Olivera-Pagan v. Manati Medical Center, Inc.

Filing 28

MEMORANDUM AND ORDER re 21 Motion for Reconsideration and re 23 Motion to Alter Judgment. Motion to alter the amended judgment, (Docket No. 23), is GRANTED. The claims against Dr. Fuentes are DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly. Defendants' initial motion for reconsideration, (Docket No. 21), is DISMISSED AS MOOT. Signed by Judge Francisco A. Besosa on 09/25/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MANUEL OLIVERA-PAGAN, et al.,
Plaintiffs,
v.

Civil No. 14-1553 (FAB)

MANATI MEDICAL CENTER, INC., et
al.,
Defendants.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is defendants’ motion to alter the amended
judgment,
No. 24).

(Docket

No.

23),

which

plaintiffs

oppose,

(Docket

For the reasons discussed below, the motion is GRANTED.

The amended judgment, (Docket No. 22), is modified, and the case
against Dr. Hernan Fuentes-Figueroa is DISMISSED WITH PREJUDICE.
BACKGROUND
On April 14, 2014, plaintiffs Manuel Olivera-Pagan and Daisy
de

Jesus-Miranda

filed

a

medical

malpractice

suit

against

Dr. Hernan Fuentes-Figueroa (“Dr. Fuentes”), Manati Medical Center
(“MMC”), and

Ciales

Primary

Arecibo Superior Court.

Health

Care

Services

See Docket No. 1-1.

(“CHC”)2

in

Plaintiffs claimed

that defendants were negligent in treating Ms. Miranda during the
1

Rachel L. Hampton, a second-year student at the University of Michigan
Law School, assisted in the preparation of this Memorandum and Order.

2

CHC is now known as “Prymed Medical Care, Inc.”
pp. 2-3.)

(Docket No. 27 at

Civil No. 14-1553 (FAB)

2

delivery of her infant son in April 2010.
pp. 1-3.

See Docket No. 12-1 at

Plaintiffs allege that though Ms. Miranda received

prenatal care from Dr. Fuentes at CHC, the birth took place at MMC.
Id. at p. 2.
Defendant CHC is a federally-funded health center pursuant to
the Federally Supported Health Care Centers Assistance Act, 42
U.S.C. §§ 233(g)-(n) (“FSHCAA”), and has been deemed a federal
employee of the Public Health Service since January 1, 2009.
(Docket No. 12-1 at p. 3.)3

Dr. Fuentes worked at CHC from

April 18, 2006 to September 30, 2010, and was likewise deemed a
federal employee during his tenure.

Id.

The Federal Tort Claims

Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”), thus governs the claims
against CHC and Dr. Fuentes during the events in question.

See

id.; Docket No. 27 at p. 3.
On July 11, 2014, at the request of defendants CHC and
Dr. Fuentes, the case was removed to this Court.

3

(Docket No. 1.)

Pursuant to the FSHCAA, certain private “health centers” that serve
underserved populations and that request and receive federal grant money
pursuant to section 330 of the Public Health Act, 42 U.S .C. § 254b, may
apply to the Department of Health and Human Services (“HHS”) to be
“deemed”•an employee of the Public Health Service by the Secretary of
HHS. 42 U.S.C. § 233(g)(1)(D). “Once a health center is deemed to be
a federal employee, ‘the health center need not purchase and maintain
malpractice insurance for itself or its physicians’ because in effect,
the United States through the FTCA, ‘exposes itself to lawsuits, in place
of a health center.’”
Lacey-Echols ex rel. Lacey v. Murphy, Civ.
No. 02-2281 (WGB), 2003 WL 23571269, at *4 (D.N.J. Dec. 17, 2003)
(quoting Miller v. Toatley, M.D., 137 F. Supp. 2d 724, 725 (W.D. La.
2000)). “The purpose of this is to allow deemed health centers to reduce
their costs so that more funds are available for direct service to
underserved populations.” Id.

Civil No. 14-1553 (FAB)

3

On September 10, 2014, the United States Attorney for the District
of Puerto Rico moved to substitute the United States as the
defendant, certified that Dr. Fuentes was acting “within the scope
of his employment” as an employee of CHC at the time of the conduct
alleged in the complaint, and moved to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1), 12(b)(2), and (12)(b)(6) for
lack of subject matter jurisdiction and for failure to exhaust the
administrative remedies that are required by the FTCA.

