Costin v. Glens Falls Hospital

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

NICOLE COSTIN, individually and on behalf of

her minor son, BABY A,

Plaintiff,

vs. 1:22-CV-296

(MAD/CFH)

GLENS FALLS HOSPITAL, KEVIN M. GRASSI, M.D.,

STACY L. RALPH, KAREN RANTILLA,

LYNETTE M. BISS, NICOLE BENNETT,

JENNIFER NIX, AMY HOOPER, JODIE SMITH,

STEPHANIE DECHIENE, and ALYCIA N. GREGORY,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

SCHULTE ROTH & ZABEL LLP TALEAH E. JENNINGS, ESQ.

919 Third Avenue WILLIAM H. GUSSMAN, ESQ.

New York, New York 10022 JULIA BESKIN, ESQ.

Attorneys for Plaintiff SHANNON B. WOLF, ESQ.

SKYLAR KLEIN, ESQ.

YANA HOLDEN, ESQ.

WHITEMAN OSTERMAN & HANNA LLP ROBERT S. ROSBOROUGH, IV ESQ.

One Commerce Plaza JENNIFER MARIE YETTO, ESQ.

Suite 1900 JUSTINE M. CASE-FITZGERALD

Albany, New York 12260 ESQ.

Attorneys for Defendants Glens Falls

Hospital, Kevin M. Grassi M.D., Stacey

L. Ralph, Jennifer Nix, Amy Hooper,

Jodie Smith, Stephanie Dechene, and

Alycia N. Gregory

REBAR KELLY CATHLEEN KELLY REBAR, ESQ

470 Norristown Road, Suite 201 PATRICK J. HEALEY, ESQ.

Blue Bell, Pennsylvania 19422

Attorneys for Defendant Karen Ranttila

OFFICE OF THE UNITED JOHN D. HOGGAN, JR., AUSA

STATES ATTORNEY

James T. Foley U.S. Courthouse KAREN FOLSTER LESPERANCE,

445 Broadway, Room 218 AUSA

Albany, New York 12207

Attorneys for Defendant Lynette M. Biss

MARTIN CLEARWATER & BELL LLP CHRISTOPHER JOSEPH DANIEL,

245 Main Street, Suite 501 ESQ.

White Plains, New York 10601

Attorney for Defendant Nicole Bennett

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On March 28, 2022, Plaintiff Nicole Costin, individually and on behalf of her minor son,

Baby A, commenced this action against Defendants Glens Falls Hospital ("GFH"); Dr. Kevin M.

Grassi, M.D.; Nurse Stacey L. Ralph; Nurse Karen Rantila; Midwife Lynette M. Biss; Midwife

Nicole Bennett; Nurse Jennifer Nix; Nurse Amy Hooper; Nurse Jodie Smith; Social Worker

Stephanie Dechene; and Social Worker Alycia N. Gregory. See Dkt. No. 1. Plaintiff filed an

Amended Complaint on June 23, 2022. See Dkt. No. 14. Plaintiff's Amended Complaint raises

eleven causes of action including violations of the Americans with Disabilities Act ("ADA") and

Rehabilitation Act ("RA") against GFH and various New York state law claims. See id. at ¶¶ 76-

142. As relevant to this motion, Plaintiff raises claims of assault and battery against Defendant

Biss. See id. at ¶ 122.

Currently before the Court is the Government's renewed motion to substitute itself as a

defendant in place of Defendant Biss and to dismiss Plaintiff's claims against it for lack of subject

matter jurisdiction. See Dkt. No. 93-1 at 3. The Government filed its initial motion to substitute

on January 19, 2023, see Dkt. No. 61, which Plaintiff opposed on February 9, 2023. See Dkt. No.

62. On February 15, 2023, the Court denied the Government's motion as moot because it

dismissed Plaintiff's Amended Complaint. See Dkt. No. 63. Plaintiff appealed this Court's

judgment to the Second Circuit. See Dkt. No. 65. The Second Circuit affirmed in part, reversed

in part, and vacated in part the Court's judgment, and reinstated Plaintiff's ADA and RA claims.

See Costin v. Glens Falls Hosp., 103 F.4th 946, 956 (2d Cir. 2024). As a result, the dismissal of

the state law claims against Defendant Biss was vacated by the Second Circuit. See id.

In its motion to substitute, the Government argues that, pursuant to the Federal Tort

Claims Act ("FTCA") and the provisions of 42 U.S.C. § 233(a), the United States is the proper

defendant and the FTCA is the exclusive remedy for Plaintiff's claims against Defendant Biss.

See Dkt. No. 93-1 at 5-7. Plaintiff disagrees, arguing that Defendant Biss was not acting within

the scope of her employment and, therefore, the Government should not be substituted as a

defendant. See Dkt. No. 107 at 12-16.1

For the following reasons, the Government's motion to substitute and dismiss Plaintiff's

Amended Complaint as against Defendant Biss is granted.

