BILYEU v. PHOENIXVILLE HOSPITAL COMPANY, LLC et al

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 6/14/17. 6/14/17 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHELLE BILYEU,
Plaintiff,
v.
PHOENIXVILLE HOSPITAL
COMPANY, LLC, et al.,
Defendants.

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CIVIL ACTION

No. 17-1456

MEMORANDUM
Schiller, J.

June 14, 2017

Michelle Bilyeu filed this lawsuit in the Montgomery County Court of Common Pleas for
medical malpractice against various Defendants, including William Haug, III, D.O. (“Dr.
Haug”), Jacek Z. Obara, M.D. (“Dr. Obara”), and Community Health and Dental Care, Inc.
(“CHDC”). CHDC, Dr. Obara, and Dr. Haug are employees of the Public Health Service and
therefore covered by the Federal Tort Claims Act (“FTCA”). Under the FTCA, the United States
is the only proper defendant for personal injury cases resulting from the performance of medical
services. Thus, the Court will grant the motion to dismiss Dr. Obara, Dr. Haug, and CHDC, and
substitute the United States for those Defendants. Because Bilyeu has failed to commence, let
alone exhaust, administrative remedies, the Court will also dismiss the claims against the United
States for lack of subject matter jurisdiction. Finally, the Court will decline to exercise
supplemental jurisdiction over the remaining state law claims, and will remand the case back to
the Court of Common Pleas.

I.

BACKGROUND
Bilyeu used CHDC as her primary care doctor’s office, with Dr. Obara and Dr. Haug as

her primary care physicians. (Mem. Supp. Pl.’s Resp. Mot. Dismiss [hereinafter Pl.’s Resp.] 1–
2.) On October 27, 2014, Bilyeu suffered complications from a hysterectomy performed at a
different facility, resulting in severe abdominal pain and loss of kidney function. (Id.) Bilyeu
went to CHDC after the pain continued, where Drs. Obara and Haug allegedly failed to diagnose
an obstructed left ureter resulting from the hysterectomy. (Id.)
On August 26, 2016, Bilyeu filed a writ of summons against CHDC, Dr. Haug, and five
other defendants in the Montgomery County Court of Common Pleas, alleging medical
malpractice. (Id. at 4.) On October 26, 2016, Bilyeu filed a similar writ of summons against Dr.
Obara and an additional defendant. (Id. at 5.) The Court of Common Pleas consolidated the two
cases on March 10, 2017. Bilyeu has not filed an administrative claim with the appropriate
administrative agency: the Department of Health and Human Services (“HHS”). (Mem. Supp.
U.S.’ Mot. Dismiss [hereinafter U.S.’ Mot.] Exs. B & C.)
The United States filed a notice of removal on behalf of CHDC and Drs. Haug and Obara
under 42 U.S.C. § 233. The United States then filed a motion to dismiss certain defendants,
substitute the United States, and dismiss the United States for lack of subject matter jurisdiction.

II.

STANDARD OF REVIEW
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), the court must decide whether to treat the challenge as a facial or factual attack.
Constitution Party of Pa. v. Aichele, 757, F.3d 347, 357 (3d Cir. 2014). If the movant alleges the
complaint on its face fails to establish subject matter jurisdiction, the court treats the challenge as

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facial and must accept as true all factual allegations alleged in the complaint. Mortenson v. First
Fed. Sac. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Factual attacks, however, allow the
court to delve beyond the pleadings to determine if the evidence supports the court’s subject
matter jurisdiction. Id.

III.

DISCUSSION
A.

Substitution of the United States

Bilyeu failed to address the argument that CHDC and Drs. Haug and Obara must be
dismissed and the United States substituted as a defendant. (Pl.’s Resp.) Claims involving
personal injuries arising out of medical care provided by employees of the United States Public
Health Service must be filed against the United States under the FTCA. 42 U.S.C. § 233(a).
CHDC is an employee of the United States Public Health Service, as are Drs. Haug and Obara by
virtue of their employment with CHDC. (U.S.’ Mot. Ex. A.) Therefore, CHDC, Dr. Haug, and
Dr. Obara are dismissed and the United States is substituted as the sole federal defendant.
B.

