and Dr. Michel to be federal employees. Dr. Michel signed an employment contract with Alivio.
It is undisputed that Ms. Guerrero was an Alivio patient and that Dr. Michel received no
compensation for treating Ms. Guerrero other than his monthly salary from Alivio.

Plaintiffs next argue that even if Dr. Michel is a government employee, he was acting
outside the scope of his employment with Alivio. According to Dr. Michel's employment
contract and job description at Alivio, he was to provide obstetrical care, including operative
deliveries, to the women clients of Alivio in collaboration with the Midwifery Program and to
serve as primary attending physician to Alivio patients who were admitted to the hospital, which
included being on-call for inpatient back-up. The conduct in question occurred at Mercy
Hospital while Dr. Michel was the on-call obstetrician. Dr. Michel testified that he was on-call
for Alivio the day Ms. Guerrero delivered. Nonetheless, plaintiffs argue that Dr. Michel was
acting outside the scope of his employment because the night Dr. Michel delivered Ms.
Guerrero's child, in addition to being on-call for Alivio, he also could have been on-call for
Mercy Hospital or his private practice. Plaintiffs further contend that having resident physicians
present during Ms, Guerrero's care takes Dr. Michel outside the scope of his employment with
Alivio. Dr. Michel testified that “every physician at Mercy Hospital, even the ones that weren't
employed with Mercy, were supervising residents even though they aren't paid by Mercy." Under
Illinois law, “[c]onduct may be within the scope of employment although done in part to serve
the purposes of the servant or of a third person." Restatement (Second) of Agency § 236 at 523.
Comment a to § 236 "makes it clear that a person may ‘serve two masters" and still be within

scope. McCloughan vy. City of Springfield, 172 F.Supp.2d 1009, 1017 (C.D. Ill. 2001). Since

Dr. Michel's contract with Alivio required him to admit patients, serve as primary attending

4.


(Emphasis added.) This action was also removed pursuant to the Federally Supported Health
Centers Assistance Act, 42 U.S.C. § 233. Section 233(c) of Title 42 also provides that such an
action "shall be removed any time before trial by the Attorney General . . . and the proceeding
deemed a tort action brought against the United States." Pursuant to the FTCA, "[tJhis
certification of the Attorney General shall conclusively establish scope of office or employment
for purposes of removal." 42 U.S.C. § 233(c). The Attorney General's designee has certified
pursuant to 28 U.S.C, § 2679 that Alivio Medical Center, Inc. was a private entity receiving grant
money from the Public Health Service pursuant to 42 U.S.C. § 233 and that Dr. Michel was
acting within the scope of his employment at Alivio with respect to the incidents referred to in
the complaint, deeming Alivio and Dr. Michel employees of the United States for purposes of the
FTCA. The certifications are attached to the defendant's notice of removal. Thus, removal was
proper.

In their brief in opposition to defendants' motion to dismiss, plaintiffs continue to argue
that this action does not belong in federal court. The plaintiffs argue that contrary to the
Attorney General's certification, Dr. Michel was not acting within the scope of his employment
as an employee of the United States at the time of the incidents out of which Guerrero's claim
arose. Although reviewable, the certification creates a rebuttable presumption that Dr. Michel
was acting within the scope of employment. Hamrick v, Franklin, 931 F.2d 1209, 1212 (7th Cir.
1991). Plaintiffs first argue that Dr. Michel was not a federal employee because Alivio did not
control or supervise Dr. Michel's day-to-day functions as a physician. Section 233, however,
expressly expands the definition of employees under FTCA to include physicians who contract

with a qualified health center, thereby extending the government's liability. HHS deemed Alivio

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physician with necessary and cross-cover inpatients, his involvement with the residency program
constitutes the kind of conduct Alivio would expect him to perform and for which Alivio
employed him. Accordingly, Dr. Michel was acting within the scope of his employment when he
treated Ms. Guerrero.

Defendants filed a motion to dismiss this action for lack of subject matter jurisdiction
because plaintiffs failed to comply with the jurisdictional prerequisites to filing suit as required
by the FTCA, 28 U.S.C. §§ 1346(b), 2675(a). Under the FTCA, "an action shall not be instituted
upon a claim against the United States for money damages" unless the claimant "shall have first
presented the claim to the appropriate Federal agency . . ." 28 U.S.C. § 2675(a). The filing of an
administrative claim is a prerequisite to filing a claim in federal court, which cannot be waived.
McNeil v, United States, 50 U.S. 106, 111 (1993); Kanar v. United States, 118 F.3d 527, 528
(7th Cir. 1997) ("No one may file suit under the Federal Tort Claims Act without first making an
administrative claim ...," and the claim must be filed with the appropriate agency within two
years of the date that the claim accrued.) The purpose of this requirement is to make certain the
claimant exhausts his administrative remedies before filing suit. Murrey v. United States, 73 F.3d
1448, 1451-2 (7 th Cir.1996). If the administrative tort claim filed with the agency is deemed
inadequate, the court is divested of, jurisdiction over the action. Id, at 1451. In this case,
plaintiffs have not alleged filing an administrative claim with the Department of Health and
Human Services ("HHS"). Because plaintiffs failed to exhaust their administrative remedies, this

Court lacks subject matter jurisdiction over the action against the United States.