(Docket

No. 12.)
On

November

21,

2014,

plaintiffs

moved

for

voluntary

dismissal, (Docket No. 16), which the Court granted, (Docket
No. 18).

The Court dismissed with prejudice all claims against

Dr. Fuentes and CHC and dismissed without prejudice the claims
against MMC. (Docket No. 18.) Judgment was entered accordingly on
November 24, 2014.

Id.

On December 2, 2014, plaintiffs moved for reconsideration of
the decision to dismiss all claims against Dr. Fuentes.
No. 19.)

(Docket

Plaintiffs argued that because MMC is not covered by the

FSHCAA, the FTCA applies to neither MMC nor Dr. Fuentes’s actions
while at that facility.

Id. at p. 2.

On December 3, 2014, the

Court granted the reconsideration, dismissing with prejudice the
claims against Dr. Fuentes for the medical services he performed at
CHC and dismissing without prejudice the claims against Dr. Fuentes
for the medical services he performed at MMC.

(Docket No. 20.)

Civil No. 14-1553 (FAB)

4

On December 4, 2014, defendants moved for reconsideration of
the dismissal without prejudice of the claims against Dr. Fuentes
for the services he performed at MMC.

(Docket No. 21.)

Before

considering this motion, however, the Court issued an amended
judgment that dismissed these claims against Dr. Fuentes without
prejudice on December 12, 2014.

(Docket No. 22.)

Defendants’

motion for reconsideration, (Docket No. 21), is thus still pending.
On January 9, 2015, defendants filed a motion to alter the
amended

judgment,

requesting

again

that

all

claims

against

Dr. Fuentes dismissed with prejudice. (Docket No. 23.) Plaintiffs
filed an opposition January 16, 2015, (Docket No. 24), to which
defendants replied on February 6, 2015, (Docket No. 27).
STANDARD
Pursuant to Federal Rule of Civil Procedure 59(e), a party may
move to alter or amend a judgment.

Fed. R. Civ. P. 59(e).

These

motions are appropriate in a limited number of circumstances, such
as where there is newly discovered evidence, or where the movant
can demonstrate that the “court committed a manifest error of law.”
Calderon-Serra v. Wilmington Trust Co., 715 F. 3d 14, 20 (1st Cir.
2013); accord Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930
(1st Cir. 2014).

The reviewing court has considerable discretion

in deciding whether to grant the motion.

Venegas-Hernandez v.

Sonolux Records, 370 F.3d 183, 190 (1st Cir. 2004).

Civil No. 14-1553 (FAB)

5
DISCUSSION

The Federal Employees Liability Reform and Tort Compensation
Act of 1988, commonly known as the “Westfall Act,” is an amendment
to the FTCA that grants federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in the
course of their official duties.

United States v. Smith, 499 U.S.

160, 163 (1991); see 28 U.S.C. § 2679.

When a federal employee is

sued for wrongful or negligent conduct, the Westfall Act empowers
the Attorney General or her designee to certify that the employee
“was acting within the scope of” his or her employment at the time
of the disputed incident.

28 U.S.C. § 2679(d).

Upon this

certification, the employee is dismissed from the action, and the
United States is substituted as the defendant.

Id.

Actions

commenced in state court are to be removed to federal district
court, and the certification conclusively establishes the scope of
employment for removal purposes. Id. at § 2679(d)(2). Thereafter,
the

FTCA

provides

the

exclusive

remedy.

Velez-Diaz

v.

Vega-Irizarry, 421 F.3d 71, 76 (1st Cir. 2005).
The

FSHCAA

expanded

the

federal

sovereign immunity pursuant to the FTCA.

government’s

waiver

of

Ismie Mut. Ins. Co. v.

U.S. Dep’t. of Health & Human Servs., 413 F. Supp. 2d 954, 955
(N.D.

Ill.

2006).

Although

the

FTCA

generally

covers

only

“employees of the federal government,” the FSHCAA provides that
“federally supported health centers, their employees, and certain

Civil No. 14-1553 (FAB)
contractors

are

6

deemed

to

be

employees

of the

Public Health

Service” for purposes of medical malpractice suits.
(citing 42 U.S.C. § 233(g)(1)(A)).

