Verdicts

Through the FTCA, Congress has consented to suits against the United States for certain torts committed by federal employees while acting within the scope of their employment. An FTCA action against the United States is the sole remedy for any injury to person or property caused by the negligent or wrongful acts of a federal employee acting within the scope of his or her employment

The usual FTCA coverage dispute in a medical malpractice case questions whether the defendant in the underlying suit is a “government employee” within the meaning of the statute such that the United States should be substituted as defendant. The doctors and the COAIHC, however, conceded that they were not entitled to FTCA immunity as “federal employees” under the control and supervision of the federal government. Instead, appellants argued that the statute creating the COAIHC, 25 U.S.C. ' 1660b(a), when considered in light of legislative history and intent, expanded the FTCA to them. The district court disagreed because any such waiver of sovereign immunity was not made express in the statute.

As the government pointed out on appeal, there are many statutes that expressly designate certain independent contractors with the government to be “federal employees” for purposes of FTCA immunity. Such statutes have been passed covering certain community health centers and contractors working in atomic weapons technology, among others. The COAIHC and the doctors argued that in passing the following statutory language, Congress expanded the FTCA's coverage to reach them: “Notwithstanding any other provision of law, the Oklahoma City Clinic demonstration project and the Tulsa Clinic demonstration project shall be treated as service units in the allocation of resources and coordination of care and shall not be subject to the provisions of the Indian Self-Determination Act for the term of such projects.” They then explained that “service unit” here meant either “1) an administrative entity within the Indian Health Service [IHS] or 2) a tribe or tribal organization operating health care programs with funds from the IHS under the Indian Self-Determination Act.” Because the COAIHC is not a tribe or tribal organization, appellants argued that the term “service unit” here could only mean an “administrative entity” within the IHS. They then pointed to various pieces of legislative history and the structure/function of the Clinic, and concluded that Congress intended to expand the FTCA to the COAIHC and its employees in this statute.

The court held that while it is true that ' 1660b(a) deems the COAIHC to be an “administrative entity” of the IHS for the purposes of allocating resources and coordinating care, this does not serve as an “express” application of the FTCA. The statutory language regarding the “allocation of resources” did not expressly waive the government's sovereign immunity for purposes of FTCA suits against the COAIHC, and appellants' argument that FTCA immunity is a “resource” to be allocated was too tenuous. Therefore, because appellants were neither federal employees under the government's day-to-day control, nor independent contractors to whom Congress has expressly expanded the FTCA's reach, they were held not entitled to FTCA immunity.

'Poor' Litigant Not Poor Enough to Proceed In Forma Pauperis

The Ninth Circuit denied a plaintiff the right to proceed in forma pauperis against a medical expert witness who had testified against him in a previous action. Ogunsalu v. Nair, 2004 U.S. App. LEXIS 24787 (9th Cir. 11/4/04).

Appellant Cornelius Ogunsalu appealed a district court order denying him leave to proceed in forma pauperis in his action for, among other things, libel and medical malpractice. Ogunsalu sought to recover $1 million in damages from several defendants who were involved in the previous lawsuit that Ogunsalu brought against his former employer, including Dr. Mohan Nair, who had testified against him.

To qualify for in forma pauperis status, a civil litigant must demonstrate both that the litigant is unable to pay court fees and that the claims he or she seeks to pursue are not frivolous. 28 U.S.C. ' 1915(a)(1), ' 1915(e)(B)(j). The first prong of this test was dispositive here. The Ninth Circuit found that the district court did not abuse its discretion when it ruled that Ogunsalu's the receipt of $723 per month from Social Security and thousands of dollars in refunds from student loans was sufficient to allow Ogunsalu both to meet his daily needs and to pay court fees. The district court had also found that Ogunsalu used the student loan funds to pay for non-educational expenses, including housing and two cars and noted that, when denied in forma pauperis status in previous lawsuits, Ogunsalu had paid court costs and proceeded with litigation.

Doctor's Failure to Notify Government Doesn't Defeat FTCA Jurisdiction

Appellant Shirley McLaurin's suit for wrongful death was properly dismissed without prejudice because she had failed to exhaust her administrative remedies against defendant the United States as required by the Federal Tort Claims Act, 28 U.S.C. ' 2671, et. seq. (FTCA). McLaurin v. U.S., 2004 U.S. App. LEXIS 24853 (5th Cir. 12/2/04).

In January 1996, plaintiff's decedent Milton Stubbs was taken to the emergency room at Forrest General Hospital (FGH) in Hattiesburg, MS, complaining of chest pain. After he was admitted, Stubbs fell in the bathroom of his room and sustained a head injury that was allegedly not treated properly. He later developed a subdural hematoma. Doctors performed surgery on Stubbs to stop the hematoma. Further bleeding occurred, however, and Stubbs died.

