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Athena Vojtecky, Administratrix of the Estate of John L. Vojtecky, Deceased, and v. the United States of America

September 27, 2012

ATHENA VOJTECKY, ADMINISTRATRIX OF THE ESTATE OF JOHN L. VOJTECKY, DECEASED, AND ATHENA VOJTECKY, IN HER OWN RIGHT, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Mitchell, Magistrate Judge:

MEMORANDUM OPINION AND ORDER

Presently before the Court is the defendant's motion to dismiss the complaint. For reasons discussed below, the defendant's motion to dismiss (Document No. 14) will be denied.

The plaintiff, Athena Vojtecky, individually and in her capacity as administratrix of the estate of John L. Vojtecky, deceased, commenced this action against the defendant, United States of America ("USA"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. The plaintiff was the wife of decedent John L. Vojtecky. She complains that USA employees at the Veterans' Affairs Medical Center in Pittsburgh, PA ("VAMC") were negligent in rendering medical care to the decedent prior to his death, for which she seeks money damages for herself and two daughters under Pennsylvania's Wrongful Death Act and Survival Act.

The plaintiff contends that on or about May 22, 2008, her decedent was treated at the VAMC for a L3-5 laminectomy with a dural repair (complaint at ¶ 6); that post-operatively, he became agitated, required sedation and was given Fentanyl, Ativan and Morphine as prescribed by Dr. Juan Zubieta (Id. at ¶ 7); and that according to Dr. Zubieta's dictated summary: "the doses of narcotics were increased until he reached a point of comfort in which he was experiencing neither psychological nor physical signs of withdrawal, however the dose of narcotics required to control his withdrawal was too high for him to be protecting his airway." (Id. at ¶ 8).

The plaintiff asserts that on May 24, 2008, Mr. Vojtecky required intubation; and a chest x-ray showed severe bilateral pulmonary infiltrates (Id. at ¶ 9). Clinically, he was severely hypoxemic and hypercapnic, with severe hemodynamic instability secondary to distributive shock (Id.). On June 10, 2008, Mr. Vojtecky required a tracheostomy (Id. at ¶ 10). He developed ascites, acute renal failure requiring hemodialysis, spinal wound infection which required debridement, critical illness polyneuropathy and quadraparesis, anemia, thrombocytopenia, severe infections and coagulopathy from which he would not recover. He died on July 15, 2008 (Id.).

According to the plaintiff, her decedent's aspiration, pneumonia, sepsis, multisystem organ failures and death were the direct and proximate result of the negligence of the USA's employees, for which she seeks monetary damages (Id. at ¶¶ 11, 13-15). The Court's jurisdiction is invoked pursuant to the FTCA.

The FTCA vests exclusive jurisdiction in district courts for claims against the USA for money damages involving "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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). Importantly, the USA is not liable under the FTCA unless the alleged tortfeasor is an employee of the government. Moreno v. U.S., 387 Fed.Appx. 159, 160, 2010 WL 2764111, *1 (3d Cir., July 14, 2010), citing 28 U.S.C. §§ 1346(b), 2671.

As used in the FTCA, the terms "Federal agency" and "Employee of the government" do not include any contractor with the United States. See, 28 U.S.C. § 2671, and Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997). "Thus, suits against independent contractors are not viable" under the FTCA. Moreno, 387 Fed.Appx. at 160, citing U.S. v. Orleans, 425 U.S. 807, 813-14 (1976), and Norman, 111 F.3d at 357 ("there is an independent-contractor exemption in the [FTCA].").

The USA has moved to dismiss the complaint pursuant to F.R.Civ.P. 12(b)(1) and 12(b)(6). In its Rule 12(b)(1) motion to dismiss, the USA argues it is immune from suit by virtue of the "independent contractor" exemption in the FTCA, as certain physicians who provided care to Mr.Vojtecky were independent contractors and not its employees, such that the Court lacks subject matter jurisdiction over this action.

A Rule 12(b)(1) motion to dismiss "may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a "facial attack", which is based on the legal sufficiency of the claim, the Court "must only consider the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Id. Conversely, in reviewing a "factual attack", as here, where a challenge is based on the sufficiency of jurisdictional fact, "the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case." See, Carpet Group Int. v. Oriental Rug Importers, 227 F.3d 62, 69 (3d Cir. 2000). In such a scenario, "the court may consider evidence outside the pleadings", Gould Electronics, 220 F.3d at 176, as "no presumptive truthfulness attaches to plaintiff's allegations". Carpet Group, 227 F.3d at 69.

In support of its Rule 12(b)(1) motion to dismiss, the USA asserts that thirteen of the physicians who provided medical care to Mr. Vojtecky during the relevant time period were not employees of the VAMC; rather, they provided care to VA patients, including Mr. Vojtecky, pursuant to contracts between the VA and several physicians' groups as follows:

* the VA contracted with University of Pittsburgh Physicians ("UPP") to provide Critical Care Medicine Physician services, pursuant to Contract

Number V244P-00874; * the VA contracted with the UPP Department of Neurological Surgery to provide neurological services, pursuant to Contract Number V244P-01045; * the VA contracted with UPP to provide Thoracic Surgeon services, pursuant to Contract Number V244P-01150; * the VA contracted with the UPP Department of Plastic Surgery to provide

Plastic Surgery services, pursuant to Contract Number V244P-01047; and * the VA contracted with the UPP Department of Anesthesiology pursuant to Contract Number VA244P-0083, and with Medical Doctor Associates pursuant to ...


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