United States District Court, S.D. Illinois
NANCY KLUGE PEDERSON, individually, and as Mother and Next Friend of EMMA KLUGE, a minor, Plaintiff,
DR. SRIDEVI PANCHAMUKHI, SOUTHERN ILLINOIS HOSPITAL SERVICES, d/b/a Memorial Hospital of Carbondale, and MEMORIAL HOSPITAL OF CARBONDALE, Defendants.
MEMORANDUM AND ORDER
J. Rosenstengel Chief U.S. District Judge.
matter is before the Court on the Motion to Dismiss Dr.
Sridevi Panchamukhi and Substitute the United States of
America filed by Dr. Sridevi Panchamukhi (Doc. 3), the Motion
to Dismiss or, in the Alternative, for Summary Judgment filed
by Defendant Dr. Sridevi Panchamukhi and the United States of
America (Doc. 6), as well as the Motion to Dismiss filed by
Defendant Southern Illinois Hospital Services, d/b/a Memorial
Hospital of Carbondale (SIHS) (Doc. 11). For the reasons set
forth below, the motions are granted.
Nancy Kluge Pederson originally filed this lawsuit as the
Mother and Next Friend of Emma Kluge in the Circuit Court of
the First Judicial Circuit in Williamson County, Illinois
(Doc. 1-2). Pederson alleged that Dr. Panchamukhi, SIHS, and
Memorial Hospital of Carbondale were negligent in delivering
her child on June 25, 2009 (Id.). Dr. Panchamukhi
and the United States of America removed the case to federal
court on November 30, 2018, asserting that at all relevant
times, Dr. Panchamukhi was an employee of Rural Health, Inc.,
an entity of the United States of America eligible for
Federal Tort Claims Act coverage pursuant to the Federally
Supported Health Centers Assistance Act (Doc. 1). And under
42 U.S.C. § 233(a), a Federal Tort Claims Act (FTCA)
lawsuit against the United States is the sole remedy
“for damage or personal injury, including death,
resulting from the performance of medical, surgical, dental,
or related functions . . . by any commissioned officer or
employee of the Public Health Service while acting within the
scope of his office or employment.” (Id.).
Panchamuhki has now moved to substitute the United States as
a defendant in her stead. Both Dr. Panchamuhki and the United
States also have moved to dismiss the case because Pederson
failed to exhaust her administrative remedies prior to filing
this lawsuit. Finally, Defendant SIHS has filed a motion to
Dismiss Count II against it. The Court addresses each motion
Motion to Dismiss Dr. Panchamukhi with Prejudice and
Substitute the United States of America
this motion, Dr. Panchamukhi moves to dismiss the claims
against her with prejudice and to substitute the United
States in her place. Dr. Panchamukhi asserts that from
January 1, 2008, to the present, Rural Health, Inc. has been
deemed eligible for FTCA malpractice coverage, and that she
was an employee of Rural Health on June 25, 2009, and
continues to be an employee to this day. Accordingly, she
must be dismissed, and the United States must be substituted
as a defendant. Pederson did not file a brief in opposition.
42 U.S.C. § 233(a), an FTCA lawsuit against the United
States is the sole remedy “for damage or personal
injury, including death, resulting from the performance of
medical, surgical, dental, or related functions . . . by any
commissioned officer or employee of the Public Health Service
while acting within the scope of his office or
employment.” In such cases, the Attorney General may
certify that the employee “was acting in the scope of
his employment at the time of the incident out of which the
suit arose.” 42 U.S.C. § 233(c). Upon
certification, the employee is dismissed from the action, the
United States is substituted as defendant in place of the
employee, and the action is governed by the FTCA.
Id. The Attorney General has delegated authority to
certify a federal employee's scope of employment to the
U.S. Attorneys. 28 C.F.R. § 15.4(a).
the U.S. Attorney for the Southern District of Illinois has
delegated his authority under § 15.4(a) to the Chief of
the Civil Division, who has certified that Rural Health a was
a deemed federal entity of the United States of America from
at least January 1, 2008, and continuing thereafter.
Furthermore, Dr. Panchamukhi was acting within the scope of
her deemed employment as an employee of the United States
Public Health Service on June 25, 2009 (Doc. 1-5).
Accordingly, the exclusive remedy available to Pederson is an
FTCA lawsuit against the United States.
that the FTCA applies here, and having no response from
Pederson, the Motion to Dismiss Defendant Dr. Sridevi
Panchamukhi with prejudice (Doc. 3) is granted, and the
United States of America is hereby substituted as a
Motion to Dismiss, or in the Alternative, for Summary
Judgment, Based on Failure to Exhaust (Doc. 6)
December 10, 2018, the United States filed a motion to dismiss
or, alternatively, for summary judgment, asserting that
Pederson failed to exhaust the required administrative
remedies prior to filing suit (Doc. 6). The United States
argues that under the FTCA, a plaintiff must take her claim
to the appropriate federal agency before filing suit.
Specifically, 28 U.S.C. § 2675(a) provides that an
action shall not be instituted against the United States for
money damages based on personal injury or death caused by the
negligence of any Government employee acting with the scope
of his employment, “unless the claimant shall have
first presented the claim to the appropriate Federal agency
and his claims shall have been finally denied by the agency
in writing . . . .” 28 U.S.C. § 2675.
case, the United States argues, Pederson failed to file any
administrative claims regarding Rural Health, Inc., and/or
Dr. Panchamukhi with the United States Department of Health
and Human Services before filing this lawsuit (See
Doc. 6-1). Therefore, her claims must be
failure to exhaust administrative remedies before filing suit
under the FTCA mandates dismissal. Old Nat. Tr. Co. v.
United States, No. 12-CV-0197-MJR-DGW, 2013 WL 3944432,
at *3 (S.D. Ill. July 31, 2013) (citing McNeil v. United
States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d
21 (1993); Arteaga v. United States, 711 F.3d 828,
831 (7th Cir. 2013)); see also Warrum v. United
States, 427 F.3d 1048 (7th Cir. 2005)(§ 2675(a)
requires the presentation of an administrative claim for
wrongful death before a wrongful death claim may be pursued
in federal court under the FTCA). “The purpose of the
FTCA's exhaustion requirement is to facilitate the