UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT GINEMAN,

Plaintiff,

Case No. 09-CV-11955 

vs. HON. GEORGE CARAM STEEH

UNITED STATES OF AMERICA

(DEPARTMENT OF VETERAN AFFAIRS),

Defendant.

_____________________________/

ORDER GRANTING, IN PART, DEFENDANT'S MOTION TO DISMISS (#7)

DISMISSING PLAINTIFFS' CLAIMS AS THEY PERTAIN TO

THE PONTIAC VA COMMUNITY OUTPATIENT CLINIC

Defendant United States of America, on behalf of the Department of Veteran Affairs

("VA"), moves to dismiss plaintiff Robert Gineman's medical malpractice claims for lack of

subject matter jurisdiction, and for failure to state a claim upon which relief may be granted.

Oral argument would not significantly aid the decisional process. Pursuant to E.D. Mich.

Local R. 7.1(e)(2), it is ORDERED that the motion be resolved without oral argument.

Gineman alleges in his May 21, 2009 Complaint that he presented at the VA Medical

Center in Detroit ("Detroit VAMC") on August 15, 2005, telling medical treaters that he

suffered severe pain and heard a "pop" in his right forearm while lifting a heavy object.

Gineman alleges that his arm was x-rayed, and that he was diagnosed with a severe

muscle strain. Gineman alleges that no follow-up was contemplated at Detroit VAMC.

Gineman continues by alleging that he presented at the Pontiac VA Community Outpatient

Clinic ("Pontiac CBOC") less than three weeks later, on September 2, 2005, complaining

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that the pain medication he was given at the Detroit VAMC was not effective. Pontiac

CBOC treaters allegedly diagnosed Gineman with "arm pain secondary to biceps tendon

injury," telling Gineman that he did not have "a complete tear or rupture of the muscle or

tendon." Pontiac CBOC treaters allegedly told Gineman that they would order an

orthopedic consult if his arm did not get better. Gineman alleges that an orthopedic consult

was performed on February 14, 2006, and that he was told "the injury was too far out for

surgical correction." Gineman alleges he continues to have pain, disability, and deformity

in his upper right arm. Gineman alleges medical malpractice against "the Defendants" for

failing to timely perform appropriate diagnostic testing such as an MRI, failing to timely

advise him to return for follow-up evaluation and testing, failing to timely diagnose his

condition and institute appropriate surgical treatment, and failing to timely refer him for an

orthopedic consultation.

The United States, on behalf of the VA, moves to dismiss Gineman's claims for lack

of federal subject matter jurisdiction, arguing that the waiver of sovereign immunity under

the Federal Tort Claims Act ("FTCA") only applies to government employees, and not to

independent contractors such as Pontiac CBOC. The United States moves to dismiss

Gineman's claims pertaining to treatment he allegedly received at the Detroit VAMC for

failure to state a claim on which relief may be granted, arguing the Complaint lacks specific

allegations of negligence committed by Detroit VAMC or its employees.

I. Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) authorizes a party to challenge the court's

subject matter jurisdiction. The United States' motion to dismiss is a factual attack on the

court's subject matter jurisdiction. In analyzing the motion 

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[t]here is no presumption that the factual allegations set forth in the complaint

are true and the court is "free to weigh the evidence and satisfy itself as to

the existence of its power to hear the case." [United States v. Ritchie, 15 F.3d

592, 598 (6th Cir. Cir.), cert. denied, 513 U.S. 868 (1994)]. The court has

wide discretion to consider materials outside the pleadings in assessing the

validity of its jurisdiction. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d

320, 325 (6th Cir. 1990). The plaintiff bears the burden of demonstrating

subject matter jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp.,

78 F.3d 1125, 1134 (6th Cir. 1996).

Ashley v. United States, 37 F.Supp.2d 1027, 1029 (W.D. Mich. 1997). "A court lacking

jurisdiction cannot render judgment but must dismiss the cause at any stage of the

proceedings in which it becomes apparent that jurisdiction is lacking." Sweeton v. Brown,

27 F.3d 1162, 1169 (6th Cir. 1994) (quoting United States v. Siviglia, 686 F.2d 832, 835

(10th Cir. 1981), cert. denied, 461 U.S. 918 (1983)).

Federal district courts enjoy exclusive jurisdiction over civil actions on claims against

the United States for

personal injury . . . caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the law of the

place where the act or omission occurred.

28 U.S.C. § 1346(b)(1) (emphasis added). An "employee of the Government" includes

"persons acting on behalf of a federal agency in an official capacity, temporarily or

permanently in the service of the United States[.]" 28 U.S.C. § 2671 (emphasis added).

