United States District Court, E.D. Pennsylvania
Bilyeu filed this lawsuit in the Montgomery County Court of
Common Pleas for medical malpractice against various
Defendants, including William Haug, III, D.O. (“Dr.
Haug”), Jacek Z. Obara, M.D. (“Dr. Obara”),
and Community Health and Dental Care, Inc.
(“CHDC”). CHDC, Dr. Obara, and Dr. Haug are
employees of the Public Health Service and therefore covered
by the Federal Tort Claims Act (“FTCA”). Under
the FTCA, the United States is the only proper defendant for
personal injury cases resulting from the performance of
medical services. Thus, the Court will grant the motion to
dismiss Dr. Obara, Dr. Haug, and CHDC, and substitute the
United States for those Defendants. Because Bilyeu has failed
to commence, let alone exhaust, administrative remedies, the
Court will also dismiss the claims against the United States
for lack of subject matter jurisdiction. Finally, the Court
will decline to exercise supplemental jurisdiction over the
remaining state law claims, and will remand the case back to
the Court of Common Pleas.
used CHDC as her primary care doctor's office, with Dr.
Obara and Dr. Haug as her primary care physicians. (Mem.
Supp. Pl.'s Resp. Mot. Dismiss [hereinafter Pl.'s
Resp.] 1- 2.) On October 27, 2014, Bilyeu suffered
complications from a hysterectomy performed at a different
facility, resulting in severe abdominal pain and loss of
kidney function. (Id.) Bilyeu went to CHDC after the
pain continued, where Drs. Obara and Haug allegedly failed to
diagnose an obstructed left ureter resulting from the
August 26, 2016, Bilyeu filed a writ of summons against CHDC,
Dr. Haug, and five other defendants in the Montgomery County
Court of Common Pleas, alleging medical malpractice.
(Id. at 4.) On October 26, 2016, Bilyeu filed a
similar writ of summons against Dr. Obara and an additional
defendant. (Id. at 5.) The Court of Common Pleas
consolidated the two cases on March 10, 2017. Bilyeu has not
filed an administrative claim with the appropriate
administrative agency: the Department of Health and Human
Services (“HHS”). (Mem. Supp. U.S.' Mot.
Dismiss [hereinafter U.S.' Mot.] Exs. B & C.)
United States filed a notice of removal on behalf of CHDC and
Drs. Haug and Obara under 42 U.S.C. § 233. The United
States then filed a motion to dismiss certain defendants,
substitute the United States, and dismiss the United States
for lack of subject matter jurisdiction.
STANDARD OF REVIEW
considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the court must decide
whether to treat the challenge as a facial or factual attack.
Constitution Party of Pa. v. Aichele, 757, F.3d 347,
357 (3d Cir. 2014). If the movant alleges the complaint on
its face fails to establish subject matter jurisdiction, the
court treats the challenge as facial and must accept as true
all factual allegations alleged in the complaint.
Mortenson v. First Fed. Sac. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). Factual attacks, however,
allow the court to delve beyond the pleadings to determine if
the evidence supports the court's subject matter
Substitution of the United States
failed to address the argument that CHDC and Drs. Haug and
Obara must be dismissed and the United States substituted as
a defendant. (Pl.'s Resp.) Claims involving personal
injuries arising out of medical care provided by employees of
the United States Public Health Service must be filed against
the United States under the FTCA. 42 U.S.C. § 233(a).
CHDC is an employee of the United States Public Health
Service, as are Drs. Haug and Obara by virtue of their
employment with CHDC. (U.S.' Mot. Ex. A.) Therefore,
CHDC, Dr. Haug, and Dr. Obara are dismissed and the United
States is substituted as the sole federal defendant.
Exhaustion of Administrative Remedies
a court can entertain a lawsuit for damages under the Federal
Tort Claims Act, the plaintiff must first present the claim
in writing to the appropriate federal agency “within
two years after such claim accrues.” 28 U.S.C. §
2401(b). Next, the agency must “make final
disposition” of the claim, which includes an
agency's failure to take any action on the claim for six
months. 28 U.S.C. § 2675(a). Plaintiff then has six
months from notice of the final denial to sue the United
States. § 2401(b). “The final denial requirement
is jurisdictional and cannot be waived.” Lightfoot
v. United States, 564 F.3d 625, 627 (3d Cir. 2009)
(quotation omitted). The relevant government agency in this
case is HHS. See, e.g., Huertero v. United
States, 601 F. App'x 169, 170 (3d Cir. 2015)
(indicating on similar facts that the “appropriate
federal agency” was HHS).
United States has presented both a factual and a facial
challenge to subject matter jurisdiction. The United States
argues that Bilyeu not only failed to exhaust her
administrative remedies because she never filed a claim with
HHS, but also that she failed to allege as much in her state
court complaint. (U.S.' Mot. 4, Exs. B, C, D, & E.)
Bilyeu responds with an appeal to Santos ex rel. Beato v.
United States, 559 F.3d 189 (3d Cir. 2009), contending
that “a timely filing of a claim subject to the [FTCA]
. . . in state court was deemed a timely filing to the
appropriate federal administrative agency.” (Pl.'s
Resp. 6.) She further argues that filing the state court case
put the “appropriate administrative agency . . . on
notice of a tort claim.” (Id. at 8.) Bilyeu
failed to mention that the plaintiff in Santos did,
in fact, file an administrative claim with HHS, whereas
Bilyeu has not. Santos, 559 F.3d at 192. Even
assuming the dubious contention that HHS had notice of
Bilyeu's claim via a state court lawsuit, notice to the
agency is insufficient; Bilyeu must present in writing the
proper administrative claim with the appropriate
administrative agency. 28 U.S.C. § 2401(b). A claim