# C.K. v. United States of America

> District Court, S.D. California · November 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10082403

## Case

- **Court:** District Court, S.D. California
- **Decided:** November 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10082403

## How later opinions describe it (automated extraction)

- reversing 7 dismissal of medical malpractice claim based on failure to report suspected abuse

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 C. K., Case No.: 19-CV-2492 TWR (RBB)

12 Plaintiff,
ORDER GRANTING IN PART AND
13 v. DENYING IN PART DEFENDANT
CARRIEDO-CENICEROS’ MOTION
14 UNITED STATES OF AMERICA;
FOR STAY AND SUBSTITUTION
MARIA CARRIEDO-CENICEROS,
15 OF THE UNITED STATES
M.D., an individual; and DOES 1 through

16 50, inclusive,
(ECF No. 19)
17 Defendants.
18

19 Presently before the Court is Defendant Maria Carriedo-Ceniceros’ Motion for Stay
20 of the Proceedings and Substitution of the United States (“Mot.,” ECF No. 19), as well as
21 Plaintiff C.K.’s Non-Opposition to Motion for Stay of the Proceedings and Substitution of
22 the United States and Opposition to Request for Stay (“Pl.’s Opp’n,” ECF No. 23),
23 Defendant the United States of America’s Opposition to Motion to Substitute (“U.S.
24 Opp’n,” ECF No. 24), and Defendant Carriedo-Ceniceros’ Reply in Support of Motion
25 (“Reply,” ECF No. 24). The Court held a hearing on October 28, 2020. (See ECF No. 42.)
26 Having carefully considered the Parties’ arguments, the evidence, and the law, the Court
27 GRANTS IN PART AND DENIES IN PART the Motion as follows.
28 / / /
1 BACKGROUND
2 I. Plaintiff’s Allegations
3 San Ysidro Health Center (“SYHC”) is a federally qualified health center and a
4 Federal Torts Claims Act deemed facility. (First Am. Compl. (“FAC,” ECF No. 6) ¶ 12.)
5 At all relevant times, SYHC employed Dr. Leon Fajerman, M.D., as a psychiatrist. (Id.
6 ¶¶ 3, 20.)
7 Plaintiff C.K. is an adult female living in San Diego County. (Id. ¶ 18.) Around
8 2012, Plaintiff began seeing Dr. Fajerman for psychiatric treatment at SYHC. (Id. ¶ 28.)
9 Dr. Fajerman had a history of sexually and harassing his patients, (id. ¶ 4), and
10 female social workers and receptionists at SYHC. (Id. ¶ 5.) In 2017, before Dr. Fajerman
11 sexually harassed C.K., another of Dr. Fajerman’s patients reported to her therapist at
12 SYHC that Dr. Fajerman was sexually abusing her, including touching her breasts. (Id.
13 ¶ 6.) The therapist recorded the complaints in the patient’s chart and reported the abuse to
14 his supervisor, who reported the alleged abuse to SYHC’s then-medical director, Defendant
15 Dr. Carriedo-Ceniceros. (Id.)
16 Consequently, SYHC and Dr. Carriedo-Ceniceros were aware of Dr. Fajerman’s
17 inappropriate conduct towards his patients and other women working at SYHC. (See id.
18 ¶ 4.) They were also aware that the Medical Board of California was investigating
19 Dr. Fajerman for similar complaints. (Id.) Nonetheless, despite being mandatory reporters,
20 neither SYHC nor Dr. Carriedo-Ceniceros reported Dr. Fajerman’s abuse, instead covering
21 it up. (Id. ¶ 8; see also id. ¶¶ 11, 14.)
22 In 2016 through 2017, Dr. Fajerman made C.K. feel uncomfortable on several
