United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
Emil
Flute and Patricia Flute (collectively Plaintiffs) have sued
the United States under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346(b), 2671-2680, alleging that the
negligence of the Podiatry Clinic-at the Omaha-Winnebago
Public Health Service Hospital (Winnebago Hospital), through
its federal employees and agents, during its treatment of
Emil, caused injuries to Emil, loss of consortium, and
negligent infliction of emotional distress. Doc. 1. The
United States filed an answer denying liability, Doc. 6, and
then filed a motion to dismiss for lack of subject-matter
jurisdiction under Federal Rules of Civil Procedure 12(b)(1)
and 12(h)(3), Doc. 8. Plaintiffs oppose this motion, Doc. 16,
and the United States submitted additional materials outside
the pleadings. Docs. 9-10, 14, 24. For the reasons explained
below, this Court grants in part and denies in part the
United States' motion to dismiss.
I.
Facts
The
United States seeks to provide, administer, and oversee
health services to members of federally recognized tribes
through Indian Health Services (IHS), which is an agency
within the. Department of Health and Human Services (HHS).
Doc. 1 at ¶ 4. The Winnebago Hospital is part of IHS
with responsibility for providing health services to American
Indians. Doc. 1 at ¶ 4.
IHS and
AB Staffing Solutions, LLC (Staffing Solutions) entered into
a contract for podiatry services at the Winnebago Hospital,
in Winnebago, Nebraska, to begin April 1, 2017, until a date
to be determined in the future. Doc. 9 at ¶ 2; Doc. 9-1
at 1. The contract's scope of work provides that
"[t]he contractor is subject to the supervision and
direction of the Clinical Director or Designee." Doc. 9
at ¶ 5; Doc. 9-2 at 1. The contract also incorporated
Federal Acquisitions Regulations, including 48 C.F.R. §
52.237-7 titled "Indemnification and Medical Liability
Insurance." Doc. 9-3 at 1. Section (a) of that
regulation states:
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 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 professional medical judgment, diagnosis, or
specific medical treatments. The Contractor shall be solely
liable for and expressly agrees to indemnify the Government
with respect to any liability producing acts or omissions by
it or by its employees or agents. The Contractor shall
maintain during the term of this contract liability insurance
issued by a responsible insurance carrier.....
48 C.F.R. § 52.237-7.
The
podiatry services contract also contains a document titled
"CONTRACTOR'S PERFORMANCE CONDITIONS 85
RESPONSIBILITIES." Doc. 9-4. The contract states that
the contractor is responsible for reporting all taxes,
providing his own transportation to work, his health and
retirement benefits, maintaining satisfactory standards of
competence, conduct, appearance, and integrity, and notifying
the supervisor/director if he will be late, ill, or unable to
work. Doc. 9-4. Additionally, the contract provides that the
"Contractor earns no leave and is compensated only for
hours actually worked at the agreed compensated rate."
Doc. 9-4.
Emil
received care at the Podiatry Clinic at the Winnebago
Hospital between April 17, 2017 and June 2, 2017. Doc 1 at
¶ 13; Doc. 1-5, at 1. According to the Plaintiffs,
during this time frame, "a podiatry instrument was not
properly sterilized between procedures, raising concerns of
blood-borne diseases potentially being transferred from
patient to patient .... The podiatrist responsible for the
error has since been terminated----[This was discovered when
a] nurse noticed the physician had improperly sterilized the
instrument."[1] Doc. 1-5 at 5-6. On or about August of
2017, Emil received a letter from HHS informing him that the
medical instruments used during his visits may not have been
properly sterilized and Emil may have been infected with
diseases including Hepatitis B, Hepatitis C, or Human
Immunodeficiency Virus. Doc. 1 at ¶ 15. Patricia,
Emil's wife, learned that she too may be infected. Doc. 1
at ¶ 16.
Plaintiffs
presented an administrative claim for their injuries, pain
and suffering, and emotional distress to HHS in February
2018. Doc. 1 at ¶ 5. In May 2018, Plaintiffs'
administrative claim was denied. Doc. 1 at ¶ 6. In
September 2018, Plaintiffs filed this claim under the FTCA,
requesting damages for Emil's alleged injuries, loss of
consortium for Patricia, negligent infliction .of emotional
distress for both Plaintiffs, costs and attorney's fees,
any and all other remedies provided pursuant to the FTCA, as
well as any other relief this Court may order. Doc. 1.
Plaintiffs attached to their complaint a HHS letter denying
Plaintiffs' claims, certain medical records, a letter
from HHS to Plaintiffs informing them that a podiatry
instrument used on Emil may not have been properly
sterilized, and news articles. Docs. 1-2, 1-3, 1-4, 1-5.
The
United States answered the complaint, denying that its
employees and agents failed to act with due care and
diligence at all relevant times and denying that the United
States proximately caused any injury to Plaintiffs. Doc. 6 at
¶¶ 42-43. Additionally, the United States asserted
that Plaintiffs' alleged injuries were caused solely by
the negligence of a third party-Dr. John Horlebein-who was
not a federal employee for purposes of FTCA liability, such
that this Court . does not have subject-matter jurisdiction
over the Plaintiffs' complaint. Doc. 6 at ¶ 45. The
United States then filed a motion to dismiss. Doc. 8.
With
its motion to dismiss, the United States filed a Declaration
of the Chief of the Contracting Office at IHS and attached
various documents to provide information about the contract
between IHS and Staffing Solutions for podiatry services.
Doc. 9. The United States also filed a Declaration of the
Clinical Director for the Lockport Service Unit at IHS and
attached the Omaha-Winnebago Medical Staff Rules and
Regulations of the Great Plains IHS. Doc. 10. Additionally,
the United States filed some of Emil's medical records.
Doc. 14. The Plaintiffs' response to the motion to
dismiss argued that the complaint was based on the actions of
"Winnebago Indian Health Services and All [sic] of its
employees and supervisors who are in charge of properly
sanitizing the hospital instruments," and not based on
just one doctor's actions. Doc. 16 at 3. Plaintiffs argue
that discovery is required to determine whose negligent acts
are responsible for the alleged improper sanitation of
podiatry instruments. Doc. 16 at 7. Additionally, Plaintiffs
argue that if this Court relies upon materials outside the
pleadings in ruling upon the United States' motion, it
must convert this into a motion for summary judgment, upon
which "[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion." Doc. 16 at 6 (quoting Fed.R.Civ.P. 12(d)).
Lastly, Plaintiffs argue that the motion to dismiss was not
timely filed. Doc. 16 at 7. The United States then filed a
reply along with an additional supporting document. Docs.
23-24.
II.
Motion to Dismiss Standards under Rule 12(b)(1) and Rule
12(h)(3)
The
United States asserts lack of federal court subject-matter
jurisdiction and has moved to dismiss under Rules 12(b)(1)
and 12(h)(3) of the Federal Rules of Civil Procedure. Under
Rule l2(h)(3), "[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action." Fed.R.Civ.P. 12(h)(3). Indeed, a
federal court has the responsibility - to consider the
question of subject-matter jurisdiction sua sponte
even if not raised by the parties ...