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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 Plaintiff Georgia Tsosie, on behalf of her son (together, the “Plaintiffs”), initiated 

this action against Defendant United States of America (the “Government”) alleging causes 

of action for negligence. (Doc. 8) The Defendant has moved to dismiss the Plaintiffs’ 

claims against it (the “Motion”), arguing that (i) the Plaintiffs may not bring claims against 

the Government pursuant to the Federal Tort Claims Act (“FTCA”), and (ii) the Plaintiffs 

have failed to state a claim for which relief can be granted. (Doc. 38) The Court’s ruling 

is as follows. 

I. Background 

Plaintiff Georgia Tsosie is the mother and natural guardian of N.C., who was born 

on March 3, 2015, in Chinle, Arizona. (Doc. 8 at 3) The Plaintiffs are members of the 

Navajo Tribe and are entitled to receive medical care at Chinle Health Care Facility 

(“Chinle Hospital”). (Doc. 8 at 3; Doc. 45 at 2) On April 14, 2015, Tsosie took N.C. to 

the emergency department of Chinle Hospital due to N.C. “running a fever and acting 

Georgia Tsosie, 

 

Plaintiff, 

vs. 

United States of America, 

Defendant. 

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No. CV-18-00494-PHX-SPL 

ORDER 

 
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fussy.” (Doc. 8 at 3) Three hours after arriving to the emergency department, and while 

still undergoing treatment, N.C. began experiencing “respiratory distress and stopped 

breathing.” (Doc. 8 at 3) Thirty minutes passed before a definitive airway was established, 

which resulted in N.C. suffering an irreparable hypoxic brain injury due to the lack of 

adequate oxygenation to his brain. (Doc. 8 at 3) N.C. had no brain injuries prior to April 

14, 2015. (Doc. 8 at 3) 

In 2014, Chinle Hospital entered into a contract with Medical Doctor Associates 

(“MDA”), a medical staffing agency, which allowed MDA to supply Chinle Hospital with 

emergency medicine service physicians. (Doc. 38-1 at 27) A contract order was drafted 

by Chinle Hospital, comprised of both a contract/purchase order1

 and a Performance Work 

Statement (“PWS”) for emergency medicine service physicians, to cover the period 

between November 10, 2014 to September 30, 2015. (Doc. 38-1 at 27) Dr. Ralph Alving 

was a contract healthcare services provider that MDA hired to provide emergency medicine 

physician services to its clients, and Dr. Alving was one of the emergency medicine service 

physicians that was supplied to Chinle Hospital by MDA via the contract/purchase order.2

 

(Doc. 38-1 at 27; Doc. 45 at 5) 

The governing Indian Health Services agency policy requires that all “licensed 

independent practitioners and other practitioners who provide direct patient care shall be 

credentialed and privileged though the medical staff.” (Doc. 45-13 at 4) The PWS provided 

to Dr. Alving contained a contract provision (the “FTCA Clause”) which stated that FTCA 

protection was extended to “Nonpersonal Service Contractors” if they provided services in 

an Indian Health Services facility to Indian Health Services beneficiaries. (Doc. 38-1 at 55) 

In light of this provision, MDA did not require Dr. Alving to carry malpractice insurance 

because MDA was under the impression that Dr. Alving’s performance at Chinle Hospital 

would be covered under the FTCA.3

 

 1

 The contract specifies that is it a “Nonpersonal Service task order.” (Doc. 38-1 at 33) 

2

 Dr. Alving passed away in 2016. (Doc. 45 at 3) 

3

 Dr. Eric Ritchie is the current clinical director of Chinle Hospital who, after 
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As a result of the injury to N.C., the Plaintiffs filed a claim with Indian Health 

Services on April 10, 2017. (Doc. 8 at 2) Indian Health Services has not denied or acted 

upon the claim. (Doc. 8 at 2) Because Indian Health Services never responded, the 

Plaintiffs exercised their option to deem the claim denied and filed this action (the 

“Complaint”) under the FTCA, alleging professional negligence in connection with the 

care of N.C. (Doc. 8 at 1–2) The Plaintiffs are seeking damages to compensate for N.C.’s 

injuries, additional damages, legal costs, and any other relief the Court may deem 

appropriate. (Doc. 8 at 4–5) In response, the Government moves for dismissal under 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 38 at 1) 

II. Legal Standard 

A motion to dismiss for lack of subject-matter jurisdiction brought pursuant to Rule 

12(b)(1) may facially attack the existence of subject-matter jurisdiction or may challenge 

the truth of the alleged facts that would confer subject-matter jurisdiction on the court. 

Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ’g 

Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Courts are permitted 

to consider evidence to decide a factual attack on subject-matter jurisdiction. Thornhill, 

594 F.2d at 733. The party asserting jurisdiction has the burden of proof to show that the 

Court has subject-matter jurisdiction. Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 

1092 (9th Cir. 1990). Where a claimant lacks standing, the Court must dismiss the action 

for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Ervine v. Desert View Reg. 

Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014). 

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain 

“a short and plain statement of the claim showing that the pleader is entitled to relief” such 

that the defendant is given “fair notice of what the . . . claim is and the grounds upon which 

it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Fed. R. Civ. P. 

8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Court may dismiss a complaint 

 

learning about the current case, directed that the FTCA Clause be removed from the PWS. 

(Doc. 45-16 at 26–28) 
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for failure to state a claim under Federal Rule 12(b)(6) for two reasons: (1) lack of a 

cognizable legal theory, and (2) insufficient facts alleged under a cognizable legal theory. 

Balistreri v. Pacificia Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In deciding a 

motion to dismiss pursuant to Rule 12(b)(6), the Court must “accept as true all well-pleaded 

allegations of material fact, and construe them in the light most favorable to the nonmoving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). In 

comparison, “allegations that are merely conclusory, unwarranted deductions of fact, or 

unreasonable inferences” are not entitled to the assumption of truth, and “are insufficient 

to defeat a motion to dismiss for failure to state a claim.” Id.; In re Cutera Sec. Litig., 610 

F.3d 1103, 1108 (9th Cir. 2010). A plaintiff need not prove the case on the pleadings to 

survive a motion to dismiss. OSU Student All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012). 

III. Analysis 

A. Claims Under FTCA 

The Government filed the Motion arguing that the Complaint must be dismissed 

because Dr. Alving is not a federal employee within the meaning of the FTCA. The FTCA 

is a limited waiver of sovereign immunity making the Government liable to the same extent 

as a private person for certain torts of employees of the government acting within the scope 

of their employment. 28 U.S.C. § 1346(b)(1); Andrade ex rel. Goodman v. United States, 

2008 WL 4183011, at 4 (D. Ariz. Sept. 8, 2008). In the FTCA, the Government waives its 

immunity for negligent acts or omissions of any of its employees acting within the scope 

of their office or employment and provides subject-matter jurisdiction to the federal courts 

in suits against such employees. 28 U.S.C. § 1346(b)(1). The FTCA does not cover the 

acts of independent contractors; generally, the Government may not be held liable for 

employees of a party with whom it contracts for a specified performance. Logue v. United 

States, 412 U.S. 521, 531 (1973). 

“Employee of the government” under the FTCA is defined as “officers or employees 

of any federal agency, . . . and persons acting on behalf of a federal agency in an official 

capacity.” 28 U.S.C. § 2671. “Federal agency,” is defined to include “the executive 
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departments, the judicial and legislative branches, the military departments, independent 

establishments of the United States, and corporations primarily acting as instrumentalities 

or agencies of the United States, but does not include any contractor with the United 

States.” 28 U.S.C. § 2671. The terms of a contract are not dispositive as to whether a party 

is an employee of the Government for purposes of the FTCA. Gibbons v. Fronton, 533 F. 

Supp. 2d 449, 453 (S.D.N.Y. 2008). 

A court will determine a party to be an employee of the Government for the purposes 

of the FTCA if the Government enjoys the power to control the detailed physical 

performance of the contractor or supervises the day-to-day operations of the contractor. 

Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (stating “[T]he critical test for 

distinguishing an agent from a contractor is the existence of federal authority to control 

and supervise the ‘detailed physical performance’ and ‘day to day operations’ of the 

contractor.”). A contractor is considered to be an employee only if the government agency 

manages the details of the contractor’s work or supervises his daily duties, but not if the 

government agency acts generally as an overseer. Autery, 424 F.3d at 956–57. Contractual 

provisions directing detailed performance generally do not abrogate the contractor 

exception, and the Government may fix specific and precise conditions to implement 

federal objectives without becoming liable for an independent contractor’s negligence. 

Autery, 424 F.3d at 957; United States v. Orleans, 425 U.S. 807, 816 (1976). 

First, the Plaintiffs admit that Chinle Hospital contracted with MDA for the purpose 

of staffing its facility, and the Plaintiffs identify MDA as “a private physician staffing 

company”. (Doc. 45 at 5) Second, the Plaintiffs admit that Dr. Alving entered into a “SelfEmployment Agreement” with MDA in which he agreed to provide “locum tenens 

services” to MDA’s clients as an independent contractor. (Doc. 45-8 at 2, 4) Furthermore, 

the terms of the Self-Employment Agreement require MDA to “procure professional 

liability insurance coverage for [Dr. Alving] under MDA’s group medical malpractice 

insurance policy.” (Doc. 45-8 at 3) 

However, the plain terms of the PWS executed between Chinle Hospital and Dr. 
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Alving provide that FTCA protections would be extended to him as a nonpersonal service 

contractor if he was providing services in an Indian Health Service facility. (Doc. 38-1 at 

55) The Government now argues that this provision of the PWS is void because Chinle 

Hospital was not authorized to extend FTCA coverage through the FTCA Clause in the 

PWS. Separately, the Plaintiffs argue that even if Dr. Alving was not a federal employee 

as defined under the FTCA, he is still covered by the FTCA pursuant to 25 U.S.C. 

§ 1680c(e)(1), which provides that “health care practitioners may, as part of the privileging 

process, be designated as employees of the Federal Government” for the purpose of 28 

U.S.C. § 1346(b) “with respect to acts or omissions which occur in the course of providing 

services to eligible individuals as a part of the conditions under which such hospital 

privileges are extended.” 25 U.S.C. § 1680c(e)(1). In short, section 1680c(e)(1) allows for 

FTCA coverage to be extended to physicians with hospital privileges working in Indian 

Health Service facilities. 25 U.S.C.A. § 1680c. 

It is undisputed that Dr. Alving was granted hospital privileges during the time he 

practiced at Chinle Hospital. (Doc. 46 at 7) However, the Government argues that the 

Plaintiffs’ claims must fail because (i) Chinle Hospital’s privileging process did not make 

Dr. Alving a federal employee, and (ii) Chinle Hospital was never authorized to include 

the FTCA Clause in the PWS. First, the plain terms of the Indian Health Service Medical 

Staff Credentialing and Privileging Guide require that locum tenens providers “should be 

credentialed and privileged by the same mechanisms as other providers when they practice 

inside the Indian Health Services facility.” (Doc. 45-15 at 13) Furthermore, the Privileging 

Guide requires that “[e]vidence of medical liability insurance coverage should be 

documented on all practitioners in this category unless they are covered by the Federal Tort 

Claims Act.” (Doc. 45-15 at 13) The Privileging Guide does not explicitly state that a 

physician that is granted hospital privileges is a federal employee, but 25 U.S.C. 

§ 1680c(e)(1) states that privileged practitioners may be designated as federal employees. 