II. BACKGROUND

The Court will briefly summarize the allegations relevant to the pending motion but

otherwise assumes the parties' familiarity with the facts and procedural history set forth in its

February 15, 2023, Memorandum-Decision and Order. See Dkt. No. 63 at 3-8.

1 Defendants GFH, Dr. Grassi, Nurse Ralph, Nurse Nix, Nurse Hooper, Nurse Smith, Social

Worker Dechene, and Social Worker Gregory (collectively, where appropriate, the "GFH

Defendants") submitted a memorandum expressing no opposition to the Government's motion to

substitute. See Dkt. No. 117. The GFH Defendants oppose the Government's motion only to the

extent that Plaintiff's claims ADA and RA claims "may be broadly construed to allege

involvement of Defendant Biss in the implementation of the allegedly discriminatory GFH

policies, and to ensure the continued viability of the GFH Defendants' cross claims against

Defendant Biss, [HHHN], or the United States for indemnification and/or contribution." Id. at 6.

T he Court notes, however, that the ADA and RA claims asserted in the Amended Complaint are

brought solely against Defendant GFH. See Dkt. No. 14 at ¶¶ 76-86.

This case arises from the events and procedures surrounding Plaintiff's childbirth

experience at GFH on March 29, 2021. See Dkt. No. 14 at ¶ 24. When Plaintiff's water broke,

"she immediately reached out to Hudson Headwaters Health Network Women's Health

["HHHN"], (an entity that works with GFH to provide midwives during delivery at GFH)." Id. at

¶ 24. Plaintiff alleges that Defendant Biss was a Certified Nurse Midwife employed by HHHN

who, along with other individual Defendants, entered Plaintiff's hospital room at GFH during her

labor to check Plaintiff's dilation. See id. at ¶¶ 13, 33. At the time, Plaintiff was taking Subutex,

a medication prescribed by her primary care physician, for her substance abuse disorder. See id.

at ¶ 28. After experiencing several hours of contractions at GFH, Defendant Biss entered

Plaintiff's room, allegedly stating that GFH would be withholding an epidural, despite Plaintiff's

repeated requests for the epidural. See id. at ¶ 37.

After eight hours of labor without an epidural, Baby A was born on March 29, 2021, at

10:14 p.m., and "exited the birth canal with a completely bruised face, and the blood vessels in

both of his eyes were burst." Id. at ¶ 38. Additionally, "several inches of [Plaintiff's] body were

ripped open during delivery." Id. Plaintiff alleges that after Baby A was born, Defendant Biss

and student midwife Defendant Bennett, "were actively looking between her legs" and began to

"repair her torn vaginal area." Id. at ¶ 40. Plaintiff contends she was "weak, exhausted and

shaking from pain" and told Defendant Biss "to stop." Id. Nonetheless, they "continued the

procedure through completion" without "numb[ing] the area[.]" Id. Plaintiff "could feel the

needle entering and exiting her body." Id. Plaintiff alleges that Defendant Biss committed assault

and battery when she and Defendant Bennett "inserted a needle through her perineal area without

her consent, and continued to do so over her express objection." Id. at ¶ 123. Plaintiff seeks

"damages in an amount to be determined at trial[]" from Defendant Biss. Id. at ¶ 124.

On December 16, 2022, the United States Attorney for the Northern District of New York,

pursuant to 42 U.S.C. § 233(c) and 28 C.F.R. § 15.3, certified that Defendant Biss was, at all

relevant times to the case, a Certified Nurse Midwife employed by HHHN acting within the scope

of her employment. See Dkt. No. 93-3 at 2. Additionally, the United States Attorney certified

that HHHN is a "federally deemed health center[.]" Id. As of January 1, 2020, HHHN was

certified by the Department of Health and Human Services ("HHS") to have qualified as a Public

Health Service employee under 42 U.S.C. § 233(g) and, therefore, eligible for FTCA coverage

during all times relevant to this case. See Dkt. No. 93-4 at ¶ 5.

III. DISCUSSION

A. Standard of Review

The Government moves to dismiss Plaintiff's Amended Complaint for lack of subject

matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that once it is

substituted as a defendant, Plaintiff's claims must be dismissed because she failed to exhaust her

administrative remedies. See Dkt. No. 93-1 at 9. "It is a fundamental precept that federal courts

are courts of limited jurisdiction." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374

(1978). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, "[a] case is properly

dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or

constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000). Further, "[t]he party asserting subject matter jurisdiction carries the burden of

establishing, by a preponderance of the evidence, that jurisdiction exists." Landau v. Eisenberg,

922 F.3d 495, 497 (2d Cir. 2019) (citation omitted). In ruling on a motion to dismiss for lack of

subject matter jurisdiction, a district court "may refer to evidence outside the pleadings."

