Starkes v. Laclinica Del Pueblo, Inc. ( 2023 )


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  •                       UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    _________________________________________
    )
    JAMES STARKES,                            )
    )
    Plaintiff,                          )
    )
    v.                           )
    ) Case No. 23-cv-00334 (APM)
    RICARDO F. FERNANDEZ, M.D., et al,        )
    )
    Defendants.                         )
    _________________________________________ )
    MEMORANDUM OPINION
    I.
    Plaintiff James Starkes brings the instant action against Defendants Dr. Ricardo F.
    Fernandez and LaClinica del Pueblo, Inc. (“LaClinica”), alleging that Defendants were negligent
    in their care and treatment of Plaintiff from July 2013 through May 2019 when they failed to timely
    diagnose and treat his prostate cancer. Plaintiff contends that he suffered physical and emotional
    injuries, lost the ability to live disease free, his chances of survival have been diminished, his life
    expectancy has been shortened, and he has suffered and will continue to suffer loss of earnings
    and impairment of earning capacity. Plaintiff seeks $25,000,000 in damages. He initially filed
    suit in the Superior Court of the District of Columbia, and the matter was removed to this court
    pursuant to 
    42 U.S.C. § 233
    (c). See Notice of Removal, ECF No. 1.
    Before the court is the United States’ combined motion to substitute and dismiss.
    Gov’t Combined Mot. to Substitute and Mot. to Dismiss, ECF No. 4 [hereinafter Gov’t Mot.].
    Specifically, the United States seeks to (1) substitute itself as the sole defendant pursuant to
    
    42 U.S.C. § 233
    (g)(1)(A); (2) dismiss Plaintiff’s complaint for lack of subject matter jurisdiction
    for failure to exhaust administrative remedies; and (3) dismiss Plaintiff’s claim on the grounds that
    it is time-barred. Gov’t Mot. at 7–8. For the reasons discussed below, the United States’ motion
    is granted.
    II.
    From July 2013 through May 2019, Plaintiff received medical treatment and care from
    Dr. Fernandez, his primary care physician at LaClinica. Notice of Removal, Compl., ECF No. 1-
    2, [hereinafter Compl.], ¶¶ 9–12. Plaintiff’s visits with Dr. Fernandez included routine physical
    examinations, follow-up visits concerning Plaintiff’s blood pressure and hypertension, laboratory
    studies, and a hernia diagnosis and treatment. 
    Id. ¶ 10
    . Plaintiff alleges that Dr. Fernandez failed
    to advise him that “as an African American male he was at an elevated risk for developing prostate
    cancer,” and failed to perform a prostate-specific antigen (PSA) test or discuss the benefits of
    screening for prostate cancer through a PSA test. 
    Id. ¶¶ 10, 18
    . Around June or July of 2019,
    Plaintiff began experiencing lower back pain, and in August he underwent a PSA test and biopsy
    at George Washington University Hospital that found adenocarcinoma of the prostate. 
    Id.
     ¶¶ 13–
    15. Since August 2019, Plaintiff has been receiving radiation and chemotherapy for his metastatic
    prostate cancer. 
    Id. ¶ 17
    .
    In February 2023, over three years after his diagnosis, Plaintiff filed the instant action
    against LaClinica and Dr. Fernandez for failure to timely diagnose and treat his prostate cancer.
    See 
    id.
    III.
    The court first addresses whether to substitute the United States as the sole defendant in
    this action. Under the Public Health Service Act (“PHSA”), the United States “may substitute
    itself for employees of the Public Health Service (‘PHS’) who are defendants in state civil actions,
    [thereby] bringing the action under the [Federal Tort Claims Act (‘FTCA’)],” if (1) the Secretary
    2
    of Health and Human Services (the “Secretary”) determines that the defendants are PHS
    employees, and (2) the Attorney General certifies that the defendants “were acting in their scope
    of employment when they performed the acts which gave rise to the suit.” 
    42 U.S.C. § 233
    (c),
    (g)(1)(A) (2022); see Afolabi-Brown v. Coombs, No. 18-cv-1409 (EGS), 
    2019 WL 1331039
    , at *2
    (D.D.C. Mar. 25, 2019). The United States contends that it is the only appropriate defendant in
    the instant case because (1) LaClinica was a “grantee of the Department of Health and Human
    Services (‘DHHS’) by operation of the PHSA,” and Dr. Fernandez was employed by LaClinica,
    making both Defendants PHS employees, and (2) both LaClinica and Dr. Fernandez were “acting
    within the scope of their employment . . . at the time of the incidents alleged.” Gov’t Mot. at 4.
    PHS Employee Determination. The Secretary is responsible for determining whether a
    “public or non-profit private entity receiving federal funds” under 
    42 U.S.C. § 254
    (b)—and
    employees or contractors of that entity—are PHS employees covered by the FTCA. See 
    42 U.S.C. § 233
    (g)(1)(A), (g)(4). The Secretary’s determination is “final and binding upon the Secretary and
    the Attorney General and other parties to any civil action or proceeding.” 
    Id.
     § 233(g)(1)(F). Here,
    the Secretary has “deemed LaClinica to be Public Health Service employees for the period of
    January 1, 2013, to the present,” Gov’t Mot. at 5, and “Dr. Fernandez was an employee of
    LaClinica . . . at the time of the” alleged incidents, id., Torres Decl., ECF No. 4-1, at 2. Therefore,
    the court finds that LaClinica and Dr. Fernandez are PHS “employees” for purposes of the PHSA.
    Scope of Employment. The Attorney General, or by delegation the “United States Attorney
    in the district where the civil action or proceeding is brought,” may certify that an entity and its
    employee were acting within the scope of employment at the time of the alleged incident.
    