23 occasions by, among other things, making statements regarding C.K.’s romantic of sexual
24 relationships, appearance, and genitalia or initiating physical contact during her
25 appointments. (Id. ¶ 29.) C.K. reported Dr. Fajerman’s conduct to a nurse at SYHC in
26 2017. (Id. ¶ 31.) The nurse took notes and entered them in an SYHC computer and told
27 C.K. that other patients had made similar complaints against Dr. Fajerman that year. (Id.)
28 / / /
1 The nurse showed C.K. the computer screen, which displayed reports of abuse from other
2 patients. (See id.)
3 On June 8, 2017, Dr. Fajerman pulled C.K. to him, kissed her, grabbed her breasts,
4 and asked, “Aren’t you being sexual lately?” (Id. ¶ 32.) C.K. pushed Dr. Fajerman away
5 and left his office. (Id.) She has not seen Dr. Fajerman since. (Id.)
6 C.K. later learned that Dr. Fajerman had sexually harassed and assaulted several
7 other patients around that period and before her appointments with him. (Id. ¶ 34.) As a
8 result of the allegations by SYHC patients, Dr. Fajerman surrendered his medical license
9 in May 2018. (Id. ¶ 35; see also id. ¶ 7.)
10 The District Attorney filed nine criminal charges for sexual exploitation and battery
11 against Dr. Fajerman on May 23, 2018. (Id. ¶ 36.) Dr. Fajerman was arrested the following
12 day. (Id.) Dr. Fajerman pled guilty on October 22, 2018, thereby admitting to unlawfully
13 engaging in acts of sexual contact with at least seven female patients at SYHC, including
14 C.K. (See id. ¶ 37.) Dr. Fajerman was sentenced to one year of house arrest, ordered to
15 pay $300 in restitution to each of his victims, placed on probation, and ordered to no longer
16 practice medicine or psychology in California. (Id. ¶ 38.)
17 II. Procedural Background
18 On December 30, 2019, C.K. filed her initial Complaint, alleging a single cause of
19 action for negligence against the United States and Doe defendants. (See generally ECF
20 No. 1.) On March 11, 2020, C.K. filed the operative First Amended Complaint, adding as
21 a Defendant Dr. Carriedo-Ceniceros and additional causes of action for violation of civil
22 rights under 42 U.S.C. § 1983, conspiracy to violate civil rights under 42 U.S.C. § 1986,
23 premises liability, and negligence and negligence per se. (See generally FAC.)
24 Although Dr. Carriedo-Ceniceros had not yet been formally served, she forwarded
25 copies of the pleadings to the U.S. Department of Health and Human Services upon
26 learning of the First Amended Complaint and requested coverage under the Federal Tort
27 Claims Act (“FTCA”) pursuant to 42 U.S.C. § 233(a). (Mot. at 4–5.) On June 18, 2020,
28 Dr. Carriedo-Ceniceros received a response from George Manahan, an Assistant United
1 States Attorney, on behalf of Robert S. Brewer, Jr., the United States Attorney for the
2 Southern District of California. (See generally ECF No. 19-3 (“Mot. Ex. C”).) Mr. Brewer
3 denied Dr. Carriedo-Ceniceros’ request, concluding that “[t]he claims against Dr. Carriedo
4 are not claims for damages for injury resulting from the performance of medical, surgical,
5 dental, or related functions, as that phrase is used in the [Federally Supported Health