McLaurin filed a wrongful death suit in state court against FGH, a doctor and three nurses under Miss. Code Annotated sec. 11-7-13. In August 2002, 6 years after McLaurin had filed suit, the doctor notified the U.S. Department of Health and Human Services (DHHS) of McLaurin's suit against him and requested that he be certified as an employee of the United States on the grounds that the Health Center receives federal funds. The DHHS reviewed the referral and determined that the doctor was entitled to certification as a government employee. The case was then referred to the U.S. Attorney for the Southern District of Mississippi, who removed the case to the district court under 28 U.S.C. ' 2679(d)(2). The district court substituted the government as defendant and dismissed the case against the doctor, with prejudice.

In March 2003, McLaurin filed a motion to remand, in which she asserted that the doctor had waived his right to removal under 2679(d)(2) by failing to furnish the government prompt notice of the suit. (Section 2679(c) requires that the employee against whom such civil action or proceeding is brought must deliver all process served upon him to his immediate superior for service on the U.S. Attorney for that district.) In April, the government filed a motion to dismiss for failure to exhaust administrative remedies, as required before suit can be brought under the FTCA. After two hearings on the motions, the district court denied McLaurin's motion to remand and granted the government's motion to dismiss without prejudice for lack of subject matter jurisdiction, based on McLaurin's failure to exhaust her administrative remedies under the FTCA. McLaurin timely filed her notice of appeal.

On appeal, McLaurin argued that the government waived its right to removal because the doctor failed to notify it promptly of McLaurin's suit against him as required by ' 2679(c). Because he had not done this, McLaurin argued, the doctor – and thus the government – waived the right to remove the suit to federal court. In effect, McLaurin argued that ' 2679(c) is a condition precedent to removal under 2679(d)(2).

The court found that that unambiguous language of 2679(d)(2) requires only that the government remove “before trial” a suit involving a federal employee. Congress has placed no other time limitation or requirement on removal in a suit under the section. It also found that the portion of the statute requiring prompt notice to the FTCA-covered employees supervisor was a protection reserved for the benefit of the government, and could not be cited as a jurisdiction-defeating basis by a plaintiff.

Statute Creating Indian Clinics Granted No FTCA Coverage to Contractors

Because an Indian clinic and the doctors who worked there were not federal employees, and the statute establishing the clinic did not extend Federal Tort Claims Act, 28 U.S.C.S. ' 1346(b) (FTCA), coverage to it, the doctors and clinic could not substitute the United States as defendant in this medical malpractice action. Woodruff v. Covington, 2004 U.S. App. LEXIS 23975 (10th Cir. 11/17/04).

After receiving allegedly substandard medical care, plaintiff brought a malpractice action against two doctors, as well as the Central Oklahoma American Indian Health Council (COAIHC). The Council operates the Oklahoma City Indian Clinic (the Clinic), which was created by Congress to serve as a demonstration project for providing health care to Indians living in urban areas with unmet health needs. 25 U.S.C. ' 1660b(a). COAIHC was created as a part of the implementation of Title V of the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. '' 1651 and 1660. Both defendant doctors were employees of COAIHC and the Clinic. The doctors and the COAIHC filed motions to dismiss or to substitute the United States for them as defendants under the FTCA.

Through the FTCA, Congress has consented to suits against the United States for certain torts committed by federal employees while acting within the scope of their employment. An FTCA action against the United States is the sole remedy for any injury to person or property caused by the negligent or wrongful acts of a federal employee acting within the scope of his or her employment

The usual FTCA coverage dispute in a medical malpractice case questions whether the defendant in the underlying suit is a “government employee” within the meaning of the statute such that the United States should be substituted as defendant. The doctors and the COAIHC, however, conceded that they were not entitled to FTCA immunity as “federal employees” under the control and supervision of the federal government. Instead, appellants argued that the statute creating the COAIHC, 25 U.S.C. ' 1660b(a), when considered in light of legislative history and intent, expanded the FTCA to them. The district court disagreed because any such waiver of sovereign immunity was not made express in the statute.

As the government pointed out on appeal, there are many statutes that expressly designate certain independent contractors with the government to be “federal employees” for purposes of FTCA immunity. Such statutes have been passed covering certain community health centers and contractors working in atomic weapons technology, among others. The COAIHC and the doctors argued that in passing the following statutory language, Congress expanded the FTCA's coverage to reach them: “Notwithstanding any other provision of law, the Oklahoma City Clinic demonstration project and the Tulsa Clinic demonstration project shall be treated as service units in the allocation of resources and coordination of care and shall not be subject to the provisions of the Indian Self-Determination Act for the term of such projects.” They then explained that “service unit” here meant either “1) an administrative entity within the Indian Health Service [IHS] or 2) a tribe or tribal organization operating health care programs with funds from the IHS under the Indian Self-Determination Act.” Because the COAIHC is not a tribe or tribal organization, appellants argued that the term “service unit” here could only mean an “administrative entity” within the IHS. They then pointed to various pieces of legislative history and the structure/function of the Clinic, and concluded that Congress intended to expand the FTCA to the COAIHC and its employees in this statute.

