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Estate of Booker v. Greater Phila. Health Action, Inc.

United States District Court, E.D. Pennsylvania

March 31, 2014

THE ESTATE OF ELAINE BOOKER, DECEASED BRANDI BOOKER, ADMINISTRATRIX
v.
GREATER PHILADELPHIA HEALTH ACTION, INC., et al

Page 657

For THE ESTATE OF ELAINE BOOKER, DECEASED BRANDI BOOKER, ADMINISTRATRIX, Plaintiff: SHARON WILSON, LEAD ATTORNEY, SHARON WILSON LLC, PHILADELPHIA, PA.

For GREATER PHILADELPHIA HEALTH ACTION, INC., Defendant: DOUGLAS K. JENKINS, LEAD ATTORNEY, THE TUCKER LAW GROUP, PHILADELPHIA, PA; MATTHEW S. FREEDUS, PRO HAC VICE, FELDESMAN TUCKER LEIFER FIDELL LLP, WASHINGTON, DC.

For DR. MONICA MALLORY-WHITMORE, D.O., Defendant: DOUGLAS K. JENKINS, THE TUCKER LAW GROUP, PHILADELPHIA, PA.

For DR. HEATHER RUDDOCK, Defendant: MARSHALL L. SCHWARTZ, LEAD ATTORNEY, O'BRIEN & RYAN LLP, PLYMOUTH MEETING, PA.

For UNITED STATES OF AMERICA, Defendant: JOAN K. GARNER, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.

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MEMORANDUM

Juan R. Sánchez, J.

In this medical malpractice action, Plaintiff Brandi Booker, in her own right and as administratrix of the estate of her deceased mother, Elaine Booker, brings professional liability claims against Greater Philadelphia Health Action, Inc. (GPHA) and two GPHA physicians, Dr. Monica Mallory-Whitmore and Dr. Heather Ruddock.[1] By virtue of GPHA's status as a federally funded community health center, it and its employees are entitled to medical malpractice liability coverage under the Federal Tort Claims Act (FTCA), 28 U.S.C. § § 1346, 2671-2680, if the Secretary of the Department of Health and Human Services (the Secretary or HHS) deems GPHA to be an employee of the Public Health Service for purposes of such coverage. Upon receipt of a favorable deeming decision, GPHA and its employees are immunized from personal liability for malpractice claims so long as the allegedly negligent parties were acting within the scope of their employment and providing services within the scope of the center's federally funded activities. If FTCA coverage applies, Plaintiff's exclusive remedy is against the United States.

In January 2013, HHS determined GPHA and Drs. Mallory-Smith and Ruddock were entitled to FTCA coverage in this case and requested that the United States Attorney for the Eastern District of Pennsylvania remove the case to federal court and substitute the United States as the Defendant. When the Government did not appear, GPHA removed the case pursuant to 42 U.S.C. § 233( l )(2) in March 2013. The United States, as the party GPHA seeks to have substituted as the sole Defendant in this action and thus the real party in interest, has filed a motion to remand, arguing GPHA's notice of removal was untimely and the services giving rise to Plaintiff's negligence claims are outside the scope of Defendants' FTCA coverage. Although the issue raised by the Government's motion is whether there is federal malpractice coverage for Plaintiff's claims, as a practical matter, this issue may be dispositive of whether Defendants have any malpractice coverage at all, as neither Dr. Mallory-Whitmore nor Dr. Ruddock has private insurance. Hr'g Tr. 46, Apr. 23, 2013. Underscoring the significance of this issue, all three Defendants, as well as Plaintiff, oppose remand. Upon consideration of the parties' legal memoranda and the arguments presented in court, and for the reasons set forth below, the Government's motion to remand will be denied.

BACKGROUND

GPHA is a Pennsylvania nonprofit, tax-exempt corporation that operates as a primary care clinic and offers health care services to residents of Philadelphia County and the surrounding areas. Notice of Removal ¶ 6. GPHA is a designated " community health center" that receives federal grant funds under Section 330 of the Public Health Service Act, 42 U.S.C. § 254b. Id.

From May 2003 until her death in April 2009, Ms. Booker worked for GPHA as an administrative assistant/customer service representative, primarily at GPHA's

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Woodland Avenue Health Center location. Am. Compl. ¶ 7; Decl. of Charles Joerger ¶ 6. During her employment at GPHA, Ms. Booker was registered as a patient of the center and received health care services from center doctors on several occasions. See Ex. to Pl.'s Opp'n to Mot. to Remand (GPHA " Patient Face Sheet" and progress notes).

In October and November, 2008, GPHA gave Ms. Booker a purified protein derivative (PPD) test and informed her the test came back positive, indicating she had been exposed to the bacterium that causes tuberculosis.[2] See Am. Compl. ¶ ¶ 8-9. After receiving the test results, Ms. Booker met with her non-GPHA primary physician, Dr. Luigi Cianci, who confirmed Ms. Booker did not have tuberculosis. Id. ¶ 10. Dr. Mallory-Whitmore and/or Dr. Ruddock, both of whom were employed by GPHA at the time,[3] thereafter prescribed the drug isoniazid for Ms. Booker as a precaution and told her to take it for three to six months. See Am. Compl. ¶ ¶ 11-12. It is undisputed that Ms. Booker received the PPD test and isoniazid prescription as part of GPHA's Employee Health Program, which requires employees working in direct contact with or with occasional exposure to patients to undergo PPD screening every six months as a condition of their employment. See Notice of Removal Ex. U, Attachment 2, at 7-8. Under the Program, GPHA provides PPD screening free of charge to at-risk employees. Id. at 2, 8. For employees with positive PPD tests, GPHA also provides chest x-rays, prophylactic therapy, and monitoring. See id. at 2, 8-9. Whether Ms. Booker was a " patient" of GPHA with respect to the services she received under the Employee Health Program is the substantive issue at the heart of the parties' dispute regarding the instant motion to remand.

