The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ALEXANDRIA ORDUNA )
as mother and next friend of E.O., )
a minor )
)
Plaintiff )
)
v. ) No. 1:20-cv-00228-LEW
)
UNITED STATES OF AMERICA, )
)
Defendant )
DECISION ON MOTION TO DISMISS
In this medical malpractice action, the United States is the Defendant pursuant to
the integrated operation of the Public Health Service Act, 42 U.S.C. § 233, and the Westfall
provision of the Federal Tort Claims Act, 28 U.S.C. § 2679.1 Plaintiff Alexandria Orduna,
mother of minor E.O., alleges that her infant’s physician’s assistant (“PA”) detected signs
of physical trauma and suspected child abuse, yet failed to inform Ms. Orduna of the same.
According to Ms. Orduna, had the PA informed her that her child’s medical concerns
1 The Westfall Act, named for Westfall v. Erwin, 484 U.S. 292 (1988), amended § 2679 of the Federal Tort
Claims Act, making it the sole remedy for tortious acts committed by “any employee of the Government
while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). The FTCA defines an
“[e]mployee of the government” to include “persons acting on behalf of a federal agency in an official
capacity, temporarily or permanently in the service of the United States, whether with or without
compensation.” 28 U.S.C. § 2671. Pursuant to the Public Health Service Act, employees of private
healthcare facilities may be deemed commissioned officers of the Public Health Service, sparing them
personal liability “for damage or personal injury … resulting from the performance of medical, surgical,
dental, or related functions, … while acting within the scope of … employment,” and the claimant’s
“exclusive” remedy is against the United States. 42 U.S.C. § 233(a).
appeared to be the product of physical abuse, Ms. Orduna would have taken measures to
protect her child from a domestic partner, the alleged perpetrator of the injuries.
The matter is before the Court on Defendant’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction (ECF No. 8). Defendant, observing that the jurisdiction of the
United States District Courts is “exclusive,” invokes a provision of the FTCA-related
jurisdictional statute that limits the exercise of exclusive jurisdiction to “claims … caused
by the negligent or wrongful act or omission of any employee of the Government … 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.A.
§ 1346(b)(1). According to Defendant, under Maine common law no private healthcare
provider can be held liable in negligence (medical malpractice) for failing to “report”
suspected child abuse because there is no “duty to protect” a patient from harm inflicted
by a third party. Motion at 6.
A claim of negligence is actionable in Maine based on a breach of the duty of
reasonable care that causes harm to another. Curtis v. Porter, 2001 ME 158, ¶ 18, 784 A.2d
18, 25. Defining the “duty” component of this matrix is a fact-bound question of law.
Brown v. Delta Tau Delta, 2015 ME 75, ¶ 9, 118 A.3d 789, 792. This sometimes calls on
a court to conduct “a multi-factored analysis that necessarily evokes policy-based
considerations including the just allocation of loss.” Id. However, in a case of medical
malpractice, the duty is already well defined: a provider must exercise that degree of care
that an “ordinarily competent” provider would exercise under “like circumstances.”
McLaughlin v. Sy, 589 A.2d 448, 452 (Me. 1991).
Defendant attempts to obfuscate the basic duty of care of medical providers by
characterizing this case entirely as one that would impose liability based on the failure of
a provider to report suspected child abuse to government authorities and thereby protect
the patient from harm. In that regard, Defendant relies on the Maine’s rule that absent a
special relationship there is no affirmative obligation to protect others from the actions of
third parties, even third parties known to be dangerous. Brown, 2015 ME 75, ¶ 10, 118
A.3d at 792. Defendant’s focus on the concept of duty in relation to protecting against
third-party harm is an outgrowth of the fact that Plaintiff cites Maine’s Child Protection
Act in partial support of her claim and alleges in partial support of her Complaint an alleged
failure to protect E.O. from harm.
