MENDEZ et al v. UNITED STATES OF AMERICA et al
OPINION. Signed by Judge Noel L. Hillman on 5/9/2017. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE NOEL L. HILLMAN
MARY MENDEZ, et al.,
CIVIL ACTION NO. 14-7778
UNITED STATES OF AMERICA, et
LOREN FINESMITH, ESQ.
191 Presidential Blvd., No. 416
P.O. Box 443
Bala Cynwyd, Pennsylvania 19004
Counsel for Plaintiffs
WILLIAM FITZPATRICK, ACTING U.S. ATTORNEY
By: Jordan M. Anger, A.U.S.A.
970 Broad Street, Suite 700
Newark, New Jersey 07102
Counsel for Defendant United States of America
PARKER MCCAY PA
By: Jarad L. Silverstein, Esq.
Carolyn R. Sleeper, Esq.
9000 Midlantic Drive, Suite 300
Mount Laurel, New Jersey 08054
Counsel for all other Defendants
HILLMAN, United States District Judge:
This is a medical malpractice suit.
Plaintiff Mary Mendez
asserts that the negligence of the various medical professionals
who treated her during her pregnancy caused the death of her
baby during, or shortly after, the baby’s birth.
One of those medical professionals is Dr. Eric Chang, who
is employed by CAMcare Health Corporation (“CAMcare”).
is a federally qualified health center (“FHQC”), and the United
States has been substituted for Dr. Chang pursuant to the
provisions of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
The United States presently moves to dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction, or alternatively, for partial summary judgment
pursuant to Fed. R. Civ. P. 56.
At issue is whether the New
Jersey Charitable Immunities Act, N.J.S.A. 2A:53A-7 et seq.,
applies to the claims against Dr. Chang; and if so, whether the
NJCIA’s absolute immunity provision, or the damages cap
If the absolute immunity provision applies, this Court
lacks subject matter jurisdiction by operation of the United
States’ limited waiver of sovereign immunity in the FTCA. See 28
U.S.C. § 2674.
If the damages cap applies, the United States is
entitled to summary judgment limiting its liability to $250,000.
If the NJCIA does not apply at all, as Plaintiff contends, then
the United States’ Motion should be denied in its entirety.
For the reasons stated herein, the Court holds that the
NJCIA’s damages cap provision applies.
Accordingly, the United
States’ motion to dismiss for lack of subject matter
jurisdiction will be denied, and the motion for partial summary
judgment will be granted.
Four other opinions have been written in this case.
Mendez v. United States, 2017 U.S. Dist. LEXIS 16153 (D.N.J.
Feb. 3, 2017); Mendez v. United States, 2016 U.S. Dist. LEXIS
168854 (D.N.J. Dec. 7, 2016); Mendez v. United States, 2015 U.S.
Dist. LEXIS 102381 (D.N.J. Aug. 5, 2015); Mendez v. Chang, 2013
U.S. Dist. LEXIS 152131 (D.N.J. Oct. 23, 2013).
recites only the facts directly relevant to the instant motion.
