B Hancox v. Performance Anesthesia, P.A.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2077
B. HANCOX, Administrator of the Estate of Latiece Renee Reid
Glenn,
Plaintiff – Appellant,
v.
PERFORMANCE ANESTHESIA, P.A.; UNITED STATES OF AMERICA,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cv-00309-BR)
Argued: October 26, 2011 Decided: November 23, 2011
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Tamara Louise Miller, MILLERMASCIOLA, Washington, D.C.,
for Appellant. William Ellis Boyle, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF:
Bruce J. Klores, BRUCE J. KLORES & ASSOCIATES, PC, Washington,
D.C.; Donald H. Beskind, TWIGGS, BESKIND, STRICKLAND & RABENAU,
P.A., Raleigh, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, R. A. Renfer, Jr., Jennifer P.
May-Parker, Joshua B. Royster, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bradford Scott Hancox, Administrator of the estate of
Corporal Latiece Reid Glenn, appeals the August 27, 2010 Order
of the district court that dismissed, for want of subject matter
jurisdiction, the estate’s negligence claims against the United
States. See Glenn v. Performance Anesthesia, P.A., No. 5:09-CV-
00309, 2010 WL 3420538 (E.D.N.C. Aug. 27, 2010) (the district
court’s “Opinion”). In accordance with the procedures
prescribed by the Federal Tort Claims Act (“FTCA”), specifically
28 U.S.C. § 2679(d), the United States had been substituted for
named defendants Walter Hand, Jr., Raymond E. Brezinski, Corey
Eichelberger, and Denise Conneen, the latter being the executrix
of the estate of Robert L. Conneen. Concluding that the
district court committed no error in dismissing the claims
against the United States, we affirm.
I.
A.
We review de novo a district court’s dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(1). See Vulcan Materials
Co. v. Massiah, 645 F.3d 249, 261 (4th Cir. 2011). In so doing,
we afford Corporal Glenn’s estate “the same procedural
protection” as one “would receive under a Rule 12(b)(6)
consideration.” Kerns v. United States, 585 F.3d 187, 192 (4th
3
Cir. 2009). That is, “the facts alleged in the complaint are
taken as true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.”
Id.According to the allegations of the Complaint in this
matter, Corporal Glenn, pregnant and about ten days away from
her expected delivery date, arrived at Fort Bragg’s Womack Army
Medical Center in the Eastern District of North Carolina during
the mid-afternoon of June 21, 2007, her amniotic sac having
ruptured about half an hour previously. In preparation for a
Caesarian section, three Certified Registered Nurse Anesthetists
(“CRNAs”), i.e., Hand, Brezinski, and Robert Conneen, together
with a student intern, Major Eichelberger, attempted to give
Glenn an epidural anesthesia. The needle mistakenly and
tragically punctured Glenn’s spinal dura, from which she
contracted meningitis and died six days later. See J.A. 4-5. 1
B.
Hand, Brezinski, and Conneen were employed at Womack in
accordance with a “personal services contract” between
Performance Anesthesia, P.A., and the government, the terms of
which rendered the CRNAs subject to the direction and control of
1
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties to this appeal.
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military personnel. Corporal Glenn’s surviving spouse, Julius
H. Glenn, Sr., filed administrative claims for compensation on
behalf of his wife’s estate, see 28 U.S.C. §§ 2672, 2675(a),
which were denied on the grounds established in Feres v. United
States, 340 U.S. 145 (1950). On June 11, 2009, Mr. Glenn brought
suit in state court against Performance Anesthesia, the three
CRNAs (in Conneen’s case, his estate), and Major Eichelberger,
alleging medical negligence.
On July 9, 2009, upon the Attorney General’s certification
that Major Eichelberger was acting within the scope of his
employment with the Army during the events underlying the
Complaint, the United States substituted itself on his behalf
and removed the matter to the district court. See 28 U.S.C. §
2679(d)(1), -(2). Soon thereafter, on July 24, 2009, the
Attorney General submitted similar certifications on behalf of
the CRNAs, and the United States was substituted accordingly.
On September 21, 2009, relying on the Feres doctrine, the
government moved to dismiss the claims against it. As detailed
in its Opinion, the district court granted the motion,
concluding that it lacked subject matter jurisdiction over the
claims against the government. The court directed further that
the claims against Performance Anesthesia, the only remaining
defendant, be remanded to state court. On September 21, 2010,
Glenn filed a Notice of Appeal challenging the court’s rulings,
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and we possess jurisdiction in conformance with 28 U.S.C.
§ 1291. 2
II.
