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Tsosie v. United States

United States District Court, D. Arizona

June 12, 2019

Georgia Tsosie, Plaintiff,
v.
United States of America, Defendant.

          ORDER

          Honorable Steven P. Logan United States District Judge

         Plaintiff Georgia Tsosie, on behalf of her son (together, the “Plaintiffs”), initiated this action against Defendant United States of America (the “Government”) alleging causes of action for negligence. (Doc. 8) The Defendant has moved to dismiss the Plaintiffs' claims against it (the “Motion”), arguing that (i) the Plaintiffs may not bring claims against the Government pursuant to the Federal Tort Claims Act (“FTCA”), and (ii) the Plaintiffs have failed to state a claim for which relief can be granted. (Doc. 38) The Court's ruling is as follows.

         I. Background

         Plaintiff Georgia Tsosie is the mother and natural guardian of N.C., who was born on March 3, 2015, in Chinle, Arizona. (Doc. 8 at 3) The Plaintiffs are members of the Navajo Tribe and are entitled to receive medical care at Chinle Health Care Facility (“Chinle Hospital”). (Doc. 8 at 3; Doc. 45 at 2) On April 14, 2015, Tsosie took N.C. to the emergency department of Chinle Hospital due to N.C. “running a fever and acting fussy.” (Doc. 8 at 3) Three hours after arriving to the emergency department, and while still undergoing treatment, N.C. began experiencing “respiratory distress and stopped breathing.” (Doc. 8 at 3) Thirty minutes passed before a definitive airway was established, which resulted in N.C. suffering an irreparable hypoxic brain injury due to the lack of adequate oxygenation to his brain. (Doc. 8 at 3) N.C. had no brain injuries prior to April 14, 2015. (Doc. 8 at 3)

         In 2014, Chinle Hospital entered into a contract with Medical Doctor Associates (“MDA”), a medical staffing agency, which allowed MDA to supply Chinle Hospital with emergency medicine service physicians. (Doc. 38-1 at 27) A contract order was drafted by Chinle Hospital, comprised of both a contract/purchase order[1] and a Performance Work Statement (“PWS”) for emergency medicine service physicians, to cover the period between November 10, 2014 to September 30, 2015. (Doc. 38-1 at 27) Dr. Ralph Alving was a contract healthcare services provider that MDA hired to provide emergency medicine physician services to its clients, and Dr. Alving was one of the emergency medicine service physicians that was supplied to Chinle Hospital by MDA via the contract/purchase order.[2](Doc. 38-1 at 27; Doc. 45 at 5)

         The governing Indian Health Services agency policy requires that all “licensed independent practitioners and other practitioners who provide direct patient care shall be credentialed and privileged though the medical staff.” (Doc. 45-13 at 4) T he P W S prov i d ed to Dr. Alving contained a contract provision (the “FTCA Clause”) which stated that FTCA protection was extended to “Nonpersonal Service Contractors” if they provided services in an Indian Health Services facility to Indian Health Services beneficiaries. (Doc. 38-1 at 55) In light of this provision, MDA did not require Dr. Alving to carry malpractice insurance because MDA was under the impression that Dr. Alving's performance at Chinle Hospital would be covered under the FTCA.[3]

         As a result of the injury to N.C., the Plaintiffs filed a claim with Indian Health Services on April 10, 2017. (Doc. 8 at 2) Indian Health Services has not denied or acted upon the claim. (Doc. 8 at 2) Because Indian Health Services never responded, the Plaintiffs exercised their option to deem the claim denied and filed this action (the “Complaint”) under the FTCA, alleging professional negligence in connection with the care of N.C. (Doc. 8 at 1-2) The Plaintiffs are seeking damages to compensate for N.C. 's injuries, additional damages, legal costs, and any other relief the Court may deem appropriate. (Doc. 8 at 4-5) In response, the Government moves for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 38 at 1)

         II. Legal Standard

         A motion to dismiss for lack of subject-matter jurisdiction brought pursuant to Rule 12(b)(1) may facially attack the existence of subject-matter jurisdiction or may challenge the truth of the alleged facts that would confer subject-matter jurisdiction on the court. Renteria v. United States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Courts are permitted to consider evidence to decide a factual attack on subject-matter jurisdiction. Thornhill, 594 F.2d at 733. The party asserting jurisdiction has the burden of proof to show that the Court has subject-matter jurisdiction. Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). Where a claimant lacks standing, the Court must dismiss the action for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Ervine v. Desert View Reg. Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” such that the defendant is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Court may dismiss a complaint for failure to state a claim under Federal Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacificia Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must “accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). In comparison, “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences” are not entitled to the assumption of truth, and “are insufficient to defeat a motion to dismiss for failure to state a claim.” Id.; In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). A plaintiff need not prove the case on the pleadings to survive a motion to dismiss. OSU Student All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012).

         III. Analysis

         A. Claims Under FTCA

         The Government filed the Motion arguing that the Complaint must be dismissed because Dr. Alving is not a federal employee within the meaning of the FTCA. The FTCA is a limited waiver of sovereign immunity making the Government liable to the same extent as a private person for certain torts of employees of the government acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); Andrade ex rel. Goodman v. United States, 2008 WL 4183011, at 4 (D. Ariz. Sept. 8, 2008). In the FTCA, the Government waives its immunity for negligent acts or omissions of any of its employees acting within the scope of their office or employment and provides subject-matter jurisdiction to the federal courts in suits against such employees. 28 U.S.C. § 1346(b)(1). The FTCA does not cover the acts of independent contractors; generally, the Government may not be held liable for employees of a party with whom it contracts for a specified performance. Logue v. United States, 412 U.S. 521, 531 (1973).

         “Employee of the government” under the FTCA is defined as “officers or employees of any federal agency, . . . and persons acting on behalf of a federal agency in an official capacity.” 28 U.S.C. § 2671. “Federal agency, ” is defined to include “the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.” 28 U.S.C. § 2671. The terms of a ...


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