Nolden v. United States of America et al
Filing
27
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the 17 MOTION to Dismiss filed by United States of America is GRANTED to the extent that it seeks dismissal of this action for lack of subject matter jurisdiction; and Pltf's complaint is DISMISSED without prejudice to Pltf's right to file an amdcmp w/i 20 days of the date of this order.Signed by Chief Judge Yvette Kane on June 18, 2013. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NORMAN K. NOLDEN,
Plaintiff
v.
UNITED STATES OF AMERICA, et al.,
Defendants
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No. 1:12-cv-01541
(Chief Judge Kane)
MEMORANDUM ORDER
Presently pending before the Court is the United States of America’s motion to dismiss.
(Doc. No. 17.) The motion has been fully briefed and is ripe for disposition. For the reasons
that follow, the Court will grant the motion.
I.
BACKGROUND1
On January 29, 2010, the United States Department of Veterans Affairs’ Medical Center
(“VA Center”), located in Lebanon, Pennsylvania, entered into a contract with the Penn State
Milton S. Hershey Medical Center (“HMC”) to provide ophthalmology services. (Doc. No. 191.) Pursuant to the terms of the contract, HMC agreed to designate ophthalmology specialists to
provide services at the VA Center, such as providing on-site instructions to medical residents
and performing eye examinations and surgical procedures. (Doc. No. 19-1 at 6.) The contract
provides as follows:
It is expressly agreed and understood that this is a nonpersonal
services contract, as defined in Federal Acquisition Regulation (FAR)
37.101, under which the professional services rendered by the
Contractor or its health-care providers are rendered in its capacity as
1
Because the United States raises a factual challenge to the Court’s subject-matter
jurisdiction, the Court may consider the factual allegations of the pleadings as well as evidence
outside the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
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an independent contractor. The Government may evaluate the quality
of professional and administrative services provided but retains no
control over professional aspects of the services rendered, including
by example, the Contractor’s or its health-care providers’
professional medical judgment, diagnosis, or specific medical
treatments. The Contractor and its health-care provider shall be
liable for their liability-producing acts or omissions. The Contractor
shall maintain or require all health-care providers performing under
this contract to maintain, during the term of this contract, professional
liability insurance issued by a responsible insurance carrier of not
less than the following amount(s) per speciality per occurrence: one
million dollars.
(Id. at 12.) In accordance with this contract, HMC ophthalmology specialists Drs. Ali Aminlari,
Joseph Sassani, and David Liang, enjoyed clinical privileges at the VA Center from November
19, 2008 until December 31, 2010. (Id. at 24-59.) On April 1, 2010, the VA Center entered into
a letter of agreement with HMC concerning its medical residents’ clinical rotations at the VA
Center. (Id. at 70-71.) The agreement provided that Dr. Sassani would be responsible for
supervising the residents and that HMC would designate the medical residents and pay their
salary, benefits, and liability insurance. (Id. at 70.) Moreover, the agreement provided that
HMC’s policies and procedures would apply to the medical residents working at the VA Center.
(Id. at 71.) On May 26, 2009, HMC informed the VA Center that Dr. Hanny Isawi and other
physicians would serve as an ophthalmology resident at the VA Center. (Id. at 73-74.)
On August12, 2010, Plaintiff Norman K. Nolden sought treatment at the VA Center for
blurry and decreased vision in his left eye. (Doc. No. 1 ¶ 17.) The following day, Drs. Isawi and
Sassani performed “cataract extraction with IOL implantation” on Plaintiff’s left eye. (Id. ¶ 19.)
During the surgery, Plaintiff suffered a posterior capsular tear, which Drs. Isawi and Sassani
treated in part with corneal sutures. (Id. ¶ 20.) After the surgery, Plaintiff reported to the VA
Center for several post-operative checkups. (Id. ¶¶ 21-26.) At the first checkup on August 14,
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2010, Dr. Isawi determined that Plaintiff’s eye was healing on schedule. (Id. ¶ 21.) During the
next checkup on August 20, 2010, Drs. Isawi and Liang found that Plaintiff’s surgery had been
“complicated by a PC tear.” (Id. ¶ 22.) Dr. Isawi did not remove the sutures from Plaintiff’s eye
at this time but asked Plaintiff to report back to the VA Center on September 2, 2010. (Id. ¶¶ 2324.) On September 2, 2010, Drs. Isawi and Aminlari removed two of the sutures and, after
attempting to remove the third suture, decided to “not attempt further manipulation of the
wound.” (Id. ¶¶ 26-27.) The remaining suture was removed on September 7, 2010. (Id. ¶ 30.)
The next day, Plaintiff reported back to the VA Center, complaining of significant pain,
sensitivity to light, and deteriorating vision in his left eye. (Id. ¶ 33.) Dr. Isawi examined the
eye and diagnosed Plaintiff with “acute onset of endophthalmitis.” (Id. ¶ 34.) Plaintiff was then
transferred to HMC, where Dr. Scott Gardner examined him. (Id. ¶ 36.) Despite initial
improvement, Plaintiff began experiencing severe pain in the eye again. (Id. ¶¶ 37-41.) On
October 5, 2010, physicians at Johns Hopkins University Hospital informed Plaintiff that the
“visual potential in his eye [was] extremely poor” and that he now had a “blind, painful eye.”