Makarova, 201 F.3d at 113. "When evaluating a motion to dismiss pursuant to Rule 12(b)(1), the

district court must resolve all ambiguities and draw all inferences in favor of the plaintiff."

Stegemann v. United States, No. 9:21-CV-00949, 2024 WL 5182184, *2 (N.D.N.Y. Dec. 20,

2024) (citing Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).

B. Statutory Framework

Generally, "'[t]he United States, as sovereign, is immune from suit [unless] it consents to

be sued,' and hence may be sued only to the extent that it has waived sovereign immunity by

enacting a statute consenting to suit." Millares Guiraldes de Tineo v. U.S., 137 F.3d 715, 719 (2d

Cir. 1998) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA allows a

limited waiver of the United States' sovereign immunity

for certain classes of torts claims and provides that the federal

district courts shall have exclusive jurisdiction over damages claims

against the United States for injury or loss of property, or for

personal injury or death "caused by the negligent or wrongful act or

omission of any employee of the Government while acting within

the scope of his office or employment. "

Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (quoting 28

U.S.C. § 1346(b)(1)). If a tort claim is brought against an employee of the Government,

[u]pon certification by the Attorney General that the defendant

employee was acting within the scope of his office or employment

at the time of the incident out of which the claim arose, any civil

action or proceeding commenced upon such claim in a United

States district court shall be deemed an action against the United

States under the provisions of this title and all references thereto,

and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1).

The Federally Supported Health Centers Assistance Act ("FSHCAA") "authorizes the

Secretary of the Department of Health and Human Services to deem certain health centers that

receive federal funds, and their employees, to be employees of the Public Health Service ("PHS")

for the purposes of 42 U.S.C. § 233." Agyin v. Razmzan, 986 F.3d 168, 172 (2d Cir. 2021).

"Under § 233(a), PHS employees are entitled to the protections of the . . . FTCA . . . including

'absolute immunity . . . for actions arising out of the performance of medical or related functions

within the scope of their employment.'" Id. (quoting Hui v. Castaneda, 559 U.S. 799, 806

(2010)). "[O]nce the Secretary makes a determination that an entity [or an . . . employee . . . of an

entity] is deemed to be an employee of the Public Health Service for purposes of [§ 233], the

determination [is] . . . final and binding . . . ." Id. (quoting 42 U.S.C. § 233(g)(1)(F)).

The FSHCAA "protects 'employees of the Public Health Service from being subject to suit

while performing medical and similar functions by requiring that such lawsuits be brought against

the United States instead.'" Kelley v. Richford Health Ctr., Inc., 115 F.4th 132, 136 (2d Cir. 2024)

(quoting Cuoco v. Mortisugu, 222 F.3d 99, 107-08 (2d Cir. 2000)). Under the FSHCAA, when a

tort action is brought against a federal employee working for the PHS, the employee is substituted

by the United States and the FTCA becomes the exclusive remedy "for damage for 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 . . . ." Cuoco, 222 F.3d at 107 (quoting 42

U.S.C. § 233(a)). The Second Circuit has interpreted the FTCA's purpose to "both to allow

recovery by people injured by federal employees or by agents of the Federal Government, and, at

the same time, to immunize such employees and agents from liability for negligent or wrongful

acts done in the scope of their employment." Celestine, 403 F.3d at 80 (citing 28 U.S.C. §

2679(b)(1); 42 U.S.C. § 233(a)); see also Cuoco, 222 F.3d at 107.

This statutory framework renders the question of substitution twofold: (1) whether the

defendant was acting within the scope of her employment; and (2), whether the injury the plaintiff

seeks compensation for was one "'resulting from the performance of medical . . . or related

functions[.]'" Cuoco, 222 F.3d at 107 (quoting 42 U.S.C. § 233(a)). Here, Plaintiff does not

dispute Defendant Biss' status as an HHHN employee. See Dkt. No. 61-2 at ¶ 6.2 Rather,

Plaintiff challenges the Government's scope of employment certification and determination that

Defendant Biss' conduct constituted a medical function. See Dkt. No. 107 at 12, 16.

C. Scope of Employment

For purposes of substitution, the FTCA provides that the Attorney General may certify

that a defendant was acting within the scope of their employment at the time the claim arose and,

[u]pon certification . . . any civil action or proceeding commenced

upon such claim in a United States district court shall be deemed an

action against the United States under the provisions of this title and

all references thereto, and the United States shall be substituted as

the party defendant.

28 U.S.C. § 2679(d)(1). The certification may also be provided by the United States Attorney's

Office by virtue of the authority vested in it pursuant to 28 C.F.R. §§ 15.3-15.4. See Dkt. No. 93-

3 at 2. Here, as explained, the United States Attorney for the Northern District of New York

certified that Defendant Biss, during all times relevant to this case, was acting within the scope of

her employment as a Certified Nurse Midwife for HHHN. See id.