CAMcare is classified as a public charity under the
Internal Revenue Code. (Plaintiff’s Response to United States’
Statement of Material Facts Not in Dispute (“PSUF”) ¶ 1)
provides “primary health care” services to “underserved
families” through its operation of eight “health centers”
located in Camden and Gloucester Counties. (PSUF ¶¶ 1-2)
CAMcare has no inpatient facilities and provides “no trauma
care, not even suturing.” (PSUF ¶ 1)
However, the services
CAMcare does provide-- “including primary care (internal
medicine, pediatrics, obstetrical, gynecological, prenatal and
perinatal services, and podiatry), preventive care (family
planning, well-child services, dental services, and nutrition),
[and] related support and enabling health services”-- are
available 24 hours a day, 7 days a week. (PSUF ¶ 17-18)
CAMcare’s Certificate of Incorporation states that
CAMcare’s corporate purposes are:
To provide primary health services, including the
services of physicians and other health providers,
assistants and nurse clinicians, mental health
services, dental services, diagnostic laboratory and
(including children’s eye and ear examinations to
determine the need for vision and hearing corrections,
prenatal services, well child services, preventive
dental services, and family planning services),
services as required for adequate patient care;
To provide as appropriate supplemental health
services necessary for the adequate support of primary
health services, including hospital services, home
health services, extended care facility services,
services (including physical therapy) and long term
physical medicine, mental health services, dental
services, vision services, allied health services,
services, public health services (including nutrition
education and social services), health education
services, and services which promote optimal use of
primary and supplemental health services, including as
necessary and appropriate the services of bilingual
To provide referrals to providers of supplemental
health services and patients, as appropriate and
feasible, for the provision of such services;
To provide, as may be appropriate, environmental
To provide information on the availability and
proper use of health services;
To raise funds from private donations and to
apply for and receive governmental and private grants
To bill for services rendered on a contractual,
fee for service or insured basis;
To provide educational programs for resident
physicians, medical and nursing students, and members
of other health care professions;
To conduct and support research in the area of
health services delivery and health education; [and]
To carry on any activity and to deal with and
expend any property or income therefrom for any of the
foregoing purposes in such manner as in the judgment
of the Board of Trustees will best promote the purpose
of the Corporation, without limitation, except such
limitations, if any, as may be contained in this
Certificate of Incorporation, the By-Laws of the
prescribed by law.
(PSUF ¶ 5)
The statement of corporate purpose in CAMcare’s
Bylaws is substantially similar. (PSUF ¶ 12)
CAMcare’s Board of Trustees is “an all-volunteer Board
comprised of community members.” (PSUF ¶ 15)
“As required of FQHCs by the federal government, CAMcare
uses a sliding discount policy to determine appropriate patient
discounts on the basis of family size and ability to pay
according to federal poverty guidelines.” (PSUF ¶ 9)
relevant time period, “approximately 84.5% of CAMcare’s patients
were Medicaid recipients.” (PSUF ¶ 8) 1
During the relevant time period, CAMcare’s total revenue
was $19,885,237.00 (PSUF ¶ 30)
The vast majority of the total
revenue came from two sources: (1) patient revenue (i.e.,
Medicaid, Medicare, private insurance and self-pay); and (2)
public (i.e., federal, state and local) grants. (PSUF ¶ 31-33,
If CAMcare received any private grant money during the
relevant time period, it was a “very small” fraction of
CAMcare’s total revenue. (PSUF ¶ 5) 2
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) challenges the existence of a federal court’s
subject matter jurisdiction.
Facial attacks contest the
sufficiency of the pleadings, and in reviewing such attacks, the
The Complaint alleges that “all medical bills for the
hospitalization and medical care and treatment provided to
Plaintiff Mary Mendez and to the Decedent, Bryan Jadiel Mendez,
which is the subject of this action were paid or payable through
the Medicaid program.” (Compl. ¶ 7)
The United States contends that during the relevant time
period CAMcare received $100,000.00 in private grant money. The
Court does not accept this disputed fact as true; however, the
Court observes that even if it were true, it would be a very
small amount relative to CAMcare’s total revenue of over $19
Court accepts the allegations as true. Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir.), cert. denied, 558
U.S. 1091 (2009).
Factual attacks, on the other hand, require
the Court to weigh the evidence at its discretion, meaning that
the allegations in the complaint have no presumptive
truthfulness. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549
F.2d 884, 891 (3d Cir. 1977).
The United States’ Motion, as it pertains to the NJCIA
absolute immunity issue, is a factual challenge.
The Court incorporates herein by reference the summary
judgment standard set forth in the previous summary judgment
opinion in this case. Mendez v. United States, 2017 U.S. Dist.
LEXIS 16153 at *3-5 (D.N.J. Feb. 3, 2017).
