Cook v. Harris

Filing 15

ORDER granting the United States 3 MOTION to Dismiss Gina Jereza Harris, MD from this Civil Action and to Substitue the United States as Defendant; granting the United States 5 MOTION to Dismiss this Civil Action Against Defendant Gina Jereza Harris, M.D. and the United States due to the Failure of the Plaintiff to Exhaust her Administrative Remedies under the Federal Tort Claims Act; the Court Orders that Plaintiff's Complaint be Dismissed as to Gina Jereza Harris, M.D. and the Unit ed States of America; Defendant United States of American's 14 Motion to Stay Proceedings until its Motion Seeking to Dismiss is resolved by the Court is now Moot and should be stricken from the record. Signed by Judge Irene C. Berger on 12/11/2012. (cc: attys; any unrepresented party) (cds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

CRYSTAL G. COOK, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 5:12-cv-06558

RALEIGH GENERAL HOSPITAL, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Motion of the United States to Dismiss Gina Jereza Harris,
MD., from this Civil Action and to Substitute the United States as Defendant (Document 3), the
supporting memorandum (Document 4), Defendant United States of America’s Motion to Dismiss
this Civil Action Against Defendant Gina Jereza Harris, M.D., and the United States of America
Due to the Failure of the Plaintiff to Exhaust her Administrative Remedies under the Federal Tort
Claims Act (Document 5) and the supporting memorandum (Document 6). After careful review of
Plaintiffs’ Complaint (Document 1-1), the Court grants the motions.

I.

BACKGROUND

On September 18, 2012, Plaintiff filed suit against Gina Jereza Harris, M.D., and Raleigh
General Hospital in the Circuit Court of Raleigh County, West Virginia. (Document 1-1 at 3).
Plaintiff alleged that on April 1, 2010, she went into labor and was admitted to Raleigh General
Hospital where Defendant Harris performed an emergency cesarean section on Plaintiff. (Id. at 4)

Plaintiff further alleged that her baby, Dawson Edward Elwood Kesner, died on April 1, 2010,
approximately one hour and fifty minutes after being born. (Id.). Plaintiff “alleges and states that
due to the negligence on behalf of Defendant Harris, her failure to treat the Plaintiff’s decedent in
accordance with the accepted standard of care, and her failure to perform a cesarean section earlier
during her labor, her baby suffered cardiogenic shock, and later died on the day of his birth.” (Id.).
Plaintiff further alleges “as a result of the aforesaid negligence by the Defendants, that the Plaintiff
suffered damages.” (Id.). Therefore, “Plaintiff, Crystal G. Cook, Administratrix of the Estate of
Dawson Edward Elwood Kesner, Deceased, demands judgment against the Defendants, Gina
Jereza Harris, M.D., and Raleigh General Hospital in an amount adequate to compensate Plaintiff
for the death of Dawson Edward Elwood Kesner, along with the cost of action and all interest
allowed by law.” (Id. at 5).
On October 12, 2012, the United States of America (“United States”) removed the case,
citing the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §1346(b), 2671-2680, as grounds for
federal question jurisdiction (Document 1 at 2). Also on October 12, 2012, United States filed a
Motion to Dismiss Gina Jereza Harris, M.D., from the civil action and to Substitute the United
States as Defendant. (Document 3). On the same day, the United States filed its Motion to Dismiss
(Document 5), wherein Defendant alleged that Plaintiff has failed to exhaust her administrative
remedies under the Federal Tort Claims Act. Plaintiff did not respond. On December 10, 2012,
the United States filed a Motion to Stay Proceedings until its Motion Seeking to Dismiss this Civil
Action for Lack of Subject Matter Jurisdiction is Resolved by the Court. (Document 14).

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II.

