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Schappacher v. United States

February 6, 2007

PETER SCHAPPACHER, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Terrence P. Kemp

ORDER

This matter is before the Court for consideration of a Motion to Dismiss (Doc. # 13) filed by Defendant the United States of America ("Defendant"), a memorandum in opposition (Doc. # 17) filed by Plaintiff Peter Schappacher, a minor, by and through his parents and next friends Leo and Mariangela Schappacher ("Plaintiffs"), and a reply. (Doc. # 20.) For the reasons that follow, the Court GRANTS Defendant's motion.

A. Background

Peter Schappacher was born on June 11, 2002 at Fayette County Memorial Hospital. On September 22, 2004, Plaintiffs filed a medical malpractice action in state court against Dr. Richard D. Mizer and others for injuries resulting from Dr. Mizer's allegedly negligent conduct during the birth of Peter Schappacher. On December 6, 2004, Dr. Mizer removed Plaintiffs' state court case to the United States District Court, Southern District of Ohio, Western Division. On January 20, 2005, the United States filed consolidated motions to substitute the United States as a party defendant for Dr. Mizer and to dismiss Plaintiffs' claim against the United States for failure to exhaust their administrative remedies. Plaintiffs then filed an administrative claim with the Department of Health and Human Services ("HHS") on February 10, 2005. On April 18, 2005, the district court dismissed without prejudice Plaintiffs' claim for failure to comply with §§ 28 U.S.C. 2675(a) and 2401(b) of the Federal Tort Claims Act ("FTCA"), which requires that Plaintiffs first seek an administrative remedy. On July 12, 2005, HHS sent a letter to Plaintiffs denying Plaintiffs' administrative claim. On December 23, 2005, Plaintiffs then brought action in this Court.

Plaintiffs' action against Defendant is now brought pursuant to § 28 U.S.C. 2675 of FTCA. At relevant times, Plaintiffs were aware that Dr. Mizer was an employee of the Southern Ohio Health Services Network ("SOHSN"). Pursuant to § 42 U.S.C. 233 of the Federally Supported Health Care Assistance Act ("FSHCAA"), HHS deemed SOHSN to be an employee of Public Health Service ("PHS") with respect to medical malpractice claims arising within the scope of employment. Consequently, the FTCA is Plaintiffs' exclusive remedy for medical malpractice claims asserted against Dr. Mizer for his actions within the course and scope of his employment with SOHSN.

The FTCA is a limited waiver of sovereign immunity. Sovereign immunity, unless waived, bars all suits against the United States and its agencies. See, e.g., Lane v. Pena, 518 U.S. 187, 192 (1996) ("A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope in favor of the sovereign.") The FTCA waives sovereign immunity to the extent that it authorizes civil actions exclusively in federal courts*fn1 for money damages against the United States "for injury or loss of property, or personal injury or death caused by any employee of the Government while acting within the scope of his office of employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

Since Plaintiffs' claim arises out of the personal injuries allegedly caused by Dr. Mizer during the course and scope of his employment with SOHSN, Plaintiffs have appropriately premised this cause of action on the FTCA.

B. Standard of Review

Defendant moves for dismissal of Plaintiffs' complaint under Fed. R. Civ. P. 12(b)(6). Dismissal is warranted under this rule "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Therefore, the focus is not on whether a plaintiff will ultimately prevail, but rather on whether the claimant has offered "either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). A court considering a motion to dismiss under Rule 12(b)(6) "must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002) (citing Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998)). A court need not, however, accept as true "legal conclusions or unwarranted factual inferences." Perry v. American Tobacco Co., Inc., 324 F.3d 845, 848 (6 th Cir. 2003) (quoting Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987.) With this standard in mind, the Court will analyze Defendant's motion.

C. Discussion

1. The FTCA's Administrative Claim Prerequisite and Statute of Limitations

A FTCA action cannot be brought against the United States "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall been finally denied by the agency in writing and sent by certified or registered mail.*fn2 " 28 U.S.C. § 2675(a).

Thus, a plaintiff must exhaust his or her administrative remedies before he or she brings suit in federal court. Lundstrom v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991) (stating that a prerequisite to suit under the ...


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