Bennett v. United States, 375 F. Supp. 3d 1180

Background

Plaintiffs (female patients of Dr. Darren Chotiner) sued under the FTCA/FSHCAA alleging negligent supervision by Peninsula Community Health Services (PCHS) after numerous alleged inappropriate physical contacts by Dr. Chotiner during exams.
PCHS had previously entered a November 16, 2011 Performance Improvement Agreement with Dr. Chotiner requiring boundary training, WPHP involvement, and chaperone requirements for female patients; PCHS lifted those restrictions in March 2013 after completion of terms.
Several plaintiffs were treated by Dr. Chotiner after March 2013 without chaperones and allege a range of inappropriate touching and sexualized conduct during exams.
The United States moved to dismiss for lack of subject-matter jurisdiction, arguing: (1) § 233(a) (FSHCAA) does not waive sovereign immunity for negligent supervision claims because supervision is not a "related function;" and (2) the discretionary function exception bars the claims.
The court denied the renewed motion, holding negligent supervision falls within § 233(a)’s waiver and the discretionary function exception did not apply to PCHS’s decision to lift restrictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 233(a) waiver covers negligent supervision claims	§233(a) covers supervision decisions tied to provision of medical care; negligent supervision is a "related function."	§233(a) applies only to direct medical/surgical/dental functions; supervision is outside waiver.	Waiver covers negligent supervision here; supervision is a "related function."
Whether lifting chaperone/restrictions is discretionary and barred by FTCA §2680(a)	Implementation of safety measures (chaperone restrictions) is not protected by the discretionary-function exception once safety measures are adopted.	Decisions about staffing/chaperones are policy-laden operational choices implicating costs and resource allocation and thus discretionary.	Decision to lift restrictions was not the kind of policy judgment protected by the discretionary-function exception; exception does not bar claim.
Burden of proof on jurisdictional dismissal	Plaintiffs must show jurisdiction exists; FTCA/FSHCAA waiver construed liberally to allow claims.	Government bears burden to show exception applies and no waiver exists.	Government did not meet burden to show immunity or discretionary-function exception barred suit.
Scope of review on 12(b)(1) factual allegations	Court must accept plaintiff facts as true for jurisdictional inquiry unless challenged factually.	Government challenged scope/coverage of statutory waiver and exceptions.	Court applied standard and concluded jurisdiction exists for negligent supervision claims.

Key Cases Cited

Baker v. Carr, 369 U.S. 186 (establishes constitutional limits of federal jurisdiction)
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (party asserting federal jurisdiction must demonstrate it)
Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221 (burden on plaintiff to establish subject-matter jurisdiction)
Mundy v. United States, 983 F.2d 950 (narrow waiver of sovereign immunity must be satisfied)
Cuoco v. Moritsugu, 222 F.3d 99 (FSHCAA waiver not limited solely to classic medical malpractice)
Brignac v. United States, 239 F.Supp.3d 1367 (negligent hiring/retention/supervision claims can fall within §233 waiver)
Myers v. United States, 652 F.3d 1021 (government bears burden to prove discretionary-function exception applies)
Terbush v. United States, 516 F.3d 1125 (FTCA exceptions construed narrowly; two-step Berkovitz test explained)
Berkovitz v. United States, 486 U.S. 531 (two-step test for discretionary-function exception)
Whisnant v. United States, 400 F.3d 1177 (safety measures once adopted are not protected by discretionary-function exception)
Summers v. United States, 905 F.2d 1212 (discretionary-function exception inapplicable where activity concerns safety under established policy)