Coalts-Young et al v. Glens Falls Hospital et al

Filing 43

MEMORANDUM-DECISION and ORDER - ORDERED that the United States' motion, on behalf of Mackenzie Jones, CNM, to substitute and dismiss (Dkt. No. 8) is GRANTED; and it is further ORDERED that the Clerk substitute the United States as defenda nt in this action in place of Mackenzie Jones, CNM; and it is further ORDERED that the complaint is DISMISSED against the United States without prejudice; and it is further ORDERED that plaintiffs' motion to remand (Dkt. No. 20) is GRANTED ; and it is further ORDERED that the remaining claims in this action against remaining defendants Glens Falls Hospital, Glens Falls Obstetrics & Gynecology Center, P.C., Michael Guido, M.D., Douglas Provost, M.D., Sereena Coombes, M.D., Marybeth Ma nrique, CNM, Adirondack Neurology Associates, P.C., Monica Burke, D.O., Warren Anesthesiologists, P.C., Patrick Gerdes, M.D., John Leary, M.D., and Julia Clayton, CNM are REMANDED to state court; and it is further ORDERED that the Clerk forward a c opy of this Memorandum-Decision and Order to the Clerk for the New York State Supreme Court in Warren County and instruct her to file this Memorandum-Decision and Order in Coalts-Young et al. v. Glens Falls Hospital et al., Index No. 57908; and it is further ORDERED that the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 11/19/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHRISTINA COALTS-YOUNG
et al.,
Plaintiffs,

1:14-cv-271
(GLS/CFH)

v.
GLENS FALLS HOSPITAL et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Dreyer, Boyajian Law Firm
75 Columbia Street
Albany, NY 12210

JOHN B. CASEY, ESQ.
LAUREN S. OWENS, ESQ.

FOR THE DEFENDANTS:
Glens Falls Hospital
McPhillips, Fitzgerald Law Firm
288 Glen Street
P.O. Box 299
Glens Falls, NY 12801-0299

JAMES E. CULLUM, ESQ.
JASON T. BRITT, ESQ.

Glens Falls Obstetrics &
Gynecology Center, P.C., Michael
Guido, M.D., Douglas Provost, M.D.,
Sereena Coombes, M.D., Marybeth
Manrique, CNM
Burke, Scolamiero Law Firm
THOMAS J. MORTATI, ESQ.
7 Washington Square
Albany, NY 12212
Adirondack Neurology Associates,
P.C., Monica Burke, D.O.

Maguire, Cardona Law Firm
16 Sage Estate
Menands, NY 12204

DIANE LUFKIN SCHILLING,
ESQ.
RICHARD R. MAGUIRE, ESQ.

D’Agostino, Krackeler Law Firm
16 Sage Estate
Sage Mansion
Menands, NY 12204

RANDALL J. EZICK, ESQ.

Warren Anesthesiologists, P.C.,
Patrick Gerdes, M.D., John Leary,
M.D.
O’Connor, O’Connor Law Firm
20 Corporate Woods Boulevard
Albany, NY 12211

TERENCE P. O’CONNOR, ESQ.
MICHELE M. MONSERRATE,
ESQ.

Mackenzie Jones, CNM
HON. RICHARD J. HARTUNIAN
United States Attorney
James T. Foley U.S. Court House
445 Broadway, Room 218
Albany, NY 12207-2924

KAREN FOLSTER
LESPERANCE
Assistant United States Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Christina Coalts-Young and Daniel Young commenced this
action against multiple defendants, including Mackenzie Jones, CNM, 1
1

The other defendants include Glens Falls Hospital, Glens Falls Obstetrics &
Gynecology Center, P.C., Michael Guido, M.D., Douglas Provost, M.D., Sereena Coombes,
M.D., Marybeth Manrique, CNM, Adirondack Neurology Associates, P.C., Monica Burke, D.O.,
Warren Anesthesiologists, P.C., Patrick Gerdes, M.D., John Leary, M.D, and Julia Clayton,
CNM. (Compl., Dkt. No. 1.)

