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Dais v. United States

United States District Court, Third Circuit

November 26, 2013

MARKEITH DAIS, et al. Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.


WILLIAM J. MARTINI, District Judge.

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 Plaintiffs' motion to reopen pursuant to Federal Rule of Civil Procedure 60. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, the motion to reopen is DENIED.



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). To bring a claim under the FTCA, a claimant must first present its tort claim to the appropriate federal agency. See 28 U.S.C. § 2675(a); Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009). If the agency denies the claim or fails to resolve it within six months, then the claimant may file an action in federal court. See 28 U.S.C. § 2675(a); Santos, 559 F.3d at 193. This administrative exhaustion requirement "is jurisdictional and cannot be waived." Lightfoot v. United States, 564 F.3d 625, 627 (3d 2009).


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. (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 PCHC on December 3, 1993. Dr. Chilana, among others, provided Ms. Dais-Harvey's prenatal care. Plaintiffs' original Complaint alleged that, during the course of Ms. Dais-Harvey's care, Dr. Chilana failed to diagnose an inter-uterine growth restriction resulting in the birth of Plaintiff, Markeith Dais, on July 12, 1994, with multiple, severe disabilities. Plaintiffs' Amended Complaint added allegations that unknown employees of PCHC negligently failed to carry out testing ordered by Dr. Chilana.


Only the relevant procedural history is summarized here. Plaintiffs initially filed an action in state court on June 21, 2007 against Dr. Chilana and PCHC. Dais and Dais-Harvey v. PCHC, Chilana, et al., Superior Court of New Jersey, Passaic County PAS-L-2613-07. On August 10, 2010, the United States Attorney removed the action to this Court based upon certifications that PCHC and Dr. Chilana were deemed federal employees acting within the scope of federal employment.

The United States then moved to dismiss for lack of subject-matter jurisdiction on the ground that Plaintiffs had failed to exhaust their administrative remedies. On October 21, 2010, the Court dismissed the case without prejudice for lack of subject matter jurisdiction to allow Plaintiffs an opportunity to exhaust their administrative remedies.

Plaintiffs filed an administrative tort claim with the Department of Health and Human Services ("HHS") on November 29, 2010. Plaintiffs described the basis of their claim as follows:

This claim arises out of substandard medical care provided by Dr. Gurmit Chilana, and [sic] agent, servant and/or employee of Paterson Community Health Center, a Federally Qualified Heath Center. More specifically, Dr. Chilana rendered prenatal care to claimant's mother and failed to property diagnose and treat interuterine growth restriction as is detailed in the report of Dr. Richard Luciani, a Board Certified Obstetrician and Gynecologist submitted ...

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