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Sobel v. United States

July 31, 2008


The opinion of the court was delivered by: Sam A. Crow, U.S. District Senior Judge


This case comes before the court on plaintiff's motion for entry of default, and on defendant's motion to dismiss. The plaintiff is a physician who brings suit pursuant to the Federal Tort Claims Act, alleging negligence in a report by the VA Hospital to the National Practitioner Data Bank (NPDB) which found him responsible for the death of a patient.


Plaintiff is a hospitalist who has practiced medicine since 1987. In 2003, he was employed as a physician at the Colmery-O'Neill Veteran's Administration Hospital in Topeka, Kansas. In November of that year, one of plaintiff's patients died after plaintiff conducted a procedure on her. The patient's family sued the V.A. Hospital, which investigated the matter and settled the case over plaintiff's objections. Plaintiff agrees that the patient's "death occurred as a result of the procedure." Dk. 17, p. 2. Plaintiff does not believe, however, that her death occurred as a result of medical malpractice, noting the coroner's opinion that the complication "was very unusual and could not have been prevented or predicted." Id.

The V.A. Hospital's internal investigation named the plaintiff as the responsible practitioner for the patient's death. The VA reported the settlement payment to the NPDB, as required. See 42 U.S.C. § 11131(a). The NPDB was established through the Healthcare Quality Improvement Act (HCQIA) of 1986, which was enacted "to improve the quality of health care and to reduce the number of incompetent physicians." Hancock v. Blue Cross-Blue Shield of Kansas, Inc., 21 F.3d 373, 374 (10th Cir.1994). See 42 U.S.C. § 11101."The NPDB is a reporting agency established by Congress to "restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance." Lee v. Hospital Authority of Colquitt County, 353 F.Supp.2d 1255, 1260 (M.D.Ga. 2004).

As a result of the report, plaintiff is required to reveal the occurrence in every application to any hospital at which he requests privileges, on job applications, state medical license applications, board applications, and to training agencies and malpractice insurance agencies. Plaintiff's amended complaint alleges that negligent acts of the peer review committee in its investigation and the negligent report to the NPDB will cause him future lost income, future damage to his reputation, and the future out of pocket expense of higher medical malpractice insurance premiums. In addition to monetary damages, the amended complaint seeks injunctive relief or mandamus by requesting the Court to instruct the defendant to remove its report to the NPDB which found plaintiff to be the responsible practitioner for the death of the patient.

This court's jurisdiction is based upon the Federal Tort Claims Act (FTCA), the "exclusive remedy" for torts by government employees acting within the scope of their duties. United States v. Smith, 499 U.S. 160, 166, 111 S.Ct. 1180, 1185, 113 L.Ed.2d 134 (1991).

Motion for Default

Plaintiff moves for entry of default, asserting that the defendant has failed to answer or otherwise plead within the requisite time. The defendant opposes the motion.

The controlling facts are not in dispute. Plaintiff filed his amended complaint on April 4th, and mailed a summons to defendant by certified mail. The summons states that the defendant is "required to serve on plaintiff's answer to the complaint which is served on you with this summons within 60 days after service of this summons on you, exclusive of the day of service." Dk. 21, Exh. 3. Plaintiff filed his motion for default on June 4th, the 61st day after April 4th. The defendant filed its response to plaintiff's amended complaint, the present motion to dismiss, on June 5th.

Defendant correctly cites the applicable "counting" rules, not reflected on the face of the summons, and likely not known to plaintiff who is acting pro se. See Fed. R. Civ. Pro. 4, 5, 6. Those rules serve to extend the 60-day period and thus permit the defendant to have timely filed its motion to dismiss, in response to plaintiff's amended complaint, on June 5th. Plaintiff's motion for entry of default shall thus be denied.

Motion to Dismiss

The government's motion to dismiss asserts lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12 (b)(1). The party invoking the jurisdiction of the federal court has the duty to establish that federal jurisdiction exists. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). Because the courts of the United States are courts of limited jurisdiction, there is a strong presumption against federal jurisdiction. Id.

The motion contends that plaintiff has failed to exhaust his administrative remedies under the FTCA, that the court lacks jurisdiction under the FTCA to issue injunctive or mandamus relief, and that plaintiff's claims fall within FTCA exceptions for: 1) libel, slander, or defamation, and 2) interference with contractual rights, and 3) discretionary functions. See 28 U.S.C. § 2680(h); § 2680(a). In response to the government's motion,*fn1 the plaintiff concedes that any claims for libel, slander, defamation, or interference with contractual rights are subject to dismissal, as ...

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