1:19-cv-02038-JMC Date Filed 07/31/20 Entry Number 23-1 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`AIKEN DIVISION
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`) Civil Action Number: 1:19-cv-02038-JMC
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`DONNA HOUCK,
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`Plaintiff,
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`vs.
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`UNITED STATES OF AMERICA,
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`Defendant.
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`MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
`PURSUANT TO RULE 12(b)(1)
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`The United States of America (“Defendant” or the “United States”) moves this Court for
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`an Order dismissing this action for lack of subject matter jurisdiction. The Court lacks subject
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`matter jurisdiction because all of Plaintiff’s allegations arise out of an assault and battery, which
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`is exempt from the waiver of sovereign immunity, and because the allegations do not involve the
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`provision of medical care as required for coverage of a federally-funded community health care
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`center under the Federal Tort Claims Act. For these reasons, the complaint1 should be
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`dismissed.
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`STATEMENT OF FACTS
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`Plaintiff alleges that she was a patient of Low Country Health Care Systems, Inc.,
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`(“LCHCS”) on or about September 19, 2011, when she presented for gynecological medical care
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`and treatment by Dr. Robert Jones, a physician employed by LCHCS, “an entity receiving
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`1 The allegations in the complaint are similar to the allegations of assault and battery by Dr.
`Robert Jones in two related cases before this Court: Linda Lee v. United States of America,
`Civil Action No. 1:19-cv-02039-JMC and Deidra Lee v. United States of America, Civil Action
`No. 1:19-cv-02037-JMC.
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`1
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`federal grant money from the united States Public Health Service pursuant to 42 U.S.C. § 254b,
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`254c, 256, or 256a.” Compl. ¶ 3. She claims that Dr. Jones “placed his hand in Plaintiff’s face,
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`creating fear and anxiety, and that he “began improperly touching, molesting, and groping
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`Plaintiff’s breasts and vagina without her consent.” Compl. ¶¶ 9-10. Plaintiff was able to
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`escape the examination room and the building. Id. at ¶¶ 14-16. She alleges that Dr. Jones was
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`“charged with criminal assault and battery offenses as a result of his elicit actions that occurred
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`on September 19, 2011.” Id. at ¶ 17. Plaintiff also alleges that Dr. Jones was acting at all times
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`within the scope of his employment. Dr. Jones is not a party to this action and has not been
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`certified as acting within the scope of his employment.
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`Plaintiff alleges that LCHCS was negligent in one or more of the following ways: (1)
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`failing to provide adequate care and treatment to Plaintiff; (2) failing to provide a safe and
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`respectful environment; (3) failing to exercise reasonable care for the safety and well-being of
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`the Plaintiff; (4) failing to properly supervise and entrust its employees, agents and individuals
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`under their control; (5) failing to conduct and adequately investigate allegations of elicit actions
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`at its facility; (6) failing to discipline or remove Dr. Jones from his position; (7) failing to
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`respond to the victims of Dr. Jones elicit actions; and (8) failing to exercise the degree of care
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`which a reasonably prudent person would have exercised under the circumstances. Compl. ¶ 25.
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`STANDARD OF REVIEW
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`The party invoking federal jurisdiction bears the burden of proof. Lujan v. Defenders of
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`Wildlife, 504 U.S. 555, 560-61 (1992); Renne v. Geary, 501 U.S. 312, 316 (1991); Adams v.
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`Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Thus, Plaintiff in this case is required to establish
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`subject matter jurisdiction over her claims. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.
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`1999). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
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`lack of subject matter jurisdiction challenges the court’s authority to hear the matter brought by
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`the complaint. Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005).
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`According to the Fourth Circuit, “[w]hen a defendant challenges subject matter
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`jurisdiction pursuant to Rule 12(b)(1), the district court is to regard the pleadings as mere
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`evidence on the issue, and may consider evidence outside the pleadings without converting the
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`proceeding to one for summary judgment.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
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`Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765,
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`768 (4th Cir. 1991)). See also Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (providing
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`that the court may look beyond allegations of complaint to determine if there are facts to support
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`jurisdictional allegations). The moving party should prevail if the material jurisdictional facts
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`are not in dispute, and the moving party is entitled to prevail as a matter of law. Falwell v.