The Supreme Court has held that a plaintiff may challenge a scope of employment

certification because the certification is "'the first, but not the final word'" on the scope of

employment inquiry for substitution. Osborn v. Haley, 549 U.S. 225, 246 (2007) (quoting De

Martinez v. Lamagno, 515 U.S. 417, 432 (1995)). The certification "does not conclusively

2 HHHN is a grantee of the U.S. Department of Health and Human Services ("HHS") and a

designated Federally Qualified Health Center ("FQHC") and eligible for FTCA coverage effective

as of January 1, 2020, and throughout all times relevant to the Amended Complaint. See Dkt. No.

93-4 at ¶ 5; see also Dkt. No. 61-2 at ¶ 6 (citing About Us, Hudson Headwater Health Network,

h ttps://www.hhhn.org/about/ (last visited July 31, 2025)).

establish as correct the substitution of the United States as defendant in place of the employee."

Lamagno, 515 U.S. at 434. If disputed, the scope of employment certification is reviewed by the

district court "de novo for purposes of substituting the United States as a defendant and precluding

an action against the federal employee." McHugh v. Univ. of Vermont, 966 F.2d 67, 72 (2d Cir.

1992), abrogated on other grounds by Osborn, 548 U.S. at 247. "Such review is triggered by the

government's motion for substitution and opposition papers from the plaintiff that allege with

particularity facts relevant to the scope-of-employment issue." Id. at 74. On review, the burden

shifts "to the plaintiff to prove, by a preponderance of the evidence, that defendants were acting

outside the scope of their employment." Corley v. United States Dep't of Justice, No. 14-CV-925,

2016 WL 11395009, *5 (E.D.N.Y. Sept. 6, 2016) (citing Griebsch v. Weaver, No. 7:05-CV-0958,

2005 WL 2260374, *2 (N.D.N.Y. Sept. 16, 2005)); see also Scott v. United States, No. 24-CV-

01506, 2025 WL 836557, *5 (E.D.N.Y. Mar. 17, 2025). "[I]f 'the District Court determines that

the employee in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the

scope of his employment,' . . . the substitution motion must be denied, and the suit will proceed

against the government employee in a personal capacity." Carroll v. Trump, 49 F.4th 759, 766

(2d Cir. 2022) (quoting Osborn, 549 U.S. at 231) (internal citation and alteration omitted).

"[T]he district court applies state law principles pertaining to when intentional torts

conduct falls within the scope of a party's employment." Bello v. United States, 93 Fed. Appx.

288, 289 (2d Cir. 2004) (citing McHugh, 966 F.2d at 75). "The court must view the tortious

conduct in the light most favorable to plaintiff, but makes its own findings of fact with respect to

the scope of the tortfeasor's employment[.]" Id. at 288-89 (citing McHugh, 966 F.2d at 74-75). In

New York, "'[t]here is no single mechanical test to determine whether at a particular moment an

employee is engaged in the employer's business . . . .'" Aryai v. Forfeiture Support Assocs., 25 F.

Supp. 3d 376, 389 (S.D.N.Y. 2012) (quoting Rausman v. Baugh, 248 A.D.2d 8, 10 (2d Dep't

1998)). The New York Court of Appeals has provided the following factors for a court to

consider in making this determination:

[1] the time, place and occasion for the act; [2] the history of the

relationship between employer and employee as spelled out in

actual practice; [3] whether the act is one commonly done by such

an employee; [4] the extent of departure from normal methods of

performance; and [5] whether the specific act was one that the

employer could reasonably have anticipated.

Fountain v. Karim, 838 F.3d 129, 138 (2d Cir. 2016) (quoting Riviello v. Waldron, 47 N.Y.2d

297, 303 (1979)). "'With respect to [the] foreseeability requirement, New York courts require

foreseeability of general, rather than specific, acts.'" Roseblatt v. St. John's Episcopal Hosp., No.

11-CV-1106, 2012 WL 294518, *6 (E.D.N.Y. Jan. 31, 2012) (quoting Griebsch, 2005 WL

2260374, at *3). "[W]here the element of general foreseeability exists, even intentional tort

situations have been found to fall within the scope of employment." Riviello, 47 N.Y.2d at 304.

Courts assess "'whether the act was done while the servant was doing his master's work, no matter

how irregularly, or with what disregard of instructions.'" Rosse v. United States, 110 F. Supp. 3d

415, 423 (N.D.N.Y. 2015) (quoting Riviello, 47 N.Y.2d at 299).

Plaintiff argues that Defendant Biss was not acting within the scope of her employment as

her alleged actions constitute assault and battery. See Dkt. No. 107 at 15. The FTCA provides an

intentional tort exception for federal employees' immunity for, inter alia, "[a]ny claim arising out

of assault [or] battery . . . ." 28 U.S.C. § 2680(h). However, § 233(e) eliminates the FTCA's

intentional tort exception in cases of "assault or battery arising out of negligence in the

performance of medical, surgical, dental, or related functions, including the conduct of clinical

studies or investigations." 42 U.S.C. § 233(e); see also Levin v. U.S., 568 U.S. 503, 508-09

(2013) (explaining how 42 U.S.C. § 233(e) abrogates the intentional tort exception of the FTCA

under 28 U.S.C. § 2680(h)).

