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METCALF v. WEST SUBURBAN HOSP.

January 5, 1996

ORA METCALF, Plaintiff,
v.
WEST SUBURBAN HOSPITAL, DR. MARJORIE SHREVE, and CIRCLE FAMILY CARE, Defendants.



The opinion of the court was delivered by: HART

 Plaintiff Ora Metcalf brought this suit in the Circuit Court of Cook County, Illinois alleging medical malpractice by defendants. Plaintiff claims that her treating physician and the emergency room of a hospital failed to diagnose her heart condition prior to her suffering a May 14, 1994 heart attack (myocardial infarction) resulting in irreversible injury to her heart and cardiovascular system. She also claims that she had had prior heart attacks, but defendants failed to recognize that during prior visits. Named as defendants are Dr. Marjorie Shreve and the clinic that employed her, Circle Family Care. Also named as a defendant is West Suburban Hospital.

 Plaintiff allegedly visited Shreve on numerous occasions between December 1989 and November 1993, without having her condition correctly diagnosed. Plaintiff was also at Circle Family Care on May 9, 1994, but saw another physician. She does not claim that any malpractice occurred during that visit. Plaintiff had a heart attack on May 14, 1994. Although not initially treated for that incident at Circle Family Care, plaintiff did make subsequent visits for aftercare at Circle Family Care. She does not claim that malpractice was committed during those visits. Plaintiff contends she visited the emergency room of West Suburban Hospital on four occasions beginning in November 1993 and ending on May 8, 1994. She claims the physicians at West Suburban Hospital failed to correctly diagnose her heart condition during those visits. She also went to West Suburban Hospital's emergency room on May 14, 1994 when she was having a heart attack. Physicians at West Suburban Hospital were planning to send plaintiff home without treatment until an outside physician intervened to convince the Hospital to admit her.

 Circle Family Care receives federal funding under the Public Health Service Act for migrant health services (42 U.S.C. § 254b), community health services (id. § 254c), health services for the homeless (id. § 256), and/or health services for public housing residents (id. § 256a). If certain qualifications are met, entities that receive those funds and certain employees, including full-time physicians, are deemed to be federal employees for purposes of certain tort actions, including medical malpractice claims. Any such claims are considered to be claims under the Federal Tort Claims Act ("FTCA") for which there is exclusive federal jurisdiction. See id. § 233. Circle Family Care removed plaintiff's lawsuit to this court on the ground that it and Dr. Shreve were acting as federal employees when engaged in the alleged negligent conduct and therefore the claims against them are governed by the FTCA. *fn1" Plaintiff has moved to remand the case to state court, contending that, as to the negligent conduct alleged in the complaint, neither Circle Family Care nor Shreve are deemed to be federal employees under § 233.

 Section 233 of Title 42 (§ 224 of the Public Health Service Act) was amended effective October 24, 1992 to provide that certain federally funded entities and their employees would be deemed employees of the Public Health Service for purposes of certain tort claims. The statute provides in pertinent part:

 
(a) Exclusiveness of remedy
 
The remedy against the United States provided by sections 1346(b) and 2672 of Title 28, or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under section 1346(b) of Title 28, for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.
 
* * *
 
(c) Removal to United States district court; procedure; proceeding upon removal deemed a tort action against United States; hearing on motion to remand to determine availability of remedy against United States; remand to State court or dismissal
 
Upon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of Title 28 and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merit that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States, the case shall be remanded to the State Court . . . .
 
* * *
 
(g) Exclusivity of remedy against the United States for entities deemed Public Health Service employees; subrogation of medical malpractice claims; applicable period; entity and contractor defined
 
(1) For purposes of this section, an entity described in paragraph (4) and any officer, employee, or contractor (subject to paragraph (5)) of such an entity who is a physician or other licensed or certified health care practitioner shall be deemed to be an employee of the Public Health Service for a calendar year that begins during a fiscal year for which a transfer of the full amount estimated under subsection (k)(1)(A) of this section was made under subsection (k)(3) of this section (subject to paragraph (3)). The remedy against the United States for an entity described in paragraph (4) and any officer, employee, or contractor (subject to paragraph (5)) of such an entity who is deemed to be an employee of the Public Health Service pursuant to this paragraph shall be exclusive of any other civil action or proceeding to the same extent as the remedy against the United States is exclusive pursuant to subsection (a) of this section.
 
(2) If, with respect to an entity or person deemed to be an employee for purposes of paragraph (1), a cause of action is instituted against the United States pursuant to this section, any claim of the entity or person for benefits under an insurance policy with respect to medical malpractice relating to such cause of action shall be subrogated to the United States.
 
(3) This subsection shall apply with respect to a cause of action arising from an act or omission which occurs on or after January 1, 1993. This subsection shall not apply with respect to a cause of action arising from an act or omission which occurs on or after January 1, 1996.
 
(4) An entity described in this paragraph is a public or nonprofit private entity receiving Federal funds under any of ...

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