6 Centers Assistance Act of 1992 (“FSHCAA”)] and 42 C.F.R. § 6.6(b),” meaning “they do
7 not involve covered activities and are not eligible for FTCA coverage under the FSHCAA.”
8 (Id. at 2.)
9 Dr. Carriedo-Ceniceros filed the instant Motion on July 21, 2020. (See generally
10 Mot.) Dr. Carriedo-Ceniceros seeks (1) a determination that C.K.’s allegations arise from
11 Dr. Carriedo-Ceniceros’ performance of medical or related functions as required for FTCA
12 coverage under the FSHCAA (“Motion for Substitution”), and (2) a stay of all proceedings
13 until the Court conducts a hearing and makes a threshold immunity determination pursuant
14 to Section 233(l)(2) (“Motion to Stay”). (See Mot. at 2.)
15 LEGAL STANDARD
16 As a general principle, the United States “may not be sued without its consent.”
17 United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA, however, provides
18 consent to be sued for certain types of actions. Specifically, the FTCA provides that the
19 United States may be sued “for injury or loss of property, or personal injury or death caused
20 by the negligent or wrongful act or omission of any employee of the Government while
21 acting within the scope of his office or employment.” 42 U.S.C. § 1346(b). The FTCA
22 provides the exclusive remedy for tort lawsuits against the United States and allows the
23 United States to be held liable to the same extent as a private employer under state law. 28
24 U.S.C. § 2679.
25 On December 31, 1970, Congress enacted the Emergency Health Personnel Act of
26 1970, which “grants absolute immunity to [U.S. Public Health Service (“PHS”)] officers
27 and employees for actions arising out of the performance of medical or related functions
28 within the scope of their employment by barring all actions against them for such
1 conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010). On October 24, 1992, Congress
2 enacted the FSHCAA, 42 U.S.C. § 233(g), which extends to certain entities and their
3 employees that are “deemed” to be PHS employees the immunity provided by Section
4 233(a). See 42 U.S.C. § 233(g)(1)(A). The purpose of the FSHCAA was to reduce the
5 amount of money neighborhood health centers had to pay for malpractice premiums,
6 thereby allowing those health centers to use more of their federal funds for patient care.2
7 “The only proper defendant in an FTCA action is the United States of America.”
8 Pinzon v. Mendocino Coast Clinics Inc., No. 14-CV-05504-JST, 2015 WL 2452822, at *2
9 (N.D. Cal. May 21, 2015) (citing 28 U.S.C. § 2679(d)). “Because the remedy provided by
10 the FTCA against the United States is exclusive, the United States must be substituted in
11 place of the health service parties if the conditions of certification set forth in the relevant
12 statutes are met.” Lowery v. Reinhardt, No. CIV. S-07-0880RRBDA, 2008 WL 550083,
13 at *5 (E.D. Cal. Feb. 27, 2008) (citing 28 U.S.C. § 2679(d)(1); 42 U.S.C. § 233(c)). Under
14 regulations promulgated pursuant to Section 233, immunity and substitution are
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17 1 The relevant provision, 42 U.S.C. § 233(a), provides in relevant part:

