115 F.4th 132
2d Cir.2024Background
- Bruce Kelley was paralyzed while a patient at Franklin County Rehabilitation Center (FCRC) and he, along with his spouse, sued Dr. Teig Marco and Richford Health Center (RHC) in Vermont state court for medical malpractice.
- RHC is a federally qualified health center, "deemed" a Public Health Service employee under the Federally Supported Health Centers Assistance Act (FSHCAA), potentially granting immunity from malpractice suits under the Federal Tort Claims Act (FTCA).
- The United States intervened, claimed FTCA coverage, removed the case to federal court, substituted itself as defendant, and moved to dismiss due to failure to exhaust FTCA administrative remedies.
- After further review, the Government concluded RHC/Dr. Marco were not covered by the FTCA for this treatment, withdrew its motions, and consented to remand back to state court.
- The District Court found no subject matter jurisdiction and remanded because Kelley was not a patient of RHC, and Dr. Marco’s treatment did not fit statutory/regulatory criteria for FTCA coverage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA immunity applied to Dr. Marco for treating Kelley | FTCA/FSHCAA does not apply; Kelley not RHC patient | FTCA immunity applies as long as Dr. Marco acted for RHC | No FTCA immunity; Kelley was not RHC patient |
| Whether Dr. Marco’s treatment of Kelley fit FTCA-covered criteria | Services not covered—no after-hours/emergency/approval | Treatment of nonpatients covered if in employment scope | No; treatment did not fit covered scenarios |
| Appellate jurisdiction to review the remand order | No jurisdiction—remand not under § 1442 | Jurisdiction exists under federal officer removal statute | Jurisdiction was proper for appellate review |
| Standing of RHC/Dr. Marco to appeal remand order | Only removing party may appeal | Section 1447 authorizes review regardless of removing party | RHC/Dr. Marco had standing to appeal |
Key Cases Cited
- Agyin v. Razmzan, 986 F.3d 168 (2d Cir. 2021) (discussing scope of FTCA and colorable defense for federal officer removal)
- Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000) (FSHCAA and FTCA as exclusive remedy for Public Health Service malpractice suits)
- BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532 (2021) (clarifying appellate jurisdiction under federal officer removal statute)
- Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014) (standard for "colorable federal defense" in removal)