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alleging negligence and medical malpractice claims. (See generally
Compl., Dkt. No. 1, Attach. 2 at 4-12.) After the complaint was filed in New
York state court, the United States, on behalf of Jones, removed the action
to this court pursuant to 28 U.S.C. § 1441 and the Federal Tort Claims Act
(FTCA).2 (Dkt. No. 1.) Pending are the United States’ motion to substitute
itself as a defendant in place of Jones, and to dismiss the claims against it
for lack of subject matter jurisdiction, (Dkt. No. 8), and plaintiffs’
crossmotion to remand, (Dkt. No. 20). For the reasons that follow, the
United States’ motion is granted, and, although not for the reasons
articulated by plaintiffs, plaintiffs’ motion to remand is also granted.
II. Background
A.

Facts3
Between May 3, 2010 and May 4, 2010, Coalts-Young delivered her

son at Glens Falls Hospital (“the Hospital”), and subsequently suffered a
post-partum stroke. (See generally Compl.) Plaintiffs allege that
defendants were negligent and committed medical malpractice in their
provision of care to Coalts-Young. (Id.) As a result of defendants’
2

See 28 U.S.C. §§ 1346(b), 2671-2680.

3

Unless otherwise noted, the facts are drawn from plaintiffs’ complaint and presented
in the light most favorable to them.

3

negligence, Coalts-Young claims that she has suffered severe and
permanent personal injuries. (Id. ¶ 23.)
B.

Procedural History
On October 2, 2012, plaintiffs commenced this action in New York

State Supreme Court in Warren County. (Compl.) On March 12, 2014, the
United States removed the action to this court, (Dkt. No. 1), and on March
19, 2014, the United States filed its now pending motion to substitute and
dismiss, (Dkt. No. 8). In response, plaintiffs filed a crossmotion to remand,
and, alternatively, argued that a hearing or limited discovery was necessary
in order to determine whether substitution is appropriate. (Dkt. No. 20,
Attach. 1 at 4-5.) After the court permitted several rounds of supplemental
briefing, (Dkt. Nos. 26, 32, 38, 39), the motions are now ripe for
adjudication.
III. Discussion
A.

Motion to Substitute
The United States argues that, pursuant to the FTCA, it should be

substituted for Jones in this action. (Dkt. No. 8, Attach. 1 at 3-4.)
Specifically, the United States contends that, because plaintiffs allege that
Jones, an employee of Hudson Healthwaters Health Network (Hudson), a
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federally funded community healthcare clinic, acted negligently in the
course of her employment with Hudson, this action may only be brought
against the United States under the provisions of the FTCA. (Id.) Plaintiffs,
however, argue that the United States has not satisfied all of the procedural
requirements in order to properly substitute, and also dispute whether
Jones was acting within the scope of her federal employment when she
treated Coalts-Young. (Dkt. No. 20, Attach. 1 at 4.) The court agrees with
the United States.
The FTCA permits “civil actions on claims against the United States,
for money damages . . . for injury or loss of property . . . 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.” 28 U.S.C.
§ 1346(b)(1). With certain exceptions not applicable here, this remedy “is
exclusive of any other civil action or proceeding for money damages by
reason of the same subject matter against the employee whose act or
omission gave rise to the claim.” Id. § 2679(b)(1). “Tort claims against
entities ‘deemed’ by the Secretary of Health and Human Services to be
part of the United States Public Health Services must be removed to
federal court and treated as an action brought against the United States.”
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Dalli v. Frech, 70 F. App’x 46, 46 (2d Cir. 2003). Employees of deemed
entities are covered by the FTCA, provided that the Attorney General 4
certifies that they were “acting in the scope of [their] employment at the
time of the incident out of which the suit arose.” 42 U.S.C. § 233(c); see 28
U.S.C. § 2679(d)(2).
Here, Hudson is a deemed Public Health Service employee under 42
U.S.C. § 233(g)-(n), see About Us, Hudson Headwaters Health Network,
http://www.hhhn.org/AboutUs (last visited Oct. 2, 2014), and the United
States Attorney for the Northern District of New York certified that Jones
was acting within the scope of her employment with Hudson at the time
that she treated Coalts-Young, 5 (Dkt. No. 31, Attach. 1). Plaintiffs,
however, contend that: (1) because Coalts-Young was not a patient of
Hudson, but instead was a patient of the Hospital, “the United States has
failed to demonstrate that the Secretary of Health and Human Services has

4

Department of Justice regulations also authorize the “United States Attorney for the
district where the civil action or proceeding is brought” to make this certification. 28 C.F.R.
§ 15.4(a).
5

Initially, plaintiffs argued that removal was improper because the United States failed
to provide the proper certification required by the FTCA. (Dkt. No. 20, Attach. 1 at 2-3.) After
this court ordered the United States to provide the requisite certification, (Dkt. No. 30), the
United States furnished a certification from Hon. Richard Hartunian, United States Attorney for
the Northern District of New York, (Dkt. No. 31, Attach. 1), and explained that the original
certification, which was executed in September 2013, apparently was lost, (Dkt. No. 31).

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deemed Hudson . . . to be an employee of the Public Health Service with
respect to services provided ‘to individuals who are not patients of the
entity,’” (Dkt. No. 32 at 1-3 (quoting 42 U.S.C. § 233(g)(1)(B)(ii))); and (2)
Jones was not acting within the scope of her federal employment when she
treated Coalts-Young, but instead was “a special employee” of the
Hospital, (Dkt. No. 20, Attach. 1 at 4; Dkt. No. 32 at 3-4). The court
addresses each argument in turn below.
1.

Services to Non-Patients

With respect to plaintiffs’ first point, defendants correctly note that,
while it is generally true that entities must pre-apply and obtain approval for
certain services provided to non-patients, see 42 U.S.C. § 233(g)(1)(A),
(B), and (C), there are exceptions, one of which is applicable here. (Dkt.
No. 39 at 2-4); 42 C.F.R. § 6.6(e)(4)(iii). Indeed, an entity does not have to
obtain separate approval for services to non-patients if, “[a]s part of a
health center’s arrangement with local community providers for after-hours
coverage of its patients, the health center’s providers are required by their
employment contract to provide periodic or occasional cross-coverage for
patients of these providers.” 42 C.F.R. § 6.6(e)(4)(iii).
Here, as articulated in the affidavit of Lori Gravelle, vice president of
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risk management for Hudson, “[a]s part of their employment with [Hudson],
and pursuant to a contractual relationship between [Hudson] and Glens
Falls Hospital, [Hudson]’s OB/GYN care providers—including
. . . Jones—were assigned to work shifts on the Maternity Floor at Glens
Falls Hospital.” (Dkt. No. 26, Attach. 2 ¶¶ 1, 3.) Gravelle further states that
“[Hudson] providers are working in their capacity as [Hudson] employees
when they work[] these shifts at Glens Falls Hospital, they are expected to
do so as a part of their employment with [Hudson], and they are paid by
[Hudson] for working these shifts.” (Id. ¶ 3.) Accordingly, under these
circumstances, Hudson was not required to obtain separate approval for
services provided to non-patients.
2.

Scope of Employment

Plaintiffs next contend that Jones was not acting within the scope of
her employment with Hudson, but was a special employee of the Hospital,
when she cared for Coalts-Young. (Dkt. No. 20, Attach. 1 at 4; Dkt. No. 32
at 3-4.) As to this point, both the United States and the Hospital 6 have

6

Initially, the Hospital took no position as to the United States’ motion to substitute and
dismiss, but reserved its right to respond to plaintiffs’ crossmotion. (Dkt. No. 22.) After
plaintiffs raised their theory that Jones was a special employee of the Hospital in their
supplemental briefing, (Dkt. No. 32 at 3-4), the Hospital sought the court’s permission to file a
response, (Dkt. No. 35), which the court granted by text order on August 21, 2013.

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submitted evidence indicating otherwise. (Dkt. No. 26; Dkt. No. 26, Attach.
2; Dkt. No. 26, Attach. 3; Dkt. No. 38; Dkt. No. 38, Attach. 1.) The court
agrees with the United States and the Hospital.
The Supreme Court has held that “the Attorney General’s certification
that a federal employee was acting within the scope of h[er] employment . .
. does not conclusively establish as correct the substitution of the United
States as defendant in place of the employee.” Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 434 (1995). Instead, “[a] district court conducts a
de novo review of a 28 U.S.C. § 2679(d) certification by the Attorney
General (or his designee) if a plaintiff allege[s] with particularity facts
relevant to the scope-of-employment issue.” United States v. Tomscha,
150 F. App’x 18, 19 (2d Cir. 2005) (internal quotation marks and citations
omitted). “The court must view the tortious conduct in the light most
favorable to plaintiff, but it makes its own findings of fact with respect to the
scope of the tortfeasor’s employment and, in so doing, the court may rely
on evidence outside the pleadings.” Bello v. United States, 93 F. App’x
288, 289-90 (2d Cir. 2004) (citation omitted).
In determining whether tortious conduct falls within the scope of a
party’s employment, district courts apply state law principles. See
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Tomscha, 150 F. App’x at 19. Under New York law, the fundamental
question is “whether the act was done while the servant was doing his
master’s work, no matter how irregularly, or with what disregard of
instructions.” Riviello v. Waldron, 47 N.Y.2d 297, 302 (1979) (internal
quotation marks and citation omitted). Factors relevant to this inquiry
include:
[1] the connection between the time, place and
occasion for the act; [2] the history of the relationship
between employer and employee as spelled out in
actual practice; [3] whether the act is one commonly
done by such an employee; [4] the extent of departure
from normal methods of performance; and [5] whether
the specific act was one that the employer could
reasonably have anticipated.
Id. at 303 (citations omitted).
Here, as an initial matter, the court is skeptical that plaintiffs “allege[d]
with particularity facts relevant to the scope-of-employment issue,” and that
de novo review of the United States Attorney’s certification is even
necessary here. Tomscha, 150 F. App’x at 19 (internal quotation marks
and citations omitted). Nevertheless, in an abundance of caution, the court
will entertain plaintiffs’ arguments. First, plaintiffs contend that they “have
rebutted the certification that . . . Jones was acting within the scope of her

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employment with Hudson,” based upon a declaration from Coalts-Young,
which simply states that she neither knew that Jones was an employee of
Hudson, nor requested care from Hudson employees, and portions of the
Hospital’s chart, parts of which indicate that Jones indeed provided care to
Coalts-Young. (Dkt. No. 20, Attach. 1 at 4; id., Attach. 2 at 8-20; id.,
Attach. 3.) Further, in support of their argument that Jones was a “special
employee of Glens Falls Hospital,” plaintiffs simply state, in conclusory
fashion, that “we can safely assume that the work activities of . . . Jones
were subject to the direction and control of Glens Falls Hospital, and not
Hudson,” and that “Jones was . . . acting in the scope of [her] employment
with Glens Falls Hospital.” (Dkt. No. 32 at 3-4.)
The United States, on the other hand, maintains that Jones was
acting within the scope of her employment with Hudson. (Dkt. No. 26 at 5.)
In support of that position, the United States submitted an affidavit from
Gravelle, which demonstrates that Jones has been an employee of Hudson
since September 12, 2006, and, as part of her employment with Hudson,
was scheduled by Hudson to work the Maternity Floor at Glens Falls
Hospital over the two-day period that Coalts-Young delivered her son, and
subsequently suffered a post-partum stroke. (Dkt. No. 26, Attach. 2 ¶¶ 211