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`Lynchburg, 198 F. Supp. 2d 765, 772 (W.D. Va. 2002) (citations and quotations omitted).
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`ARGUMENT
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`The United States is entitled to an order dismissing this case for lack of subject matter
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`jurisdiction. The allegations in the complaint arise out of the intentional act of sexual assault
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`and battery by Dr. Robert Jones. The United States is immune from suit for these claims.
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`Law
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`The United States, as sovereign, is immune from suit unless it has consented to be sued.
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`United States v. Sherwood, 312 U.S. 584 (1941). Further, the United States may define the
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`terms and conditions upon which it may be sued. Soriano v. United States, 352 U.S. 270
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`(1957). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), 2671-
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`2680, constitutes a waiver of sovereign immunity, with certain specific limitations. United States
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`v. Sherwood, 312 U.S. 584 (1941); Carr v. Veterans Admin., 522 F.2d 1355 (5th Cir. 1975);
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`Childers v. United States, 442 F.2d 1299 (5th Cir.), cert. denied, 404 U.S. 857 (1971). The
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`limitations on the Federal Tort Claims Act’s waiver of sovereign immunity are to be strictly
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`construed. United States v. Sherwood, 312 U.S. 584 (1941). Exceptions to the waiver of
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`sovereign immunity “receive a generous construction with ambiguities resolved against those
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`seeking recovery from the government.” Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.
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`1986). Only when Congress has “clearly and unequivocally expressed its consent to suits
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`against the United States may courts entertain such actions.” Id.
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`I. Plaintiff’s Claims are Barred by 28 U.S.C. § 2680(h) Which Precludes Claims Based
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`on Assault and Battery.
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`Although Plaintiff’s claims in this action sound in negligence, they are barred by 28
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`U.S.C. § 2680(h) as claims “arising out of assault [or] battery.” Dr. Robert Jones’s intentional
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`acts of sexual assault constitute assault and battery. See Thigpen v. United States, 618 F. Supp.
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`239, 245 (D.S.C. 1985) (finding that Naval hospital employee’s sexual assault of two patients
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`constituted assault and battery because neither of the patients consented), aff’d, 800 F.2d 393
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`(4th Cir. 1986).
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`The United States Supreme Court in United States v. Shearer, 473 U.S. 82 (1985),
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`analyzed exception to the waiver of sovereign immunity in 28 U.S.C. § 2680(h) and held as
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`follows:
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`Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms
`of negligent failure to prevent the assault and battery. Section 2680(h) does not
`merely bar claims for assault or battery; in sweeping language it excludes any claim
`arising out of assault or battery. We read this provision to cover claims like
`respondent’s that sound in negligence but stem from a battery committed by a
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`Government employee. Thus, “the express words of the statute” bar respondent’s
`claim against the Government.
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`473 U.S. at 55 (citing United States v. Spelar, 338 U.S. 217, 219 (1949) (emphasis in original)).
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`Thus, section 2680(h) should be read broadly effectively barring any claim involving an assault
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`or battery when a government employee committed the act.
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`The Fourth Circuit has similarly ruled. See Perkins v. United States, 55 F.3d 910, 916
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`(4th Cir. 1995) (providing that “[a]n allegation of ‘negligent supervision’ will not render an
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`otherwise unactionable claim actionable so long as the negligent supervision claim depends on
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`activity of the supervised agent which is itself immune”); Thigpen, 800 F.2d at 395 (Section
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`2680(h) bars FTCA claims that allege the negligence of supervisors but depend upon the
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`existence of an assault or battery by a government employee as many assaults can be attributed
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`easily enough to someone’s negligence in permitting the attack to take place, and to hold such
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`allegations actionable under the FTCA would undermine Congress’ clear intent to limit its
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`waiver of immunity in § 2680(h)).
