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Markeith Dais v. United States of America

October 18, 2012

MARKEITH DAIS,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.:

OPINION

Plaintiffs Markeith Dais and Michelle Dais-Harvey filed this medical malpractice action against the United States of America and Dr. Gurmit Chilana (collectively "Defendants"). This matter comes before the Court on the United States of America's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, the motion to dismiss is GRANTED.

I.BACKGROUND

A.LEGAL FRAMEWORK

It is well established that "the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983); see also Library of Congress v. Shaw, 478 U.S. 310, 315 (1986) ("As sovereign, the United States, in the absence of its consent, is immune from suit"). Congress may waive sovereign immunity through unequivocal statutory language, but all waivers of sovereign immunity must be narrowly construed. Library of Congress, 478 U.S. at 318-21.

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, is a limited waiver of the sovereign immunity by the United States for negligence of federal employees committed while acting within the scope of their federal employment. 28 U.S.C. § 2674. In such cases, the federal employee is immune from suit and the plaintiff's exclusive right of action lies against the United States. 28 U.S.C. § 2679(b).

The FTCA protects federal employees by paying judgments out of the United States Treasury.

Under the Public Health Service Act, private, non-governmental health centers that supply medical care to underserved populations may apply for federal grant moneys.

42 U.S.C. § 254b(e). In 1992, Congress amended that statute by passing the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. §§ 233(a)-(n), allowing these private health centers to apply to the Department of Health and Human Services ("HHS") to be "deemed a federal employee" of the Public Health Service. 42 U.S.C. § 233(g)(1)(D). If the Secretary of HHS deems the health center to be a federal employee, then that entity is immune from suit and receives protection under the FTCA.

42 U.S.C. § 233(a). Congress's intent in passing the FSHCAA was to increase the availability of funds for the provision of primary health care services to low income populations by reducing the health centers' need to purchase medical malpractice liability insurance. Miller v. Toatley, 137 F. Supp. 2d 724, 725 (W.D. La. 2000), aff'd 251 F.3d 157 (5th Cir. 2001).

B.FACTS

Dr. Gurmit Chilana is an obstetrician who worked in his own private practice. Declaration of Pamela R. Perron ("Perron Decl.") Ex. B, Chilana Dep. 20:10-17, ECF No. 33-2. In the late 1980s or early 1990s, Dr. Chilana started working for the Paterson Community Health Center ("PCHC") on a part-time basis. Chilana Dep. 16:19-25. The PCHC was deemed to be a federal employee of the Public Health Service for the period December 15, 1993 through January 1, 1996. Perron Decl. Ex. A. In 1993-94, Dr. Chilana provided obstetrical services to PCHC patients for approximately four hours a week. Perron Decl. Ex. C, Garner 15:13-17, 22:2-23:13. In 1994, Dr. Chilana carried his own professional malpractice insurance through Medical Inter-Insurance Exchange ("MIIX"). Perron Decl. Ex. E. The policy provided for broad coverage of "[i]njury arising out of the rendering of or failure to render, on or after the retroactive date, professional services by the individual insured." Perron Decl. Ex. E, Policy at 1, ¶ I.

Michelle Dais-Harvey, the mother of Markeith Dais, received prenatal care at the PCHC. Ms. Dais-Harvey first presented to the PCHC on December 3, 1993. Dr. Chilana, among others, provided Ms. Dais-Harvey's prenatal care. Plaintiffs allege that, during the course of Ms. Dais-Harvey's care, the Dr. Chilana failed to diagnose an inter-uterine growth restriction resulting ...


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