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Richard A. Marra v. George B. Hughes

July 21, 2011

RICHARD A. MARRA, PLAINTIFF,
v.
GEORGE B. HUGHES, M.D.; GEORGE B. HUGHES, M.D. FAMILY MEDICINE, PLLC; SCHENECTADY FAMILY HEALTH SERVS., INC.; ELLIS HOSPIT.; AND ARETA PIDWERBETSKY, M.D., DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in this personal injury action filed by Richard A. Marra ("Plaintiff") are the following two motions filed by Schenectady Family Health Services, Inc. ("Defendant Schenectady"): (1) a motion to substitute the United States of America ("United States") for Defendant Schenectady as a defendant in this action, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq.; and (2) a motion to dismiss Plaintiff's claims against the United States for lack of subject-matter jurisdiction, pursuant to Fed. R. Civ. P. 12(h)(3). (Dkt. No. 3.) For the reasons set forth below, Defendant Schenectady's motion to substitute is granted. Moreover, Defendant Schenectady's motion to dismiss is granted to the extent that it requests the dismissal of Plaintiff's claims against the United States without prejudice; otherwise that motion is denied. Finally, the remaining claims in this action--i.e., Plaintiff's claims against Defendants George B. Hughes, M.D., George B. Hughes, M.D. Family Medicine, PLLC, Ellis Hospital, and Areta Pidwerbetsky, M.D.--are remanded to state court.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges as follows.

Between approximately December 21, 2005, and June 11, 2008, George B. Hughes, M.D., George B. Hughes, M.D. Family Medicine, PLLC, and Schenectady Family Health Services, Inc., provided Plaintiff with "continuous general and primary medical care, treatment, advice and services." (Dkt. No. 1, Attach. 2, at ¶ 7.) "By reason of [the] negligence, carelessness, wrongdoing, culpable conduct and/or malpractice" of George B. Hughes, M.D., George B. Hughes, M.D. Family Medicine, PLLC, and Schenectady Family Health Services, Inc., Plaintiff "suffered serious and permanent injuries and disability, including pain and suffering." (Id. at ¶ 8.) More specifically, on June 12, 2008, Plaintiff "acutely became paraplegic[, and was] diagnosed that day with spinal cord compression, T10-T11, osteomyelitis, disoitis, epidural abscess, and paravertebral abscess." (Id. at ¶ 9.)

In addition, between April 23, 2008, and "at least" June 6, 2008, Plaintiff sought and was provided with "radiologic and physical therapy care, treatment, advice and services at Ellis [Hospital]." (Id. at ¶ 19.) "By reason of [the] negligence, carelessness, wrongdoing, culpable conduct and/or malpractice" of Ellis Hospital, "its agents, servants, employees, physicians, including [Areta] Pidwerbetsky, physical therapists and other healthcare professionals, [Plaintiff] suffered serious and permanent injuries and disability, including pain and suffering." (Id. at ¶ 20.) More specifically, on June 12, 2008, Plaintiff "acutely became paraplegic[, and was] diagnosed that day with spinal cord compression, T10-T11, osteomyelitis, disoitis, epidural abscess, and paravertebral abscess." (Id. at ¶ 21.)

Familiarity with the remaining allegations giving rise to Plaintiff's claims are assumed in this Decision and Order, which is intended primarily for the review of the parties.

B. Two Motions filed by Defendant Schenectady

Generally, in support of its motion for substitution, Defendant Schenectady argues as follows: (1) Defendant Schenectady is a grantee of the U.S. Department of Health and Human Services, and as such, is eligible for malpractice coverage under the Federal Tort Claims Act; (2) based on the allegations in the Complaint, this action is properly brought under the provisions of the Federal Tort Claims Act; and (3) the United States has certified that, at all times alleged in the Complaint, Defendant Schenectady was acting within the scope of its employment as an employee of the United States. (See generally Dkt. No. 3, Attach. 1 [Def. Schenectady's Memo. of Law].)

In addition, in support of its motion to dismiss for lack of subject-matter jurisdiction, Defendant Schenectady argues that Plaintiff failed to file an administrative claim under 28 U.S.C. 2675(a) before commencing this action, which is a jurisdictional requirement. (Id.)

In lieu of filing a response, Plaintiff's counsel filed a letter-motion, in which he stated that "Plaintiff will not file a written response to Defendant [Schenectady's] motion, and does not oppose the Court granting said Defendant the relief requested." (Dkt. No. 5.) Plaintiff's counsel further indicated that, "[p]rior to the commencement of this action, Plaintiff was not aware that Schenectady Family Health Services, Inc. is a federally funded health clinic." (Id.) Plaintiff's counsel also acknowledged that, "before commencing his claims against Schenectady Family Health Services, Inc. pursuant to the Federal Tort Claims Act[,]" Plaintiff must exhaust his administrative remedies. (Id.)

II. ANALYSIS

As an initial matter, the Attorney General's office has certified that Schenectady Family was acting within the scope of its employment at the time of the incident out of which the claim arose. (Dkt. No. 3.) As a result, substitution is mandatory, and therefore the United States shall be substituted for Defendant Schenectady. See Celestine v. Mount Vernon Neighborhood Health Center, 289 F. Supp.2d 392, 398 (S.D.N.Y. 2003) (quoting 28 U.S.C. ยง 2679[d][2]) ("Once the Attorney General or the Attorney General's designee has certified 'that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the ...


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