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Yoe v. United States

United States District Court, D. Arizona

July 31, 2019

Edvena Yoe, Plaintiff,
v.
United States of America, Defendant.

          ORDER

          HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant United States of America's (the “Defendant”) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Doc. 23) (the “Motion”). The Motion was fully briefed on March 1, 2019. (Docs. 28, 32) The Court's ruling is as follows.

         I. Background

         On March 2, 2016, Edvena Yoe brought her six-month-old son, C.B., to the triage area at Chinle Comprehensive Health Care Facility (the “Hospital”). (Doc. 17 at 7) Both Yoe and her son (together, the “Plaintiff”) are enrolled members of Navajo Nation. (Doc. 17 at 2) C.B. was sent to the emergency room where James Murtagh, M.D. (“Murtagh”) noted C.B. had no history of nausea and vomiting, despite C.B.'s history of nausea and vomiting. (Doc. 17 at 7) Later that day, C.B. was returned to the emergency room. (Doc. 17 at 8) Murtagh examined C.B. and diagnosed gastroenteritis for the second time, but stated that the child appeared well and hydrated. (Doc. 17 at 8) C.B. was then discharged. (Doc. 17 at 8) On March 4, 2016, approximately 29 hours after C.B.'s second discharge, C.B. was brought back to the emergency room in cardiac arrest. (Doc. 17 at 8) At 8:33 a.m. on March 4, 2016, C.B. was pronounced dead. (Doc. 17 at 8) The cause of death was determined to be dehydration due to gastroenteritis. (Doc. 17 at 8)

         The Hospital is operated by the Defendant through its agents and employees, the U.S. Department of Health & Human Services, the U.S. Public Health Services, and Indian Health Services (“IHS”). (Doc. 17 at 2) The Hospital contracted with Harris Medical Associates (“Harris”), a medical employment placement agency, to staff its medical facilities. (Doc. 17 at 5-6) A purchase order (the “Solicitation”) for emergency medicine service physicians was created by the Hospital and issued to Harris for the purpose of staffing the Hospital. (Doc. 23-1 at 2-9) The Solicitation was “a Nonpersonal Service purchase order” and stated that “[Harris] shall provide Emergency Medicine Physician Services in the delivery of patient care to the [the Hospital] . . . in accordance with the Performance Work Statement . . . .” (Doc. 23-1 at 2) Under this agreement, Harris placed Murtagh at the Hospital to work as an emergency medicine physician. (Doc. 17 at 5-6)

         The Performance Work Statement for Nonpersonal Services (“PWS”) describes the requirements and duties of a physician working under a non-personal services contract at the Hospital. (Doc. 17-1 at 2) It defines a “non-personal services contract” as a contract under which “the personnel rendering the services are not subject . . . to the supervision and control usually prevailing in relationships between the Government and its employees . . . .” (Doc. 17-1 at 5) The PWS mandates that Harris (through its contracted physicians) perform emergency medicine duties, manage patient needs (including diagnosing and treating patients), comply with documentation standards, and comply with other performance-related requirements. (Doc. 17-1 at 8-11) Under the PWS, the Hospital would have control over some things like the physicians' work schedules and management of patient information. (Doc. 17-1 at 10, 12) The PWS also contains a quality assurance clause which states that “all services rendered in this specialty in the delivery of patient care services shall be inspected, reviewed, and monitored by the [the Hospital's] Chief of the Emergency Room or his designee.” (Doc. 17-1 at 9)

         The PWS also mandates that physicians meet work experience and licensing requirements. (Doc. 17-1 at 13) Murtagh, however, was not trained or board certified as an emergency medicine physician or family practice medicine prior to his placement at the Hospital. (Doc. 17 at 6) The PWS also addresses the Federal Tort Claims Act (“FTCA”) and how the PWS relates to 25 U.S.C. § 1680c(e), a provision of the Indian Health Care Improvement Act (“IHCIA”). (Doc. 17-1 at 15) The PWS states:

         “Previously, health care providers working at Indian Health Service or Tribal facilities under non-personal services contracts - such as locum tenens providers - were generally not covered under the [FTCA] and had to secure their own malpractice insurance. However, the recently passed 25 U.S.C. 1680c(e) may extend [FTCA] coverage to these “non-Service health care practitioners” who are given clinical privileges and who provide health care services to patients eligible for services from the Indian Health Service . . . .” (Doc. 17-1 at 15)

         The Plaintiff initated this case on May 30, 2018 and filed a complaint alleging causes of action for medical negligence (Count I), wrongful death (Count II), negligent hiring and supervision (Count III), and vicarious liability (Count IV). (Doc. 1; Doc. 17 at 9-12) The Defendant filed the Motion seeking to dismiss Counts I, II, and IV for lack of subject-matter jurisdiction and Count III for failure to state a claim. (Doc. 23 at 6)

         II. Legal Standard

         A. FRCP 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) “allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction.” Kinlichee v. United States, 929 F.Supp.2d 951, 954 (D. Ariz. 2013) (citing Tosco Corp. v. Comtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001)). Allegations raised under FRCP 12(b)(1) should be addressed before other reasons for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses raised become moot. Kinlichee, 929 F.Supp.2d at 954. A motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1)

         may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction or the existence of subject matter jurisdiction in fact. Renteria v. United States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979)); Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Renteria, 452 F.Supp.2d at 919 (citing Federation of African Amer. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). When the motion to dismiss is a factual attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Renteria, 452 F.Supp.2d at 919 (citing Thornhill, 594 F.2d at 733). A plaintiff has the burden of proving that jurisdiction does in fact exist. Renteria, 452 F.Supp.2d at 919 (citing Thornhill, 594 F.2d at 733). Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Rosenbaum v. Syntex Corp., 95 F.3d 922, 926 (9th Cir. 1996).

         B. ...


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