18 The remedy against the United States provided by sections 1346(b) and
2672 of Title 28 . . . for damage for personal injury, including death,
19
resulting from the performance of medical, surgical, dental, or related
20 functions . . . by any commissioned officer or employee of the Public Health
Service while acting within the scope of his office or employment, shall be
21 exclusive of any other civil action or proceeding by reason of the same
subject-matter against the officer or employee (or his estate) whose act or
22 omission gave rise to the claim.

23 2 Representative Barney Frank of Massachusetts, for example, explained to the House of Representatives
24 that the FSHCAA “essentially allows neighborhood health centers to use part of their appropriation at no
additional cost to be covered under the Federal [To]rt Claims Act, obviating the need for them to spend
25 millions of dollars a year on private malpractice insurance.” 138 Cong. Rec. H11662-01, H11662, 1992
WL 280140. Senator Orrin Hatch of Utah confirmed before the Senate that the FSHCAA “will allow the
26 Nation’s 2,000 community, migrant, homeless, and public housing health centers to obtain liability
protection by placing them under the umbrella of the Federal Tort Claims Act,” thereby “reduc[ing] the
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malpractice insurance premium costs of these facilities and their doctors,” resulting in “funds . . . be[ing]
28 made more available for services to people instead of being tied up in malpractice premiums.” 138 Cong.
1 appropriate only where (1) the health service defendant is a “deemed” employee of PHS,
2 42 C.F.R. § 6.6(a); (2) the “claims . . . result[ed] from the performance of medical, surgical,
3 dental, or related functions,” 42 C.F.R. § 6.6(b); and (3) for individuals, the alleged “acts
4 and omissions [occurred] within the scope of their employment.” 42 C.F.R. § 6.6(d).
5 ANALYSIS
6 For purposes of this Motion, the parties agree that Dr. Carriedo-Ceniceros was a
7 “deemed” employee of PHS and that the challenged “acts and omissions” of Dr. Carriedo-
8 Ceniceros occurred within the scope of her employment at SYHC. (See Mot. at 10; U.S.
9 Opp’n at 10 n.9; Tr. at 8:24–9:11.) Consequently, the Court must determine only
10 (1) whether C.K.’s allegations arise from Dr. Carriedo-Ceniceros’ performance of medical
11 or related functions; and (2) if so, whether the United States be substituted in place of
12 Dr. Carriedo-Ceniceros as a Defendant in this action. For the reasons set forth below, the
13 Court finds that both questions must be answered in the affirmative.
14 I. Jurisdiction/Authority to Decide Dr. Carriedo-Ceniceros’ Motion
15 Preliminarily, the United States asserts that 42 U.S.C. § 233 does not provide the
16 Court with jurisdiction or authority to answer the first of the two above-noted questions.
17 (See U.S. Opp’n at 2–6.; see also Tr. at 10:19–11:19, 25:23–26:24.) According to the
18 United States, Section 233(l) does not “grant Dr. Carriedo any rights in this federal suit,
19 much less the right to move to substitute the United States for her or otherwise challenge
20 the United States’ denial of her application for FTCA coverage.” (U.S. Opp’n at 4.) The
21 United States cites a number of cases for the proposition that, because Section 233(l) does
22 not allow a case to be removed from state to federal court for the purpose of challenging a
23 negative FTCA coverage decision, a defendant in a potential removal action who seeks to
24 challenge an adverse coverage decision may do so only via a separate suit under the
25 Administrative Procedures Act, 5 U.S.C. §§ 701–706. (Id. at 4–5 (citing El Rio Santa Cruz
26 Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265,
27 1271 (D.C. Cir. 2005); Q. v. Cal. Hosp. Med. Ctr., No. CV 17-7917-R, 2018 WL 1136568,
28 at *2 (C.D. Cal. Mar. 1, 2018); K.C. v. Cal. Hosp. Med. Ctr., 2:18-CV-06619-RGK-ASX,
1 2018 WL 5906057, at *5 (C.D. Cal. Nov. 8, 2018)).) The United States is correct in its
2 analysis of how Section 233(l) gives a court limited jurisdiction over a FTCA case initially
3 filed in state court; however, the Court finds Section 233(l) and its attendant jurisdictional
4 limitations to be inapplicable to the instant motion. As noted above, this case was
5 originally filed in federal court against the United States and the First Amended Complaint
6 alleges multiple violations of federal statutes. Thus, it cannot be credibly argued that the
7 Court lacks jurisdiction over this matter, and the removal/jurisdictional provisions of
8 Section 233(l) simply do not apply.
9 Mixed in with its analysis of Section 233(l) is the United States’ assertion that the
10 Court lacks the authority to assess the applicability of Section 233(a)’s immunity
11 provisions to the facts of this case. (See U.S. Opp’n at 2–4.) The United States fails to cite
12 a single case to support that argument. To the contrary, in Hui v. Castaneda, the United
13 States Supreme Court found that although immunity under Section 233(a) is “contingent
14 upon the alleged misconduct having occurred in the course of the PHS defendant’s duties,
15 . . . a defendant may make that proof pursuant to the ordinary rules of evidence and
16 procedure.” 559 U.S. at 811 (emphasis added). If, as the United States claims, the Court
17 does not have the ability to evaluate the applicability of Section 233(a)’s immunity
18 provisions, then to whom would a defendant “make that proof pursuant to the ordinary
19 rules of evidence and procedure?” The Court finds Hui to be controlling on the issue of
20 the Court’s ability to determine the applicability of Section 233(a)’s immunity protections
21 and, if necessary, to “effect substitution of the United States.” 559 U.S. at 811.3 That the
22

23 3 See also D’Alessandro v. United States, No. 113CV00416MATHKS, 2019 WL 2514827, at *8
24 (W.D.N.Y. June 18, 2019) (relying on Hui to conclude that “it is proper to accept certification pursuant to
42 U.S.C. § 233(g)(1)(F) as triggering the mandatory substitution of the United States as the proper
25 defendant under the Westfall Act, [28 U.S.C. § 2679(d),] and that no special certification through the
Westfall Act was required”); Kezer v. Penobscot Cmty. Health Ctr., No. 1:15-cv-00225-JAW, 2019 BL
26 141566, at *6–7 (D. Me. Mar. 21, 2019) (“In light of [Hui and other cases], the lack of a specific
mechanism for substitution in § 233 does not prohibit the Court from ordering substitution as an exercise
27
of its limited jurisdictional authority [under § 233(l)].”); Thomas v. Phoebe Putney Health Sys., Inc., No.
28 1:18-CV-096 (LAG), 2019 WL 6039976, at *3 (M.D. Ga. Mar. 6, 2019) (relying on Hui to conclude that
1 Court must do so “based on the ordinary rules of evidence and procedure” is made simple
2 in this case because, as set forth below, see infra Section II, the operative facts are not in
3 dispute. (See also Tr. at 19:17–21:3.)
4 II. Whether the Claims Are for “Covered Activities”
5 C.K. asserts three claims against Dr. Carriedo-Ceniceros: (1) violation of C.K.’s civil
6 rights under 42 U.S.C. § 1983, (FAC ¶¶ 66–71); (2) conspiracy to violate C.K.’s civil rights
7 under 42 U.S.C. § 1986, (FAC ¶¶ 72–79); and (3) negligence and negligence per se. (Id.
8 ¶¶ 89–96.) C.K.’s claims against Dr. Carriedo-Ceniceros are premised on Dr. Carriedo-
9 Ceniceros’ alleged failure to report Dr. Fajerman’s abuse, despite being a mandatory
10 reporter under California law,4 and her alleged “cover[] up” of the abuse. (See id. ¶¶ 8–11,
11 71, 75–78, 90–95.) Because it is undisputed that Dr. Carriedo-Ceniceros was a deemed
12 PHS employee and acting within the scope of her employment, (see Mot. at 10; U.S. Opp’n
13 at 10 n.9; Tr. at 8:24–9:11), the only issue is whether Dr. Carriedo-Ceniceros’ alleged
14 failure to report and cover up of Dr. Fajerman’s abuse are “medical . . . or related functions”
15 for purposes of Section 233(a). See 42 U.S.C. § 233(a); 42 C.F.R. § 6.6(b). The Court
16 concludes that they are.
17 Relying on Teresa T. v. Ragaglia, 154 F. Supp. 2d 290 (D. Conn. 2001), and Z.B. ex
18 rel. Next Friend v. Ammonoosuc Community Health Services Inc., Nos. Civ. 03-540(NH)
19 & Civ. 04-34-P-S (ME), 2004 WL 1571988 (D. Me. June 13, 2004), Dr. Carriedo-
20 Ceniceros contends that, “[w]here state law imposes a duty to report certain injuries or
21 abuse on medical providers acting in their professional capacity, a provider’s performance
22 (or nonperformance) of that duty is a related function for purposes of § 233 immunity.”
23
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25 employment pursuant to 28 U.S.C. § 2679(d)(3)), appeal dismissed, 972 F.3d 1195 (11th Cir. 2020);
Pinzon v. Mendocino Coast Clinics Inc., No. 14-CV-05504-JST, 2015 WL 2452822, at *2–3 (N.D. Cal.
26 May 21, 2015) (concluding that motion to dismiss for lack of subject-matter jurisdiction was premature
where the defendant medical clinic had not yet sought substitution of the United States or shown that the
27
physician was acting within his scope of employment).
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1 (Mot. at 11–12.) Because “Dr. Carriedo only has a duty to report sexual abuse when she
2 is acting as a doctor providing medical services . . . , her duty to report is . . . inextricably
3 woven into her performance of medical functions.” (Id. at 13 (citing Cal. Penal Code
4 §§ 11160(a), 11165.7(a)(21)).)
5 The United States responds that Dr. Carriedo-Ceniceros’ alleged failure to report
6 and cover up of Dr. Fajerman’s abuse “is not the sort of behavior that is immunized as ‘the
7 performance of medical, surgical, or related functions’ under the FSHCAA . . . or the
8 related regulation . . . since it is well outside a claim that sounds in medical malpractice.”
9 (U.S. Opp’n at 7–8 (citing ECF No. 10 at 5–14).5) The United States also distinguishes
10 Teresa T. and Z.B. on the ground that they involved “health care providers whose failure
11 to report were directly related to their provision of health care,” (U.S. Opp’n at 9), while
12 Dr. Carriedo-Ceniceros “was a medical administrator . . . not involved in the evaluation or
13 care of Plaintiff.” (Id. at 10.)
14 Citing Teresa T., the United States itself has recognized that a statutory duty to report
15 suspected abuse may be a “related function” for purposes of Section 233(a) that sounds in
16 medical malpractice “because it adds a required element to the doctor’s evaluation of his
17 patient.” (See ECF No. 10 at 7–8 (quoting Teresa T., 154 F. Supp. 2d at 300).) The United
18 States’ attempts to distinguish Teresa T. are unavailing. First, the United States’ contention
19 that Teresa T. is inapplicable because Dr. Carriedo-Ceniceros was a medical administrator
20 fails given C.K.’s allegations that Dr. Carriedo-Ceniceros was statutorily mandated to
21 report Dr. Fajerman’s abuse. (See FAC ¶¶ 8–11, 71, 75–78, 90–95.) As Dr. Carriedo-
22 Ceniceros notes, (see Reply at 7 (quoting Cal. Penal Code § 11160(a)), and the United
23

