United States District Court, W.D. Missouri, Central Division
LISA M. WILCOX, Plaintiff,
LAKE REGIONAL HEALTH SYSTEM, RICHLAND MEDICAL CENTER, LLC, ROBERT C. NIELSEN, M.D., and RUSSELL JOHNSON, M.D. Defendant.
DOUGLAS HARPOOL UNITED STATES DISTRICT JUDGE.
the Court is the United States' Notice of Substitution of
the United States as the Proper Party-Defendant (Doc. 3) and
The United States Of America's Motion to Dismiss. (Doc.
4). Plaintiff was provided time to conduct discovery
depositions regarding the issue of the defendant doctors'
employment as raised in the pending motions, and the parties
have now fully briefed the issues raised in the
government's motions. On August 4, 2016, the Court heard
oral argument from the parties.
Amended Petition for Damages brings several claims against
Defendant Lake Regional Health System, d/b/a Lake Regional
Hospital; Defendant Richland Medical Center, Inc., d/b/a
Central Ozarks Medical Center; Defendant Russell Johnson,
M.D.; and Defendant Robert Nielsen, M.D. based on an alleged
medical malpractice and negligence.
United States has filed its Notice of Substitution stating
Russell Johnson, M.D. and Robert Nielson, M.D. were acting
within the scope of their employment with the Richland
Medical Center, Inc., a federally supported health care
center during the relevant events alleged in the petition.
Attached to the Notice of Substitution is a Certification
from the Assistant Attorney General stating Johnson and
Nielsen were acting within their scope of duties as employees
of the Richland Medical Center which has been deemed part of
the Public Health Service, an agency of the United States.
The affidavit also notes that the employment of Russell
Johnson, M.D. was only from September 30, 2010 through
February 7, 2012.
opposition to this notice states Defendant Nielsen had staff
privileges at non-federal Defendant Lake Regional Hospital
where certain alleged actions were performed. Therefore,
Plaintiff argues there remains a question regarding
Nielsen's protection under the FTCA. Plaintiff further
contends the Defendants have not provided discovery that
would allow for a proper determination of their status as
federal/nonfederal employees and whether the alleged conduct
could be construed as within the course and scope of
employment to be afforded protection under the FTCA. However,
after the parties initially filed their motions and briefs,
Plaintiff took the depositions of Kevin McRoberts, Senior
Vice President of Operations at Lake Regional Health Systems;
and Robert Stiles, the corporate representative for Richland
Medical Center in which she was able to conduct discovery on
the issue of the defendant doctors' employment.
United States argues it has provided certification that
complies with 28 U.S.C.A. § 2679 which states:
(d)(1) Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office
or employment at the time of the incident out of which the
claim arose, any civil action or proceeding commenced upon
such claim in a United States district court shall be deemed
an action against the United States under the provisions of
this title and all references thereto, and the United States
shall be substituted as the party defendant.
discussing substitution of a party under this statute, the
8th Circuit has stated the immunity conferred by
§ 2679(b) provides that plaintiff's remedy is
exclusively against the United States for alleged injury from
the negligent or wrongful act of any employee of the
Government who was acting within the scope of his office or
employment. Brown v. Armstrong, 949 F.2d 1007, 1010
(8th Cir. 1991); citing § 2679(d)(1). Further, the
immunity is triggered when the Attorney General or his
designate, including the U.S. Attorney, certifies that
federal employees have been sued for conduct within the scope
of their employment. Id. If the Attorney General or
his designate provides certification, then the United States
shall be substituted as the party defendant. Id.
8th Circuit also held “that the district
court retains authority to determine the scope-of-employment
issue before substituting the United States as
defendant.” Id. at 1011. (internal citations
omitted). The 8th Circuit reasoned “the
purpose of the Liability Reform Act was to protect federal
employees from the uncertain and intimidating task of
defending suits that challenge conduct within the scope of
their employ” and therefore, challenges to the Attorney
General's certification regarding scope of employment
must be resolved before trial. Id., at 1011-1012. (A
challenge should be resolved “as soon after the motion
for substitution as practicable, even if an evidentiary
hearing is needed to resolve relevant fact disputes.”).
the Attorney General's certification is prima facie
evidence that the employee's challenged conduct was
within the scope of employment. Id. at 1012. As a
result, if Plaintiff contests the certification, plaintiff
then bears the burden of proving that the employee was not
acting within the scope of employment. Id. (internal
citations omitted). After the depositions of McRoberts and
Stiles, Plaintiff filed supplemental suggestions in
opposition to the motion to substitute. However, Plaintiff
appears to no longer contest the employment of Dr. Johnson
and has provided no evidence or argument regarding his
employment. Plaintiff has also admitted Dr. Johnson was an
employee of Richland Medical Center. In addition, the United
States recently filed suggestions of death stating Dr.
Johnson is deceased and has not been served with process.
Plaintiff's remaining opposition to the substitution
focuses on the scope of employment of defendant Nielsen.
Plaintiff argues Nielsen had staff-privileges at non-federal
defendant Lake Regional Hospital and as a result is not a
federal employee acting within the scope of his employment
with a federal agency. However, staff privileges generally
“permit a doctor to use hospital facilities to practice
his medical profession, ” but do not constitute
employment or a contract for employment. See Engelstad v.
Virginia Mun. Hosp., 718 F.2d 262, 267 (8th Cir. 1983);
citing, Note, “Denial of Hospital Staff Privileges:
Hearing and Judicial Review, ” 56 Iowa L.Rev. 1351,
1351-52 (1971); Shapiro, Law, Medicine and Forensic Science,
636 (3d Ed.1982).
than the staff privileges Nielsen held at Lake Regional
Hospital, Plaintiff has not made any further challenges or
provided any evidence to refute the Attorney General's
certification that Nielsen was an employee of federally
funded Richland Medical Center.Plaintiff argues Nielsen had
privileges at Lake Regional, that Lake Regional maintained a
file that contained his credentials, licensure and
privileges; that he was “on staff;” that he was
able to treat patients; and that he was required to abide by
Lake Regionals by-laws and policies. However, Plaintiff does
not offer any evidence of an employment relationship beyond
the allegations regarding Nielson's staff privileges with
Lake Regional. This is not enough to defeat the Attorney
General's certification of Nielsen's employment under
cites to Scott v. SSM Healthcare St. Louis, 70
S.W.3d 560 (Mo.Ct.App. 2002), arguing that there is a
question of fact suitable for a jury regarding whether Dr.
Nielsen was “an employee” of Lake Regional. In
Scott, the court was presented with the issue of
whether a doctor was acting as an independent contractor or
an agent of the hospital. Id. at 567. The court held
it was a factual question for the jury regarding whether the
hospital in question controlled or had the right to control
the conduct of the doctor and whether agency existed.
Id. at 566-567. However, the facts here are
distinguishable from the facts in Scott. Here, the
issue before the Court is whether the United States should be
substituted based on the U.S. Attorney's ...