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The Supreme Court Of The State Of New York, Kings County, Against Lutheran Medical Center And Three Physicians
The infant plaintiff Nina Indart was born on June 30, 1996. Her mother and natural guardian, Cynthia Indart, received
prenatal care at Sunset Park Family Health Center from January 17, 1996 to the date of birth, and until her release on July 3, 1996. On December 17, 1996 this action was commenced in the Supreme Court of the State of New York, Kings County, against Lutheran Medical Center and three Physicians, "John" Werner, "John" Naddow and ‘John" Agherbro (the "physician defendants") alleging that their medical malpractice caused injury to Nina. Her mother sues in her capacity as guardian of Nina and individually for the loss of her daughter's services.
On June 8, 1998, the government removed the action to this court pursuant to the Federally Supported Health Centers Act of 1998, 42 U.S.C. § 233, et seq. More specifically, § 233 provides in substance that the exclusive remedy for damages resulting from the performance of medical functions by an employee of the Public Health Service ("PHS") acting within the scope of his employment, shall be in a suit against the UnitedStates. 42 U.S.C. § 233(a).
Sections 233(b) and (c) provide in substance that if the Attorney General certifies that the defendant was acting
within the scope of his employment when the incident giving rise to the suit occurred, he shall remove the suit from the state court in which it was commenced to the appropriate United States district court and the proceeding shall then be deemed to be governed by the Federal Tort Claims Act ("FTCA").
Section 233 (g) has many subdivisions which will be summarized as follows. An entity (a public or nonprofit entity,
§ 233(g) (4)) must submit an application to the Secretary of Health and Human Services (the "Secretary") to be deemed an entity for the purposes of this section. 5 233(g) (1) (D). The Secretary must then, within 30 days thereafter determine whether the entity or its employees shall be deemed an employee of the PHS for purposes of this section. § 233(g) (1) (E). If approved by the Secretary, the entity and any of its employees shall be deemed a PHS employee and the remedy against the United States for damages for personal injury resulting from the performance of medical or surgical functions by any PHS employee while acting within the scope of his employment shall be exclusive.
§ 233(g) (1) (A) and § 233(a).
Section 233(l) provides in substance that the Attorney General shall advise the court as to whether the Secretary has
determined that the entity or its employee is deemed to be an employee of the PHS for purposes of this section with respect to the actions or omissions that are the subject of a civil action. Such advice shall be deemed to satisfy the provisions of § 233(c) that the Attorney General certify that an entity or employee of the entity was acting within the scope of their employment. The government has removed the action from the state court by a Notice of Removal which reads that the case is "being removed to the United States District Court for the Eastern District of New York. The Sunset Park Family Health Center, a division of Lutheran Medical Center, is deemed covered by the Federally Supported Health Centers Act of 1992. 42 U.S.C. § 233 et seq." That Notice, on its face, was on behalf of Lutheran
Medical Center only and at oral argument, the government stated that it was not its purpose or intention to remove the action against the physician defendants to the federal c0urt. The plaintiff moved this Court for an order that would
remand the action to the state court arguing that there is no certification that the physicians named were acting within the
scope of their employment at the time of the incident out of which this suit arose as required by § 233(c). In response to that motion, the government filed a "Certificate of FTCA Coverage and Notice of Substitution of United States as Party Defendant," which reads in pertinent part as follows:
United States Attorney for the Eastern District of New York, hereby certifies that the Lutheran Medical Center in so far as it operated Sunset Park Family Health Center after December 1, 1994, is covered by the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671, et seq., pursuant to the Federally Supported The government's assertion in this regard is
inexplicable. The entity, Lutheran Medical Center, cannot itself be guilty of medical malpractice. It will be liable only if it is proved that its employee, acting within the scope of his employment, was guilty of medical malpractice. In addition, .§ 233 (a) is explicit in providing that the remedy against the United States is exclusive of any other civil action
against the employee whose act or omission gave rise to the claim. The obligation of the government to save
harmless its employees acting within the scope of their employment in such cases is intrinsic to the Federal
Tort Claims Act. See, e.g., 28 U.S.C. § 2679 (b) (1).
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