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`Here, Plaintiff’s claims arise out of the sexual assault by Dr. Robert Jones and are,
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`therefore, excepted from the waiver of sovereign immunity under the FTCA. Plaintiff cannot
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`recast this intentional tort action into a negligent supervision and retention action to avoid the
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`sweeping language of the exception to the waiver of sovereign immunity found in section
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`2680(h). In any event, claims related to negligent supervision and retention are likewise barred
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`because the United States did not owe Plaintiff a duty with regard to the employment
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`relationship between Dr. Jones and LCHCS.
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`Plaintiff also cannot rely on the United States Supreme Court’s decision in Sheridan v.
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`United States, 487 U.S. 392 (1988), which clarified that § 2680(h) does not bar negligence
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`claims related to an assault or battery committed by a government employee if the government
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`has breached an affirmative duty that is “entirely independent of [the tortfeasor’s] employment
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`status,” such that “the employment status of the assailant has nothing to do with the basis for
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`imposing liability on the government.” Id. at 401-02.
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`In Sheridan, the plaintiffs were shot by an off-duty Navy corpsman who was employed at
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`the Betheseda Naval Hospital. Before the shooting, Navy personnel found the corpsman
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`wandering around in a drunken stupor on hospital grounds with a rifle. Those personnel did not
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`restrain the corpsman but instead fled the scene. The corpsman subsequently shot his rifle into a
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`passing car injuring the plaintiffs. The plaintiffs in Sheridan claimed the United States had been
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`negligent in failing to restrain the corpsman who was drunk and carrying a weapon on Navy
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`property in violation of Navy regulations, an independent duty separate from the employment
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`relationship of the Navy personnel.
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`Although the Court in Sheridan found section 2680(h) did not bar the plaintiffs’ claim,
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`the Court limited its decision to the facts of the case and noted that “it is not appropriate in this
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`case to consider whether negligent hiring, negligent supervision, or negligent training may ever
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`provide the basis for liability under the FTCA for a foreseeable assault or battery by a
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`Government employee.” Id. at 403, n. 8. The Court remanded the case for a determination of
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`whether the United States could be held liable under Maryland state law if the United States
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`were a private person under like circumstances.2
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`2 On remand, the district court determined that the United States was not liable for the alleged
`negligence of the Navy personnel because, under Maryland law, the government owed no duty to
`protect plaintiffs against intentional criminal acts of third persons. Sheridan v. United States,
`773 F. Supp. 786, 787 (D. Md. 19991), aff’d, 969 F. 2d 72 (4th Cir. 1992).
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`Justice Kennedy in his concurring opinion in Sheridan noted that section 2680(h) bars
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`claims alleging negligent hiring, training and or supervision: “a court must ascertain whether
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`the alleged negligence was the breach of a duty to select or supervise the employee-tortfeasor or
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`the breach of some separate duty independent from the employment relation.” Id. at 406.
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`Justice Kennedy expressed concern that, to hold otherwise, “litigants could avoid the substance
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`of the exception because it is likely that many, if not all, intentional torts of Government
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`employees plausibly could be ascribed to the negligence of the tortfeasor’s supervisors,”
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`thereby frustrating the purpose of section 2680(h) exception. Id.
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`In the present case, Plaintiff’s claims derive from the employment relationship
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`between Dr. Jones and LCHCS. Plaintiff alleges no duty owed by the United States that
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`is wholly independent of that employment relationship. Therefore, the United States is
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`entitled to an order dismissing the claims for lack of subject matter jurisdiction because
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`the allegations arise out of an assault and battery and are excepted from the general waiver
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`of sovereign immunity under the FTCA.
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`II.
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`This Court Lacks Subject Matter Jurisdiction Because Plaintiff’s Claims Do
`Not Involve the Provision of Medical Services for which LCHCS Has
`Coverage under the FTCA.
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`Because the Complaint does not allege an injury resulting from medical
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`malpractice, and the United States has not waived its sovereign immunity, the Court lacks
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`subject matter jurisdiction and the complaint should be dismissed.