Id. at 955-56

“Once a person is deemed an

employee of the [Public Health Service], the FTCA provides the
exclusive remedy for alleged malpractice.”

Id. at 956 (citing 42

U.S.C. § 233(a)).
Here,

the

United

States

has

provided

certification to invoke FTCA coverage.

the

necessary

The United States Attorney

certified that Dr. Fuentes was acting within the scope of his
employment at CHC at the time of the conduct alleged in the
complaint.

See Docket No. 12-3.

Indeed, the parties agree that

CHC is a federally-funded health center and that the FTCA therefore
covers CHC as well as Dr. Fuentes’s conduct at that facility.

See,

e.g., Docket No. 16.
Plaintiffs contend, however, that the FTCA’s coverage does not
extend to all of the medical services that Dr. Fuentes provided to
Ms. Miranda during the events at issue.

(Docket No. 19 at p. 2.)

Because MMC is not a federal health center, plaintiffs argue, the
FTCA

does

not

Dr.

Fuentes

cover

rendered

the
at

labor
that

and

delivery

facility.

services

Id.

In

that

response,

defendants assert that Dr. Fuentes prenatally treated Ms. Miranda
at

CHC,

but

because

CHC

was

not

equipped

for

deliveries,

Dr. Fuentes admitted Ms. Miranda to MMC, where he had admitting

Civil No. 14-1553 (FAB)

7

privileges, when she went into labor.

Id. at pp. 2-5.4

Defendants

thus argue that the treatment that Dr. Fuentes provided at MMC was
done so in his capacity as an employee of CHC.

Id. at p. 5.

The issue before the Court is whether the FTCA covers a
federal-employee doctor’s services performed “outside the confines”
of the federally-funded health center. The Supreme Court has found
that Westfall Act certification, while determinative as to removal,
is “the first, but not the final word” on whether the federal actor
is immune from suit.

See Osborn v. Haley, 549 U.S. 225, 246

(2007). Beyond removal, the question of whether a federal employee
acted within the scope of his or her office or employment, pursuant
to the FTCA, “is to be determined by law of respondeat superior of
state in which incident occurred.” See Aversa v. United States, 99
F.3d 1200, 1208-09 (1st Cir. 1996); accord Lacey-Echols ex rel.
Lacey v. Murphy, Civ. No. 02-2281 (WGB), 2003 WL 23571269, at *7
(D.N.J. Dec. 17, 2003) (“[T]he state law of respondeat superior
applies to the scope of employment issue.”).

In Puerto Rico, the

doctrine of respondeat superior considers:

(a) the employee’s

“[d]esire to serve, benefit, or further his employer’s business or
interest”; (b) where the act is “reasonably related to the scope of

4

Defendants also indicate that as part of its grant application to HHS,
CHC applied for and was granted coverage extending to medical rounds and
admitting patients at MMC. (Docket No. 23-1 at p. 2.) Defendants submit
that this type of arrangement is “especially common in the area of
obstetrics,” because federally-funded health centers are typically not
“equipped for deliveries, emergent care, surgical procedures and
neo-natal care.” Id.

Civil No. 14-1553 (FAB)

8

the employment”; and (c) whether the employee was “prompted by
purely personal motives.”

See Vernet v. Serrano-Torres, 566 F.3d

254, 261 (1st Cir. 2009); Borrego v. United States, 790 F.2d 5, 7
(1st Cir. 1986).
Considering these factors, the Court finds that Dr. Fuentes
was acting in the scope of his employment with CHC when he
delivered Ms. Miranda’s infant at MMC.

According to defendants,

during the events in question, Dr. Fuentes was an employee of CHC
and “was not employed by any other public or private medical
facility.”

See Docket No. 23-1 at pp. 3-4, 6; see also Docket

No. 23-4.

Defendants submit that Dr. Fuentes provided prenatal

care to Ms. Miranda at CHC from September 2009 until April 2010,
when

Dr.

Fuentes

Ms. Miranda at MMC.

rendered

labor

and

delivery

See Docket No. 23-4 at p. 1.

services

to

Defendants also

indicate that CHC’s federal grant coverage specifically extends to
certain services performed at MMC, and that such an arrangement is
common for health centers like CHC, which are not equipped to
handle non-routine activities, such as deliveries and emergent
care.

(Docket No. 23-1 at p. 2.)

