Perez v. Sierra View Medical Center

Opinion

JULIE ANNA PEREZ, Case No. 1:19-cv-01483-DAD-JPD

Plaintiff, STIPULATION AND ORDER TO DISMISS v. PLAINTIFF’S CLAIMS AGAINST THE UNITED STATES AND REMAND THE CASE TO STATE SIERRA VIEW MEDICAL CENTER; COURT UNITED STATES OF AMERICA, Defendants. Plaintiff Julie Anna Perez, by and through her attorney of record, and the United States, by and through its attorneys of record, hereby stipulate to dismissal of Plaintiff’s claims against the United States without prejudice and to remand Plaintiff’s claims against Sierra View Medical Center back to state court, based on the following: (1) Plaintiff filed a Complaint in Tulare County Superior Court on July 23, 2019, alleging that Sierra View Medical Center and Lisa Garber, a certified nurse midwife employed by Family Healthcare Network (“the Clinic”), committed medical malpractice. Docket No. 1. (2) The Clinic receives federal funding and is deemed to be an employee of the Public Health Service within the United States Department of Health and Human Services. See Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233. (3) Because the Clinic is deemed to be a federal employee, tort actions against the Clinic and its employees (acting within the scope of their employment) arising from medical or related functions must be brought against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. See 42 U.S.C. § 233(a). (4) On October 18, 2019, the United States Attorney removed the state court action to federal district court and filed a certification that Lisa Garber was acting within the course and scope of her employment at the time of the events giving rise to this action. (5) As a result of the certification, the United States was substituted as the defendant in place of Lisa Garber by operation of law. See 42 U.S.C. § 233(c). (6) “A federal court’s jurisdiction to hear damage actions against the United States is limited by section 2675(a) of the FTCA.” Shipek v. United States, 752 F.2d 1352, 1353 (9th Cir. 1985); accord Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). (7) Section 2675(a) requires, as a prerequisite to suing the United States, that a plaintiff must first present his or her claim to the appropriate federal agency. Shipek, 752 F.2d at 1353. The plaintiff must then receive a denial of the claim or await the passage of six months before filing suit. Id. “The plaintiff is permitted to sue the United States only after the claim is denied or six months have elapsed without final disposition by the agency.” Warren v. United States Dep’t of Interior, 724 F.2d 776, 778 (9th Cir. 1984) (en banc); see also See Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992) (“Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions.”); McNeil v. United States, 508 U.S. 106, 112-13 (1993) (stating that exhaustion of administrative remedies during the pendency of an action does not cure the failure to exhaust prior to filing the action). (8) Plaintiff has not yet filed an administrative tort claim with the United States Department of Health and Human Service. Accordingly, Plaintiff and the United States agree that the claims against the United States must be dismissed without prejudice and that the matter may be remanded to state court. Dated: October 21, 2019 Respectfully submitted, United States Attorney

By: /s/ Edward A. Olsen EDWARD A. OLSEN Assistant United States Attorney

Attorneys for the United States of America

Dated: October 21, 2019 /s/ Vonn R. Christenson VONN R. CHRISTENSON Attorney for Plaintiff

Pursuant to stipulation, the claims against the United States are dismissed without prejudice and this matter is remanded to state court. The clerk is directed to close this case. ITIS SO ORDERED. Dated: _ October 22, 2019 —N prssann — , UNI STATES MAGISTRATE JUDGE No. 204