Rowan v. SIU Physicians and Surgeons, Inc.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LYNDA ROWAN & RICHARD )

ROWAN, )

)

Plaintiffs, )

)

vs. ) Case No. 3:23-cv-01212-GCS

)

SIU PHYSICIANS AND SURGEONS )

INC. & KYAW NAING, )

)

Defendant, )

)

vs. )

)

WILSON CUEVA, )

)

Respondent In Discovery, )

)

MEMORANDUM & ORDER

SISON, Magistrate Judge:

The following motions are pending before the Court: Defendant Naing’s Motion

to Dismiss and Motion to Substitute Party (Doc. 8); Defendant Naing’s Motion to Strike

Plaintiffs’ Reply to Defendant’s Response (Doc. 35); and Plaintiffs’ Motion for Leave to

File a Reply. (Doc. 36). Defendant Naing filed the Motion to Dismiss and Motion to

Substitute Party on April 13, 2023. (Doc. 8). Plaintiffs Lynda and Richard Rowan filed a

Response to the Motion on May 15, 2023. (Doc. 20). Defendant Naing then filed a

Response to the Reply on May 22, 2023. (Doc. 29). On July 19, 2023, Plaintiffs filed a

separate Reply to the Response Motion. (Doc. 34). Defendant Naing then moved the

Court to strike the reply. (Doc. 35). Plaintiffs then sought leave to file a Reply to the

Response Motion on July 25, 2023. (Doc. 36). For the reasons delineated below, the Court

GRANTS Defendant Naing’s Motion to Dismiss and Motion to Substitute Party (Doc. 8)

as well as his Motion to Strike Plaintiffs’ Reply to Defendant’s Response (Doc. 35). The

Court DENIES Plaintiffs’ Motion for Leave to File (Doc. 36).

BACKGROUND

On September 16, 2022, Plaintiffs Lynda and Richard Rowan filed a Complaint in

the Circuit Court of the First Judicial Circuit - Jackson County, Illinois, against

Defendants Dr. Kayaw Naing (“Naing”) and SIU Physicians and Surgeons, Inc. (“SIU

Physicians and Surgeons”). (Doc. 1, Exh. 1, p. 2-9). Plaintiffs’ allegations concern

Defendant Naing’s treatment of Plaintiff Lynda Rowan in his capacity as her personal

care physician. Id. at. p. 2. On January 24, 2020, Plaintiff Lynda Rowan was hospitalized

complaining of bilateral leg weakness. Id. at p. 3. Lynda was seen and treated by experts

during her hospitalization, however Defendant Naing never consulted with those experts

to assist them in diagnosing Lynda’s condition. Lynda was subsequently diagnosed with

an intradural extramedullary tumor that was located during a surgery performed on

October 4, 2020, at Barnes Jewish Hospital. Id. Lynda’s condition eventually resulted in

the loss of the use of her legs. Id.

Plaintiffs specifically allege that Naing’s “failure to discharge his duties as

gatekeeper, failure to supervise the care that [Lynda] received, failure to consult with

experts who treated her, and failure to monitor her condition or refer her to experts in a

more timely manner” amounted to negligence. Id. at p. 2 Plaintiffs contend that as a

“direct and proximate cause” of Naing’s negligence it resulted in pain and suffering for

Lynda, the loss of the use of her legs, and a decrease in the enjoyment of her life as she is

now wheelchair bound. Id. Plaintiffs “repeat and reallege” the same allegations against

Defendant SIU Physicians and Surgeons. Id. at p. 4. Plaintiff Richard Rowan, as husband

to Lynda, alleges that he has also suffered due to Naing’s negligence by a “decrease in

his wife’s society” and a decrease in the enjoyment of his own life. Id. at p. 5.

On April 12, 2023, the United States of America, on behalf of Defendant Naing

removed the action to the United States District Court for the Southern District of Illinois

pursuant to 42 U.S.C. § 233. (Doc. 1). The United States sought removal to the federal

district court because Naing is a “deemed federal employee eligible for Federal Tort

Claims Act (“FTCA”) coverage pursuant to the Federally Supported Health Centers

Assistance Act.” Id. at p. 1.

DISCUSSION

A. Defendant Naing’s Motion to Dismiss and Motion to Substitute Party

In the Motion to Dismiss/Substitute, Naing argues that he should be dismissed

from the present action because he is a “deemed” federal employee who was acting

within the scope of his “deemed” federal employment at the time of the incidents alleged

in Plaintiffs’ complaint. As such, Naing argues that the United States of America (“United

States”) should be listed as Defendant in his stead. (Doc. 8, p. 3). Plaintiffs contest Naing’s

status as a deemed federal employee as well as when he received this status in their

Response to Defendant Naing’s Motion to Dismiss. (Doc. 20, p. 1-2).