The NJCIA applies to the claims against CAMcare / the
It is undisputed that Dr. Chang is a salaried employee of
CAMcare, as opposed to a volunteer doctor providing pro bono
Plaintiffs argue that this fact precludes the
application of the FTCA’s limited waiver provision, which in
turn would preclude the application of either the absolute
immunity provision or the damage cap provision the NJCIA.
Chief Judge Simandle and Judge Kugler, in separate cases,
have both rejected this argument as it specifically applies to
employees of CAMcare, see Dupont v. United States, 197 F. Supp.
3d 678, 683-686 (D.N.J. 2016) (Simandle, C.J.); Young v. United
States, 152 F. Supp. 3d 337, 347-48 (D.N.J. 2015)(Kugler, D.J.),
and another judge has rejected this argument as applied to a
similar case. See Gremminger v. United States, 2017 U.S. Dist.
LEXIS 46390 at *14-16 (D.N.J. 2017)(Wolfson, D.J.).
As Gremminger, Dupont, and Young comprehensively explain,
Plaintiffs’ attempt to distinguish Lomando v. United States, 667
F.3d 363 (3d Cir. 2011) -- which held that, under the FTCA,
employees of a federally supported health center could assert
the NJCIA as a defense to a medical malpractice action -- is
The fact that the health center at issue in
Lomando provided free services through volunteer physicians was
not integral to the holding.
The Court holds that the United States may assert the NJCIA
as a defense to the claims in this suit.
The United States is not entitled to absolute immunity.
Section 7 of the NJCIA, “Immunity from liability for
negligence,” provides, in relevant part:
No nonprofit corporation, society or association
organized exclusively for religious, charitable or
educational purposes or its trustees, directors,
officers, employees, agents, servants or volunteers
shall, except as is hereinafter set forth, be liable
to respond in damages to any person who shall suffer
damage from the negligence of any agent or servant of
such corporation, society or association, where such
person is a beneficiary, to whatever degree, of the
works of such nonprofit corporation, society or
association; provided, however, that such immunity from
liability shall not extend to any person who shall
suffer damage from the negligence of such corporation,
society, or association or of its agents or servants
where such person is one unconcerned in and unrelated
to and outside of the benefactions of such corporation,
society or association.
Nothing in this subsection shall be deemed to grant
immunity to any health care provider, in the practice
of his profession, who is a compensated employee, agent
or servant of any nonprofit corporation, society or
association organized exclusively for religious,
charitable or educational purposes.
N.J.S.A. § 2A:53A-7(a).
The issue is whether CAMcare is “organized exclusively for
. . . charitable . . . purposes.” N.J.S.A. § 2A:53A-7(a).
United States argues that CAMcare is organized exclusively for
charitable purposes, but candidly admits that two other judges
in this District have rejected this argument “in cases with
facts that are essentially indistinguishable from the facts
presented here.” (Moving Brief, p. 17, fn. 2)
Indeed, Chief Judge Simandle and Judge Kugler have both
held that CAMcare is not organized exclusively for charitable
purposes. Dupont v. United States, 197 F. Supp. 3d 678, 688-690
(D.N.J. 2016)(Simandle, C.J.); Young v. United States, 152 F.
Supp. 3d 337, 347-50 (D.N.J. 2015)(Kugler, D.J.). 3
undersigned agrees with the reasoning of Young and Dupont and
Moreover, the below discussion concerning the applicability
of the NJCIA’s damages cap provision supports the Court’s
Since the two provisions are mutually exclusive,
see Kuchera v. Jersey Shore Family Health Center, 221 N.J. 239,
245 (2015)(rejecting Appellate Division’s “hybrid purpose
analysis”), the Court’s holding that the damages cap applies
forecloses any holding that CAMcare is organized exclusively for
charitable purposes. Young, 152 F. Supp. 3d 337, 347 (D.N.J.
