Court: District Court, W.D. Washington; March 22, 2019; Federal District Court
Robert J. Bryan, U.S. District Judge, is addressing the United States' Renewed Motion to Dismiss (Dkt. 35) concerning negligence claims filed by Plaintiffs under the Federal Tort Claims Act (FTCA) related to Dr. Darren Chotiner's alleged inappropriate conduct toward female patients at Peninsula Community Health Services (PCHS). PCHS, a federally supported health facility, is subject to the FTCA's provisions, which state that such lawsuits are the exclusive remedy for personal injuries resulting from the actions of Public Health Service employees acting within the scope of their employment.
On May 31, 2018, the court granted the United States' motion to dismiss the Plaintiffs' claims for vicarious liability due to lack of subject matter jurisdiction but denied without prejudice the motion regarding negligent supervision claims. The United States has now renewed its motion to dismiss these negligent supervision claims, arguing that the claims fall outside the sovereign immunity waiver under the Federally Supported Health Centers Assistance Act (FSHCAA) and are also barred by the discretionary function exception of the FTCA.
The factual background includes allegations that Dr. Chotiner engaged in inappropriate contact with a female patient during an examination in late 2011, leading to a Performance Improvement Agreement signed on November 16, 2011. This agreement outlined expectations for professional conduct, required specific actions (such as completing a seminar on professional boundaries and contacting the Washington Physicians Health Program for assessment), and stipulated consequences for failing to meet these expectations. Compliance would allow him to continue employment, while non-compliance could result in termination with compensation.
The Complaint alleges that the Defendant failed to conduct a proper investigation following the signing of the Performance Improvement Agreement in December 2011. After PCHS received notice from the Washington Physicians Health Program (WPHP) regarding Dr. Chotiner's evaluation, it was recommended that he self-report a boundary violation to the Washington Medical Quality Assurance Commission (MQAC), which he did. Dr. Chotiner completed a professional boundaries course in December 2011, and the MQAC initiated an investigation leading to a Stipulation of Informal Disposition that required Dr. Chotiner to undergo further training and pay a fine. By December 2012, he was notified of the completion of these terms, and by March 2013, PCHS's CEO confirmed he met the requirements of the Performance Improvement Agreement, stating there were no longer restrictions on his patient interactions.
From November 2011 to March 2013, Dr. Chotiner saw female patients with additional staff present due to prior concerns. The Complaint states that after March 2013, patients, including the Plaintiffs, were not offered chaperones during their visits. Specific allegations include:
- **Plaintiff Bennett**: In August 2014, Dr. Chotiner allegedly inappropriately massaged her thigh and exposed her buttocks without offering a chaperone.
- **Plaintiff Hicks**: During an August 2014 breast exam, she was assured a chaperone would be present but none was provided. Dr. Chotiner allegedly removed his gloves and touched her breasts for an extended period inappropriately.
- **Plaintiff Jackson**: In August 2014, she reported inappropriate massages of her thigh and groin area without a chaperone, and during a follow-up visit, he pulled down her pants and underwear without warning.
- **Plaintiff Lewis**: In September and October 2014, Dr. Chotiner allegedly manipulated her breast through her shirt for an extended time and made comments about its size.
None of the Plaintiffs were offered privacy to undress or provided with appropriate draping during their examinations.
During an October visit, several patients of Dr. Chotiner accused him of inappropriate and non-consensual conduct during medical examinations. One patient reported that he massaged her back, neck, and chest while standing between her legs and had her bend over without providing privacy or a gown. Another patient, Marcantel, described similar experiences where Dr. Chotiner conducted exams and massages on her lower back and chest with no chaperone present and without proper draping, claiming he ejaculated during one encounter. Mills, another patient, alleged that he used his bare hands for examinations and made suggestive comments about personal topics while touching her inappropriately. Riddle and Stivers also recounted similar experiences, emphasizing a lack of privacy and inappropriate remarks. Wolfe detailed instances where Dr. Chotiner had her undress and massaged her in a manner she found unacceptable, including touching her pelvic area and inner thighs. Following these allegations, criminal charges were filed against Dr. Chotiner in January 2015, leading to his guilty plea and subsequent sentencing in September 2018.
After the initial motion to dismiss the negligent supervision claim by the United States was denied without prejudice, the parties proceeded with discovery, which is set to conclude by April 26, 2019. The deadlines for dispositive motions and the commencement of a bench trial are scheduled for May 9, 2019, and July 29, 2019, respectively.
In addressing the standard on a motion to dismiss under Fed. R. Civ. P. 12(b)(1), a complaint may be dismissed if it does not arise under U.S. laws, does not present a case or controversy as defined by the Constitution, or fails to fall within jurisdictional statutes. The burden of establishing subject matter jurisdiction lies with the plaintiff, as federal courts are presumed to lack such jurisdiction unless proven otherwise. The United States retains sovereign immunity and can only be sued if it consents, with claims needing to align strictly with any waiver of this immunity.
Under 42 U.S.C. § 233(a), a limited waiver of sovereign immunity exists for personal injury claims arising from the actions of Public Health Service employees. In this case, the parties agree that PCHS and its employees are deemed Public Health Service employees. The United States seeks dismissal of the negligent supervision claims, contending that its immunity has not been waived since supervising doctors does not qualify as a 'medical, surgical, or dental function.' However, the United States' interpretation of 'related functions' as being limited to activities similar to those explicitly mentioned is challenged. The statutory language includes 'related functions' alongside 'medical, surgical, dental functions,' and further specifies that it encompasses activities like clinical studies or investigations, thereby broadening the definition of covered functions beyond direct medical services.
Congress included activities related to health care services under 233, contrary to the United States' argument that it applies solely to medical malpractice suits. Historical precedents show that when Congress intended to limit immunity to medical malpractice claims, it did so explicitly. The case of Cuoco v. Moritsugu supports that 233(a) encompasses more than just medical malpractice. Additionally, the alleged failure of PCHS to supervise a doctor with a history of poor judgment is considered a 'related function' within the scope of 233.
In Brignac v. U.S., the court found that claims of negligent hiring and retention related to a federally funded health clinic were covered under 233(a), reinforcing that sovereign immunity is waived for such claims. Similarly, the Plaintiffs' negligent supervision claims are included in the waiver.
The United States contends that even if negligent supervision is covered, the claims should be dismissed due to the discretionary function exception of the FTCA, which protects governmental decisions from judicial review when based on policy decisions. The FTCA provides a limited waiver of sovereign immunity for torts by federal employees and requires the government to demonstrate that the discretionary function exception applies.
The Federal Tort Claims Act (FTCA) was established to provide compensation for individuals harmed by government negligence and should be interpreted broadly, with its exceptions narrowly defined. A two-step test determines the applicability of the discretionary function exception. The first step assesses whether the actions in question involve judgment or choice, focusing on the nature of the conduct rather than the actor's status. If a federal statute or policy mandates a specific action, there is no discretion. The government demonstrated that no such policy existed regarding the supervision or investigation of Dr. Chotiner, and the decision to lift restrictions on his patient interactions was discretionary.
If discretion is established, the second step evaluates whether the judgment falls under the discretionary function exception, which is designed to protect governmental decisions influenced by public policy considerations. The United States contended that the decisions related to employee supervision involved social and economic policy issues, which are meant to be shielded from liability. However, the court found that while the decision to implement safety measures may consider policy, the execution of those measures cannot compromise safety for policy reasons. Cost considerations alone do not justify the exception. Thus, when safety is at stake under an established policy, the rationale for the discretionary function exception is negated. Consequently, the United States' Motion to Dismiss was denied.
