The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
P.J. THOMPSON, a Minor, by his next of kin,
his mother CARLIE WILLIS and father
TYLER THOMPSON, and CARLIE WILLIS,
Individually,
Plaintiffs,
v. Case No. 18-CV-1520-NJR-MAB
UNITED STATES OF AMERICA
and SOUTHERN ILLINOIS HOSPITAL
SERVICES d/b/a MEMORIAL HOSPITAL OF
CARBONDALE,
Defendants.
ORDER TO SHOW CAUSE
ROSENSTENGEL, Chief Judge:
The Court is aware of the pending motion to dismiss that was filed by Defendant
Southern Illinois Hospital Services (“SIHS”) when this case was proceeding before Judge
Michael J. Reagan (Doc. 13). In March 2019, Judge Reagan retired, and this case was
transferred to the undersigned. In the course of reviewing the arguments set forth in the
pending motion to dismiss, the undersigned has reviewed the jurisdictional allegations
in the Complaint to confirm that subject-matter jurisdiction exists and finds them to be
insufficient.
While specific challenges to a Court’s subject-matter jurisdiction may be raised by
the parties, the Court also has an independent obligation to determine whether it has
subject-matter jurisdiction over a given case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999); see also Ricketts v. Midwest National Bank, 874 F.2d 1177, 1181 (holding that a
district court’s obligation to review its own jurisdiction exists independent of assertions
from parties). Pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, “[i]f the
court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”
On August 20, 2018, Plaintiffs filed a Complaint in this Court alleging a medical
negligence action arising under the Federal Tort Claims Act (“FTCA”) Ch 646, 62 Stat.
929 (1948) (Doc. 2, p. 2). Plaintiffs’ Complaint conclusively asserts that “[t]his Court has
subject-matter jurisdiction over Dr. Paul J. Cruz, M.D. and Christopher Greater Area
Rural Health Planning Corporation (“CGRHPC”) pursuant to federal question
jurisdiction, 28 U.S.C. § 1331, 28 U.S.C. § 2671 et. seq., commonly known as the Federal
Tort Claims Act” (Id.). Plaintiffs do not specifically name Dr. Cruz or CGRHPC as
defendants, presumably because the Federal Tort Claims Act functionally substitutes the
United States of America (“USA”) as a defendant for certain entities, and employees that
are deemed to be federal employees for purposes of certain tort actions (Id.). Plaintiffs’
Complaint also asserts supplemental jurisdiction over SIHS pursuant to 28 U.S.C.
§ 1367(a) because the claims asserted form part of the same constitutional case or
controversy as the claims brought against “the United States’ defendants” (Id.).
The Complaint asserts claims against the United States and SIHS based on medical
care and treatment rendered to Plaintiff Carlie Thompson, and her son, P.J. Thompson,
during his birth. Plaintiffs have attached to their Complaint two affidavits providing
expert medical testimony generally establishing the standard of care and Defendants’
deviation from that standard (Doc. 2-1, 2-2).
Section of 224 of the Public Health Service Act provides that certain federally
funded entities and their employees are deemed federal employees for the purpose of
certain tort actions, including medical malpractice claims. 42 U.S.C. § 233. Any such
claims are considered to be claims under the FTCA for which there is exclusive federal
jurisdiction. Id. The statute provides in pertinent part:
(a) Exclusiveness of remedy.
The remedy against the United States … for damage for personal injury . . .
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, shall be 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 omission gave rise to the
claim.
***
(g) Exclusivity of remedy against the United States for entities deemed
Public Health Service employees; coverage for services furnished to
individuals other than center patients; application process; subrogation
of medical malpractice claims; applicable period; entity and contractor
defined.
(1)(A) For purposes of this section and subject to the approval by the
Secretary of an application under subparagraph (D), an entity described in
paragraph (4), and any officer, governing board member, or employee of
such an entity, and any contractor of such an entity who is a physician or
other licensed or certified health care practitioner (subject to paragraph (5)),
shall be deemed to be an employee of the Public Health Service for a
calendar year that begins during a fiscal year for which a transfer was made
under subsection (k)(3) (subject to paragraph (3))…
42 U.S.C. § 233.
The Secretary of Health and Human Services issued regulations clarifying
coverage under § 233(g), including when a funded entity begins to be covered and what
acts and omissions are covered. The regulations provide:
6.5 Deeming process for eligible entities.
Eligible entities will be covered by this part only on and after the effective
date of a determination by the Secretary that they meet the requirements of
section 224(h) of the Act. In making such determination, the Secretary will
receive such assurances and conduct such investigations as he or she deems
necessary.
6.6 Covered acts and omissions.
(a) Only acts and omissions occurring on and after the effective date of the
Secretary’s determination under § 6.5 and before the later date specified in
section 224(g)(3) of the Act are covered by this part.
42 C.F.R. §§ 6.5-6.6(a).
Unfortunately, Plaintiffs do not specifically allege that CGRHPC is a federally
funded health center and Public Health Service Agency of the United States pursuant to
Section 233(g)(1)(A). Upon review of the Health Resources and Services Administration
website,1 the Court has confirmed that CGRHPC is currently an FTCA Deemed Health
Center. The website also seems to indicate, however, that CGRHPC’s coverage began on
January 1, 2017. Health Resources and Services Administration, “Federal Tort Claims Act
Search Tool,” https://data.hrsa.gov/tools/ftca-search-tool (visited December 19, 2019).
Plaintiffs’ claims against Dr. Cruz and CGRHPC are based solely on negligent acts and
omissions that occurred between January 14, 2016 and January 16, 2016 (Doc. 2, pp. 3-7).
1The website identifies all the health centers that by virtue of receiving funds through the Health Center
Program may be deemed as employees of the Public Health Service for purposes of Federal Tort Claims
Act coverage.
Regulation 6.6(a) makes it clear that only acts and omissions occurring on and after the
effective date are covered by the FTCA. Thus, regardless of Dr. Cruz acting within the
scope of his employment, it appears that the alleged negligent acts and omissions
occurred prior to his employer, CGRHPC, being an FTCA Deemed Health Center.
Nonetheless, the Court recognizes that the above-mentioned website is only a
“search tool” and may not provide conclusive information as to whether CGRHPC was
a FTCA Deemed Health Center on the dates in question. For the reasons set forth
above, Plaintiffs are ORDERED to SHOW CAUSE on or before January 3, 2020, as to
why this Court has subject matter jurisdiction over this action. Defendants may file a
response within seven days thereafter. If Plaintiffs fail to file a response to this
Order, or fail to establish that subject matter jurisdiction exists, the Court will dismiss
this matter for lack of jurisdiction. See Metcalf v. West Suburban Hosp., 912 F. Supp. 382,
388 (N.D. Ill. 1996) (holding that federal court lacks original jurisdiction under the
FTCA when alleged negligent acts and omissions of healthcare center occur outside of
its FIC dSeB@CRBERED.
DATED: December 20, 2019
NANCY J. ROSENSTENGEL |
Chief U.S. District Judge
Page 5 of 5