United States District Court, D. Massachusetts
WEI QIANG CHEN, individually and as Personal Representative of the Estate of Yan Juan Chen, a/k/a ALICE YAN JUAN CHEN, Plaintiff,
SHIAO-YU LEE, QIYUE HU, MUNEED AHMED, JAHANNES ROEDL, JENNIFER NI MHUIRCHEARTAIGH, And BETH ISRAEL DEACONNESS MEDICAL CENTER Defendants.
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT COURT
before the court is a Motion to Dismiss Count VIII
[#7] filed by the defendant, the United States of America.
The Motion to Dismiss Count VIII is GRANTED without
prejudice, and the case is remanded to Norfolk Superior
the death of his wife, Plaintiff Wei Qiang Chen, individually
and as personal representative of the estate, filed the
underlying action in Norfolk Superior Court asserting several
tort claims against defendants alleged to have been
responsible for a portion of his wife's medical care. On
April 8, 2016, the Superior Court granted Plaintiff's
motion to add Dr. Qiyue Hu ("Dr. Hu") as a
defendant. Dr. Hu worked at the South Cove Community Health
Center, a Federally Supported Health Centers Assistance Act
facility, and is considered an employee of the United States.
Notice of Substitution [#5-1].
actions brought against United States employees, working
within the scope of employment, are deemed actions against
the United States. 28 U.S.C. § 2679(d)(1). Accordingly,
Dr. Hu removed the case and this court allowed the United
States to substitute itself as a party. Notice of Removal
[#1], Notice of Substitution [#5], Order [#6].
the United States moved to dismiss the complaint for failure
to exhaust administrative remedies. [#7]. Per the United
States, medical malpractice claims, such as this, are
governed by the Federal Tort Claims Act ("FTCA").
Mem. Supp. Mot. Dismiss 3 [#8]; 28 U.S.C. § 1346, 28
U.S.C. §§ 2671-2679. The FTCA bars any medical
malpractice claim to proceed against the United States unless
the claim was first submitted to the appropriate Federal
agency. 28 U.S.C. § 2675(a). The United States argues
that to date, the Department of Health and Human
Services' ("HHS") database does not show that
Plaintiff filed an administrative claim, and accordingly
Count VIII of Plaintiff's complaint must be dismissed.
Mem. Mot. Dismiss 2 [#8].
does not dispute that the claims against Dr. Hu are governed
by the FTCA, but argues that "a timely administrative
claim has been constructively submitted to HHS."
Pl.'s Opp'n to Mot. Dismiss 2 [#9]. After serving a
motion to amend the complaint and add Dr. Hu, Plaintiff
received a letter from Attorney Lawrence P. Murray, outside
counsel for South Cove Community Health Center. Id.
at 1. The letter states in pertinent part, "[p]lease be
advised that South Cove is a federally qualified health
center and is deemed covered under the Federal Tort Claims
Act. The U.S. Department of Health and Human Services, Office
of the General Counsel, has been notified of your motion. We
request that you grant the customary 60 day extension to
respond to your motion in order to provide the United
States the time to administratively process this
claim." Attorney Murray Letter, Ex. 1, Pl.'s
Opp'n to Mot. to Dismiss [#9-1] (emphasis added).
Attorney Murray's unfortunate choice of words implies
that Plaintiff's Second Amended Complaint had
been forwarded to HHS for exhaustion of the administrative
claim procedure, the court cannot find that an administrative
claim has been constructively submitted to HHS. To be
properly presented, a claim submitted to the appropriate
federal agency must contain a "sum certain." 28
C.F.R. §14.2(a) ("For purposes of the provisions of
28 U.S.C. §2401(b), 2672, and 2675, a claim shall be
deemed to have been presented when a Federal agency receives
from a claimant . . . written notification of an incident,
accompanied by a claim for money damages in a sum certain . .
."). Presentment of the claim, and the inclusion of a
sum certain, are prerequisites to the court's
jurisdiction. Corte-Real v. United States, 949 F.2d
484, 485-86 (1st Cir. 1991) ("The requirements that a
claimant timely present a claim, in writing, stating a sum
certain are prerequisites to a federal court's
jurisdiction to entertain a suit against the United States
under the FTCA."); Kokaras v. U.S., 980 F.2d
20, 22 (1992) ("This court has consistently held that a
timely-presented claim stating a sum certain is necessary for
a court to have jurisdiction to entertain a suit against the
United States under the FTCA."). Here, Plaintiff's
Second Amended Complaint, does not contain a sum
certain. Sec. Am. Compl., Ex. 3, Notice of Removal [#1-3].
Thus, even if the Second Amended Complaint had been
submitted directly to HHS, it would still not meet the
jurisdictional requirements of exhaustion under 28 U.S.C.
§ 2675 and 28 C.F.R. 14.2(a).
foregoing reasons, the Motion to Dismiss Count VIII
[#7] is GRANTED without prejudice to seeking leave to
reassert such claim after exhaustion of the claim procedure.
See 28 U.S.C. § 2679(d)(5)(A), (B). Lacking
subject matter jurisdiction ...