The Child Protection Act makes several categories of “adult persons” into so-called
mandatory reporters when they act in a “professional capacity.” 22 M.R.S. § 4011-
A(1)(A)(4).2 See Complaint ¶¶ 4, 18, 19, 25-28. Mandatory reporters are required by law
to inform certain governmental entities when they learn of child abuse or neglect. Id. §
4011-A(1). Defendant interprets Plaintiff’s claim of medical malpractice to be dependent
on the Child Protection Act. As Defendant observes, the problem with basing a malpractice
case exclusively on the Act is that the Maine Legislature imposed the duty to report but did
not grant a private cause of action to persons the statute is designed to protect. Compare
28-A Me. Rev. Stat. § 2506(2) (“A server who negligently serves liquor to a visibly
2 The statute also includes special provisions related to children under six months of age. 22 M.R.S. § 4011-
A(7).
intoxicated individual is liable for damages proximately caused by that individual’s
consumption of the liquor.”); 38 Me. Rev. Stat. § 1319-U (“A person who disposes of or
treats hazardous waste, when that disposal or treatment, in fact, endangers the health, safety
or welfare of another, is liable in a civil suit for all resulting damages.”).3
Ultimately, however, this case, at least at this nascent stage, does not depend on the
Child Protection Act. The Complaint states a solitary claim of negligence and the
allegations can be read to assert the breach of the standard of care for medical providers
separate and apart from any statutory duty to report suspected abuse to the government.
Plaintiff, Ms. Orduna on behalf of E.O., complains that the provider in question failed to
notify Ms. Orduna of signs of physical abuse of her infant that she could not detect. That
theory of relief is set forth in the Complaint in a short and plain statement and it states a
plausible claim for relief under Maine law. The duty in question is the duty to observe the
standard of care of an ordinarily competent medical provider and, for purposes of a motion
to dismiss, the court accepts the inference that an ordinarily competent provider could be
governed by a duty to inform the parent of a minor child that a differential diagnosis
includes physical abuse. The question is at least close enough to make me reluctant to
3 Defendant’s interpretation of the Complaint is also likely the result of Plaintiff’s allegation that
the provider owed a duty “to protect” E.O. See, e.g., Complaint ¶ 32 (“E.O.’s permanent injuries
would have been avoided if [Defendant] had not failed in its obligation to protect E.O. from
abuse.”). Indeed, even at oral argument, Plaintiff’s counsel described a duty “to protect,” though
she phrased it as a duty to protect against the foreseeable results of a medical diagnosis. My ruling
does not turn on a duty “to protect,” but rather to provide care at the ordinarily-competent-provider
level. This care-focused claim is elsewhere clearly stated in the Complaint. See, e.g., Complaint
¶ 33 (“Had [Defendant] provided reasonable medical care … injuries would have been avoided.”);
Complaint ¶ 35 (“Defendant’s employees … were careless and negligent and breached the standard
of care for medical providers when they negligently failed to notify Alexandria [Orduna]….”).
dismiss the case in the absence of a record. Defendant’s protestations that this case is about
a duty to protect against harm caused by a third party, and therefore not cognizable, begs
rather than answers the question, particularly with only the barest notice pleadings before
me. It is a characterization rather than a supported, reasoned conclusion. Defendant has
advanced a cogent and skillful argument but one that simply is premature. My denial of
Defendant’s motion does not foreclose examination of the question at some other point
during the litigation when I have the benefit of a properly submitted record that may include
expert opinions and a more precise explication of the nature of Plaintiff’s theory of tort
liability against the medical providers. Until then any prediction of what bearing a properly
developed record may have on the scope of the legal duty, which by dint of the
physician/patient relationship here exists, is not much more than ghost hunting. Because
these allegations state a plausible claim, they also support the exercise of subject matter
jurisdiction under the FTCA.4
Accordingly, Defendant’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction (ECF No. 8) is DENIED.
SO ORDERED.
Dated this 18th day of March, 2021.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
4 Because Defendant’s motion is based on the alleged lack of subject matter jurisdiction, and because
subject matter jurisdiction is present, I do not need to make an advisory ruling whether breach of a duty
owed to Plaintiff would be stated had the provider informed Ms. Orduna of the suspected abuse but not
reported her suspicions to the government. As alleged, the provider did not inform Ms. Orduna and that
circumstance gives rise to a scenario in which it is at least plausible that the finder of fact might diagnose
the breach of a duty, assuming the record ultimately supports Ms. Orduna’ position.