    42 U.S.C. § 233
    (c); 
    28 C.F.R. § 15.4
    (a) (2003). Such a certification constitutes “prima facie
    evidence that the defendant was acting within the scope of . . . [his] employment.” Kimbro v.
    3
    Velten, 
    30 F.3d 1501
    , 1505 (D.C. Cir. 1994); Council on Am. Islamic Rels. v. Ballenger, 
    444 F.3d 659
    , 662 (D.C. Cir. 2006). In this case, the Chief of the Civil Division, Office of the United States
    Attorney for the District of Columbia, certified that LaClinica and Dr. Fernandez acted within their
    scope of employment as employees of the PHS at the time of the events at issue. Gov’t Mot. at 7;
    Notice of Removal, Hudak Cert., ECF No. 1-3, at 1.
    A scope-of-employment certification does not end the inquiry. At the pleadings stage, the
    plaintiff “bears the burden . . . to raise a material dispute regarding the substance” of the
    certification “by alleging facts that, if true, would establish that the defendants were acting outside
    the scope of their employment.” Stokes v. Cross, 
    327 F.3d 1210
    , 1214–15 (D.C. Cir. 2003).
    A plaintiff who meets this burden is entitled to discovery and, if necessary, an evidentiary hearing
    to resolve disputed facts. See 
    id.
    In this case, Plaintiff has not met even this low bar. If anything, Plaintiff’s allegations are
    entirely consistent with the certifications. Plaintiff generally avers that Defendants “were acting
    as the real, apparent, and/or ostensible agents, servants, and employees of each other, individually,
    and through their respective employees, servants, and/or real and/or apparent and/or ostensible
    agents.” Compl. ¶ 8. As to Dr. Fernandez, Plaintiff alleges that he was “acting within the scope
    of said employment, agency, and/or service, and he was acting individually, when providing
    medical care and services to the plaintiff.” Id. ¶ 6. Plaintiff specifies that from “July 16, 2013,
    through December 9, 2014, [he] presented to Dr. Fernandez at LaClinica del Pueblo for medical
    treatment and care including, but not limited to, routine physical examinations, follow-ups on his
    blood pressure/hypertension, laboratory studies, and hernia diagnosis and treatment.” Id. ¶¶ 10,
    12. In short, Plaintiff’s Complaint contains no factual allegations that, if true, would plausibly
    establish that Defendants’ conduct was outside of their physician-patient relationship or that
    4
    Defendants acted in a way that is “different in kind from that authorized” by their employer.
    See RESTATEMENT (SECOND) OF AGENCY § 228 (Am. L. Inst. 1958).
    Plaintiff nevertheless contends that “there are sufficient facts that, if true, would rebut the
    certifications issued by the U.S. Attorney and put into question the validity of the certifications so
    filed.” Pl.’s Opp’n to Gov’t Combined Mot., ECF No. 6, [hereinafter Pl.’s Opp’n], at 10. But he
    never identifies any fact allegation, in his Complaint or elsewhere, to support that assertion. A bald
    assertion of disputed material fact is not enough even at the motion-to-dismiss stage to carry a
    plaintiff’s burden. See Stokes, 
    327 F.3d at 1216
     (concurring with a Sixth Circuit decision that
    affirmed the district court’s dismissal of a claim without a hearing where the plaintiff did not allege
    any facts “that, if true, would demonstrate that [the defendant] had been acting outside the scope
    of his employment”) (citing Singleton v. United States, 
    277 F.3d 864
    , 871 (6th Cir. 2002)).
    Accordingly, the court substitutes the United States as the sole defendant and treats this
    matter as arising under the FTCA. See Wuterich v. Murtha, 
    562 F.3d 375
    , 381 (D.C. Cir. 2009)
    (“Consequently, where a plaintiff fails to allege sufficient facts to rebut the certification, the United
    States must be substituted as the defendant because the federal employee is absolutely immune
    from suit.”).
    IV.
    Having found that substitution is proper, the court now turns to whether Plaintiff exhausted
    administrative remedies. A federal court lacks subject matter jurisdiction if a claimant did not first
    exhaust administrative remedies under the FTCA. See McNeil v. United States, 
    508 U.S. 106
    , 107,
    113 (1993). Here, there is no dispute that Plaintiff did not timely exhaust administrative remedies.
    Pl.’s Opp’n at 12 (conceding that it is an “undisputed fact that [he] did not file a Form 95 with the
    5
    U.S. Department of Health and Human Services”). The court therefore lacks jurisdiction over this
    matter. 1
    Before concluding, the court notes that, in 1988, Congress amended the FTCA to provide
    “plaintiffs an additional sixty days to file an administrative claim with the appropriate federal
    agency [after dismissal] as long as the original lawsuit was commenced within the two-year time
    period allowed for filing a claim.” Norman v. United States, 
    377 F. Supp. 2d 96
    , 99 (D.D.C. 2005)
    (citing 
    28 U.S.C. § 2679
    (d)(5) (1988)). The purpose of the amendment was to “provide some
    relief for plaintiffs where the United States is unexpectedly substituted as a party defendant and
    the case is dismissed for failure to exhaust administrative remedies.” 
    Id.
     The court offers no
    opinion as to whether Plaintiff might benefit from this provision.
    V.
    For the foregoing reasons, Defendant’s motion to substitute and motion to dismiss for lack
    of subject matter jurisdiction, ECF No. 4, is granted. The court dismisses the Complaint and this
    action without prejudice. A final, appealable order accompanies this Memorandum Opinion.
    Dated: June 30, 2023                                                Amit P. Mehta
    United States District Court Judge
    1
    Because the court lacks the subject matter jurisdiction to hear this case, the court need not rule on Defendant’s
    argument for dismissal for failure to state a claim.
    6