2015)(“if a nonprofit is organized ‘exclusively for hospital
purposes,’ then no absolute immunity can apply. Accordingly, if
this Court determines that CAMcare is organized exclusively for
hospital purposes, then the jurisdictional inquiry is
The Court having held that the United States is not
entitled to absolute immunity, the parties do not dispute that
See also Gremminger v. United States, 2017 U.S. Dist. LEXIS
46390 at *25-26 (D.N.J. 2017)(Wolfson, D.J.)(holding that an
FQHC similar to CAMcare is not organized exclusively for
charitable purposes)(discussing Young and Dupont with approval);
S.M. v. United States, 2016 U.S. Dist. LEXIS 175692 at *11-12
(D.N.J. 2016)(Rodriguez, S.D.J.)(holding that an FQHC similar to
CAMcare is not organized exclusively for charitable
purposes)(citing Young and Dupont with approval).
this Court may exercise subject matter jurisdiction over this
The United States’ Rule 12(b)(1) motion will be denied.
The NJCIA damages cap applies.
Section 8 of the NJCIA, “Liability of nonprofit hospital
Notwithstanding the provisions of the foregoing
paragraph, any nonprofit corporation, society or
purposes shall be liable to respond in damages to such
beneficiary who shall suffer damage from the negligence
of such corporation, society or association or of its
agents or servants to an amount not exceeding $250,000,
together with interest and costs of suit, as the result
of any one accident and to the extent to which such
damage, together with interest and costs of suit, shall
exceed the sum of $250,000 such nonprofit corporation,
society or association organized exclusively for
hospital purposes shall not be liable therefor.
N.J.S.A. § 2A:53A-8.
The issue is whether CAMcare is “organized exclusively for
hospital purposes.” N.J.S.A. § 2A:53A-8.
Plaintiffs argue that
“CAMcare is a primary care facility” that undisputedly provides
“no inpatient acute care facilities,” (e.g., CAMcare has no
emergency room), and therefore “[i]t is not a hospital.”
(Opposition Brief, p. 21)
This argument misstates the issue.
The question is not
whether CAMcare is a hospital, as that term is traditionally
understood by a layperson.
The question is whether CAMcare is a
“nonprofit corporation” “organized exclusively for hospital
purposes” as those terms are used in the NJCIA.
In this regard,
the New Jersey Supreme Court has clearly stated:
[w]e discern no reason to confine the term “hospital
purposes” to the vintage conception of a hospital as a
facility providing a site for physicians to provide
acute and continuous inpatient care for their patients.
Rather, to effectuate the legislative mandate that the
CIA should be liberally construed to effectuate its
purpose, we focus on the many medical pursuits of a
modern hospital in New Jersey.
Kuchera, 221 N.J. at 252 (2015).
CAMcare provides a wide variety of preventative services
and primary care, 24 hours a day, seven days a week.
holds that these medical and health-related pursuits support a
conclusion that CAMcare is organized exclusively for hospital
purposes under the NJCIA. See Kuchera, 221 N.J. at 252 (“our
conception of ‘hospital purposes’ needs to expand to reflect the
many health-related pursuits of the modern hospital.”); see also
Gremminger, 2017 U.S. Dist. LEXIS 46390 at *28 (holding that an
FQHC similar to CAMcare is organized exclusively for hospital
purposes); S.M., 2016 U.S. Dist. LEXIS 175692 at *15 (holding
that an FQHC similar to CAMcare is organized exclusively for
Accordingly, the Court holds that the NJCIA damages cap
The United States’ motion for partial summary judgment
will be granted.
For the reasons set forth above, the United States’ motion
to dismiss for lack of subject matter jurisdiction will be
denied, and the motion for partial summary judgment will be
An appropriate Order accompanies this Opinion.
Dated: May 9, 2016
___s/ Noel L. Hillman_____
At Camden, New Jersey
Noel L. Hillman, U.S.D.J.
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