The opinion of the court was delivered by: Cedarbaum, J.
William Gibbons sues Leonard Fronton, D.O., Steven Fine, M.D., and their employer, Sterling Medical Associates, Inc., for medical malpractice, lack of informed consent, and medical facility negligence. Gibbons also asserts claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680, against the Department of Veterans Affairs ("VA" or "the VA")*fn1 for the malpractice of Fronton, Fine, and Sterling and for negligent hiring and supervision of the doctors. The United States moves to dismiss the claims for vicarious liability, negligent hiring, and negligent supervision pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction. Pursuant to Fed. R. Civ. P. 12(b)(6), the United States also moves to dismiss Gibbons' claims, if any, against the Bronx VA. For the reasons that follow, the motions of the United States are granted.
In adjudicating a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, a court may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits. State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007). The following facts are taken from the complaint and assumed to be true, or were presented in uncontested affidavits and exhibits.
Sterling Medical Associates, Inc. ("Sterling") runs three community-based outpatient clinics in Florida: one in Deerfield Beach, one in Coral Springs, and one in Homestead. Sterling staffs the clinics with its own employee physicians.
In March of 2001, the Miami VA entered into a contract with Sterling "in order to furnish the timely delivery of Primary/Preventive Healthcare Services for veteran beneficiaries in their local communities." (VA Miami Community Based Primary Care Clinic Solicitation/Contract, dated March 22, 2001 ("Contract" or "the Contract") at 9, ¶ I(1)(a).) Under the Contract, Sterling was required to "provide primary/preventive care medical services in a clinical environment to veterans in the geographic locations covered by this contract." Id. at 9 ¶ I(2)(A). Sterling's clinics "shall provide primary care as a point of entry into the health care system for non-emergency care," and its physicians were required to "arrange for referral to VA when more specialized services are medically indicated." Id. at 10 ¶ I(B)(3). Sterling provided its own medical facilities, equipment, supplies, and staff. The VA provided medications, processed all laboratory testing, controlled all patient medical records through its VISTA electronic medical record system, and retained the sole authority to enroll and determine eligibility of patients to be treated by Sterling.
From November of 2001 through September of 2004, Gibbons was treated at Sterling's Deerfield Beach clinic by Dr. Fronton and Dr. Fine. Among other things, medical tests revealed that Gibbons had prostate-specific antigen ("PSA") levels of 5.52 on November 21, 2001, 7.07 on September 10, 2002, 6.98 on December 10, 2002, and 7.06 on October 1, 2003. Gibbons moved to New York in late 2004. At the Bronx VA, he was diagnosed with and treated for prostate cancer.
Gibbons alleges that Sterling and its doctors treated him negligently by failing, among other things, to recommend further diagnostic tests for prostate cancer when his blood tests showed elevated PSA levels. Gibbons seeks $10 million in damages on three counts, plus punitive damages, for diminished life expectancy, chronic pain, emotional distress, and other related complications.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) 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). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. "Jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation marks and brackets omitted).
In deciding a question of subject matter jurisdiction, the court is not limited to the face of the complaint. "[W]here evidence relevant to the jurisdictional question is before the court, 'the district court ... may refer to [that] evidence.'" Robinson v. Government of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (quoting Makarova, 201 F.3d at 113).
By contrast, a court adjudicating a motion to dismiss under Fed. R. Civ. P. 12(b)(6) "must accept the allegations contained therein as true and draw all reasonable inferences therefrom in favor of the plaintiff." Gryl ex rel. Shire Pharms. Group PLC v. Shire Pharms. Group PLC, 298 F.3d 136, 140 (2d Cir. 2002). Nevertheless, a complaint must meet "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and ...