1:19-cv-02038-JMC Date Filed 12/30/20 Entry Number 27 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`AIKEN DIVISION
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`Donna Houck,
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`Plaintiff,
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`United States of America,
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`Defendant.
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`____________________________________)
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`Civil Action No.: 1:19-cv-02038-JMC
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` ORDER AND OPINION
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`Currently before the court is Defendant United States of America’s Motion to Dismiss for
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`Lack of Jurisdiction. (ECF No. 23.) Plaintiff Donna Houck has responded in opposition to the
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`Motion (ECF No. 25), to which Defendant filed a reply (ECF No. 26). Defendant seeks to dismiss
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`this action under Rule 12(b)(1) because Plaintiff’s claim “is based upon an assault and battery
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`which is excepted from coverage under the Federal Tort Claims Act [(“FTCA”)] and because it
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`does not involve a medical malpractice action[.]” (ECF No. 23.) For the following reasons, the
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`court DENIES Defendant’s Motion to Dismiss for Lack of Jurisdiction. (Id.)
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`I.
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`RELEVANT FACTUAL AND PROCEDURAL BACKRGOUND
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`Plaintiff initially filed suit against Low Country Health Care System, Inc. (“LCHC”),
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`alleging it negligently allowed one of its employees, Dr. Robert Jones, to “improperly touch[],
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`molest[], and grope[] Plaintiff[] . . . without her consent.”1 (ECF No. 1 at 2-3, 5, ¶¶ 6-12, 24-25.)
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`Thereafter, the Government filed an unopposed Motion to Substitute the United States of America
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`as Defendant, explaining that LCHC was eligible for coverage under the FTCA because LCHC
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`1 Plaintiff alleges that Dr. Jones has since “been charged with criminal assault and battery
`offenses as a result of his elicit actions[.]” (ECF No. 1 at 3 ¶ 17.)
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`1
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`1:19-cv-02038-JMC Date Filed 12/30/20 Entry Number 27 Page 2 of 6
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`received federal grant money and “was acting within the scope of its employment as a health care
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`center . . . at the time . . . out of which . . . Plaintiff’s claims arose.”2 (ECF No. 14.) The court
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`granted the Government’s request, substituting the United States of America “as the proper party
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`defendant in the place of [LCHC].” (ECF No. 17 at 5.) The Government subsequently filed the
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`instant Motion to Dismiss for Lack of Jurisdiction. (ECF No. 23.)
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`II.
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`LEGAL STANDARD
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`“Federal courts are courts of limited subject matter jurisdiction, and as such there is no
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`presumption that the court has jurisdiction.” Pinkley, Inc. v. City of Fredrick, Md., 191 F.3d 394,
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`399 (4th Cir. 1999). A Rule 12(b)(1) motion for lack of subject matter jurisdiction raises the
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`fundamental question of whether a court has jurisdiction to adjudicate the matter before it. FED. R.
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`CIV. P. 12(b)(1). In determining whether jurisdiction exists, the court is to “regard the pleadings’
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`allegations as mere evidence on the issue, and may consider evidence outside the pleadings without
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`converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac
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`R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213,
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`1219 (4th Cir. 1982)). “The moving party should prevail only 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.” Id. (citation
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`omitted). The plaintiff bears the burden of proof on questions of subject matter jurisdiction. See
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`Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
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`Defendant contends the court lacks subject matter jurisdiction over the instant action in
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`III. ANALYSIS
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`two ways: First, Plaintiff’s claim of LCHC’s negligence arises out of the intentional torts of assault
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`2 By contrast, “the United States Attorney certified that Dr. Robert Jones was not acting within the
`scope of his employment at the time of the alleged incidents so that he could not be deemed an
`employee of the government pursuant to 42 U.S.C. § 233(c).” (ECF No. 14 at 2.)
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`2
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`and battery committed by Dr. Jones. (ECF No. 23 at 4.) Defendant posits the FTCA bars claims
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`arising out of these intentional torts including those like Plaintiff’s that “sound in negligence” but
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`stem from an assault or battery committed by a Government employee. (Id. at 4-5 (citation
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`omitted).) And second, Defendant stresses that “the Complaint does not allege an injury resulting
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`from medical malpractice,” which is necessary for the instant claims, “and the United States has
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`not waived its sovereign immunity[.]” (Id. at 7.)
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`In a brief response, Plaintiff claims the court retains jurisdiction because “the injury was
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`caused by the ‘negligent or wrongful act or omission of any employee’ [and] . . . a private person
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`would be liable to the claimant in accordance with South Carolina law.” (ECF No. 25 at 3.) Further,
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`Defendant argues that 28 U.S.C. § 2680(h) bars Plaintiff’s claims because they are
`allegedly arising out of assault and/or battery. 28 U.S.C. § 2680(h) bars FTCA
`claims that allege negligence of supervisors due to an assault and/or battery by a
`government employee. However, Plaintiff’s complaint sounds in negligence.
`Therefore, Plaintiff does not believe 28 U.S.C. § 2680(h) applies.
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` (ECF No. 25 at 3.) Plaintiff does not otherwise contest Defendant’s arguments.
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`The FTCA “waived the sovereign immunity of the United States for certain torts committed
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`by federal employees within the scope of their employment.” Matter of Moore, No. 1:17-CV-1310-
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`PWG, 2020 WL 5628980, at *2 (D. Md. Sept. 21, 2020) (citation and internal quotations omitted).
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`This waiver “is strictly construed[] and all ambiguities are resolved in favor of the sovereign.” Id.