STANDARD OF REVIEW

The threshold question for the Court to consider is whether it has federal subject matter
jurisdiction in this case. “It is the duty of the Court to see to it that its jurisdiction is not exceeded;
and this duty, when necessary, the Court should perform on its own motion.” Moffatt v. Spensky,
2012 WL 3853322 at * 2 (S.D.W.Va. Sept. 5, 2012) (quoting Spence v. Saunders, 792 F.Supp.
480, 482 (S.D.W.Va.1992) (Faber, J.)). If subject matter jurisdiction is challenged pursuant to
Rule 12(b)(1), the Plaintiff bears the plaintiff bears the burden of showing that federal jurisdiction
is proper. William v. Meridian Management Corporation, 50 F.3d 299, 304 (4th Cir.1995)
(citation omitted).
“[A] defendant may challenge subject matter jurisdiction in one of two ways.” Kerns v.
U.S., 585 F.3d 187, 192 (4th Cir.2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).
First, the defendant can contend “that the jurisdictional allegations of the complaint [are] not true.”
Adams, 697 F.2d at 1219. In that event, “‘[a] trial court may then go beyond the allegations of the
complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional
allegations,’ without converting the motion to a summary judgment proceeding.” Kerns, 585 F.3d
at 192 (quoting Adams, 697 F.2d at 1219). In the alternative, the defendant may argue – as the
United States does here- “that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Adams, 697 F.2d at 1219. In that case, “all the facts alleged in the
complaint are assumed to be true.” (Id.). In essence, Plaintiff “is afforded the same procedural
protection as he would receive under a Rule 12(b)(6) consideration.” (Id.).

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III.

DISCUSSION

A. Federal Tort Claims Act
“The Federal Tort Claims Act (“FTCA”) is the exclusive remedy for persons asserting tort
claims against federal employees acting within the scope of their employment.” Moffatt, 2012 WL
3853322 at * 2 (citing 28 U.S.C. § 1346(b)). The FTCA provides in pertinent part that:
The 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)(1). In other words, the United States has waived its sovereign
immunity under the FTCA to allow for actions for injuries caused by federal employees with some
exceptions not relevant here. (Id.).

B. Substitution of the United States of America as a Party
In its Notice of Removal, the United States submitted a declaration from a senior attorney,
Meredith Torres, in the Office of the General Counsel for the Department of Health and Human
Services (“DHHS”), in which she states that official agency records indicate that Defendant Harris
was an employee of Community Health Systems, Inc., at all times relevant to Plaintiff’s claim.
(Document 1-1 at 7-8). The United States contends that “[a]t all times relevant to the complaint,
Community Health Systems, Inc., and its employees, including Gina Jereza Harris, M.D., were
‘deemed’ employees of the United States for purposes of the Public Health Service (“PHS”) Act,
42 U.S.C. § 233(h), as amended by the Federally Supported Health Centers Assistance Act of
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1992, as amended in 1995.” (Document 1 at 2). Ms. Torres, in her declaration, further stated that
Community Health Systems, Inc., has been covered by FTCA malpractice coverage since July 1,
1996, without interruption. (Id. at 8). The United States also attached, as an exhibit, a letter from
DHHS stating that section 224(a) of the PHS Act provides liability protection under the FTCA “for
damage for personal injury, including death, resulting from the performance of medical, surgical,
dental, and related functions and is exclusive of any other civil action or proceeding.” (Document
1-1 at 10).
The United States also submitted a certification that Defendant Harris was acting within
the scope of her employment. (Document 3). Pursuant to Section 2679(d)(1) and (2):
(1) Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment
at the time of the incident out of which the claim arose, any civil
action or proceeding commenced upon such claim in a United States
district court shall be deemed an action against the United States
under the provisions of this title and all references thereto, and the
United States shall be substituted as the party defendant.
(2) Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment
at the time of the incident out of which the claim arose, any civil
action or proceeding commenced upon such claim in a State court
shall be removed without bond at any time before trial by the
Attorney General to the district court of the United States for the
district and division embracing the place in which the action or
proceeding is pending. Such action or proceeding brought against
the United States under the provisions of this title and all references
thereto, and the United States shall be substituted as the party
defendant. This certification of the Attorney General shall
conclusively establish scope of office or employment for purposes
of removal.