5.) Specifically, Jones was scheduled to work at Glens Falls Hospital from
1:00-5:00 P.M. on May 3, 2010, and from 5:00-8:00 P.M. on May 4, 2010.
(Id. ¶¶ 4-5.) Further, payroll records confirm that Jones was paid by
Hudson for her shifts at the Hospital. (Id. ¶ 4.) The United States also
submitted a declaration from Jones, which states that Jones did not bill
privately for the services she provided to Coalts-Young, and that she did
not receive compensation for the services she provided to Coalts-Young
other than her regular compensation from Hudson. (Dkt. No. 26, Attach. 3
¶ 4.)
Similarly, the Hospital submitted an affidavit from Antoinetta Backus,
the manager of physician recruitment and retention at the Hospital. (Dkt.
No. 38, Attach. 1 ¶ 1.) Backus stated that, at the time that Jones provided
care to Coalts-Young at the Hospital, Jones was an employee of Hudson,
and had privileges at the Hospital. (Id. ¶¶ 3-4.) Backus further stated that
Hudson, not the Hospital, sets the schedule for Jones’ work at the Hospital,
and that “[t]he Hospital does not actively direct the course of care and
treatment that a privileged clinician provides to a patient.” (Id. ¶¶ 5, 8.)
The court is persuaded by the documents submitted by the United
States and the Hospital, which demonstrate that Jones was, in fact, acting
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within the scope of her employment with Hudson when she provided care
to Coalts-Young. These documents establish that Jones was: (1) providing
coverage at the Hospital as part of her employment with Hudson, and
pursuant to a contract between Hudson and the Hospital; (2) scheduled to
work at the Hospital by Hudson; and (3) compensated by Hudson. (See
generally Dkt. No. 26, Attach. 2; Dkt. No. 26, Attach. 3.) In contrast,
plaintiffs’ submissions are rife with conjecture and speculation, and fail to
rebut the certification provided by the United States Attorney for the
Northern District of New York. See Marley v. Ibelli, 52 F. App’x 564, 566
(2d Cir. 2002) (summary order) (holding that the plaintiff’s “subjective
belief” that conduct was outside the scope of federal employment was not
sufficient to refute in particularity the scope of employment certification);
Aryai v. Forfeiture Support Assocs., No. 10 Civ. 8952, 2012 WL 10911406,
at *10 (S.D.N.Y. Aug. 27, 2012) (noting that “‘conclusory statements hardly
suffice to refute in particularity the scope of employment certification’”
(quoting Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181, 209 (E.D.N.Y.
1998))). Thus, Jones was acting within the scope of her employment with
Hudson, and the United States is substituted for her.
B.

Motion to Dismiss
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The United States next contends that it must be dismissed because
plaintiffs did not file administrative claims with the United States
Department of Health and Human Services (HHS) prior to bringing this
action, thus depriving the court of subject matter jurisdiction. (Dkt. No. 8,
Attach 1 at 4-5.) Plaintiffs do not dispute that an administrative claim was
never filed. The court, therefore, agrees with the United States, and
dismisses the claims against it.
A prerequisite to maintaining a tort claim against an entity covered
by the FTCA is that “the claimant shall have first presented the claim to the
appropriate Federal agency and [her] claim shall have been finally denied
by the agency.” 28 U.S.C § 2675(a); see Furman v. U.S. Postal Serv., 349
F. Supp. 2d 553, 557 (E.D.N.Y. 2004) (“Compliance with Section 2675 ‘is
strictly construed.’ Without this administrative exhaustion, courts lack
subject matter jurisdiction over the claim.” (citation omitted)); Deutsch v.
Fed. Bureau of Prisons, 737 F. Supp. 261, 266 (S.D.N.Y. 1990) (“[T]he
filing of an administrative claim is considered a jurisdictional prerequisite to
maintaining an action under the FTCA which cannot be waived.”).
Here, the United States maintains that plaintiffs never filed an
administrative claim with HHS. (Dkt. No. 8, Attach 1 at 4-5.) In support, it
14

