matter Jurisdiction

The government also argues that it cannot be held liable because the aide, Andrade, was an
independent contractor employed by Dependable Healthcare Services and not EBNHC. D. 10 at

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The government argues that Pitts is distinct because it did not involve “a claim of negligent
supervision, which is the theory relied on by Plaintiff to pin liability on the United States.” D. 26
at 2 n.2. As Pomeroy points out, however, “her [c]omplaint is not so limited.” D. 26 at 1. Rather,
the complaint also includes claims that Winthrop Place staff negligently performed their own
duties, in “fail[ing] to develop and follow an appropriate care plan for Ms. Cristiano.” D. 27 at 12; see D. 1 ¶ 14.
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3, 7; D. 11 ¶¶ 2-6. The government has only consented to suit under the FTCA for torts committed
by federal officers within the scope of their employment. 28 U.S.C. § 1346(b)(1). “The FTCA
expressly does not waive the government’s immunity for claims arising from the acts or omissions
of independent contractors.” Carroll, 661 F.3d at 93 (emphasis in original). Under the FSHCAA,
the government’s liability extends to entities receiving funding under the Public Health Service
Act, including “any officer, governing board member, or employee of such an entity, and any
contractor of such an entity who is a physician or other licensed or certified health care
practitioner.” 42 U.S.C. § 233(g)(1).
Pomeroy argues that Andrade’s classification as an independent contractor remains in
question, due to the amount of control exerted over the aide by EBNHC. D. 15 at 11-12. “The
key factor governing whether an entity providing services to the United States is an independent
contractor is whether the contractor, rather than the government, exercises day-to-day supervision
and control of its own activities.” Carroll, 661 F.3d at 95. Pomeroy argues that the terms of the
contract between EBNHC and Dependable Healthcare Services and the statements made by
Winthrop Place employees to Pomeroy following Cristiano’s death illustrate EBNHC’s control
and hiring and firing authority over Andrade. D. 15 at 11-12; see D. 11-1 at 3-4. The government
disputes Pomeroy’s interpretation of the contract, but at oral argument and in its reply briefing, the
government conceded that the question of EBNHC’s control over Andrade “is an issue that is best
left for summary judgment.” D. 26 at 4-5. The Court will, therefore, refrain from resolving this
question on a now undeveloped record.
Regardless, the Court reiterates that Pomeroy’s complaint alleges negligence not only by
Andrade, but also by Winthrop Place nursing staff who negligently performed their own duties
here. See D. 1 ¶¶ 13-14. Pomeroy argues that nursing staff “had a duty to monitor and assist Ms.

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Cristiano at all meals in accordance with a comprehensive care plan developed to address her
medical conditions” that they did not follow here. D. 15 at 13; D. 1 ¶ 9. The government does not
dispute that nursing staff of Winthrop Place qualify as federal employees under FSHCAA, or that
Cristiano’s resident treatment plan included a 24-hour and meal supervision obligation. The
government interprets Pomeroy’s “negligent supervision” claim as only encompassing Winthrop
employees’ negligent supervision of Andrade, D. 10 at 7; D. 26 at 4-5, but Pomeroy has alleged
negligence by the medical and nursing staff for failing to supervise Cristiano during mealtime,
D. 1 ¶ 14.
VI.

Conclusion
For all of the foregoing reasons, the Court DENIES without prejudice Defendants’ motion

to dismiss, D. 9.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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