United States District Court, M.D. Pennsylvania
NORMAN K. NOLDEN, Plaintiff.
UNITED STATES OF AMERICA, et al., Defendants.
YVETTE KANE, District Judge.
Before the Court is Defendant United States of America's motion to dismiss Plaintiff Norman K. Nolden's amended complaint. (Doc. No. 38.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will grant the motion, and dismiss the United States as a party to the action.
On January 29, 2010, the United States Department of Veterans Affairs' Medical Center ("VA Center"), located in Lebanon, Pennsylvania, entered into a contract with the Penn State Milton S. Hershey Medical Center ("HMC") to provide ophthalmology services. (Doc. No. 39-4.) Pursuant to the terms of the contract, HMC agreed to designate ophthalmology specialists to provide services at the VA Center, such as providing on-site instructions to medical residents and performing eye examinations and surgical procedures. (Doc. No. 39-4 at 6.) The contract provides as follows:
It is expressly agreed and understood that this is a nonpersonal services contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under which the professional services rendered by the Contractor or its health-care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered, including by example, the Contractor's or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments. The Contractor and its health-care provider shall be liable for their liability-producing acts or omissions. The Contractor shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than the following amount(s) per speciality per occurrence: one million dollars.
(Id. at 12.) In accordance with this contract, HMC ophthalmology specialists Drs. Ali Aminlari, Joseph Sassani, and David Liang, enjoyed clinical privileges at the VA Center from November 19, 2008 until December 31, 2010. ( Id. at 24-59.) Additionally, on May 26, 2009, HMC informed the VA Center that Dr. Hanny Isawi and other physicians would serve as ophthalmology residents at the VA Center. ( Id. at 73-74.) On April 1, 2010, the VA Center entered into a letter of agreement with HMC concerning its medical residents' clinical rotations at the VA Center, which provided that HMC would designate the medical residents and pay their salary, benefits, and liability insurance, and that Dr. Sassani would be responsible for supervising the residents. ( Id. at 70-71.) Moreover, the agreement provided that HMC's policies and procedures would apply to the medical residents working at the VA Center. ( Id. at 71.)
On August 12, 2010, Plaintiff Norman K. Nolden sought treatment at the VA Center for blurry and decreased vision in his left eye. (Doc. No. 28 ¶ 27.) Plaintiff received treatment over the next few weeks. (Id.) The details of Plaintiff's medical treatment were thoroughly set forth in the Court's memorandum addressing the United States' first motion to dismiss. (See Doc. No. 27.) Plaintiff's treatment concluded when HMC physicians surgically removed his left eye. ( Id. ¶ 53.) Since this surgery, Plaintiff has developed cataracts in his right eye and suffered a complete loss of vision in his left eye. ( Id. ¶ 55.)
On August 8, 2012, Plaintiff filed a complaint against Defendants Dr. Aminlari, Dr. Isawi, and the United States, alleging that Drs. Isawi and Aminlari negligently examined and operated on his left eye, and that the United States is vicariously liable for their negligence under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA"). On November 12, 2012, the United States filed a motion to dismiss Plaintiff's complaint for lack of subject-matter jurisdiction, contending that Defendants Drs. Isawi and Aminlari were independent contractors of the United States when they provided services to Plaintiff and, therefore, their actions fell outside of the jurisdiction of the FTCA. (Doc. No. 17.) On June 18, 2013, the Court granted the United States' motion to dismiss the claim against it on the grounds that Plaintiff had not established that Defendants Drs. Isawi and Aminlari were federal employees, but allowed Plaintiff leave to file an amended complaint. (Doc. No. 27.)
On July 3, 2013, Plaintiff filed an amended complaint (Doc. No. 28), again alleging that Defendants Drs. Isawi and Aminlari were federal employees who were negligent in the course of examining and operating on his left eye. ( Id. at 16.) Additionally, Plaintiff contends that the FTCA independent contractor exception does not apply to this action because the United States has a non-delegable, statutory duty to provide acceptable medical care at the VA Center. ( Id. at 12.) As in his initial complaint, Plaintiff specifically alleges that Defendants Drs. Isawi and Aminlari were federal employees because their supervisor, Dr. Sassani, was a federal employee with the right to control their work. ( Id. ¶ 66). Plaintiff thus concludes that the United States is liable for any negligence of Drs. Isawi and Aminlari under the FTCA. ( Id. ¶ 66.) Moreover, Plaintiff claims that the United States is also liable for any negligence by "other physicians, nurses, and healthcare workers whose names appear in the medical records of Defendant" pertaining to Plaintiff's treatment. ( Id. ¶ 9.)
The United States filed a motion to dismiss Plaintiff's amended complaint, arguing that Drs. Sassani, Isawi, and Aminlari are all independent contractors rather than federal employees, and thus, the Court lacks subject-matter jurisdiction as to the United States in this action. (Doc. No. 38.) It also contends that to the extent Plaintiff alleges that the United States is vicariously liable for certain named and unnamed healthcare providers who treated Plaintiff at the VA Center, Plaintiff fails to state a claim upon which relief can be granted. (Doc. No. 39 at 24.) Alternatively, the United States argues that the Court should dismiss the action against it because Plaintiff failed to file a certificate of merit as required by Pennsylvania law. ( Id. at 6.) Further, the United States asserts that it does not have a non-delegable statutory duty that prohibits invocation of the FTCA independent contractor exception. (Doc. No. 45 at 2.) The Court will address the parties' arguments in turn.
II. STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a defendant may move the Court to dismiss an action for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). "A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Gould , 220 F.3d at 176. In assessing a facial attack, the court is limited to considering "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 challenge, the court is free to consider evidence outside the pleadings. Id . In addition, once a defendant moves to dismiss under Rule 12(b)(1), the burden shifts to the plaintiff to demonstrate the existence of subject-matter jurisdiction. PBGC v. White , 998 F.2d 1192, 1196 (3d Cir. 2000).
Dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is proper when the defendants are entitled to judgment as a matter of law. See Markowitz v. Ne. Land Co. , 906 F.2d 100, 103 (3d Cir. 1990). To avoid dismissal, the complaint must contain allegations sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). Essentially, a plaintiff must "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost v. Kozakiewicz , 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). Put otherwise, a civil complaint must "set out sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). A court, however, "need not ...