Lomando v. United States, 667 F.3d 363

Background

Lomando, administratrix ad prosquendum of Laura Lomando, sued the United States, Parker Health, Riverview Medical Center, Emergency Physician Associates, and several physicians for medical malpractice and wrongful death after Laura’s death from spontaneous tumor lysis syndrome on Sept. 21, 2006.
Parker Health, a free NJ nonprofit clinic, designated Parker physicians as Public Health Service employees under 42 U.S.C. § 233(o), making FTCA the exclusive remedy for their alleged malpractice.
Riverview Emergency Department physicians Reynolds and Talbert treated Laura in Sept. 2006; Riverview was not covered by PHSA/FTCA protections.
Laura’s death followed multiple visits to Parker Health and Riverview between Aug. and Sept. 2006; the District Court granted Parker Health summary judgment under NJCIA and granted others’ summary judgments, with Hyppolite not seeking summary judgment.
The District Court held Parker Health and the Parker physicians immune under NJCIA; it also required NJ emergency-medicine expert testimony under N.J.S.A. 2A:53A-41 to prove malpractice against Reynolds and Talbert, and dismissed claims against Emergency Physician Associates except as to experts who met §2A:53A-41; Lomando appealed seeking reversal on several issues.
The Third Circuit affirmed in part, reversed in part, and remanded to address one defendant, Emergency Physician Associates, given issues about expert admissibility and the applicability of §2A:53A-41 to a physician assistant (Biedenbach).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
FTCA immunity vs. NJCIA defenses under 2674	Lomando argues the U.S. cannot rely on NJCIA immunities for Parker Health physicians since FTCA places immunity only where the U.S. stands in the shoes of a private employer.	United States contends it may rely on NJCIA immunity because 2674 allows immunities available to similarly placed private employers or employees.	The United States is immune under NJCIA, standing in the shoes of a similarly placed private employer and invoking NJCIA immunity through 2674.
Whether Reynolds and Talbert’s care falls within emergency medicine triggering § 2A:53A-41	Care involved emergency medicine; Lomando contends expert testimony from emergency-medicine specialists is required and Fialk’s qualifications should suffice.	Defendants argue § 2A:53A-41(a) requires a specialist in emergency medicine; only emergency physicians meeting the ABMS/ABEM criteria may testify against them.	Care on Sept. 5 and Sept. 15 fell within emergency medicine; § 2A:53A-41 applies to Reynolds and Talbert; Fialk, not an emergency-medicine specialist, cannot testify against them.
Whether the District Court erred by excluding Ms. Biedenbach’s treatment from consideration against Emergency Physician Associates	Ms. Biedenbach’s care should be considered against EPA under respondeat superior even though she was not named as a defendant.	Non-party care should not be considered against employer in summary judgment.	District Court erred; Biedenbach’s care could be considered against EPA under respondeat superior.
Whether § 2A:53A-41 applies to physician assistants (Ms. Biedenbach)	§ 2A:53A-41 should apply to all professionals involved in treating Laura, possibly including PAs.	§ 2A:53A-41 applies only to physicians; PAs are not encompassed by the statute.	§ 2A:53A-41 applies only to physicians; it does not apply to physician assistants like Ms. Biedenbach; remand to address merits against EPA without § 2A:53A-41 applicability.

Key Cases Cited

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (U.S. 1995) (FTCA defendant liability tied to employer under scope of employment)
McSwain v. United States, 422 F.2d 1086 (3d Cir. 1970) (FTCA liability mirrors private employer respondeat superior)
Laird v. Nelms, 406 U.S. 797 (U.S. 1972) (Congress intended to hold government liable as an employer for employee torts under state law)
Williams v. United States, 350 U.S. 857 (U.S. 1955) (respondeat superior framework under FTCA)
United States v. Olson, 546 U.S. 43 (U.S. 2005) (private-person standard under FTCA)
H.R. Rep. No. 100-700, 1988 U.S.C.C.A.N. 5945 (Congressional Report) (Westfall Act and defenses available to government; ordinary tort defenses remain)
Ryan v. Renny, 999 A.2d 427 (N.J. 2010) (NJ § 2A:53A-41 interpretation for specialists; tests for expert qualifications)
Buck v. Henry, 25 A.3d 240 (N.J. 2011) (NJ § 2A:53A-41(a) / (a)(2) interpretation; physician specialization and qualifications)
Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir. 2009) (FTCA/state-law interaction; deemed PHS employees)