The opinion of the court was delivered by: Barbara S. Jones United States District Judge
On March 29, 2005, Plaintiff Marlene Delgado ("Delgado") commenced a negligence action against Our Lady of Mercy Medical Center ("Our Lady of Mercy") and Juan Yara, M.D. ("Yara") in Supreme Court, Bronx County. The Defendants timely submitted their answers. Subsequently, on July 12, 2006, the government removed the action to this Court pursuant to 42 U.S.C. § 233, on the grounds that the claims asserted against Yara, as an employee of the Soundview Health Center/Comprehensive Community Development Center ("Soundview"), fell within the scope of the Federal Tort Claims Act ("FTCA").
According to the United States Attorney, Soundview and its employees, including Yara, were deemed to be employees of the United States for purposes of tort actions seeking damages for injuries allegedly resulting from the provision of medical related services effective February 1, 1997. Furthermore, the Office of the United States Attorney has certified that, as required by 42 U.S.C. § 233(c) and pursuant to 28 C.F.R. § 15.4,*fn1 Yara was acting within the scope of his employment with Soundview, and, as such, as an employee of the United States of America, at the relevant times alleged in the Complaint.
According to the United States Attorney, under Section 224(a) of the Public Health Service Act, 42 U.S.C. § 233(a), an action against the United States pursuant to the FTCA is the exclusive remedy for Delgado's claims. Therefore, the United States Attorney has moved this Court to substitute the United States as defendant for Yara. Should the Court determine that substitution of the United States is appropriate, the United States Attorney further moves to dismiss the Complaint against the United States for lack of subject matter jurisdiction because Delgado failed to exhaust her administrative remedies before commencing the present action.
Delgado opposes the motion of the United States Attorney, arguing that the alleged acts of malpractice occurred at Our Lady of Mercy, which is not a federally funded entity. Therefore, she argues, the protection of the FTCA should not apply to Yara for the medical services he provided there.
Delgado further notes that upon learning that Yara was a federally-funded employee, she filed a timely administrative claim with the Department of Health and Human Services on July 20, 2006. This filing, she asserts, should permit her to receive relief nunc pro tunc from any jurisdictional defense asserted by the United States. Also before the Court is Delgado's motion to remand the action to New York Supreme Court, Bronx County, on the basis that Yara previously interposed an answer in that matter and did not raise any objection based on subject matter jurisdiction at that time.
For the reasons outlined below, the motion of the United States Attorney is GRANTED and Delgado's motion is DENIED.
Delgado alleges that on or about September 9, 2004, because of Yara's negligence in removing a cyst from her left ovary, she sustained permanent injuries to her urethra. Pl.'s Verified Compl. ¶ 14. Yara performed the procedure at Our Lady of Mercy. Id. ¶ 10. According to Yara, he previously had seen Delgado as a patient in his private practice, and, beginning in May 2004 through the time of the procedure to remove her ovary, was seeing Delgado at Soundview. Yara Decl. ¶ 2. Yara states that with respect to the procedure in question, he had admitted Delgado to Our Lady of Mercy "because [Soundview] did not have the resources for the type of surgery that she required." Id. ¶ 3. Yara is an attending physician with admitting privileges at Our Lady of Mercy. Id. ¶ 4.
Delgado does not dispute that she was being seen and treated by Yara at Soundview. Instead, Delgado questions whether the FTCA covers Yara's practice "outside the confines of the clinic," or, specifically, whether the FTCA extends to the surgical procedure that was performed at Our Lady of Mercy. Chetrick Aff. ¶ 12.
I. Motion to Substitute the United States as Defendant
The FTCA provides the exclusive remedy for claims arising against individuals deemed to be employees of the United States Public Health Service and acting within the scope of their employment at the time of the incident giving rise to the claim. See Public Health Service Act of 1944, 58 Stat. 682, 42 U.S.C. § 201 et seq. Section 233(a) of the Act sets forth that the remedy against the United States provided by the FTCA for damage for personal injury . . . resulting from the performance of medical . . . or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee . . . whose act or omission gave rise to the claim.
42 U.S.C. § 233(a). This provision of the Public Health Service Act "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 ...