Plaintiff argues that Defendant Biss' actions were intentional torts of assault and battery

that "do not arise out of negligence[]" and, therefore, do not fall under § 233(e). Dkt. No. 107 at

16. The Government argues that "Plaintiff's focus upon the nature of the cause of action she

alleged is misplaced" and that once the Government established Plaintiff's claims arose out of

"'the performance of medical, surgical, dental, or related functions'" the FTCA became the

exclusive remedy regardless of "whether or not the cause of action alleged sounds in negligence."

Dkt. No. 109 at 5 (citing 42 U.S.C. § 233(a)).

In Cuoco v. Moritsugu, the Second Circuit rejected the plaintiff's argument that § 233(e)

only provides immunity from medical malpractice claims because there is "nothing in the

language of § 233(a) to support that conclusion." Cuoco, 222 F.3d at 108. The Second Circuit

stated that "[w]hen Congress has sought to limit immunity to medical malpractice claims it has

done so explicitly." Id. (citing 38 U.S.C. § 7316(a)(1)) (explaining Congress' decision to make

the FTCA the exclusive remedy for claims arising out of medical malpractice and negligence for

healthcare providers working for the Veterans Health Administration); see also Teresa T. v.

Ragaglia, 154 F. Supp. 2d 290, 299 (D. Conn. 2001) ("Nothing in the statute suggests that the

immunity it provides is limited to negligence actions only"); K.R. ex rel. Perez v. Silverman, No.

08-CV-2192, 2009 WL 2959580, *7 (E.D.N.Y. Aug. 13, 2009) ("[T]he plain language of the

statute—'resulting from the performance of medical . . . or related functions'—indicates that it

covers more than garden variety medical malpractice claims"). Plaintiff has not provided any

legal support for her argument that § 233 applies only to medical malpractice or negligence

claims. See Dkt. No. 107 at 16-18. Therefore, the Court will not exclude from the statute's

application claims of alleged assault and battery, provided the requirements of the provision are

met—the tortious conduct was within the scope of one's employment and was a part of "medical .

. . or related functions." 42 U.S.C. § 233(a).

"[I]n cases involving a use of force, whether an employee is acting within the scope of

employment requires consideration of whether the employee was authorized to use force to

effectuate the goals and duties of the employment." Rivera v. State of New York, 34 N.Y.3d 383,

390 (2019) (citing Sauter v. New York Tribune, Inc., 305 N.Y. 442, 445 (1953)). In professions

"for which some physical contact with others is permissible or even expected, it may be difficult

to determine whether a challenged action falls far enough outside the boundaries attendant to the

employment relationship such that the employee should be solely liable for their respective

tortious conduct." Id. Nonetheless, "[a]n employer will not be responsible for the torts of an

employee who is not acting in furtherance of his employer's business or who acts only on personal

motives." A.W. by E.W. v. New York Dep't of Educ., 702 F. Supp. 3d 46, 53 (E.D.N.Y. 2023)

(citing N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002)) (holding that a hospital employee

who sexually assaulted a patient was acting his outside scope of employment because the

employee acted wholly on personal motives). However, even in cases which may involve

personal motives "it is 'well established that intentional torts may still fall within the scope of

employment, and the motivation for such conduct . . . is but one of several for [the court's]

consideration pertaining to whether such acts were foreseeable as "a natural incident of the

employment."'" Id. (quoting M.K. v. State, 216 A.D.3d 139, 143 (3d Dep't 2023)) (additional

quotation omitted).

New York courts have held that claims of assault, when acted upon from personal

motives, are generally outside the scope of one's employment. See e.g., Judith M. v. Sisters of

Charity Hosp., 93 N.Y.2d 932, 933 (1999) (concluding that a hospital orderly who sexually

assaulted a patient was acting outside the scope of employment when giving a patient a bath);

Montalvo v. Episcopal Health Servs., Inc., 172 A.D.3d 1357, 1360 (2d Dep't 2019) (holding that

doctor's alleged sexual assault "is not in furtherance of an employer's business and is a clear

departure from the scope of employment, having been committed for wholly personal motives");

Boatman v. Cnty. of Onondaga, 229 A.D.3d 1214, 1215 (4th Dep't 2024) (determining that

probation officer's alleged sexual assault of the plaintiff was outside the scope of employment);

Fernandez v. Rustic Inn, Inc., 60 A.D.3d 893, 897 (2d Dep't 2009) (holding that a Home Depot

employee who assaulted the plaintiff with a box cutter after a holiday party was an act

"committed for personal motives unrelated to the furtherance of his employment"); Maldonado v.