5-



‘Minute Order Form (06/97)

- United States District Court, Northern District of Hlinois

nar Maghtrate eee David H. Coar “Thaw Auigned uae

CASE NUMBER 03 C 2492 DATE 7/16/2003

CASE Laura Guerrero, et al. vs. Alivio Medical Center, Inc. et al.

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented
Plaintiff's Petition to Remand to State Court [6-1]
Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction [4-1]

DOCKET ENTRY:
qa) Qo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due ___-_.
@) Oo Answer brief to motion due___. Reply to answer briefdue__—.
(4) o Ruling/Hearingon___setfor__—_at
(5) 0 Status hearing[held/continued to] [set for/re-set for]on__—setfor__—__—att
(6) O . Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—at__
(7) 0 Trial[set for/re-set for]on__—at_—
(8) o [Bench/Jury trial] [Hearing] held/continuedto__at
(9) oOo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

QUFRCP4(m) Ci Local Rule 41.1 OOFRCP41(a\(1) C1 FRCP41(a)(2).

of Subject Matter Jurisdiction is GRANTED [4-1]. This action is dismis

(1) @f (For further detail sce order attached to the original minute order.]

| [Other docket entry) For the reasons set forth in the attached Memorandum Opinion and Order,
plaintiffs’ petition to remand to state court is DENIED [6-1] and defendants’ Motion to Dismiss for Lack
ithout prejudice.

X__ | Nonotices required, advised in open court.

No notices required.

Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.

SK | Mail Ao 450 form.

Copy to judge/magistrate judge.

courtroom
klb (Ic) deputy's
initials

Date/time received in ; ,
central Clerk's Office railing deputy tila



: Conclusion
For the foregoing reasons, plaintiff's petition to remand is DENIED. Defendants’ motion

to dismiss for lack of subject matter jurisdiction is GRANTED.

Enter:

David H. Coar .
United States District Judge

Dated; July 16, 2003

-6-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LAURA GUERRERO, as Mother and Next Deer TED
Fried of ALAN RODRIGUEZ, a minor, and JU
LAURA GUERRERO, and LUIS L 17 2003
RODRIGUEZ, Individually,

Plaintiffs,

No, 03 C 2492
v.
HONORABLE DAVID H. COAR
ALIVIO MEDICAL CENTER, INC., An
Illinois Corporation, MERCY HEALTH
SYSTEM OF CHICAGO, d/b/a MERCY
MEDICAL OF JUSTICE, and PATRICK
MICHEL, M.D.,

Defendant.

eee wee ee ewer

MEMORANDUM OPINION AND ORDER

This is an action for medical negligence. The plaintiffs filed their complaint in the
Circuit Court of Cook County against Alivio Medical Center ("Alivio") and Patrick Michel,
M.D. on November 13, 2002. Alivio Medical Center, Inc. is a private entity receiving grant
money from the Public Health Service pursuant to 42 U.S.C. § 233. This action was removed to
this Court by the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §
2679(d)(2), and the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233. Under
42 U.S.C. § 233(c), the United States is substituted as the defendant. Before this court is
plaintiffs petition to remand the action to state court and defendants’ motion to dismiss for lack
of subject matter jurisdiction. For the reasons set forth below, plaintiffs’ motion is denied and

defendants’ motion is granted.

-l-


L Factual and Procedural Background

This cause is one for medical negligence arising out of the prenatal and intrapartum care
of Laura Guerrero from June 28, 1999 until her delivery on February 23, 1999. As a result of the
alleged negligence of the defendants, plaintiffs Laura Guerrero and Luis Rodriguez claim
damages on behalf of their minor son, Alan Rodriguez. Alan Rodriguez is diagnosed with
spastic cerebral palsy with developmental delay.

The plaintiffs filed their complaint in the Circuit Court of Cook County against Alivio
Medical Center ("Alivio") and Patrick Michel, M.D. on November 13, 2002. The defendants did
not file an appearance and plaintiffs’ motions to default against both Alivio and Dr. Michel were
granted by Judge Lynn Egan on April 10, 2003. On April 11, 2003, the United States filed a
notice of removal pursuant to 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233, as well as sections
1441(a) and 1446(d) of Title 28. On May 12, 2003, plaintiffs filed objections to the notice of
removal and petitioned the court to remand the action to state court. Defendants filed a motion to
dismiss for lack of subject matter jurisdiction.

i. Discussion

Plaintiffs argue that removal was improper because the notice of removal was not filed
within thirty days of defendants’ receipt of the initial pleading as required by 28 U.S.C. §
1446(b). This action was removed pursuant to the Federal Tort Claims Act ("FTCA"). Section
2679(d)(2) of the FTCA provides that:

Upon certification by the Attorney General that the defendant employee was

acting within the scope of employment at the time of the incident out of which the

claim arose, any civil action or proceeding commenced upon such a claim in a

State court shall be removed without bond at any time before trial by the Attomey
General to the district court of the United States...

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