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`The Federally Supported Health Centers Assistance Acts (“FSHCAA”) of 1992 (Pub. L.
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`102-501) and 1995 (Pub. L. 104-73), 42 U.S.C. § 233(g)-(n), provides a limited waiver of
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`sovereign immunity by extending the remedy under the FTCA for damage for personal injury or
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`death resulting from the performance of medical, surgical, dental, or related functions, including
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`the conduct of clinical studies or investigation, to eligible health centers funded under section
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`330 of the Public Health Service Act (42 U.S.C. 254b) and certain “covered individuals”
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`associated with such community health centers, under certain circumstances. 42 U.S.C. § 233(a),
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`(g).3 This coverage occurs based on the legal fiction that such eligible health centers and covered
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`individuals are “deemed to be [] employee[s] of the Public Health Service.” Id. § (g)(1)(A).
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` “The [FSHCAA] makes federally-funded community health centers and their
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`employees, officers, and individual contractors eligible for medical malpractice coverage under
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`the [FTCA] to the same extent as federal employees of the United States Public Health Service.”
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`El Rio Santa Cruz Neighborhood Health Ctr. v. United States HHS, 396 F.3d 1265, 1267 (D.C.
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`Cir. 2005) (internal citations omitted) (emphasis added); see also id. at 1268 (“Congress enacted
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`the FSHCAA to relieve publicly funded health centers of the burden of rising malpractice
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`insurance costs.”); H.R. Rep. 104-398, 104th Cong., 1st Sess., p. 4 (Dec. 12, 1995) (providing
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`that under the FSHCAA, “[‘Deemed’] [h]ealth centers and their employees, officers, and
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`contractors are covered for malpractice claims in the same manner as employees of the Public
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`42 U.S.C. § 233(a) states, in relevant part: “The remedy against the United States
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`provided by sections 1346(b) and 2672 of Title 28, . . . for damage for personal injury, including
`death, resulting from the performance of medical, surgical, dental, or related functions,
`including the conduct of clinical studies or investigation, by any commissioned officer or
`employee of the Public Health Service while acting within the scope of his office or
`employment, shall be exclusive of any other civil action or proceeding . . . .” (emphasis added)
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`42 U.S.C. § 233(g) states, in relevant part: “The remedy against the United States for [a
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`public or non-profit private entity receiving Federal funds under 42 U.S.C. § 254b] and any
`officer, governing board member, employee, or contractor (subject to [42 U.S.C. § 233(g)(5)]) of
`such an entity who is deemed to be an employee of the Public Health Service pursuant to this
`paragraph shall be exclusive of any other civil action or proceeding to the same extent as the
`remedy against the United States is exclusive pursuant to [42 U.S.C. § 233(a)].
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`Health Service who provide medical care”) (emphasis added); H.R. Rep. 102-823 (II), 102d
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`Cong., 2d Sess., p. 4 (Sept. 14, 1992) (“The FTCA would be the exclusive remedy for medical
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`malpractice claims against these individuals and programs.”) (emphasis added).
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`In order to cover these otherwise private actors for malpractice claims in the same
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`manner as employees of the Public Health Service who provide medical care, Congress provided
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`that, subject to certain statutory criteria, a qualifying entity and its personnel would be “deemed”
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`to be Public Health Service employees for purposes of 42 U.S.C. § 233. Under 42 U.S.C .
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`§233(a), the FTCA’s remedy against the United States is exclusive of any other action against a
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`Public Health Service employee for claims of injury or death resulting from the performance of
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`medical, surgical, dental, or related functions while acting within the scope of official duties.
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`Under 42 U.S.C. 233(a), it is the specific conduct from which an injury results that
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`determines whether the FTCA’s remedy is exclusive. See, e.g., Cuoco v. Mortisugu, 222 F.3d
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`99, 108-09 (2d Cir. 2009) (holding that section 233(a) protects Public Health Service officers
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`from being subject to suit while performing medical “and similar functions,” and observing that
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`if Plaintiff had alleged a tort resulting from something other than medical duties, section 233(a)
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`would not bar that suit); Hui v. Castaneda, 559 U.S. 799 (2010) (holding that Eighth Amendment
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`constitutional claim predicated on failure to diagnose and treat arose from performance of
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`medical functions in official duties, barring individual suit against Public Health Service officers
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`on a Bivens theory).