Allum, 208 A.D.3d 470, 472 (2d Dep't 2022) (holding that a pizza delivery driver who kicked and

flailed while a police officer ticketed him for a broken headlight was acting outside the scope of

his employment and not in furtherance of his employer's business).

Here, the Government argues that "[t]here is no question that [Defendant] Biss was 'acting

in furtherance of her employer's work' at the time she assisted in Plaintiff's medical procedure."

Dkt. No. 109 at 5. The Government contends that Plaintiff has not presented a credible basis to

assert that Defendant Biss was acting on personal motives and not in the furtherance of her

employer's business in providing patient care. See Dkt. No. 93-1 at 7. The Government also

notes that "'courts have routinely honored certifications under the FTCA even for intentional

tortious conduct as long as the defendants were acting in furtherance of Government business.'"

Id. (quoting Lipkin v. U.S. S.E.C., 468 F. Supp. 2d 614, 623 (S.D.N.Y. 2006)); see e.g., Asto v.

Mirandona, 372 F. Supp. 2d 702, 710 (E.D.N.Y. 2005) (honoring certification as alleged

defamatory statements were made within the scope of defendant's employment with a federal

agency); Catania v. Herbst, 919 F. Supp. 2d 266, 272 (E.D.N.Y. 2013) (honoring certification in

part because the plaintiff did not sufficiently establish that the defendant was acting on personal

motives in making allegedly defamatory statements); Smith v. Brown, 296 F. Supp. 3d 648, 659

(S.D.N.Y. 2017) (upholding the Government's certification that the defendant was acting within

scope of employment where the defendant physically assaulted the plaintiff at a work party as the

plaintiff had not sufficiently shown defendant acted on personal motives or animosity).

Plaintiff argues that Defendant Biss' actions, though they occurred while she was on duty

at GFH as an employee of HHHN, did not occur within the scope of her employment. See Dkt.

No. 107 at 12. Plaintiff applies the Riviello factors to argue that Defendant Biss' actions,

allegedly constituting assault and battery, were taken outside the scope of her employment, but

Plaintiff makes no mention of any personal motivation influencing Defendant Biss' conduct. See

id. at 14. Plaintiff argues that despite the location of the event,

[a]ll other factors that can be gleaned from the Court submissions

demonstrate that Defendant Biss was not, in fact, acting within the

scope of her employment: patients who have all mental capacities

are not commonly held down by their legs and subject to sharp

objects inserted into their bodies against their will by medical

providers at a hospital (third factor); such forceful, violent, and

unauthorized procedures, against a patient's will, certainly depart

from normal methods of performance by nurse midwives (fourth

factor); and those acts would not (or should not) have been

reasonably anticipated by any medical provider's employer (fifth

factor) . . . . Here, not only does the fifth factor weigh in favor of

finding that Defendant Biss was acting outside the scope of her

employment when she engaged in the conduct at issue in this case,

but facts and allegations pertaining to other factors (third and

fourth) do as well.

See id. at 14 (emphasis in original).

Plaintiff fails to present a single legal or medical citation to support her contentions.

Rather, "[v]aginal childbirth frequently causes tears or lacerations of the mother's vagina and

surrounding perineal (i.e., the area between the anus and the vagina) tissue." Woodman v. United

States, 602 F. Supp. 3d 265, 274 (D.N.H. 2022); see also Cleveland Clinic, Vaginal Tears During

Childbirth, HEALTH LIBRARY, (Aug. 1, 2025, 10:46 AM), https://my.clevelandclinic.org/health/

diseases/21212-vaginal-tears-during-childbirth ("Up to 90% of women who give birth will have

some tearing during a vaginal delivery . . . . Providers treat most tears right in the delivery room").

Because the alleged assault and battery occurred while Defendant Biss was on duty at GFH and

while conducting a medical procedure, the Court finds that Plaintiff has failed to establish by a

preponderance of the evidence that Defendant Biss acted outside the scope of her employment.

D. "Medical . . . or Related Functions" Under 42 U.S.C. § 233(a)

Plaintiff also argues that substitution is barred because, "[o]nce [she] voiced her lack of

consent, Defendant Biss was no longer performing any medical function." Dkt. No. 107 at 11.

The Government disagrees and asserts "that Plaintiff's allegation of assault and battery against

Ms. Biss arise from her 'performance of medical . . . or related functions'" because Defendant

Biss' "conduct took place at GFH during the course of a medical 'procedure' to 'repair [Plaintiff's]

torn vaginal area' following delivery." Dkt. No. 93-1 at 8 (quoting Dkt. No. 14 at ¶ 40).