Exhaustion of Administrative Remedies

Before a court can entertain a lawsuit for damages under the Federal Tort Claims Act, the
plaintiff must first present the claim in writing to the appropriate federal agency “within two
years after such claim accrues.” 28 U.S.C. § 2401(b). Next, the agency must “make final
disposition” of the claim, which includes an agency’s failure to take any action on the claim for
six months. 28 U.S.C. § 2675(a). Plaintiff then has six months from notice of the final denial to
sue the United States. § 2401(b). “The final denial requirement is jurisdictional and cannot be
waived.” Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009) (quotation omitted). The
relevant government agency in this case is HHS. See, e.g., Huertero v. United States, 601 F.

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App’x 169, 170 (3d Cir. 2015) (indicating on similar facts that the “appropriate federal agency”
was HHS).
The United States has presented both a factual and a facial challenge to subject matter
jurisdiction. The United States argues that Bilyeu not only failed to exhaust her administrative
remedies because she never filed a claim with HHS, but also that she failed to allege as much in
her state court complaint. (U.S.’ Mot. 4, Exs. B, C, D, & E.) Bilyeu responds with an appeal to
Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir. 2009), contending that “a timely
filing of a claim subject to the [FTCA] . . . in state court was deemed a timely filing to the
appropriate federal administrative agency.” (Pl.’s Resp. 6.) She further argues that filing the state
court case put the “appropriate administrative agency . . . on notice of a tort claim.” (Id. at 8.)
Bilyeu failed to mention that the plaintiff in Santos did, in fact, file an administrative claim with
HHS, whereas Bilyeu has not. Santos, 559 F.3d at 192. Even assuming the dubious contention
that HHS had notice of Bilyeu’s claim via a state court lawsuit, notice to the agency is
insufficient; Bilyeu must present in writing the proper administrative claim with the appropriate
administrative agency. 28 U.S.C. § 2401(b). A claim cannot be denied if it does not exist.
Because final denial of a claim is jurisdictional, Bilyeu’s case against the United States must be
dismissed. See Lightfoot, 564 F.3d at 627. Unless and until Bilyeu files an administrative claim
and HHS finally denies that claim, this Court does not have jurisdiction over the matter. 1

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Congress provides a savings clause for timely lawsuits dismissed for failure to exhaust
administrative remedies. 28 U.S.C. § 2679(d)(5). A party may file an administrative claim after
their civil lawsuit has been dismissed if “the claim would have been timely had it been filed on
the date the underlying civil action was commenced” and “the claim is presented to the
appropriate Federal agency within 60 days after dismissal of the civil action.” Id. If both criteria
are satisfied, the administrative claim is treated as timely for the purposes of § 2401. Id. The
United States contends that § 2679(d)(5) is not available to Bilyeu because the savings clause
only applies when the United States is substituted as a defendant under § 2679; here, the United
States was substituted pursuant to 42 U.S.C. § 233(a). (Reply Br. Supp. U.S.’ Mot. Dismiss 4
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C.

Jurisdiction and Remand
This Court has original jurisdiction over the claims involving the United States pursuant

to 28 U.S.C. § 1346(b) and supplemental jurisdiction over the remaining state law claims
involving the other six defendants pursuant to 28 U.S.C. § 1367(a). Under § 1367(c)(3), the
district court “may decline to exercise supplemental jurisdiction over a claim . . . [if] the district
court has dismissed all claims over which it has original jurisdiction.” Because the Court has
dismissed the United States, the sole federal defendant, it declines to exercise supplemental
jurisdiction and the case is remanded.

IV.

CONCLUSION
For the foregoing reasons, the United States’ motion to dismiss is granted and the case is

remanded. An Order consistent with this Memorandum will be docketed separately.

n.3.) Because this matter is not properly before the Court as Bilyeu has yet to file an
administrative claim, the Court declines to rule on this issue.
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