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`Here, Plaintiff may try to argue that coverage of “related functions” could encompass her
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`claims of negligent supervision and retention, but those words should not be broadly construed.
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`Section 233(a) covers only injuries resulting from medical, surgical, dental, or similar
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`therapeutic conduct involving a patient that might give rise to medical malpractice, i.e., a
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`dereliction in professional duties owed to a patient receiving health services, which is confirmed
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`by ordinary canons of statutory construction. Where general words follow specific ones in
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`statutory enumeration, the general words must be construed to embrace only subjects similar in
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`nature to the subjects enumerated by the preceding specific words to avoid rendering specific
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`enumerated subjects superfluous. See Yates v. United States, 135 S. Ct. 1074, 1086-87 (2015)
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`(applying ejusdem generis to avoid ascribing to a general word a meaning so broad that it renders
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`specific words superfluous).
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`The specific enumeration of surgical and dental functions alongside medical functions
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`would be superfluous unless “related functions” encompassed only those functions “similar” to
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`medical, surgical, and dental functions. In other words, rather than enumerating every possible
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`sub-specialty or health-care provider who might be involved in a patient’s therapeutic care,
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`Congress chose three examples pertaining to medical (of or pertaining to practice of medicine or
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`physicians), surgical (of or pertaining to surgeons or surgery), and dental (of or pertaining to
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`dentistry). “Related functions” does no more than encompass similar professional, health-care
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`functions that are performed in the course of providing health services to a patient.
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`Thus, the term “related functions” must be construed in the context in which it is found in
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`42 U.S.C. § 233(a). “[U]nder the established interpretative canons of noscitur a sociis and
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`ejusdem generis, [w]here general words follow specific words in a statutory enumeration, the
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`general words are construed to embrace only objects similar in nature to those objects
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`enumerated by the preceding specific words.” Wash. State Dep’t of Soc. & Health Servs. v.
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`Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (internal citations omitted). In §
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`233(a), the term “related functions” must be construed to embrace functions similar in nature to
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`“medical, surgical, or dental functions,” the statute’s “preceding specific words.”4
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`This conclusion is strengthened by § 233(a)’s statement that the types of act activities that
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`constitute related functions: “includ[es] the conduct of clinical studies or investigation.”
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`Although clinical studies and investigations are not the typical direct provision of care by a
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`health care provider, they are similar enough to be related to such care. The fact Congress
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`selected such activities as illustrations of the types of acts that constitute “related functions”
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`demonstrates the term was not meant to broadly extend to non-medical, administrative decisions
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`such as supervising and retaining employees.
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`More important still, statutory construction is a “holistic endeavor,” and a provision is
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`often clarified by the remainder of the statutory scheme. See United Sav. Ass’n of Tex. v.
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`Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). The later-enacted FSHCAA,
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`which is what confers “deemed” Public Health Service employee status upon grantees and their
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`4 One out-of-circuit, non-controlling, district court decision, Brignac v. United States, 239 F.
`Supp. 3d 1367, 1374–78 (N.D. Ga. 2017), concluded that a claim against a health center for
`negligently hiring and retaining a physician who sexually assaulted a patient involved a “related
`function” under § 233(a). The United States continues to believe that decision was incorrect.
`First, the opinion did not even mention the statutory construction canons discussed above.
`Second, the Brignac court’s analysis is flawed. It concluded the lawsuit was “related” to the
`“provision of medical treatment” simply because health centers are required to review and verify
`the credentials of its health care providers in order to become a deemed entity, and because the
`“[p]laintiff was sexually assaulted by [the physician] during the course of his medical
`examination.” Id. at 1377-78. Requirements for becoming a deemed entity have nothing to do
`with whether a claim for personal injury is one that results from the performance of medical,
`surgical, dental, or related functions. Similarly, an allegation that a negligent act was performed
`by a physician during a medical examination does not alter the character of the decision by
`others in the past to hire and retain that physician.