"In construing the terms of a statute, [courts] look first to its language to ascertain its plain

meaning." Cheung v. United States, 213 F.3d 82, 89 (2d Cir. 2000) (citing Robinson v. Shell Oil

Co., 519 U.S. 337, 340 (1997)). "Because the [FTCA] does not define any of the relevant terms,

the 'starting point' is the 'statute's plain meaning,' which is driven by the 'ordinary, common-sense

meaning' of its terms and 'the specific context in which that language is used.'" Krandle v. Refuah

Health Ctr., Inc., No. 22-CV-4977, 2024 WL 1075359, *3 (S.D.N.Y. Mar. 12, 2024) (quoting

Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507, 517 (2d Cir. 2023)). "If the text 'is not entirely

clear, [courts] then turn to the broader statutory context and its history.'" Id. (quoting New York

Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207, 216 (2d Cir. 2021)). "If the text

remains ambiguous after that analysis, the Court turns 'to traditional canons of statutory

construction for guidance in resolving the ambiguity.'" Id. (quoting Williams v. MTA Bus Co., 44

F.4th 115, 127 (2d Cir. 2022)).

In Cuoco, the Second Circuit relied on the fact that a physician's alleged tortious conduct

occurred "in the course of rendering medical treatment" in his capacity as a physician in

determining that § 233(a) applied. Cuoco, 222 F.3d at 109. A court out of the Southern District

of New York has used the Oxford English Dictionary definition of "medical" as "'related to the . .

. practice of medicine,' i.e. the 'treatment or diagnosis' of a sick person . . . " in analyzing this

issue. Krandle, 2024 WL 1075359, at *4 (citing Medical, Medicine, Oxford English Dictionary

(3d Ed. 2001)). That court concluded that "the plain meaning of 'medical . . . or related functions'

appears to cover the performance of activities with an established relationship to the practice of

treating or diagnosing patients." Id. at *6. Additionally, immunity has been granted for

"performance of functions related to medical services." Rivera v. Federal Bureau of Prisons, 368

F. Supp. 3d 741, 745 (S.D.N.Y. 2019); see also Mele v. Hill Health Ctr., No. 3:06-CV-455, 2008

WL 160226, *3 (D. Conn. Jan. 8, 2008) (granting coverage for conduct that "concern[s] the

medical functions of providing treatment" under § 233(a)). Immunity has been extended, as well,

to duties that are "inextricably woven into [the] performance of medical functions." Teresa T.,

154 F. Supp. 2d at 300; see also Marshall v. Lamoille Health Partners, Inc., No. 2:22-CV-166,

2023 WL 2931823, *4 (D. Vt. Apr. 13, 2023) (noting how immunity can be applied to activity

that is interwoven with providing direct medical care such as hiring practices or adhering to

mandated reporting statutes).

Here, Plaintiff cites New York case law to support her argument that the conduct of a

healthcare provider, if performed without the patient's consent, may constitute battery; however,

that case law does not demonstrate that Defendant Biss' conduct was not a medical function under

the plain meaning of § 233(a). See Dkt. No. 107 at 18 (citing Messina v. Matarrasso, M.D.

F.A.C.S. P.C., 284 A.D.2d 32, 34-35 (1st Dep't 2001); VanBrocklen v. Erie Cnty. Med. Ctr., 96

A.D. 1394, 1394 (4th Dep't 2012); Young v. Sethi, 188 A.D.3d 1339, 1342 (3d Dep't 2020)). As

noted by the Government, Plaintiff concedes in her Amended Complaint that Defendant Biss was

at GFH as an HHHN employee and working as a Certified Nurse Midwife to provide medical

care when she interacted with Plaintiff. See Dkt. No. 93-1 at 8 (citing Dkt. No. 14 at ¶¶ 12, 24,

33, 37, 40). Additionally, Plaintiff notes in her Amended Complaint that when she went into

labor, she "immediately reached out to [HHHN] (an entity that works with GFH to provide

midwives during delivery at GFH)." Dkt. No. 14 at ¶ 24. Plaintiff fails to explain how Defendant

Biss' actions of suturing a vaginal tear following childbirth is not an activity with "an established

relationship to the practice of treating or diagnosing patients." Krandle, 2024 WL 1075359 at *6;

see also Cuoco, 222 F.3d at 107. The Court concludes that such conduct constitutes a medical

function pursuant to § 233(a). The Court, therefore, grants the Government's motion to substitute

under § 233(a).3

3 Plaintiff requests in the alternative, that the Court hold an evidentiary hearing on the scope of

employment issue. Generally, "'[t]he court may resolve the disputed jurisdictional fact issues by

referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an

evidentiary hearing.'" Fountain, 838 F.3d at 134 (quoting Zappia Middle E. Constr. Co. v.

Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)). Additionally, the Supreme Court has

recognized the "possibility for overlap, mainly in cases alleging intentional torts, between the

validity of the scope-of-employment certification and the merits of a plaintiff's claim, as well as

the potential need for the district court to make credibility determinations[]" which may warrant

an evidentiary hearing. Tangorre v. Victim, No. 1:24-CV-388, 2024 WL 4979169, *6 (N.D.N.Y.

