United States District Court, D. Kansas
BUCK R. BOX, Individually, and as Special Administrator of the Estate of MARY BOX, Deceased, STEPHANIE BOX, RENEE BOX, and ANTHONY BOX as the Natural Heirs of the Deceased, Plaintiffs,
UNITED STATES; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; COMMUNITY HEALTH CENTER OF SOUTHEAST KANSAS; MICHAEL FORBES, APRN; BRET MICHAEL BULLARD, F.N.P.; and MERCY HOSPITAL COLUMBUS, Defendants.
MEMORANDUM AND ORDER
Murguia United States District Judge.
the United States of America, United States Department of
Health and Human Services (“HHS”), Community
Health Center of Southeast Kansas (“CHC-SEK”),
and Michael Forbes move to dismiss federal defendants HHS,
CHC-SEK, and Forbes pursuant to the Federal Tort Claims Act
(“FTCA”) because the United States is the
exclusive federal defendant under the Act. (Doc. 24.)
are the husband and children of decedent Mary Box. Defendants
are the United States of America, HHS, CHC-SEK, Mercy
Hospital Columbus (“Mercy-Columbus”), Michael
Forbes, and Bret Michael Bullard. CHC-SEK is a
federally-supported health center. Plaintiffs allege
defendant Forbes was an employee of CHC-SEK acting in the
scope of his employment at all times relevant to this motion.
Plaintiffs similarly allege defendant Bullard was an employee
of Mercy-Columbus acting in the scope of his employment at
all times relevant to this motion.
presented first to defendant Mercy-Columbus, then four days
later, to defendant CHC-SEK, with multiple symptoms including
headaches, blurred vision, and nausea. Defendants Forbes and
Bullard each treated Ms. Box at their respective places of
employment by prescribing medication, but not by ordering
testing or other diagnostic referrals. The day after
presenting to CHC-SEK, Ms. Box returned to CHC-SEK
complaining of worsening symptoms. Nine days later, Ms. Box
was admitted to the emergency room of Mercy Hospital in
Joplin, Missouri, after losing consciousness in her vehicle.
A CT scan revealed intracranial hemorrhage, aneurysm, and
subarachnoid hemorrhage. She was then transferred to Mercy
Hospital in Springfield, Missouri, for further care. Ms. Box
passed away on November 27, 2016.
allege that Ms. Box's death resulted from the negligence
of defendants Forbes, Bullard, and defendants' respective
employers CHC-SEK and Mercy-Columbus.
the FTCA, as amended by the Federal Employees Liability
Reform and Tort Compensation Act of 1988, the United States
has waived its sovereign immunity for claims including
“personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or
employment[.]” 28 U.S.C. § 1346(b)(1). For claims
covered by Section 1346, suit against the United States is a
plaintiff's exclusive remedy, and “[a]ny other
civil action or proceeding for money damages arising out of
or relating to the same subject matter against the employee .
. . is precluded without regard to when the act or omission
occurred.” 28 U.S.C. § 2679(b)(1). For covered
claims, with limited exceptions for certain types of damages,
the United States is liable “in the same manner and to
the same extent as a private individual under like
circumstances[.]” Id. § 2674. Claims
under Section 1346(b) may not be brought against federal
agencies. Id. § 2679(a).
Tenth Circuit has stated that “[t]he United States is
the only proper defendant in an FTCA action.” Smith
v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009)
(citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4
(10th Cir. 2001)) (quotations omitted). This is equally true
of FTCA claims based upon the work of “any commissioned
officer or employee of the Public Health Service while acting
within the scope of his office or employment[.]” 42
U.S.C. § 233(a); see Lurch v. United States,
719 F.2d 333, 340 n.10 (10th Cir. 1983).
move to dismiss federal defendants HHS, CHC-SEK, and Forbes,
and further ask the court to amend the case caption
appropriately. Plaintiffs recognize that defendants HHS and
CHC-SEK must be dismissed from this action, but ask that
defendant Forbes not be dismissed. The court accordingly
dismisses defendants HHS and CHC-SEK and turns to defendant
jurisdictional basis alleged with respect to defendant Forbes
is the court's exclusive jurisdiction under the FTCA.
(Doc. 11, at 3.) Paragraph 16 of Plaintiffs' First
Amended Complaint alleges that “[a]t all times relevant
hereto, [defendant Forbes] was an employee of [CHC-SEK]
working in the course and scope of his employment[.]”
(Id. at 4.) Plaintiffs' theory of recovery
against all federal defendants is a state law negligence
action. (Id. at 5-6.) As a result, plaintiffs'
claim falls into the category of cases covered by Section
1346 of the FTCA. See 28 U.S.C. § 1346(b)(1).
CHC-SEK is a federally-supported health center, defendant
Forbes is deemed a Public Health Service employee, making the
United States the exclusive defendant for the FTCA claim
against him. See 42 U.S.C. § 233(a);
Lurch, 719 F.2d at 340 n.10. Because the court's
jurisdiction is based upon plaintiffs' FTCA claim, and
the United States is the exclusive federal defendant for all
FTCA claims before the court, the court must also dismiss
IS THEREFORE ORDERED that defendants' motion to
dismiss parties (Doc. 24) is granted. Defendants United
States Department of Health and Human Services, Community
Health Center of Southeast Kansas, and Michael Forbes are
dismissed from this action. The caption is amended to reflect
the United States of ...