United States District Court, D. Massachusetts
JANICE POMEROY, as the personal representative of the estate of Jane Cristiano, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge
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
Standard of Review
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).
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).
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,  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.
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.
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.
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.
Winthrop Place's Negligent Execution of Cristiano's
Treatment Plan Qualifies as ...