Lassic v. Hudson River Health Care, Inc et al
OPINION AND ORDER. The Court grants the Government's motion to substitute the United States as defendant in this action and dismisses the case under Rule 12(b)(1) for lack of subject matter jurisdiction. re: 4 MOTION to Substitute Party. Old P arty: Hudson River Healthcare, Inc. and Dr. Christine A. Kerr, New Party: United States of America. MOTION to Dismiss the Complaint as Against the United States of America filed by Christine A. Kerr, Hudson River Health Care, Inc. (Signed by Judge Robert P. Patterson on 7/29/2013) Copies Sent By Chambers via Email. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
13 CV 2547 (RPP)
-againstOPINION & ORDER
HUDSON RIVER HEALTH CARE, INC., &
CHRISTINE A. KERR, M.D.,
ROBERT P. PATTERSON, JR., U.S.D.J.
On April 30, 2013, the United States Attorney for the Southern District of New York
filed a motion requesting that this Court (1) substitute the United States in place of named
defendants Hudson River Health Care, Inc. (“Hudson River”) and Hudson River physician
Christine Kerr (together, “Defendants”) and (2) upon substitution, dismiss this action for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
(Mot. to Substitute the United States & to Dismiss the Complaint (“Substitute Mot.”), ECF No.
4.) For the reasons that follow, the Government’s motion is granted.
On May 5, 2012, Sandra Lassic (“Plaintiff”) commenced a medical malpractice action in
state court against Defendants. (See Notice of Removal (the “Removal Notice”) Ex. A (“V.
Compl.”), ECF No. 1.) The complaint alleged that, in February 2010, Defendants acted
negligently by failing to treat Plaintiff’s health condition in a proper and timely manner and by
failing to inform Plaintiff of the risks and alternatives associated with the medical treatment that
they had provided to her. (V. Compl. ¶¶ 12, 18.) As a result of Defendants’ negligence, the
complaint alleged that Plaintiff sustained severe, permanent, and disabling injuries. (Id. ¶¶ 14,
On April 17, 2013, the Government removed Plaintiff’s action to this Court, and on April
30, 2013, the Government filed its now pending motion to substitute and to dismiss. In its
motion, the Government argues that, pursuant to the Public Health Services Act (“PHSA”), 42
U.S.C. § 233, and the Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., the United
States should be substituted as the defendant in this action and that, upon substitution, the
complaint should be dismissed for lack of subject matter jurisdiction. (See Mem. in Supp. of
Mot. to Substitute and Dismiss (“Substitute Mem.”) at 4-6, ECF No. 5.)
a. The Public Health Services Act
The Government is correct that substitution is appropriate in this case. Pursuant to
§ 224(g) of the PHSA, 42 U.S.C. § 233(g), the Secretary of Health and Human Services (“HHS”)
deemed Hudson River and its employees federally covered entities of the Public Health Service
effective January 1, 2009. (See Decl. of Meredith Torres (“Torres Decl.”) ¶¶ 5-6, ECF No. 6;
see also id. Ex. 1 (“Deeming Letter” dated Nov. 13, 2008) at 1.) As covered entities of the
Public Health Service, Defendants are shielded from having to defend against a medical
malpractice action, such as Plaintiff’s, because the PHSA substitutes the United States as a
defendant in any such actions. See § 233(g)-(j), (h); see also Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (explaining that the PHSA “allow[s]
recovery by people injured by federal employees or by agents of the Federal Government, and, at
the same time . . . immunize[s] such employees and agents from liability for negligent or
wrongful acts done in the scope of their employment.”)
As a prerequisite to substitution, however, the Attorney General of the United States, or
one of his designees, must certify that any defendants covered by the PHSA were acting within
the scope of employment at all times relevant to the complaint filed against them. See 42
U.S.C. § 233(c) (“Upon a certification by the Attorney General that the defendant was acting in
the scope of his employment . . . the proceeding [shall be] deemed a tort action brought against
the United States.”); 28 C.F.R. § 15.4(a) (conveying authority to United States Attorneys to
make statutory certifications). Here, on March 28, 2013, the United States Attorney for the
Southern District of New York certified that Defendants were acting within the scope of
employment at all times relevant to the claims raised in Plaintiff’s complaint. (See Removal
Notice Ex. B (“Bharara Certification”).)