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`personnel, clarifies that Congress extended only medical malpractice protections to these
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`“deemed” Public Health Service employees.
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`Other provisions of FSHCAA demonstrate that Congress intended to waive sovereign
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`immunity only for medical malpractice claims. Under 42 U.S.C. § 233(g)(2), for example,
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`Congress provided that if a cause of action is instituted against the United States with respect to a
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`“deemed” entity or employee, then “any claim of the entity or person for benefits under an
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`insurance policy with respect to medical malpractice shall be subrogated to the United States.”
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`(Emphasis added.) Because the FSHCAA was designed to alleviate grantees of the cost of
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`purchasing medical malpractice insurance, this provision confers upon the United States a
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`subrogation right only for any extant medical malpractice policy carried by a grantee or covered
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`individual.
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`Congress directed the Comptroller General of the United States, not later than one year
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`after December 26, 1995, to submit to Congress a report detailing the “medical malpractice
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`liability claims experience of entities that have been deemed to be employees for purposes of this
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`section.” 42 U.S.C. § 233(n)(1)(A) (emphasis added). That report was to compare the costs
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`and benefits to taxpayers of “maintaining medical malpractice liability coverage for such entities
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`pursuant to this section, taking into account—(i) a comparison of the costs of premiums paid by
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`such entities for private medical malpractice liability insurance with the cost of coverage
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`pursuant to this section; and (ii) an analysis of whether the cost of premiums for private medical
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`malpractice liability insurance coverage is consistent with the liability claims experience of such
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`entities.” Id. at § 233(n)(1)(D)(i)-(ii) (emphasis added).
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`The Comptroller General was further directed, in that same report, to provide an estimate
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`of the “medical malpractice liability loss history of such entities for the 10-year period preceding
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`October 1, 1996.” 42 U.S.C. § 233(n)(1)(C) (emphasis added). That estimate was to include
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`the claims paid and estimated to be paid, including legal expenses, by private medical
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`malpractice liability insurance in comparison to the claims paid and estimated to be paid,
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`including legal expenses, by the federal government for entities “deemed” to be employees under
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`the FSHCAA. Id. at § 233(n)(1)(C)(i)-(ii). Finally, the Comptroller General was required to
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`analyze whether “the cost of premiums for private medical malpractice liability insurance
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`coverage is consistent with the liability claims experience of entities that have been deemed as
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`employees for purposes of this section.” Id. at § 233(n)(1)(D) (emphasis added).
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`On April 14, 1997, the Government Accounting Office (GAO) furnished its report to
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`Congress, detailing the limited data with respect to the federal government’s agreement “to
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`assume responsibility for malpractice claims against covered centered as their practitioners, if
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`certain conditions are met.” See GAO Report to the Committee on the Judiciary, U.S. Senate,
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`and the Committee on Commerce, House of Representatives, Medical Malpractice: Federal
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`Tort Claims Act Coverage Could Reduce Health Centers’ Costs, p. 1 (April 14, 1997).
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`Consistent with the understanding that “Congress enacted the Federally Supported Health
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`Centers Assistance Act of 1992 (P.L. 102-501) to provide FTCA medical malpractice coverage to
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`community and migrant health centers,” the report limits its analysis to the experience, costs, and
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`assumed benefits of extending medical malpractice coverage to community and migrant health
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`centers,” the report limits its analysis to the experience, costs, and assumed benefits of extending
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`medical malpractice coverage to “deemed” centers and their employees.
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`1:19-cv-02038-JMC Date Filed 07/31/20 Entry Number 23-1 Page 14 of 16
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`The original 1992 FSHCAA, too, directed the Attorney General and the Secretary of
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`Health and Human Services to “submit a report to Congress on the medical malpractice liability
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`claims experience of entities subject to section 224(g) of the Public Health Service Act . . . and
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`the risk exposure associated with such entities.” See Pub. L. 102-501 § 5(a), 106 Stat. 3271
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`(Oct. 24, 1992) (emphasis added). That report was to include the Secretary’s estimate of the
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`aggregate amount that “deemed” entities “would have directly or indirectly paid to obtain
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`medical malpractice liability insurance coverage had section 224(g) of the Public Health Service
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`Act not been enacted into law.” Id. at § 5(b)(1) (emphasis added).