(Id. ¶ 42.) The following week, HMC physicians surgically removed the eye. (Id. ¶ 43.) Since
this surgery, Plaintiff has developed cataracts in his right eye and suffered a complete loss of
vision in his left eye. (Id. ¶ 45.)
In his complaint, Plaintiff alleges that Defendants Drs. Isawi and Aminlari, in the course
of examining and operating on his left eye, were negligent and that the United States is
vicariously liable for their negligence under the Federal Tort Claims Act, 28 U.S.C. § 2671, et
seq. (“FTCA”). On November 14, 2012, the United States filed a motion to dismiss Plaintiff’s
complaint for lack of subject-matter jurisdiction, contending that Drs. Isawi and Aminlari were
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independent contractors of the United States when they provided services to Plaintiff and,
therefore, their actions fall outside of the jurisdiction of the FTCA. Plaintiff filed a brief in
opposition on December 12, 2012 (Doc. No. 23), and the United States filed a reply brief on
January 2, 2013 (Doc. No. 26).
II.
STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a defendant may
move the Court to dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P.
12(b)(1). “A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the
court’s subject matter jurisdiction.” Gould, 220 F.3d at 176. In assessing a facial attack, the
court is limited to considering “the allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to the plaintiff.” Id. Conversely, in
reviewing a factual challenge, the court is free to consider evidence outside the pleadings. Id. In
addition, once a defendant moves to dismiss under Rule 12(b)(1), the burden shifts to the
plaintiff to demonstrate the existence of subject-matter jurisdiction. PBGC v. White, 998 F.2d
1192, 1196 (3d Cir. 2000).
III.
DISCUSSION
In its motion, the United States brings a factual challenge to the Court’s subject-matter
jurisdiction, contending that the United States cannot be held liable under the FTCA for the
allegedly negligent actions of Drs. Isawi and Aminlari. “It is black letter law that ‘the United
States cannot be sued . . . without the consent of Congress.’” Becton Dickinson & Co. v.
Wolckenhauer, 215 F.3d 340, 345 (3d Cir. 2000) (quoting Block v. North Dakota, 461 U.S. 273,
287 (1983)). “When the United States consents to be sued, the terms of its waiver of sovereign
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immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834,
841 (1986). Any such waiver “must be construed strictly in favor of the sovereign, and not
enlarged . . . beyond what the language requires.” United States v. Nordic Village Inc., 503 U.S.
30, 34 (1992) (internal quotation marks and citations omitted).
Under the FTCA, Congress waives the United States’ sovereign immunity in certain civil
actions brought against the United States to recover for personal injury or wrongful death:
[T]he district courts . . . shall have exclusive jurisdiction of civil
actions on claims against the United States, for money damages . . .
for injury or loss of property, or personal injury or death 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, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
28 U.S.C. § 1346(b). The United States Supreme Court has cautioned that the FTCA is a
“limited waiver of sovereign immunity” and explained that the Act “defines Government
employees to include officers and employees of ‘any federal agency’ but excludes ‘any
contractor with the United States.’” United States v. Orleans, 425 U.S. 807, 813-14 (1976)
(quoting 28 U.S.C. § 2671) (internal brackets omitted). The critical factor used to distinguish a
federal employee from an independent contractor is whether the Government has the power to
control the detailed physical performance of the contractor. Id. at 814. Control is determined by
the level of physical supervision or direction the Government exerts over the daily operations of
the contractor. Id. at 815; Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997). If a
federal actor supervises the day-to-day operations of the job, the contractor is generally
considered an employee of the United States. Orleans, 425 U.S. at 815. Conversely, if the
contractor manages the job’s daily functions, with the federal actor only exercising broad
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supervisory powers, the contractor is likely an independent contractor even if the Government
reserves the right to inspect the contractor’s work and monitor its compliance with federal law.
Id.
Here, HMC was primarily responsible for providing ophthalmological services at the VA
Center under the terms of its contract with the VA Center. The April 1, 2010 letter of agreement
specifically provided that Dr. Sassani, an HMC physician, would serve as the VA Center’s onsite supervisor. In addition, the January 19, 2010 contract explicitly stated that the VA Center
“retains no control over professional aspects of the services rendered, including by example, the
Contractor’s or its health-care providers’ professional medical judgment, diagnosis, or specific
medical treatments,” even though HMC physicians were required to follow several VA Center
rules and procedures and gain accreditation. That contract also required all health-care providers
to maintain liability insurance.
Despite these contractual provisions, Plaintiff contends that the United States may be
held vicariously liable for the actions of the HMC physicians because the physicians, when
providing ophthalmological services at the VA Center, were under the supervision of Dr.