Under 42 U.S.C. § 233(a), an FTCA lawsuit against the United States is the sole

remedy “for damage or personal injury, including death, resulting from the performance

of medical, surgical, dental or related functions . . . by any commissioned officer or

employee of the Public Health Service while acting within the scope of his office or

employment.” In such cases, “[u]pon certification by the Attorney General that the

defendant was acting in the scope of his employment at the time of the incident out of

which the suit arose, any civil action or proceeding commenced in a State court shall be

removed without bond at any time before trial by the Attorney General to the district

court of the United States of the district and division embracing the place wherein it is

pending and the proceeding deemed a tort action brought against the United States

under the provisions of title 28 and all references thereto.”42 U.S.C. § 233(c) (emphasis

added). A United States Attorney is permitted to issue such certification in lieu of the

Attorney General, or delegate that authority. See 28 C.F.R. § 15.4.

The United States, on behalf of Naing, removed this lawsuit from Jackson County,

Illinois, to the United States District Court for the Southern District of Illinois on April 12,

2023. (Doc. 1). Defendant Naing attached to the Notice of Removal, the Certification of

Scope of Employment. (Doc. 1, Exh. 2). Nathan E. Wyatt, Assistant United States Attorney

and Chief of the Civil Division for the United States Attorney’s Office for the Southern

District of Illinois, by virtue of the delegation from the United States Attorney, certified

after reading Plaintiffs’ complaint that: “[d]uring the time-period referenced in Plaintiff’s

Complaint, Dr. Kyaw Naing was a deemed federal employee for the purposes of the care

at issue by virtue of his employment with the Board of Trustees of Southern Illinois

University and the SIU Center for Family Medicine.” Id. at p. 1. The statutory language

of Section 233(c) is clear. After a proper certification is made that a defendant was acting

within the scope of employment, the matter shall be removed to a United States District

Court with the case proceeding as a tort action brought against the United States.

The Federal Health Centers Assistance Act1 further permits the Secretary of Health

and Human Services to deem certain federally funded community health centers, along

with certain individuals affiliated with them, to be employees of the federal Public Health

Service (“PHS”) for purposes of the FTCA. See 42 U.S.C. §§ 254b & 233g; 42 C.F.R. § 6.3-

6.6. See also P.W. by Woodson v. United States, 990 F.3d 515, 518 (7th Cir. 2021) (noting that

“Employees” include federally funded health centers and their employees.). Once the

Secretary of the Department of Health and Human Services “makes a determination that

an entity or . . . employee . . . of an entity is deemed to be an employee of the Public Health

Service . . . the determination shall be final and binding upon . . . other parties to any

civil action or proceeding.” 42 U.S.C. § 233(g)(1)(F) (emphasis added).

Along with the Notice of Removal, Defendant Naing filed the Declaration of

Meredith Torres (“Torres”), a Senior Attorney in the General Law Division, Office of the

General Counsel, Department of Health and Human Services, as an exhibit. (Doc. 2).

Torres states in her declaration that:

I have reviewed official Agency records and determined that Board of

Trustees of Southern Illinois University, was deemed eligible for Federal

1 This designation enables centers caring for underserved populations to spend their money

on patient care rather than malpractice premiums. See Chronis v. United States, 932 F.3d 544, 546

n.1 (7th Cir. 2019) (citing Dedrick v. Youngblood, 200 F.3d 744, 745 (11th Cir. 2000)).

Tort Claims Act malpractice coverage effective January 1, 2020, and that its

coverage has continued without interruption since that time. The Secretary

of Health and Human Services’ authority to deem entities as Public Health

Service employee under 42 U.S.C. § 233(g) has been delegated to the

Associate Administrator, Bureau of Primary Health Care, Health Resources

and Services Administration. A copy of the notification issued by the

Associate Administrator, Bureau of Primary Health Care, Health Resources

and Services Administration, Department of Health and Human Services

to Board of Trustees of Southern Illinois University, is attached to this

declaration as Exhibit 1.

I have also reviewed the employment records submitted by Board of

Trustees of Southern Illinois University, on behalf of the defendant, Dr.

Kyaw Naing and I have determined that Dr. Naing was an employee of

Board of Trustees of Southern Illinois University, at the time of the incidents

giving rise to this suit.

To clarify, SIU Physicians & Surgeons, Inc., a/k/a SIU Healthcare is a

named defendant in this case. Dr. Naing did not provide care to Ms. Lynda

Rowan through Defendant SIU Physicians & Surgeons a/k/a SIU

Healthcare. At the time relevant to this case, Dr. Naing was employed by

the Southern Illinois University School of Medicine for his teaching and

other academic duties. With respect to his clinical duties, at the time

relevant to this case, Dr. Naing was employed by SIU Center for Family

Medicine-Carbondale. If named as a defendant, SIU Center for Family

Medicine-Carbondale would have been considered a deemed federal

employee under 42 U.S.C. § 233(g) for the purposes of this case. Defendant

SIU Physicians & Surgeons a/k/a SIU Healthcare is not a deemed

employee under 42 U.S.C. § 233(g).