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`(quoting Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996)). The FTCA includes a list of
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`exceptions under which the Government “does not waive its sovereign immunity[.]” Id. (citing 28
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`U.S.C. § 2680).
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`The FTCA applies to LCHC through the Federally Supported Health Centers Assistance
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`Acts, 42 U.S.C. § 233 (2016) (“FSHCAA”), which “makes federally-funded community health
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`centers and their employees, officers, and individual contractors eligible for medical malpractice
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`1:19-cv-02038-JMC Date Filed 12/30/20 Entry Number 27 Page 4 of 6
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`coverage under the [FTCA] . . . to the same extent as federal employees of the United States Public
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`Health Service.” El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health &
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`Human Servs., 396 F.3d 1265, 1267 (D.C. Cir. 2005) (citations omitted). Under 42 U.S.C. § 233(a),
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`a party may only recover “for damage for personal injury, including death, resulting from the
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`performance of medical, surgical, dental, or related functions, including the conduct of clinical
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`studies or investigation[.]” At issue is whether Plaintiff’s claim involves a “related function[]” of
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`LCHC’s provision of medical services.
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`Related “job functions may . . . be protected [under FSHCAA] if they are ‘interwoven’
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`with providing medical care.” Goss v. United States, 353 F. Supp. 3d 878, 886 (D. Ariz. 2018);
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`see Sanchez v. United States, No. 18-CV-1550-AJB-AGS, 2019 WL 3766615, at *4 (S.D. Cal.
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`Aug. 9, 2019) (noting a “hospital’s continued vetting of its doctors when it enters into agreements
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`with them, and when it renews agreements with them, is inextricably woven into its performance
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`of medical functions” to support a negligent hiring, supervision, and retention claim); M.G. v.
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`United States, No. 19-CV-1252-TWR-AHG, 2020 WL 6271186, at *3 (S.D. Cal. Oct. 23, 2020)
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`(similar); Bennett v. United States, 375 F. Supp. 3d 1180, 1187 (W.D. Wash. 2019) [Defendant’s]
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`alleged failure to properly supervise a doctor who they knew had exercised poor judgement with
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`female patients in the past is a ‘related function’ to the provision of medical care for female patients
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`for purposes of § 233.”); Brignac v. United States, 239 F. Supp. 3d 1367, 1377 (N.D. Ga. 2017)
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`(explaining the plaintiff’s “negligent hiring and retention claim is a ‘related function’ to the
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`provision of medical services” because the defendant, a medical care facility, was required to vet
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`physicians under FSHCAA).
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`Here, the court has subject matter jurisdiction over this action because Plaintiff’s
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`negligence claim, as alleged, involves a “related function[]” that is interwoven with LCHC’s
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`provision of medical care to patients and thus falls under Section 233(a). As a FSHCAA entity,
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`LCHC is required to demonstrate it has “reviewed and verified the professional credentials,
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`references, claims history, fitness, professional review organization findings, and license status of
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`its physicians and other licensed or certified health care practitioners.” 42 U.S.C. § 233(h). The
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`court finds the requirement of continually vetting its physicians is “inextricably woven” into
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`LCHC’s provision of medical care. See, e.g., Brignac, 239 F. Supp. 3d at 1377.
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`Moreover, Plaintiff’s claim directly relates to this job function. Plaintiff alleges LCHC
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`“was aware and had knowledge of numerous accounts of improper elicit actions, including sexual
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`advances, improper touching, groping, and molestations, by Dr. Jones but nonetheless continued
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`to employ and permit him to practice medicine at [LCHC’s] facility[.]” (ECF No. 1 at 3 ¶ 18.)
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`Taking the allegations in the light most favorable to Plaintiff, LCHC negligently retained Dr.
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`Jones despite knowledge of his prior misconduct with patients, Dr. Jones sexually assaulted
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`Plaintiff during an appointment at which Dr. Jones was supposed to provide medical care, and
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`Plaintiff’s injuries stemmed from Dr. Jones’ behavior. Such allegations unambiguously implicate
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`LCHC’s job function of continuously vetting its physicians as an integral part of its provision of
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`medical services.
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`Lastly, Defendant argues an exception to the waiver of sovereign immunity bars Plaintiff’s
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`claim. Under 28 U.S.C. § 2680(h) of the FTCA, it is true that the Government does not waive
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`sovereign immunity for “[a]ny claim arising out of assault, battery, false imprisonment, false
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`arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
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`interference with contract rights[.]” However, 42 U.S.C. § 233(e) explains that “section 2680(h)
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`of Title 28 shall not apply to assault or battery arising out of negligence in the performance of
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`medical, surgical, dental, or related functions, including the conduct of clinical studies or
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`investigations.” Given the plain language of section 233(e) and the discussion above, the court
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`finds this section was “intended to eliminate the intentional tort exception of the FTCA as it
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`pertains to assaults and batteries arising out of negligence.” Brignac, 239 F. Supp. 3d at 1379.
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`Accordingly, while Plaintiff’s claim allegedly stems from LCHC’s negligent supervision and
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`retention of Dr. Jones, who purportedly committed intentional torts, Plaintiff’s claim may
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`nonetheless proceed under section 233(e).
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`IV. CONCLUSION
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`For the foregoing reasons, the court DENIES Defendants’ Motion to Dismiss for Lack of
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`Jurisdiction. (ECF No. 23.)
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`IT IS SO ORDERED.
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`December 30, 2020
`Columbia, South Carolina
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` United States District Judge
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