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Lewis v. Kuchinic

October 10, 2007

SABRINA LEWIS, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JACQUELINE LEWIS, PLAINTIFF,
v.
PAULINA KUCHINIC, M.D. GRETA IVERS, M.D., AND MT. SINAI HOSPITAL DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Sabrina Lewis ("Lewis") filed in the Circuit Court of Cook County a complaint against defendants Paulina Kuchinic, M.D. ("Dr. Kuchinic"), Greta Ivers, M.D. ("Dr. Ivers") and Mt. Sinai Hospital. In her complaint, plaintiff alleged that defendants were negligent with respect to actions that led to the death of her sister, Jacqueline Lewis. Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2679, and the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233, the United States removed the case to this Court and substituted itself for Dr. Ivers as a defendant. Before the Court is the United States' motion to dismiss plaintiff's claims against it for failure to exhaust administrative remedies. For the reasons set forth below, the Court grants the motion.

I. Background

The Court takes as true the allegations in the complaint plaintiff filed in the Circuit Court of Cook County. Plaintiff alleges that doctors at Mt. Sinai Hospital had, at some point, diagnosed Jacqueline Lewis with shortness of breath, end-stage renal disease and cardiac problems. Drs. Ivers and Kuchinic had not, however, ordered an angiogram or complete cardiac work-up for Jacqueline Lewis.

On October 4, 2004, Jacqueline Lewis arrived at the emergency room at Mt. Sinai Hospital, where she complained of leg pain. Drs. Ivers and Kuchinic were assigned to care for Jacqueline Lewis. According to the complaint, the doctors were negligent in a number of respects, including that they failed to order an additional blood draw after the first specimen hemolyzed, that they failed to correct Jacqueline Lewis's insulin overdose and that they gave her an overdose of opiates. These failures allegedly led to Jacqueline Lewis's death. Finally, plaintiff alleges that defendant Mt. Sinai Hospital is vicariously liable for the actions of its employees in connection with Jacqueline Lewis's death.

Plaintiff does not allege that the parties are completely diverse or that the matter in controversy is greater than $75,000.00.

When the United States removed the case to this Court, it included a certification signed by Thomas P. Walsh ("Walsh"), the Chief of the Civil Division of the Office of the United States Attorney for the Northern District of Illinois. In the certification, Walsh stated that he was making the certification based on the authority delegated to him by the Attorney General under 28 U.S.C. § 15.4 and through the United States Attorney for the Northern District of Illinois. He also certified, among other things:

On the basis of the information now available, I find that at the relevant times, Access Community Health Network was a private entity receiving grant money from the Public Health Service pursuant to 42 U.S.C. § 233. Further, I certify that defendant Greta Ivers, M.D., was acting within the scope of her employment with Access Community Health Network with respect to the incidents referred to in the complaint. Accordingly, for purposes of this case, Greta Ivers, M.D. is deemed to be an employee of the United States pursuant to 42 U.S.C. § 233, for Federal Tort Claims Act purposes only.

Nowhere in plaintiff's complaint does she allege that she exhausted her administrative remedies. The United States has put forth evidence that plaintiff did not exhaust her administrative remedies.

II. Discussion

The Federal Employees Liability Reform and Tort Compensation Act of 1988, often called the Westfall Act, grants federal employees absolute immunity from common-law tort claims arising out of acts undertaken in the course of their employment. See 28 U.S.C. § 2679(b)(1); Osborn v. Haley, 127 S.Ct. 881, 887 (2007); Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). As the Seventh Circuit has summarized:

When a federal employee is sued, the Westfall Act empowers the Attorney General to certify, if appropriate, that the employee was acting within the scope of his or her employment at the time of the incident in question. 28 U.S.C. § 2679(d)(1), (2). If the Attorney General issues such a certification, the employee is dismissed from the action and the United States is substituted as the defendant in place of the employee. 28 U.S.C. § 2679(d)(1). Thereafter, the lawsuit is governed by the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 2671 et seq. If the action was filed in state court, the case must be removed to federal court. 28 U.S.C. § 2679(d)(2). The 'certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal." Id.

Alexander, 484 F.3d at 891.

Similarly, the Federally Supported Health Centers Assistance Act of 1995, 42 U.S.C. ยง 233, "allows the government to remove from state court a medical malpractice action filed against a physician who is 'deemed' to be a federal employee." Alexander, 484 F.3d at 891. Once ...


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