Sassani, who “exercised the authority to bind . . . [the] United States.” (Doc. No. 23 at 8-9.) In
other words, in Plaintiff’s view, because Dr. Sassani acted as a federal employee, the HMC
physicians whom he supervised also acted as federal employees, not independent contractors.
Upon review of Plaintiff’s complaint as well as the contract and letter of agreement entered into
by HMC and the VA Center, the Court finds that Plaintiff has failed to allege facts sufficient to
support this conclusion. First, as discussed, the express language of the contract between the VA
Center and HMC provides that the VA Center did not exercise the requisite level of control over
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the HMC physicians sufficient to deem them employees of the United States. Also, the April 1,
2010 letter of agreement designating Dr. Sassani as the supervisor of all HMC physicians at the
VA Center provided that he and Dr. Scott “are responsible for the day-to-day activities of the
residents,” that HMC would provide “full coverage of the resident’s salary and benefits
including health and liability insurance,” and that HMC’s rules and regulations would apply to
all residents. (Id. at 70-71.) Nothing in this agreement suggests that Dr. Sassani’s duties were to
be performed in the capacity of an employee of the United States or that Dr. Sassani had the
authority to bind the United States.
Moreover, despite contending that Dr. Sassani was appointed by the United States to
supervise the HMC physicians, Plaintiff’s allegations do not support a finding that Dr. Sassani
supervised or exercised control over the day-to-day operations of the HMC physicians on behalf
of the United States. Although Plaintiff generally alleges that the HMC physicians were
employees of the United States, he also does not allege that they were under the control or
supervision of any other federal employees. Accordingly, the Court finds that Plaintiff fails to
sufficiently allege facts supporting the legal conclusion that Drs. Isawi and Aminlari acted as
employees of the United States when they treated and operated on his eye. The Court, therefore,
will grant Plaintiff leave to amend his complaint to attempt to make out such allegations.
In the alternative, Plaintiff contends that even if Drs. Isawi and Aminlari were
independent contractors, the United States may still be held liable for their actions because they
were “ostensible agents” of the United States. (Doc. No. 23 at 19-22.) In support, Plaintiff cites
several cases decided under Pennsylvania law, which stand for the proposition that a hospital
may be held liable for a negligent physician “if a reasonably prudent person in the patient’s
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position would be justified in believing that the care in question was being provided by the
hospital.” (Id. at 20-21.) Plaintiff argues that the physicians were ostensible agents of the
United States because, on the day of his surgery, he reasonably presumed that Dr. Isawi and the
other attending physicians were employees of the VA Center and the physicians did not inform
him otherwise. (Id. at 21-22.)
The Court must reject Plaintiff’s ostensible agency argument. In Logue v. United States,
the Supreme Court held that state officials responsible for federal prisoners being held in a state
facility were not employees of the United States for purposes of the FTCA, explaining:
Congress, of course, could have left the determination as to whose
negligence the Government should be liable for under the Federal
Tort Claims Act to the law of the State involved, as it did with other
aspects of liability under the Act. But it chose not to do this, and
instead incorporated into the definitions of the Act the exemption
from liability for injury caused by employees of a contractor. While
this congressional choice leaves the courts free to look to the law of
torts and agency to define ‘contractor,’ it does not leave them free to
abrogate the exemption that the Act provides.
412 U.S. 521, 528 (1973). This language suggests that the Court must evaluate the employment
status of an individual working for the United States under federal law. Several appellate courts
have relied on Logue to hold that federal law determines the question of whether one is an
employee of the United States for purposes of the FTCA. See, e.g., Ezekiel v. Michel, 66 F.3d
894, 899 (7th Cir. 1995) (holding that the determination of whether a physician working in a
Veteran’s Administration hospital “was an employee of the United States for purposes of the
FTCA is a question of federal law”); Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983)
(“[I]t is well settled that the question whether one is an employee of the United States is to be
determined by federal law.”); see also Johnson v. United States, 534 F.3d 958, 963 (8th Cir.
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2008) (holding that the state-law doctrine of apparent authority is not applicable under the
FTCA). The Court finds the reasoning of these cases to be sound and, thus, will not apply
Pennsylvania law in determining whether the United States may not be held vicariously liable for
the actions of Drs. Isawi and Aminlari.
IV.
CONCLUSION
Based on the pleadings and the contractual agreements between HMC and the VA
Center, the Court finds that Plaintiff has failed to sufficiently allege that Drs. Isawi and Dr.
Aminlari treated Plaintiff in their capacities as independent contractors. Accordingly, the Court
will grant the United States’ motion to dismiss this action for lack of subject-matter jurisdiction
but will grant Plaintiff leave to amend his complaint.
ACCORDINGLY, on this 18th day of June 2013, IT IS HEREBY ORDERED THAT:
1.
The United States’ motion to dismiss (Doc. No. 17) is GRANTED to the extent
that it seeks dismissal of this action for lack of subject-matter jurisdiction; and
2.
Plaintiff’s complaint (Doc. No. 1) is DISMISSED WITHOUT PREJUDICE to
Plaintiff’s right to file an amended complaint within twenty days of the date of
this order.
S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania
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