28 U.S.C. § 2679(d)(1) & (2). The United States Attorneys are authorized to issue these
certifications on behalf of the Attorney General. Martinez v. DEA, 111 F.3d 1148, 1152 (4th
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Cir.1997) (citing 28 C.F.R. § 15.3(a)). In the instant case, R. Booth Goodwin II, the United States
Attorney for the Southern District of West Virginia, has certified that “Community Health
Systems, Inc., and its employee, Gina Jereza Harris, M.D., were acting in the scope of their
employment with respect to the allegations set forth in the Complaint.” (Document 1-1 at 23). The
Attorney General or United States Attorney’s classification that a defendant was acting within the
scope of her federal employment is conclusive unless challenged. Moffatt, 2012 WL 3853322 at *
3 (citing Martinez, 111 F.3d at 1153-54). Plaintiff has not challenged the certification or even
responded to the United States’ motions. In light of the unchallenged certification, the Court
finds that the United States’ motion to dismiss Defendant Gina Jereza Harris, M.D., and to
substitute the United States as the party defendant should be granted.
C. Subject Matter Jurisdiction
The Court lacks subject matter jurisdiction in this case because Plaintiff has not exhausted
her FTCA administrative remedies as required by 28 U.S.C. §§ 2671-2680. Pursuant to 28 U.S.C.
§ 2675(a), a Plaintiff must first pursue her administrative remedies before bringing a civil action
against the United States. 28 U.S.C. § 2675(a) states in pertinent part:
An action shall not be instituted upon a claim 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 while acting within the scope of his office or
employment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail.
28 U.S.C. § 2675(a). “The FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113
(1993). It is well-established that “[f]iling a timely administrative claim is jurisdictional and
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cannot be waived.” Moffatt, 2012 WL 3853322 at * 5 (citing Ahmed v. United States, 30 F.3d 514,
516 (4th Cir.1994)) (citing Henderson v. United States, 785 F.2d 121, 123 (4th Cir.1986)). The
Fourth Circuit has held that “dismissal is mandatory when a plaintiff fails to file a claim with the
proper administrative agency.” Henderson, 785 F.2d at 124.
Defendant argues that Plaintiff’s complaint must be dismissed because Plaintiff has not
exhausted her administrative remedies under the FTCA. (Document 6 at 4).

Specifically,

Defendant asserts that Plaintiff has not presented her claim to the appropriate Federal agency.
(Document 5 at 1). Defendant contends that “the Department of Health and Human Services of
the United States, the agency which would receive administrative tort claims under the FTCA for
the type of clinic involved in this case, has searched its claims database and has not found an
administrative tort claim presented by or on behalf of the plaintiff or involving Dawson Edward
Elwood Kesner.” (Document 6 at 2) (citing Document 1-1 at 7-8). Plaintiff has not provided
evidence to the contrary. She has not even alleged that she complied with FTCA’s administrative
requirements or exhausted her administrative remedies under the FTCA. In fact, Plaintiff’s
complaint did not reference the FTCA at all, and she did not respond to the United States’ motion
to dismiss. Because Plaintiff has not exhausted her administrative remedies, she has failed to
carry her burden of establishing subject matter jurisdiction. Therefore, Defendant’s motion to
dismiss for failure to exhaust administrative remedies should be granted.

IV.

CONCLUSION

Wherefore, based on the findings herein, the Court does hereby ORDER that the Motion of
the United States to Dismiss Gina Jereza Harris, M.D., from this Civil Action and to Substitute the
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United States as Defendant (Document 3) be GRANTED, and that the Defendant United States of
America’s Motion to Dismiss this Civil Action Against Defendant Gina Jereza Harris, M.D., and
the United States of America Due to the Failure of the Plaintiff to Exhaust her Administrative
Remedies under the Federal Tort Claims Act (Document 5) be GRANTED.

The Court

ORDERS that Plaintiff’s Complaint (Document 1-1) be DISMISSED as to Gina Jereza Harris,
M.D., and the United States of America.
The Defendant United States of America’s Motion to Stay Proceedings until its Motion
Seeking to Dismiss this Civil Action for Lack of Subject Matter Jurisdiction is Resolved by the
Court (Document 14) is now MOOT and should be STRICKEN from the record.

ENTER:

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December 11, 2012