The FTCA, codified at 28 U.S.C. § 2671 to 2680, works a
limited waiver of the government’s sovereign immunity for torts
committed by employees acting within the scope of their office
or employment. The waiver is subject to a myriad of legislative
exceptions, set forth in § 2680(a) – (n), and the occasional
judicial exception, the most prominent and well-known of which
is embodied by Feres v. United States, 340 U.S. 145 (1950). In
Feres, the Supreme Court ruled that the government cannot be
held liable under the FTCA “for injuries to servicemen where the
injuries arises out of or are in the course of activity incident
to service.” Id. at 146. Broad public policy rationales
support the Feres doctrine, including the disdain for state tort
law concepts intruding upon the “distinctively federal”
relationship between the government and the members of its armed
services, the availability of statutory veterans’ benefits, and
the subversion of discipline that could occur if service
2
On October 6, 2010, Hancox was substituted on appeal for
Mr. Glenn as Administrator of Corporal Glenn’s estate.
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personnel were permitted to sue the government. See United
States v. Johnson, 481 U.S. 681, 689-91 (1987).
The FTCA, of course, only addresses the government’s
liability, meaning that soldiers and sailors who suffer service-
related injuries as the result of negligence are free to sue
private tortfeasors. The CRNAs here would seem to fit into that
category of potential defendants, but for the enactment of the
Medical Malpractice Immunity Act (the “Gonzalez Act”), which
provides, in pertinent part:
The remedy against the United States provided by [the
FTCA] for damages for personal injury, including
death, caused by the negligent or wrongful act or
omission of any physician, . . . nurse, . . . or
paramedical or other supporting personnel . . . of the
armed forces . . . while acting within the scope of
his duties or employment . . . shall hereafter be
exclusive of any other civil action or proceeding by
reason of the same subject matter against such [above-
described healthcare professional]. This subsection
shall also apply if the [above-described healthcare
professional] is serving under a personal services
contract entered into under section 1091 of this
title.
10 U.S.C. § 1089(a) (emphasis added). The contract between the
government and Performance Anesthesia in this case meets the
statutory requirements; thus, the CRNAs are, in effect,
employees “of the armed forces” for liability purposes.
Nonetheless, Hancox insists on appeal that the CRNAs are
“private contractors,” and that by substituting itself for them,
the government cannot assert defenses, including sovereign
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immunity, that would not have been available to the individual
defendants absent the substitution. Hancox maintains further
that the public policy concerns underlying the Feres doctrine
are not present here where the CRNAs are otherwise subject to
state law and not part of the military chain of command.
Unfortunately for Hancox, his characterization of the CRNAs
as private contractors is directly contrary to the plain
language of the Gonzales Act. In enacting the statute, Congress
unambiguously placed the government’s professional healthcare
contractors on an equal footing with its similarly situated
armed services personnel, and Congress did so knowing full well
the established applicability of the Feres doctrine in the realm
of injuries incident to military service. Indeed, Hancox does
not challenge the government’s authority to legislatively except
from tort liability a class of private actors such as the CRNAs,
but simply questions the wisdom of presuming that Congress
intended to do so in circumstances such as the ones before us,
given the practical differences between military doctors and
nurses who wear their nation’s uniform, and civilians engaged in
the same professions who do not.
The distinction Hancox urges is not one that the Supreme
Court recognizes. To the contrary, the Court in Johnson
discerned no difference, for Feres purposes, between members of
the military and civilian government employees. See 481 U.S. at
8
686 (“[T]his Court has never suggested that the military status
of the alleged tortfeasor is crucial to the application of the
[Feres] doctrine.”). Accordingly, attributing no significance
to the status of the alleged tortfeasors, we have observed that
“[i]t is well established that receipt of medical care in
military facilities by members of the military on active duty is
activity incident to service.” Kendrick v. United States, 877
F.2d 1201, 1203 (4th Cir. 1989) (citations and internal
quotation marks omitted); see Appelhans v. United States, 877
F.2d 309, 310 (4th Cir. 1989) (reciting “general rule” derived
from Feres and Johnson, and applied in Kendrick). We have
recognized an exception to the general rule where the
plaintiff’s medical condition and negligent treatment occurs
following the termination of active-duty status, thus
constituting a “truly independent or post-service tort,” see
Bradley v. United States, 161 F.3d 777, 782 (4th Cir. 1998)
(quoting Kendrick), but that is clearly not the case here.
Given Hancox’s reticence to mount a direct attack on the
validity of the Gonzales Act, we decline to strip it of force
and effect via the backdoor by rendering nugatory the premise
upon which it was enacted.
We therefore affirm the judgment below, for the foregoing
reasons and for those set forth in more detail by the district
court in its Opinion granting the government’s motion to dismiss
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and remanding the claims against Performance Anesthesia to the
Superior Court of Cumberland County, North Carolina. See Glenn
v. Performance Anesthesia, P.A., No. 5:09-cv-00309, 2010 WL
3420538 (E.D.N.C. Aug. 27, 2010).
AFFIRMED
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