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Wilcox v. Lake Regional Health System

United States District Court, W.D. Missouri, Central Division

September 8, 2016

LISA M. WILCOX, Plaintiff,



         Before 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.

         Plaintiff's 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.


         The 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.

         Plaintiff's 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.

         The 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.

         In 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.

         The 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.”).

         However, 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. (Doc. 49).

         Therefore, 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).

         Other 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.[1]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 the FTCA.

         Plaintiff 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 ...

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