(Doc. 2, p. 2). This documentation reflects the Secretary of Health and Human Services’

decision to deem SIU Family Medicine and Naing as employees of the federal PHS.

As further evidence of SIU Family Medicine’s status, Naing also supplied the

Court with the FTCA deeming notice from October 17, 2019. (Doc. 29, Exh. 1). The

deeming notice indicates that “the Board of Trustees of Southern Illinois University [is

an] employee of the PHS for the purposes of Section 224” effective January 1, 2020-

December 31, 2020. Id. at p. 3. Thus, SIU Family Medicine’s status as a deemed employee

has been clearly established throughout the period of Lynda Rowan’s care alleged in

Plaintiffs’ Complaint – which took place between January 24, 2020, and October 4, 2020.2

Plaintiffs dispute both Naing’s status as a deemed federal employee and when

he received that status. Despite their protestations to the contrary, the statutory language

again is clear. Once a deeming decision is made, such a determination is final and binding

on the parties. See 42 U.S.C. § 233(g)(1)(F). Indeed, the Seventh Circuit confirmed the final

and binding nature of such a determination when it concluded that “neither party could

challenge the certification” made under Section 233. Alexander v. Mount Sinai Hosp.

Medical Center, 484 F.3d 889, 897 (7th Cir. 2007). This is true even if the initial deeming

decision was later found to be made in error. Id. at 892-895.

The submitted documentation demonstrates that Naing was a deemed employee

of the SIU Center for Family Medicine – Carbondale (“SIU – Family Medicine”)

throughout the relevant period alleged in Plaintiffs’ complaint. Thus, the Court GRANTS

Defendant Naing’s Motion to Dismiss and substitutes the United States as a defendant in

this case. (Doc. 8).

B. Defendant Naing’s Motion to Strike and Plaintiffs’ Motion for Leave to Reply

Plaintiffs filed a Reply to Defendant Naing’s Response to Naing’s Motion to

Dismiss on July 19, 2023. (Doc. 34). In the Reply, Plaintiffs appear to argue that the

negligence by Naing took place not only in 2020, but in 2019 as well. See, e.g., (Doc. 34, p.

1) (stating that “[t]his is only partially correct, but the claim includes negligence in 2019.”).

2 The Court notes that these were the dates of care originally indicated in Plaintiffs’ initial

complaint. (Doc. 1, Exh. 1, p. 1-2).

Plaintiffs assert that medical records indicate that Lynda Rowan had fallen twice in 2019

and that she began to feel weakness in her lower extremities in October 2019. Id. They

allege that Naing’s failure to “determine the cause of Lynda’s falls or the cause of her

lower extremity weakness, or the absence of reflexes” amounted to negligence. Id. at p. 2.

Defendant Naing subsequently filed a Motion to Strike Plaintiffs’ Reply. (Doc. 35).

Defendant points out that Plaintiffs’ document is in fact not a reply, but a sur-reply.

Defendant notes that sur-replies are heavily disfavored in the Southern District of Illinois,

as set forth in Local Rule 7.1 (c). Id. at p. 2. Moreover, even if the document would be

considered a reply, Defendant Naing argues that the reply would be untimely, having

been filed almost two months after Defendant’s reply. Id.

In response, Plaintiff filed a Motion for Leave to file a Reply on July 25, 2023. (Doc.

36). Therein, Plaintiffs note that they were “aware that Naing had been Lynda’s personal

physician for several years to include 2019 but had no need to plead those facts in their

State Court Complaint.” Id. at p. 2.

Defendants are correct that sur-reply briefs are disfavored. In fact, Local Rule 7.1

states that “under no circumstances will sur-reply briefs be accepted.” As such,

Defendants’ Motion to Strike Plaintiffs’ Reply to Defendant Naing’s Response to Naing’s

Motion to Dismiss is GRANTED.

As to Plaintiffs’ Motion for Leave to File a Reply, it appears as though Plaintiffs

are attempting to use the Reply brief to supplement their initial complaint. However,

filing a sur-reply to Defendant Naing’s Response to Naing’s Motion to Dismiss is the

inappropriate vehicle to do so. Accordingly, Plaintiffs’ Motion for Leave to File a Reply

is DENIED.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant's Motion to Substitute

Party and Motion to Dismiss (Doc. 8). The Court also GRANTS Defendant’s Motion to

Strike Reply to Response (Doc. 35). The Court DENIES Plaintiffs’ Motion for Leave to

File Reply (Doc. 36). The Court DIRECTS the Clerk to substitute the United States as a

Defendant in Naing’s stead.

IT IS SO ORDERED.

Digitally signed

DATED: March 25, 2024. Bitte byJudge Sison

< *=~ Date: 2024.03.25

13:10:20 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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