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`Thus, Congress unambiguously provided that the FTCA coverage extended to “deemed”
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`entities and their employees under the FSHCAA through 42 U.S.C. § 233(a), both in 1992 and
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`when the program was amended in 1995, would supplant only medical malpractice liability
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`insurance. FTCA coverage for “deemed” centers is limited to malpractice claims, not general
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`negligence claims.
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`Section 233(a)’s waiver of sovereign immunity for acts or omissions involving the
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`performance of medical, surgical, dental, or related functions is meant to encompass “suits that
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`sound in medical malpractice.” Mendez v. Belton, 739 F.2d 15, 19 (1st Cir. 1984) (concluding
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`allegations of intentional discrimination on the basis of race and sex occurring in the course of
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`professional review process is not the sort of claim that 42 U.S.C. § 233(a) was meant to allow).
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`See also El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human
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`Servs., 396 F.3d 1265, 1267 (D.C. Cir. 2005) (“The [FSHCAA] makes federally-funded
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`community health centers and their employees, officers, and individual contractors eligible for
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`medical malpractice coverage under the [FTCA] to the same extent as federal employees of the
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`1:19-cv-02038-JMC Date Filed 07/31/20 Entry Number 23-1 Page 15 of 16
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`United States Public Health Service.”); Dedrick v. Youngblood, 200 F.3d 744, 744–45 (11th Cir.
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`2000) (“The FSHCAA ‘was enacted in 1992 to reduce the growing costs of malpractice
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`insurance to private nonprofit health centers that provide health services to medically
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`underserved populations . . . . The Act essentially makes the U.S. government the medical
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`malpractice insurer for qualifying § 245(b) health centers . . . allowing these ‘deemed’ health
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`centers to forgo obtaining private malpractice insurance.”).
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`Analysis
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`In this case, Plaintiff alleges general negligence claims against LCHCS based upon
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`theories sounding in negligent supervision and retention. Thus, Plaintiff’s claims did not result
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`from medical malpractice. Plaintiff does not allege a medical professional committed a medical
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`error or provided treatment beneath the professional standards expected of similar professionals
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`in the community.5
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`Under § 233(a) and the FSHCAA, the United States has not consented to suit for
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`Plaintiff’s general negligence claims. This Court, therefore, lacks subject-matter jurisdiction
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`over the United States and must dismiss Plaintiff’s action.
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`5 Interpretation and construction of a federal statute like the FSHCAA is a federal law
`question because the FSHCAA is a federal statute that defines the types of claims for which the
`United States has consented to be sued. Cf. Laird v. Nelms, 406 U.S. 797, 799 (1972); Dedrick
`v. Youngblood, 200 F.3d 744, 746 (11th Cir. 2000) (stating that “when a statute like the
`[FSHCAA] expands the liability of the government we must strictly construe the language used
`by Congress”) (citation omitted).
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`CONCLUSION
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`This Court lacks subject matter jurisdiction over Plaintiff’s general negligence claims
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`based upon the intentional tort exception of 28 U.S.C. § 2680(h) and the requirement of 42
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`U.S.C. § 233 that only claims for medical malpractice are covered for LCHCS. The United
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`States is entitled to an order dismissing this action with prejudice.
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`Respectfully submitted,
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`PETER M. MCCOY, JR.
`UNITED STATES ATTORNEY
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`s/ Christie V. Newman
`Christie V. Newman (#5473)
`Assistant United States Attorney
`1441 Main Street, Suite 500
`Columbia, SC 29201
`Phone: (803) 929-3021
`Email: Christie.Newman@usdoj.gov
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`
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`By:
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`16
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`July 31, 2020
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