The court held that while it is true that ' 1660b(a) deems the COAIHC to be an “administrative entity” of the IHS for the purposes of allocating resources and coordinating care, this does not serve as an “express” application of the FTCA. The statutory language regarding the “allocation of resources” did not expressly waive the government's sovereign immunity for purposes of FTCA suits against the COAIHC, and appellants' argument that FTCA immunity is a “resource” to be allocated was too tenuous. Therefore, because appellants were neither federal employees under the government's day-to-day control, nor independent contractors to whom Congress has expressly expanded the FTCA's reach, they were held not entitled to FTCA immunity.

'Poor' Litigant Not Poor Enough to Proceed In Forma Pauperis

The Ninth Circuit denied a plaintiff the right to proceed in forma pauperis against a medical expert witness who had testified against him in a previous action. Ogunsalu v. Nair, 2004 U.S. App. LEXIS 24787 (9th Cir. 11/4/04).

Appellant Cornelius Ogunsalu appealed a district court order denying him leave to proceed in forma pauperis in his action for, among other things, libel and medical malpractice. Ogunsalu sought to recover $1 million in damages from several defendants who were involved in the previous lawsuit that Ogunsalu brought against his former employer, including Dr. Mohan Nair, who had testified against him.

To qualify for in forma pauperis status, a civil litigant must demonstrate both that the litigant is unable to pay court fees and that the claims he or she seeks to pursue are not frivolous. 28 U.S.C. ' 1915(a)(1), ' 1915(e)(B)(j). The first prong of this test was dispositive here. The Ninth Circuit found that the district court did not abuse its discretion when it ruled that Ogunsalu's the receipt of $723 per month from Social Security and thousands of dollars in refunds from student loans was sufficient to allow Ogunsalu both to meet his daily needs and to pay court fees. The district court had also found that Ogunsalu used the student loan funds to pay for non-educational expenses, including housing and two cars and noted that, when denied in forma pauperis status in previous lawsuits, Ogunsalu had paid court costs and proceeded with litigation.

Doctor's Failure to Notify Government Doesn't Defeat FTCA Jurisdiction

Appellant Shirley McLaurin's suit for wrongful death was properly dismissed without prejudice because she had failed to exhaust her administrative remedies against defendant the United States as required by the Federal Tort Claims Act, 28 U.S.C. ' 2671, et. seq. (FTCA). McLaurin v. U.S., 2004 U.S. App. LEXIS 24853 (5th Cir. 12/2/04).

In January 1996, plaintiff's decedent Milton Stubbs was taken to the emergency room at Forrest General Hospital (FGH) in Hattiesburg, MS, complaining of chest pain. After he was admitted, Stubbs fell in the bathroom of his room and sustained a head injury that was allegedly not treated properly. He later developed a subdural hematoma. Doctors performed surgery on Stubbs to stop the hematoma. Further bleeding occurred, however, and Stubbs died.

McLaurin filed a wrongful death suit in state court against FGH, a doctor and three nurses under Miss. Code Annotated sec. 11-7-13. In August 2002, 6 years after McLaurin had filed suit, the doctor notified the U.S. Department of Health and Human Services (DHHS) of McLaurin's suit against him and requested that he be certified as an employee of the United States on the grounds that the Health Center receives federal funds. The DHHS reviewed the referral and determined that the doctor was entitled to certification as a government employee. The case was then referred to the U.S. Attorney for the Southern District of Mississippi, who removed the case to the district court under 28 U.S.C. ' 2679(d)(2). The district court substituted the government as defendant and dismissed the case against the doctor, with prejudice.

In March 2003, McLaurin filed a motion to remand, in which she asserted that the doctor had waived his right to removal under 2679(d)(2) by failing to furnish the government prompt notice of the suit. (Section 2679(c) requires that the employee against whom such civil action or proceeding is brought must deliver all process served upon him to his immediate superior for service on the U.S. Attorney for that district.) In April, the government filed a motion to dismiss for failure to exhaust administrative remedies, as required before suit can be brought under the FTCA. After two hearings on the motions, the district court denied McLaurin's motion to remand and granted the government's motion to dismiss without prejudice for lack of subject matter jurisdiction, based on McLaurin's failure to exhaust her administrative remedies under the FTCA. McLaurin timely filed her notice of appeal.

On appeal, McLaurin argued that the government waived its right to removal because the doctor failed to notify it promptly of McLaurin's suit against him as required by ' 2679(c). Because he had not done this, McLaurin argued, the doctor – and thus the government – waived the right to remove the suit to federal court. In effect, McLaurin argued that ' 2679(c) is a condition precedent to removal under 2679(d)(2).

The court found that that unambiguous language of 2679(d)(2) requires only that the government remove “before trial” a suit involving a federal employee. Congress has placed no other time limitation or requirement on removal in a suit under the section. It also found that the portion of the statute requiring prompt notice to the FTCA-covered employees supervisor was a protection reserved for the benefit of the government, and could not be cited as a jurisdiction-defeating basis by a plaintiff.