25 U.S.C. § 1680c(e)(1). Not only does the PWS between Chinle Hospital and Dr. Alving 

state that Dr. Alving is covered by the FTCA, but this fact is also corroborated by the 
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“Letter of Confirmation” provided by MDA to Chinle Hospital on April 10, 2015 stating 

that Dr. Alving’s malpractice insurance was “Covered under Federal Tort”. (Doc. 45-10 at 

2) The Government’s argument that the PWS is not part of the privileging process is 

irrelevant because 25 U.S.C. § 1680c(e)(1), alongside the language in the PWS, confers 

federal employee status upon the physician granted hospital privileges, not just the PWS. 

The Government does not set forth any persuasive reason for why the privileging 

process carried out at Chinle Hospital was insufficient to deem Dr. Alving a federal 

employee under 25 U.S.C. § 1680c(e)(1). And, even if Chinle Hospital was not authorized 

to include the FTCA Clause language in its PWS, the Court finds that the Government’s 

actions and the representations it made to MDA and Dr. Alving are sufficient to deem him 

a federal employee pursuant to 25 U.S.C. § 1680c(e)(1). Chinle Hospital represented to 

MDA and Dr. Alving that his practice would be covered under the FTCA, and both MDA 

and Dr. Alving relied on Chinle Hospital’s representation to its detriment. This point is 

only further emphasized by the fact that Chinle Hospital’s director removed the FTCA 

Clause language from the PWS immediately following the Plaintiffs’ commencement of 

this lawsuit. (Doc. 45-16 at 26–28) Therefore, the Court finds that the Plaintiffs are correct 

in asserting their claims pursuant to 28 U.S.C. § 1346 on the basis of Dr. Alving’s role as 

a federal employee. 

B. Failure to State A Claim 

In the Complaint, the Plaintiffs fail to identify any specific medical professional that 

is liable for their claims. Instead, the Complaint generally refers to “one or more 

physicians, nurses or other health care providers . . . in the emergency department at the 

Chinle Comprehensive Health Care Facility” or claims that on April 14, 2015, “one or 

more of the physicians, nurses, or other health care providers involved in his care failed 

to exercise that degree of care, skill and learning expected of reasonably prudent health 

care providers in the profession or class which they belong within the State of Arizona 

acting [in] the same or similar circumstances.” (Doc. 8 at 4) In a letter addressed to 

defense counsel, the Plaintiffs clarified that they are seeking to hold the Government, as 
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the sole defending party to this case, liable for the actions of Dr. Alving. (Doc. 38-1 at 3) 

The Defendant argues that these vague claims are insufficient to satisfy the requisite 

pleading standard. (Doc. 38 at 15, stating that Plaintiffs have only made, “vague 

allegations of negligence by physicians and other providers without specifying anyone’s 

roles”.) 

The Court finds that the Plaintiffs’ failure to name specific healthcare providers in 

the Complaint or identify how these providers were negligent does nothing more than 

make conclusory statements. The Plaintiffs allege that the care provided in this case fell 

below the required standard of care without providing any facts to support their statement. 

For example, the Plaintiffs state that there was negligence due to a definitive airway not 

being established until 9:30 p.m., resulting in N.C.’s brain injury; however, the Complaint 

does not provide any facts as to who or what may have caused the delay or why any such 

delay fell below the applicable standard of care. Therefore, the Court finds that there are 

insufficient facts in the Complaint to put the Government on notice of how the unnamed 

healthcare providers were negligent. Only in the Plaintiffs’ response to the Motion do 

they name Dr. Alving as the liable healthcare provider and argue that his actions fell below 

the requisite degree of care. (Doc. 45 at 1–3) 

The Plaintiffs rely on conclusory statements in the Complaint, and the arguments 

made in response to the Motion on this issue are irrelevant to the Court’s determination of 

whether the Plaintiffs have stated a claim that is plausible on its face. Therefore, because 

the Complaint fails to name a specific party and contains nothing more than conclusory 

statements, it fails to state a claim that is plausible on its face and the Motion will be granted 

pursuant to Rule 12(b)(6). 

Accordingly, 

IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 38) is granted, and 

this case shall be dismissed without prejudice; and 

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this case 

and enter judgment accordingly. 

 Dated this 12th day of June, 2019. 

Honorable Steven P. Logan 

United States District Judge