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5 In its motion to dismiss, the United States argues that “claims that are not strictly medical malpractice
25 claims, but that ‘sound’ in medical malpractice in that the alleged tortious conduct relate directly to the
provision of care by a medical professional to a patient, come within FSHCAA’s requirement that a claim
26 of injury ‘result[] from the performance of medical, surgical, dental, or related functions.’” (ECF No. 10
at 7 (alteration in original).) The United States cites Teresa T., which involved a state statutory duty to
27
report, and Mele v. Hill Health Center, No. 3:06CV455SRU, 2008 WL 160226 (D. Conn. Jan. 8, 2008),
28 which involved ensuring the privacy of patient medical information, as examples. (See ECF No. 10 at
1 States does not dispute, (see Tr. at 4:4–10), “California imposes a mandatory reporting
2 duty on health practitioners regarding adult sexual abuse only when the practitioner
3 ‘provides medical services for a physical condition to a patient,’” meaning “any claims
4 based on Dr. Carriedo’s status as a mandatory reporter necessarily arise from the
5 performance of medical or related functions.”
6 Further, the mandatory reporting duty has been extended “beyond health
7 practitioners who treat a patient’s physical injury to every physician or surgeon who has
8 such a patient ‘under his or her charge or care.’” See Ortegoza v. Kho, No. 12-CV-00529-
9 L-KSC, 2013 WL 12071637, at *4 (S.D. Cal. Dec. 4, 2013) (quoting Cal Pen. Code
10 § 11161). This section “applies more broadly” than Section 11160, see Pipitone v.
11 Williams, 244 Cal. App. 4th 1437, 1450 (2016), encompassing, for example, a retired
12 physician who made a ten-minute house call in the middle of the night to provide over-the-
13 counter pain medication to his daughter-in-law. See id. at 1440–41. Dr. Carriedo-
14 Ceniceros’ duties as the Chief Medical Officer of SYHC, including “overseeing its medical
15 operations” and “overseeing daily clinical operations,” (see Declaration of Maria Carriedo-
16 Ceniceros, M.D., ECF No. 19-2, ¶ 5), likely suffice to bring SYHC’s patients, including
17 C.K., “under . . . her charge or care.” See Cal Pen. Code § 11161; see also Tr. at
18 21:25–22:23:18, 25:14–27:14.
19 At the hearing, the United States argued broadly that “related functions” for purposes
20 of Section 233 must be “somehow related to a direct relationship between a health care
21 provider and a patient,” in other words, “[b]asically you’ve got to be the health care
22 provider in the exam room or the person taking care of the patient.” See Tr. at 5:6–10. The
23 court in Kezer rejected a similar argument, concluding that “the immunity afforded by
24 § 233 is not as limited as . . . the United States suggest[s].” See 2019 BL 141566, at *6.
25 Not only did breach of patient confidentiality fall within the scope of medical malpractice
26 for purposes of Maine law, but “[t]he Court c[ould] find no caselaw, and the United States
27 offer[ed] none, to support its contention that § 233 immunity is limited to claims arising
28 from direct medical treatment.” See id. Rather, the court reasoned, administrative or
1 operational duties could qualify as related functions where they were connected to the