submitted a declaration from Meredith Torres, a Senior Attorney in the
General Law Division, Office of the General Counsel, Department of Health
and Human Services. (Dkt. No. 8, Attach. 2 ¶ 1.) Torres stated that, after
searching an HHS database, which contains a record of administrative tort
claims filed with HHS, including those filed with respect to federally funded
healthcare clinics that have been deemed to be eligible for FTCA
malpractice coverage, she found that no administrative tort claims have
been filed by plaintiffs relating to Hudson and/or Jones. (Id. ¶¶ 2, 4.)
Plaintiffs do not dispute that an administrative claim was never filed.
Therefore, because plaintiffs failed to file an administrative claim, the
claims against the United States are dismissed without prejudice.
C.

Supplemental Jurisdiction
Having dismissed plaintiffs’ claims against the United States—which

were the only claims over which the court had original jurisdiction—the
court declines to exercise supplemental jurisdiction over plaintiffs’ claims
against the remaining defendants. See 28 U.S.C. § 1367(c); Butler v.
LaBarge, No. 9:09-cv-1106, 2010 WL 3907258, at *3 (N.D.N.Y. Sept. 30,
2010) (“In the absence of original federal jurisdiction, the decision of
whether to exercise jurisdiction over pendent state law claims is within the
15

court’s discretion.” ).
In doing so, the court remands plaintiffs’ state law claims to state
court. Remand is appropriate because it “promote[s] the comity interest
that informs the doctrine of supplemental jurisdiction,” this case is in its
infancy, state court was, and remains, the forum of plaintiffs’ choice, and
plaintiffs’ counsel seemingly was unaware of the federal character of its
claims against Jones, i.e., “there is no specter . . . of any bad faith effort to
‘manipulate the forum’ in a manner that counsels against a remand.” De
Hernandez v. Lutheran Med. Ctr., No. 01-CV-6730, 2002 WL 31102638, at
*2 (E.D.N.Y. Sept. 11, 2002); see Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 357 (1988) (holding, later codified in 28 U.S.C §1367(c)(3), that a
district court has discretion to remand to state court a properly removed
case involving supplemental claims “upon a proper determination that
retaining jurisdiction over the case would be inappropriate”); see also Marra
v. Hughes, No. 1:11-CV-0400, 2011 WL 2971882, at *3 (N.D.N.Y. July 21,
2011). Accordingly, the court declines jurisdiction over any state law
claims, and the case is remanded to state court.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
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ORDERED that the United States’ motion, on behalf of Mackenzie
Jones, CNM, to substitute and dismiss (Dkt. No. 8) is GRANTED; and it is
further
ORDERED that the Clerk substitute the United States as defendant
in this action in place of Mackenzie Jones, CNM; and it is further
ORDERED that the complaint is DISMISSED against the United
States without prejudice; and it is further
ORDERED that plaintiffs’ motion to remand (Dkt. No. 20) is
GRANTED; and it is further
ORDERED that the remaining claims in this action against remaining
defendants Glens Falls Hospital, Glens Falls Obstetrics & Gynecology
Center, P.C., Michael Guido, M.D., Douglas Provost, M.D., Sereena
Coombes, M.D., Marybeth Manrique, CNM, Adirondack Neurology
Associates, P.C., Monica Burke, D.O., Warren Anesthesiologists, P.C.,
Patrick Gerdes, M.D., John Leary, M.D., and Julia Clayton, CNM are
REMANDED to state court; and it is further
ORDERED that the Clerk forward a copy of this MemorandumDecision and Order to the Clerk for the New York State Supreme Court in
Warren County and instruct her to file this Memorandum-Decision and
17

Order in Coalts-Young et al. v. Glens Falls Hospital et al., Index No. 57908;
and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk serve a copy of this Memorandum-Decision
and Order upon the parties.
IT IS SO ORDERED.
November 16, 2014
Albany, New York

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