A "Federal agency . . . does not include any contractor with the United States." Id. 

Consistent with this statutory language, the FTCA incorporates an "exemption from

liability for injury caused by employees of an independent contractor." Logue v. United

States, 412 U.S. 521, 528 (1973). The modern common law recognizes that "the

distinction between the servant or agent relationship and that of independent contractor

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turn[s] on the absence of authority in the principal to control the physical conduct of the

performance of the contract." Id. at 527. See also Campbell v. Kovich, 273 Mich. App.

227, 234, 731 N.W.2d 112 (2006) (recognizing that the test for whether a person is an

independent contractor is whether that person retains control over the performance of his

work). In the context of FTCA liability, courts should consider whether the contract

executed by the parties reserved to the Government the authority to physically supervise

the day-to-day activities performed under the contract. Logue, 412 U.S. at 530.

The VA and the Pontiac CBOC executed a July 1, 2004 contract, which provides in

part:

It is expressly agreed and understood that this is a nonpersonal services

contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under

which the professional services rendered by the Contractor or its health-care

providers are rendered in its capacity as an independent contractor. The

Government may evaluate the quality of professional and administrative

services provided but retains no control over professional aspects of services

rendered, including, by example, the Contractor's or its health providers'

professional medical judgment, diagnosis, or specific medical treatments. 

. . . .

Defendant's Exhibit 2, at 41. Gineman has not alleged or proffered evidence that the VA

otherwise retained control over Pontiac CBOC employees' medical judgment, diagnosis,

or treatment of individual VA patients. Ashley, 37 F.Supp.2d at 1029 (citing RMI Titanium,

78 F.3d at 1134). Gineman's argument that Pontiac CBOC could be an "employee" of the

VA under 28 U.S.C. § 2671 by simply "acting on behalf of [the VA] in an official capacity"

ignores that a "[f]ederal agency . . . does not include any contractor with the United States."

28 U.S.C. § 2671. This argument was expressly rejected by the Supreme Court. Logue,

412 U.S. at 531-32. Gineman's argument that there is no difference between a physician

who provides care at the Detroit VAMC and a physician who provides care at the Pontiac

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CBOC is conclusionary with respect to the relevant inquiry of whether the VA had the

authority to control the day-to-day diagnoses and treatments provided by Pontiac CBOC

physicians. Id. at 527. Gineman's argument that the United States may seek

indemnification from Pontiac CBOC is likewise without merit.

Gineman has failed to meet his burden of demonstrating that the court has subject

matter jurisdiction over his medical malpractice claims as alleged against Pontiac CBOC,

an independent contractor of the VA. Logue, 412 U.S. at 528; Ashley, 37 F.Supp.2d at

1029 (citing RMI Titanium, 78 F.3d at 1134). The United States is entitled to dismissal of

these claims as a matter of law for lack of subject matter jurisdiction under 28 U.S.C. §

1346(b)(1) of the FTCA. Id; Sweeton, 27 F.3d at 1169. 

II. Failure to State A Claim 

Federal Rule of Civil Procedure 12(b)(6) permits a district court to assess whether

the plaintiff has stated a claim upon which relief may be granted. In making that

assessment, the court must determine whether the plaintiff's factual allegations present

plausible claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564, 127 S. Ct. 1955, 1970

(2007). The complaint's "[f]actual allegations must be enough to raise a right to relief above

the speculative level on the assumption that all the allegations in the complaint are true."

Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007)

(quoting Bell Atlantic, 127 S. Ct. at 1965).

Gineman's factual allegations raise plausible claims of medical malpractice as

alleged against Detroit VAMC. Gineman alleges that Detroit VAMC employees were

professionally negligent when they failed to properly test, diagnose, and treat his right arm

injury on August 15, 2005. The United States' argument that the allegations are not

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specific enough to allege plausible medical malpractice claims against Detroit VAMC is not

well taken. Twombly, 550 U.S. at 564. The United States concedes federal subject matter

jurisdiction over these claims.

III. Conclusion

Defendant United States' motion to dismiss plaintiff Robert Gineman's medical

malpractice claims for lack of subject matter jurisdiction is hereby GRANTED, IN PART,

BUT only to the extent the claims pertain to Pontiac CBOC. Gineman's claims as they

pertain to Pontiac CBOC ONLY are hereby DISMISSED, without prejudice, for lack of

federal subject matter jurisdiction under the FTCA. Defendant United States' motion to

dismiss Gineman's medical malpractice claims as alleged against Detroit VAMC is hereby

DENIED. 

SO ORDERED.

Dated: October 28, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

October 28, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

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