2 provision of medical care. See id. (citing Brignac v. United States, 239 F. Supp. 3d 1367,
3 1377 (N.D. Ga. 2017); De La Cruz v. Graber, No. CV 16-1294 VBF (AS), 2017 WL
4 4277129 (C.D. Cal. June 15), report and recommendation adopted, 2017 WL 42271122
5 (C.D. Cal. Sept. 21, 2017)). As in Kezer, applicable state law supports a medical
6 malpractice claim, see, e.g., Landeros v. Flood, 17 Cal. 3d 399, 413–14 (1976) (reversing
7 dismissal of medical malpractice claim based on failure to report suspected abuse), and the
8 United States fails to cite any cases limiting the application of Section 233 to direct medical
9 treatment. Rather, Dr. Carriedo-Ceniceros’ argument that the FSHCAA was extended to
10 board members, (see Tr. at 15:4–18; see also, e.g., 42 U.S.C. § 233(g)(1)(A)), who do not
11 themselves provide medical care, undercuts the United States’ narrow reading.
12 Also unavailing is the United States’ attempt to distinguish Teresa T. based on
13 C.K.’s allegations that Dr. Carriedo-Ceniceros not only failed to report the abuse but
14 affirmatively covered it up. Not only is “[t]here . . . nothing in the FSHCAA which limits
15 the defendants’ liability to actions in negligence only,” see Teresa T., 154 F. Supp. 2d at
16 299, but the alleged coverup “emanates from the manner in which defendant[] performed
17 [her statutory duty to report], a matter that is an ordinary and usual part of medical
18 professional services.” See Cent. Pathology Serv. Med. Clinic, Inc. v. Super. Ct., 3 Cal.
19 4th 181, 192–93 (1992) (concluding that intentional tort claims based on physician’s
20 alleged coverup of medical negligence arose out of the physician’s professional negligence
21 for purposes of California’s Medical Injury Compensation Reform Act).
22 Consequently, under Teresa T., C.K.’s claims against Dr. Carriedo-Ceniceros
23 resulted from Dr. Carriedo-Ceniceros’ performance of medical or related functions. See
24 154 F. Supp. 2d at 299–300. The Court therefore concludes that C.K.’s claims are for
25 covered activities for purposes of Section 233(a).
26 III. Substitution of the United States
27 Based on the Court’s determination that C.K’s claims are for covered activities and
28 that Dr. Carriedo-Ceniceros is therefore a “covered person” under Section 233(a), see
1 || supra Section II, the Court GRANTS Dr. Carriedo-Ceniceros’ Motion for Substitution.
2 || See Hui, 559 U.S. at 811; 42 U.S.C. § 233(b) (“The Attorney General shall defend any civil
3 || action or proceeding brought in any court against any person referred to in subsection (a)
4 || of this section (or his estate) for any such damage or injury.’”’) (emphasis added).
5 Motion to Stay
6 The Court DENIES AS MOOT Dr. Carriedo-Ceniceros’ Motion to Stay. (See Tr.
7 19:9-11.)
8 CONCLUSION
9 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART
10 || Defendant Carriedo-Ceniceros’ Motion (ECF No. 19). Specifically, the Court GRANTS
11 |/the Motion for Substitution and DENIES AS MOOT the Motion to Stay. Accordingly,
12 |/the Court DISMISSES Defendant Carriedo-Ceniceros and SUBSTITUTES the United
13 ||States as defendant in her place.
14 IT IS SO ORDERED.
15
Dated: November 12, 2020
Tan \Qbn— □
Honorable Todd W. Robinson
18 United States District Court
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10082403. Public record. Not legal advice.