Accordingly, because Defendants were deemed to be covered entities of the Public
Health Service and because they were also certified as having acted within the scope of
employment at all times relevant to this action, the United States is substituted as the defendant
in this case.
b. The Federal Tort Claims Act
The PHSA states that, once the United States is substituted as a defendant in a medical
malpractice action, the FTCA provides the “exclusive” remedy. See 42 U.S.C. § 233(a); see also
Celestine, 403 F.3d at 80-82 (stating that if a defendant has been deemed and certified as a
federal employee acting within the scope of employment, “the United States can replace the
named defendant as the allegedly liable party and the case proceeds as a FTCA suit”); Cuoco v.
Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (recognizing that, where a defendant in a personal
injury action is covered by the PHSA and the United States is substituted as the defendant, the
FTCA must provide the exclusive remedy).
Thus, because the United States has been substituted as the defendant in this action,
Plaintiff’s case must now be construed as a claim under the FTCA and it is therefore “subject to
the limitations and exceptions applicable to [FTCA] actions.” 28 U.S.C. § 2679(d)(4). One such
applicable limitation involves the FTCA’s exhaustion requirement.1 See § 2675(a). Under the
FTCA, an action cannot be filed in federal court unless a claimant has first filed her claim with
the appropriate federal agency, which in this case is HHS, and that agency then “finally denie[s]”
her claim. See id. If a claimant fails to exhaust her FTCA administrative remedies, a court will
not have jurisdiction to hear the case and the matter must be dismissed under Rule 12(b)(1). This
administrative exhaustion requirement is “jurisdictional and cannot be waived.” Celestine, 403
F.3d at 82.
Here, to establish that jurisdictional requirements have been met, Plaintiff must show
that, prior to the initiation of the instant action, she exhausted her administrative remedies by
filing a claim with HHS. See 28 U.S.C. § 2675(a); see also Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000) (acknowledging that in a FTCA claim, “a plaintiff asserting subject
matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists”);
Although Plaintiff argues that the FTCA’s exhaustion requirement should not apply because, even after performing
a “diligent search,” she did not discover that Defendants were federally covered entities of the Public Health
Service, (Lassic Mem. in Opp’n to Removal & Dismissal at 2, ECF No. 9), the Second Circuit has ruled that “all
suits against the United States, including those originating in state court against defendants yet to be formally
replaced by the United States, must be subject to the administrative-exhaustion requirements specified in [the FTCA
at] 28 U.S.C. § 2675.” Celestine, 403 F.3d at 83 (emphasis in original). The Second Circuit has, however, also
recognized that, following the dismissal of an action against a defendant that was not readily identifiable as a
covered federal entity, a plaintiff may attempt to exhaust her administrative remedies by filing a claim with the
appropriate federal agency. See id. at 84 (citing the Federal Employees Liability Reform and Tort Compensation
Act (“the Westfall Act”), Pub. L. No. 100-694, 102 Stat. 4563 (1988)). Under the FTCA, “such a claim shall be
deemed to be timely presented . . . if (A) the claim would have been timely had it been filed on the date the
underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within
sixty days after dismissal of the civil action.” 28 U.S.C. § 2679(d)(5). Plaintiff may decide to take advantage of this
provision by filing a claim with HHS within sixty days of the date of this opinion.
see also Celestine v. Mount Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392,399
(S.D.N.Y. 2003) (same). Plaintiff has not met this burden. Indeed, she has failed to provide this
Court with any evidence of an administrative claim that she filed with HHS related to
Defendants. Moreover, the Government has submitted a declaration from the Office of the
General Counsel of HHS stating that, after a full record search, no record of such an
administrative tort claim by Plaintiff exists. (Torres Decl. at 1.) Accordingly, since Plaintiff has
not met her burden of proving that she fulfilled the administrative exhaustion requirement of the
FTCA, this Court lacks jurisdiction to hear the matter and the case must be dismissed pursuant to
The Court grants the Government's motion to substitute the United States as defendant in
this action and dismisses the case under Rule 12(b)(J) for lack of subject matter jurisdiction.
Dated: July 29,2013
New York, New York
Robert P. Patterson, Jr.
COPIES SENT VIA EMAIL TO:
Counsel for Plaintiff.
Nkereuwem Inyang Umoh
Law Office ofNkereuwem Umoh, Esq
25 Bond Street
Brooklyn, NY 11201
Fax: (800) 516-5929
Counsel for Defendant:
Alicia Marie Simmons
U.S. Attorney Office SDNY
86 Chambers Street
New York, NY 10007
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