Finally, defendants aver that

Dr. Fuentes received compensation directly from CHC.
No. 23-1 at p. 6.)
privately

for

the

(Docket

Defendants admit that Dr. Fuentes billed
labor

and

delivery

services

rendered

to

Ms. Miranda at MMC, but maintain that he did so in compliance with
the FTCA, (Docket No. 23-4 at p. 1).

Civil No. 14-1553 (FAB)

9

Taken together, these facts indicate that Dr. Fuentes was
serving CHC

when

he provided

labor

and

delivery

services

to

Ms. Miranda at MMC, that those services were directly related to
his employment as an obstetrician at CHC, and that his actions were
in no way prompted by personal motives. Accord Delgado v. Our Lady
of Mercy Med. Ctr., Civ. No. 06-5261 (BSJ), 2007 WL 2994446, at *3
(S.D.N.Y. Oct. 12, 2007) (finding FTCA-covered doctor was acting in
the course of his employment with FTCA-covered health center when
he performed surgery at non-covered hospital where health center
lacked the resources for the surgery and doctor was not compensated
for the treatment apart from his regular compensation).
plaintiffs

do

not

argue

otherwise,

but

instead

Indeed,

insist

that

Dr. Fuentes was obligated to “report and transfer directly to [CHC]
all funds received” for the services provided at MMC “within a
reasonable period of time.”

(Docket No. 24 at pp. 1-2.)

In relevant part, the Federal Tort Claims Policy Manual (“FTCA
Manual”) permits covered entity providers to bill directly for
services provided to covered entity patients for off-site services
and provides guidelines applicable to certain alternate billing
arrangements.

See Docket No. 23-6 at p. 14.

In the case of an

FTCA-covered employee who “bills for a service delivered at a
location not

identified

as

a

covered

entity

site

within

its

approved Federal section 330 scope of project,” the FTCA Manual
informs that coverage will apply if certain conditions are met,

Civil No. 14-1553 (FAB)

10

including the reporting and fund transfer requirements cited by
plaintiffs.

See id.

These requirements, however, apply only when

the services are provided at “a location not identified as a
covered entity site within its approved Federal section 330 scope
of project.”

See id.

(emphasis added).

It is undisputed that CHC

applied for and was granted coverage extending to medical rounds
and admitting patients at MMC.
No. 23-2 at p. 22.

See Docket No. 23-1 at p. 2; Docket

The FTCA Manual provides that FTCA coverage

extends to “the performance of medical, surgical, dental, or
related functions within the scope of the approved Federal section
330 grant project,” which includes “sites, services, and other
activities or locations, as defined in the covered entity’s grant
application.”

(Docket No. 23-6 at p. 9.)

In light of the foregoing, the Court finds that Dr. Fuentes
was acting within the scope of his deemed federal employment when
he treated Ms. Miranda at MMC when the events at issue occurred.
The United States Attorney’s scope-of-employment certification,
therefore, does not exclude Dr. Fuentes as the provider of these
services.

See Docket No. 12-3.

Accordingly, the FTCA covers the

claims against Dr. Fuentes.
CONCLUSION
Having admittedly failed to exhaust administrative remedies,
as required by the FTCA, plaintiffs moved for voluntary dismissal
of the claims against CHC and Dr. Fuentes.

See Docket No. 16.

The

Civil No. 14-1553 (FAB)

11

Court granted plaintiffs’ motion, dismissing with prejudice all
claims against Dr. Fuentes and CHC.

(Docket No. 18.)

The Court

permitted plaintiffs to bifurcate the claims against Dr. Fuentes
for the services provided, see Docket No. 20, but did so in error.
As explained above, Dr. Fuentes was a federal employee during the
events

giving

rise

to

the

complaint,

including

surrounding the birth of Ms. Miranda’s infant at MMC.

the

events

This being

the case, dismissal with prejudice was warranted for all of the
claims against Dr. Fuentes.
For these reasons, defendants’ motion to alter the amended
judgment,

(Docket

No.

23),

is

GRANTED.

The

claims

against

Dr. Fuentes are, therefore, DISMISSED WITH PREJUDICE.
Judgment shall be entered accordingly.
In light of the Court’s ruling, defendants’ initial motion for
reconsideration, (Docket No. 21), is DISMISSED AS MOOT.
IT IS SO ORDERED.
San Juan, Puerto Rico, September 25, 2015.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE