The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RUSSELL COOPER, et al.,
Plaintiffs,
v. CIVIL ACTION NO. 2:22-cv-00100
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion of the Defendants to Dismiss Defendant
Bridgett Freeman, FNP-BC, from This Civil Action and to Substitute the United
States as the Sole and Proper Defendant. [ECF No. 11]. Because federal law requires
this substitution, the motion is GRANTED.
Plaintiff Russell Cooper brought this action both in his individual capacity and
as administrator of the Estate of Diana S. Cooper. Mr. Cooper alleges that Valley
Health Systems, Inc. (“VHS”), a federally qualified health center located in the
Southern District of West Virginia, and its employees—including Bridgett Freeman,
FNP-BC—failed to properly screen for or treat a medical condition that caused the
death of Ms. Cooper. Mr. Cooper filed his complaint in this court, alleging tort claims
against the United States of America (“the government”) and Ms. Freeman for
medical malpractice and negligence, as well as a negligence claim brought pursuant
to the Federal Tort Claims Act (“FTCA”). [ECF No. 1].
The government, on behalf of its employee Ms. Freeman, filed its motion to
dismiss Ms. Freeman and substitute the United States of America as the sole
defendant, arguing that the FTCA requires that Mr. Cooper bring his claims against
the government, not its individual employee. [ECF No. 11]. The government
additionally filed two exhibits to its motion. First, the government filed a declaration
of Erica Gibson, an attorney for the United States Department of Health and Human
Services, stating that VHS has been deemed eligible for FTCA malpractice coverage
since at least January 1, 2010, and that Ms. Freeman, as an employee of VHS, was
therefore deemed an employee of the government for purposes of the FTCA. [ECF No.
11-1]. Second, the government filed a certification by William S. Thompson, the
United States Attorney for the Southern District of West Virginia, that Ms. Freeman
was acting within the scope of her federal employment at all times relevant to the
complaint. [ECF No. 11-2]. The motion has gone unopposed.
The FTCA provides private parties with a cause of action in a federal court
against the United States for most torts committed by persons acting on behalf of the
United States. 28 U.S.C. § 1346. The Federal Employees Liability Reform and
Tort Compensation Act of 1988 (the “Westfall Act”) modifies the FTCA to immunize
a federal employee from liability for her “negligent or wrongful act or omission . . .
while acting within the scope of h[er] office or employment” such that the exclusive
remedy is a suit against the United States as the employer. 28 U.S.C. § 2679(b)(1).
The Public Health Service Act, as amended by the Federally Supported Health
Centers Assistance Act, extends FTCA coverage to certain eligible community health
centers and their employees. 42 U.S.C. § 233(g)(1)(A). The Secretary of Health and
Human Services deems a community health center eligible after the center has
qualified for certain federal assistance.
Moreover, the Westfall Act provides that upon certification from the Attorney
General that a defendant employee was acting within the scope of her employment
at the time of the incident described in the complaint, “the United States shall be
substituted” for the employee as the party defendant. 28 U.S.C. §§ 2679(d)(1)–(2). The
Attorney General of the United States has delegated the authority to provide such
certification to the United States Attorney for the district in which the incident
allegedly occurred. 28 C.F.R. § 15.4(a). Although the certification does not
conclusively establish that the defendant employee was acting within the scope of his
employment, the plaintiff has the burden of proving otherwise once the certification
has been made. , 126 F.3d 317, 323 (4th Cir. 1997).
In this case, the government has filed a certification executed by the United
States Attorney for the Southern District of West Virginia that indicates that Ms.
Freeman, as an employee of an eligible community health center, was acting within
the scope of her employment as an employee of the United States at the time of the
alleged incident giving rise to Mr. Cooper’s complaint. [ECF No. 11-2]. Mr. Cooper
has not refuted the certification, and the statute requires the court to substitute the
United States for the federal employee upon said certification.
Accordingly, the motion to dismiss Ms. Freeman and substitute the United
States of America as the sole defendant [ECF No. 11] is GRANTED. Bridgett
Freeman, FNP-BC, is DISMISSED as a defendant from this action. The court
DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
E R July 6, 2022
JOSEPH &. GOODW
pe STATES DISTRICT JUDGE