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Pomeroy v. United States

United States District Court, D. Massachusetts

February 27, 2018

JANICE POMEROY, as the personal representative of the estate of Jane Cristiano, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Janice Pomeroy (“Pomeroy”), as the personal representative of the estate of Jane Cristiano (“Cristiano”), has filed this lawsuit against the United States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) et seq., for the wrongful death of Cristiano resulting from medical negligence by United States employees. D. 1 at 1. The United States now moves to dismiss the complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). D. 9. For the reasons stated below, the Court DENIES the government's motion.

         II. Standard of Review

         When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) “[a]t the pleading stage, ” dismissal “is appropriate only when the facts alleged in the complaint, taken as true, do not justify the exercise of subject matter jurisdiction.” Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003). As with a Fed.R.Civ.P. 12(b)(6) motion, the Court “must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). Unlike a Rule 12(b)(6) motion, however, the Court may look beyond the pleadings to determine jurisdiction without converting the motion into a summary judgment motion. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002).

         The United States is immune from suit without its consent, but the “FTCA is one instance of such consent; it waives the sovereign immunity of the United States with respect to certain torts committed by federal employees acting within the scope of their employment” and “gives federal courts jurisdiction over such claims.” Gordo-González v. United States, 873 F.3d 32, 35 (1st Cir. 2017).

         III. Factual Background

         East Boston Neighborhood Health Center (“EBNHC”) is a federally supported community health center under the Public Health Service Act, 42 U.S.C. § 233(g), and it owns and operates Winthrop Place, [1] a nursing home. D. 1 ¶ 2. Cristiano was transferred to Winthrop Place in October 2013 after developing difficulty swallowing such that her prior home concluded that they could no longer provide her with sufficient care. D. 1 ¶¶ 6-7. After a two-week probationary period, Winthrop Place determined it could provide adequate care for Cristiano. D. 1 ¶ 9. At the time, Cristiano “had dementia, used a walker to ambulate and was unable to eat solid food because of her difficulty swallowing.” D. 1 ¶ 8.

         Cristiano became a full-time resident of Winthrop Place, and under her Resident Agreement, she “was entitled to various services, including, but not limited to, 24-hour staffing by licensed nurses and certified health aides, and all meals.” D. 1 ¶ 9. On February 9, 2014, however, a “new aide gave Ms. Cristiano a chicken sandwich, instead of her usual puree meal, ” and Cristiano began choking. D. 1 ¶ 10. This aide was Jose Andrade, an employee of Dependable Healthcare Services, which contracted with EBNHC to provide health staffing services. D. 10 at 3, 7; D. 11 ¶¶ 2-6. A nurse administered the Heimlich maneuver, but Cristiano “remained in acute distress.” D. 1 ¶ 10. Cristiano died in route to the hospital and the medical examiner deemed the cause of death “asphyxia due to aspiration of food bolus.” D. 1 ¶ 11. Following Cristiano's death, a nurse at Winthrop Place told Pomeroy that they “take full responsibility” and “fired the employee.” D. 1 ¶ 12.

         IV. Procedural History

         Plaintiffs instituted this action on February 7, 2017. D. 1. The United States has now moved to dismiss. D. 9. The Court heard the parties on the pending motion and took the matter under advisement. D. 23.

         V. Discussion

         The government argues that this Court does not have subject matter jurisdiction because the case is barred by sovereign immunity. D. 9 at 1. The Federally Supported Health Centers Assistance Act (“FSHCAA”) establishes a sovereign immunity waiver, setting suits against the United States under the FTCA as the exclusive remedy “for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment.” 42 U.S.C. § 233(a) (“Section 233(a)”). The government does not dispute that EBNHC and Winthrop Place fall within the purview of the FSHCAA. See D. 10 at 5. The government argues, however, that Section 233(a) does not apply here because first, Pomeroy's negligence and negligent supervision claims do not involve “the performance of medical, surgical, dental, or related functions, ” and second, the aide in question was an independent contractor. D. 10 at 5-8. The Court addresses each argument in turn.

         A. Winthrop Place's Negligent Execution of Cristiano's Treatment Plan Qualifies as ...


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