Dec. 4, 2024) (citing Osborn, 549 U.S. at 251-52). Here, Plaintiff has not presented any

credibility issues, and the Government does not dispute the material facts presented by Plaintiff.

T herefore, Plaintiff's request for an evidentiary hearing is denied.

E. Dismissal on Lack of Subject Matter Jurisdiction

"[A]lthough the . . . FTCA . . . provides a limited waiver of sovereign immunity from suit

for tort claims against the United States, it has strict exhaustion requirements and the burden is on

the plaintiff to both plead and prove compliance with the FTCA's statutory exhaustion

requirements." Mahmood v. United States, No. 1:20-CV-207, 2020 WL 1808206, *2 (N.D.N.Y.

Apr. 9, 2020) (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987)).

"Under the FTCA, before a claimant can file suit, he or she must first present the claim to the

appropriate federal agency (in this case HHS) within two years of the date the claim accrued."

Phillips v. Generation Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013) (citing 28 U.S.C. §

2401(b)). "The claimant can only initiate his or her lawsuit once the claim has been denied by the

agency (or if the agency has failed to make a decision within six months after the claim was

filed)." Id. (citing 28 U.S.C. § 2675(a)). "Final denial by the appropriate federal agency is a

jurisdictional prerequisite to adjudication under the FTCA." Roberge v. McAndrew, No. 1:15-

CV-1522, 2016 WL 3248400, *3 (N.D.N.Y. June 13, 2016) (citing 28 U.S.C. § 2675(a)); see also

Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983); Williams v. Metro. Det. Ctr., 418

F. Supp. 2d 96, 102 (E.D.N.Y. 2005).

Here, Plaintiff did not submit any claim to HHS. See Dkt. No. 93-4 at ¶ 4. She instead

argues that administrative remedies are not required because substitution is improper. See Dkt.

No. 107 at 18-19. However, this Court has already concluded that substitution is appropriate.

The Supreme Court has "definitively held that '[t]he FTCA bars claimants from bringing suit in

federal court until they have exhausted their administrative remedies." Roberge, 2016 WL

3248400 at *4 (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)). Because Plaintiff has

not filed a claim with HHS within two years of when the claim accrued, she has failed to exhaust

her administrative remedies. See 28 U.S.C. § 2401(b). Based on the foregoing, the Government's

motion to dismiss for lack of subject matter jurisdiction is granted.

F. Motion for Joinder and Leave to Amend Answer

On April 30, 2025, GFH Defendants filed a motion for joinder and leave to amend their

answer, seeking to bring a third-party complaint against HHHN. See Dkt. No. 122. GFH

Defendants assert that HHHN is Defendant Biss and Bennett's employer; therefore, "[t]o the

extent that the GFH Defendants are found liable to Plaintiff, the GFH Defendants intend to seek

contribution and indemnity against HHHN, Defendant Biss, and Defendant Bennett for their

involvement in the same underlying set of facts and circumstances, and for their role in

supervising and providing Plaintiff with medical care." Id. at 5. Defendant Biss and Plaintiff

oppose the motion. See Dkt. Nos. 127, 128.

In their proposed amended answer, GFH Defendants acknowledge that, at the time of

Plaintiff's labor and delivery, Defendant Bennett was a student nurse midwife. See Dkt. No. 122-

4 at ¶ 13. As part of their cross claims, GFH Defendants contend that "[u]pon information and

belief, Plaintiff was aware that at all relevant times, Defendant Bennett was a student nurse

midwife acting under the authority of Defendant Biss." Id. at ¶ 176. They allege that "[t]he GFH

Defendants were acting under Defendant Biss' control and authority, and as such, liability falls

upon Defendant Biss." Id. at ¶ 190.

As a result of this Memorandum-Decision and Order, Defendant Biss is being dismissed

from the case. Therefore, within fourteen (14) days of the filing of this Memorandum-Decision

and Order, GFH Defendants shall file a letter with the Court, no more than two pages in length,

explaining whether their motion for joinder and leave to amend is mooted by this decision.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties’ submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that the Government's motion to substitute and to dismiss (Dkt. No. 93) is

GRANTED; and the Court further

ORDERS that the Clerk of the Court shall substitute the United States of America as the

Defendant for Lynette M. Biss; and the Court further

ORDERS that Plaintiff's claims for assault and battery against the United States are

DISMISSED without prejudice and the United States is DISMISSED from this action; and the

Court further

ORDERS that within fourteen (14) days of the filing of this Memorandum-Decision and

Order, GFH Defendants shall file a letter with the Court not to exceed two pages explaining how

this decision impacts their currently pending motion for joinder and leave to amend (Dkt. No.

122); and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: August 18, 2025 Jf er D

Albany, New York — a see Pe

U.S. District Judge

20