Ms. Booker took the isoniazid as instructed for approximately four months. On April 16, 2009, feeling ill, Ms. Booker saw Dr. Cianci, who advised her to go immediately to the hospital. Ms. Booker was admitted to Mercy Fitzgerald Hospital (Mercy) through the hospital's emergency room the same day " for possible drug-induced hepatitis along with consideration for viral hepatitis." Am. Compl. ¶ ¶ 15, 19. While at Mercy, Ms. Booker was transferred to the intensive care unit. Id. ¶ 21. Her condition worsened, and on April 20, 2009, Mercy transferred her to the Thomas Jefferson Liver Unit (Thomas Jefferson) for further evaluation and treatment, including evaluation as a candidate for a liver transplant. Id. ¶ ¶ 23-24. The following day, Ms. Booker experienced renal failure and was placed on dialysis. Id. ¶ 26. Two days later, on April 23, 2009, she was placed on a mechanical ventilator. On April 24 or 25, 2009, Thomas Jefferson staff advised Ms. Booker's family that she " would likely die overnight." Id. ¶ 33. The family requested that she be removed from the ventilator and changed to " Do Not Resuscitate/Do Not Intubate" status. Id. Ms. Booker was thereafter placed on a morphine drip and was pronounced dead at 4:26 a.m. on April 25, 2009. Id. Her hospital discharge summary reflects a final diagnosis of " fulminant hepatic necrosis," and her attending physician noted she had developed hepatitis as a result of " INH [i.e., isoniazid] toxicity." Id. ¶ 34.

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On April 22, 2011, Plaintiff commenced this action by filing a praecipe to issue writ of summons in the Court of Common Pleas of Philadelphia County. Notice of Removal Ex. B. Plaintiff filed her original Complaint on January 23, 2012, and filed an Amended Complaint seven months later, on August 27, 2012.[4] In her Amended Complaint, Plaintiff alleges Dr. Mallory-Whitmore and Dr. Ruddock were negligent in treating Ms. Booker following her positive PPD test, including by inappropriately prescribing (or requesting that she be prescribed) isoniazid, and alleges GPHA was negligent in supervising, monitoring, and training Drs. Mallory-Whitmore and Ruddock. Plaintiff contends Defendants' negligence resulted in Ms. Booker's debilitating illness and eventual death.

After learning of Plaintiff's lawsuit, GPHA requested representation for itself and Drs. Mallory-Whitmore and Ruddock from HHS pursuant to the Federally Supported Health Centers Assistance Act (FSHCAA)[5] and the FTCA. As discussed in greater detail below, the FSHCAA makes a suit against the United States under the FTCA the exclusive remedy for medical negligence claims against public or private nonprofit entities receiving federal funds under 42 U.S.C. § 254b and employees of such entities in certain circumstances. Federally funded community health centers like GPHA are entitled to FTCA coverage for malpractice claims against themselves and their employees if the Secretary has deemed the entity and its employees to be employees of the Public Health Service for purposes of 42 U.S.C. § 233 with respect to the actions or omissions that are the subject of the underlying malpractice claims.

On November 22, 2011, HHS denied GPHA's request for representation. The agency acknowledged GPHA and its employees were deemed to be Public Health Service employees " in cases arising out of the provision of medical or related service, while acting within the scope of their employment," but because Dr. Ruddock was employed by GPHA as a pediatrician, the agency concluded the medical services Dr. Ruddock had provided to Ms. Booker in November 2008 were outside the scope of her employment.[6] Notice of Removal Ex. T. HHS issued a further denial of coverage on July 9, 2012, on the basis that Ms. Booker had received the medical services and prescription medication at issue during an " Employee Health Fair," an activity outside the scope of GPHA's approved grant activities and thus outside the scope of the health center's FTCA coverage. Id.

In November 2012, GPHA requested reconsideration of HHS's denials of its request for representation in this case. As to the November 22, 2011, denial, GPHA argued that, contrary to HHS's finding, Dr. Ruddock was acting within the scope of her employment with GHPA when she provided services to Ms. Booker for two reasons. First, GPHA noted that in addition to granting Dr. Ruddock Level 4 (i.e., expert) privileges as a pediatrician, GPHA

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had granted her Level 2 privileges as a family practitioner, permitting her to manage " usual and uncomplicated cases," including the services provided to Ms. Booker. See Notice of Removal Ex. U & Attachment 1. Second, GPHA maintained Dr. Ruddock was acting within the scope of her employment as one of two Employee Health Officers for GPHA's Woodland Avenue Health Center, the GPHA site where Ms. Booker worked. GPHA observed that as an Employee Health Officer, Dr. Ruddock was responsible for providing services pursuant to the GPHA's Employee Health Program.

As to HHS's July 9, 2012, denial of coverage, GPHA argued the factual basis of the denial was incorrect because Ms. Booker did not receive services as part of an " Employee Health Fair." GPHA also took issue with HHS's suggestion that care provided to employees was outside its approved scope of project. In this regard, GPHA observed that under applicable Health Resources and Services Administration (HRSA)[7] policy, it was required to make services available not just to its target population of medically underserved persons, but also to all residents of its service area and to all those presenting for service with acute care needs, regardless of residence. GPHA also maintained Ms. Booker was a patient of the health center pursuant to ...


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