The opinion of the court was delivered by: Stengel, J.
This negligence action arises from the death of Nayelis Ruiz Roman on February 27, 2008 at the Children's Hospital of Philadelphia. She was eleven days old. Ismael Roman, as Administrator of the Estate of Nayelis, and Yadira Roman and Carlos Ruiz, as her parents, bring claims for negligence, wrongful death, survival, and negligent infliction of emotional distress against several doctors, Southeast Lancaster Health Services, Inc., and Lancaster General Hospital.
Dr. Johnsen-Martin, Dr. Eash-Scott, and Southeast Lancaster Health Services, Inc., filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), asserting they are shielded from individual liability by the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. They claim they fall under its scope by operation of the Public Health Service Act, 42 U.S.C. § 233, which provides the exclusive remedy for civil claims against federally funded public or non-profit private entities and their employees pursuant to the FTCA. See 42 U.S.C. § 233(a),(g). Because they assert special status as federal employees, I will refer to the two doctors and Southeast Lancaster Health Services as the "federal defendants."*fn1 The federal defendants also seek to substitute the United States as a party defendant in their stead and to dismiss the claims against the United States without prejudice given the jurisdictional mandates of the FTCA. The plaintiffs oppose the motion in its entirety and dispute whether the federal defendants are entitled to federal employee immunity under the FTCA. Alternatively, in the event the FTCA does govern, the plaintiffs seek to invoke the Act's savings provision, 28 U.S.C. § 2675(d)(5), to rescue their administrative claim from the express two year statute of limitations.
Nayelis Ruiz Roman was born on February 16, 2008 at Lancaster General Women & Babies Hospital and passed away at the Children's Hospital of Philadelphia on February 27, 2008. Pls. Ex. A ¶¶ 4-5. Ms. Roman received prenatal care at Southeast Lancaster Health Services beginning on September 18, 2007. Ms. Roman's care started with prenatal visitations, continued through her admittance to obstetric triage at Lancaster General Women & Babies Hospital on February 15, 2008, and concluded with Nayelis's birth the following day. Id. ¶ 33. The plaintiffs assert that, from Ms. Roman's initial admittance to obstetric triage through the birthing process and the delivery of Nayelis, Dr. Johnsen-Martin and Dr. Eash-Scott, acting as agents of Southeast Lancaster Health Services, provided negligent medical evaluation, care and treatment to Ms. Roman and Nayelis. Id. ¶¶ 18, 31-111. Specifically, they allege the doctors unduly delayed and negligently performed the delivery, causing Nayelis's injury and death by hypoxic ischemic brain injury. Id. ¶¶ 126-130.
The plaintiffs filed a complaint in the Court of Common Pleas of Lancaster County, Pennsylvania on December 30, 2009.*fn3 On March 31, 2010, the federal defendants removed this action to the Eastern District of Pennsylvania pursuant to 42 U.S.C. § 233(c), 28 U.S.C. §§ 1441(a) and 2679(d)(2). By virtue of the Federally Supported Health Centers Assistance Act, 42 U.S.C. §§ 233(a),(g), the federal defendants apparently fall under the Federal Tort Claims Act. The federal district courts possess original jurisdiction over claims under the FTCA. 28 U.S.C. § 1346. On April 1, 2010, the federal defendants filed this motion to dismiss, arguing the plaintiffs have not complied with the jurisdictional prerequisites of the FTCA. The plaintiffs filed an administrative claim with the United States Department of Health and Human Services on April 12, 2010 but have not received written notice of denial.
II. STANDARD FOR MOTION TO DISMISS
A motion to dismiss under Rule 12(b)(1)*fn4 of the Federal Rules of Civil Procedure either challenges the complaint on its face for failure to allege subject matter jurisdiction or challenges the court's jurisdiction in fact. See Robinson v. United States, No. 92-4869, 92-6175, 1993 U.S. Dist. LEXIS 3161, *2 (E.D. Pa. Mar. 16, 1993) (citing Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170, 172 (E.D. Pa. 1988). Here, the federal defendants substantively question the court's jurisdiction, so "the court need not accept all plaintiff[s'] allegations as true." Robinson, 1993 U.S. Dist. LEXIS 3161, at * 2; see also Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) ("No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims."). In deciding a Rule 12(b)(1) motion, the court may consider facts distinct from the pleadings. See Mortensen, 549 F.2d at 891; accord Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997). The plaintiffs, as the party asserting jurisdiction, bear the burden of proof. See Dev. Fin. Corp. v Alpha Hous. & Health Care, 54 F.3d 156, 158 (3d Cir. 1995).
A. THE FEDERAL TORT CLAIMS ACT
The United States enjoys immunity from suit except in the situations where it consents to be sued. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994); Loeffler v. Frank, 486 U.S. 549, 554 (1988). Jurisdictional in nature, sovereign immunity requires express waiver by Congress as a precondition for a court to maintain suit against the federal government. Meyer, 510 U.S. at 475; see also United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). The terms of the United States' "consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941).
2. THE FEDERAL TORT CLAIMS ACT
The Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq, constitutes an express waiver of sovereign immunity and exposes the United States and its agencies to potential liability for private actions sounding in tort. See Pascale v. United States, 998 F.2d 186, 189 (3d Cir. 1993). The FTCA allows suit against the federal government for the negligent acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see also Pascale, 998 F.2d at 187 ("The [FTCA], ...