ORDER
This mаtter is before the Court on Defendant United States of America’s Motion to Dismiss [Doc. 6]. Plaintiff is seeking damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), for personal injuries allegedly caused by the negligence of The Family Health Centers of Georgia, Inc. (“Family Health Centers”)
For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion to Dismiss [Doc. 6].
I. FACTUAL BACKGROUND
On August 29, 2012, Plaintiff visited Family Health Centers for medical treatment and was seen by Jackson, a physician employed there. (Compl. ¶ 7.) Plaintiff alleges that during the course of the medical examination, Jackson “instructed Plaintiff to remove his clothing” and “grabbed Plaintiffs penis and placed it in his mouth without Plaintiffs consent.” (Id. ¶ 11.) Plaintiff reported this incident to the Marietta Police Department on the day it occurred. (Id. ¶ 13.)
Jackson had been working at Family Health Centers since July 23, 2012, a little over a month before seeing Plaintiff. (PL’s Sur-reply, Ex. A at 15.)
Jackson has an admitted record of sexually assaulting patients when employed as a physician. While working at the USP, Jackson sexually assaulted three inmate patients in September and October of 2011. (Id.) The USP terminated his employment because of these incidents.
Plaintiff brings two counts against Defendant based on the aсtions of Defendant’s agents and employees at Family Health Centers and the USP. In Count 1, Plaintiff claims that Defendant negligently hired and retained Jackson because Defendant “knew or should have known of Jackson’s propensity for mistreating and engaging in inappropriate dealings with his patients prior to hiring him as a physician” and before Plaintiffs injuries on August 29, 2012. (Compl. ¶ 15.) Plaintiff argues that “any reasonable investigation into Jackson’s background and employment would have revealed his prior mistreatment of his patients” because Jackson was “terminated for cause” from his duties at the USP for sexually assaulting three inmates. (Id. ¶¶ 16, 17.) In Count 2, Plaintiff alleges that Defendant negligently failed to report Jackson’s misconduct to state licensing authorities as required by O.C.G.A. § 31-7-9. (Id. ¶ 39.) Plaintiff brings both of these counts under the FTCA, 28 U.S.C. § 1346(b), which authorizes legal actions against the United States for monеy damages caused by the negligent or wrongful acts or omissions of U.S. government employees acting within the course of their employment.
Defendant moves to dismiss Count 1 for lack of subject matter jurisdiction on three grounds. First, Defendant argues that Plaintiffs claim for negligent hiring and retention must be dismissed because the FTCA’s provisions for jurisdiction, sovereign immunity waiver, and remedy are limited in connection with certain federally funded health centers to “acts or omissions
In response, Plaintiff argues that Count 1 is a “related function” to the provision of medical, services and, as a result, Plaintiffs claim is covered under the FTCA. (Pl.’s Sur-reply at 5.) While Plaintiff does not address the applicability of the intentional tort exception, Plaintiff does argue that the discretionary function exception is inapplicable to Count 1 because the discretionary function exception does not apply to circumstances where the Government “fail[sj to act after notice of illegal action.” (Pl.’s Resp. at 6.) For Count 2, Plaintiff does not address Defendant’s argument about its lack of duty to report under Georgia law. Instead, Plaintiff simply argues that the USP failed to report Jackson’s misconduct “immediately ... to the appropriate law enforcement authorities.” (PL’s Resp. at 7.)
II. LEGAL STANDARD
The Court first considers Defendant’s Motion to Dismiss Count 1 for lack of subject matter jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(1). It will then consider Defendant’s Motion to Dismiss Count 2 for failure to state a claim under Rule 12(b)(6) to the extent jurisdiction allows such review. See 5B Charles A. Wright et al., Fed. Prac. & Proc. Civ. § 1360 (3d ed. 1998) (“[T]he cases are legion stating that the district court should consider the Rule 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, [other 12(b) ] defenses аnd objections become moot and do not need to be determined by the judge.”); see also McCants v. Alabama-W. Florida Conference of United Methodist Church, Inc.,
A. Count 1: Legal Standard Governing Rule 12(b)(1)
This Court should dismiss a complaint under Rule 12(b)(1) only where it lacks jurisdiction over the subject matter of the dispute. Fed. R. Civ. P. 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction may be based on either a facial or factual challenge to the complaint. See McElmurray v. Consol. Gov’t of Augustar-Richmond County,
Here, Defendant’s Motion to Dismiss is a facial attack because it argues that the FTCA bars Plaintiffs claim as a matter of law, not as a factual matter.
. B. Count 2: Legal Standard Governing Rule 12(b)(6)
This Court may dismiss a pleading for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that -support recovery under any recognizable legal theory. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1216 (3d ed. 2002); see also Ashcroft v. Iqbal,
III. DISCUSSION
A. The FTCA and the FSHCAA
As a general principle, the United States “may not be sued without its consent....” United States v. Mitchell,
The Federally Supported Health Centers. Assistance Act (“FSHCAA”), 42
For an entity to be covered under the FSHCAA, it must be deemed an employee of the Public Health Service (“PHS”) by the Secretary of Health and Human Services (“HHS”). 42 U.S.C. § 233(h). HHS makes this determination after reviewing an entity’s application and assessing whether or not it meets certain qualifications. Id. In particular, HHS is not authorized to deem an entity a PHS employee unless it first determines that the entity has done the following: “implemented appropriate policies and procedures to reduce the risk of malpractice and the risk of lawsuits arising out of any health or health-related functions performed by the entity,” and “has reviewed and verified the professional credentials, references, claims history, fitness, professional review organization findings, and license status of its physicians and other licеnsed or certified health care practitioners....” Id.
Furthermore, even if an entity is deemed a PHS employee, the FSHCAA’s grant of immunity to the entity is still limited to claims “arising out of the performance of medical or related functions.” Hui, 559 U.S.at 806,
The remedy against the United States provided by [The Federal Torts Claims Act] ... for damage for personal injury, including death, resulting from the performance of a medical, surgical, dental, or related functions ... by any commissioned officer or employee of the [PHS] while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.
42 U.S.C. § 233(а) (emphasis added). Typically, cases involving Section 233(a) arise when a patient sues an entity or its employee for injuries resulting from medical treatment, and the entity or employee seeks coverage under this provision in order to be immune from suit. The present case is somewhat different in that Plaintiff, the patient, is the one seeking Section 233(a) coverage so that he can properly sue the United States for his injuries.
B. FSHCAA Limitation of Recovery to Acts or Omissions Related to the Performance of Medical, Surgical, Dental, or Related Functions
Defendant argues that FSHCAA coverage for a deemed entity is limited to
Courts have grappled with the exact scope of coverage under Section 233(a) of the FSHCAA. For example, in Mendez v. Belton, the circuit court declined to extend Section 233(a) coverage for claims arising from an employment discrimination dispute.
In Logan v. St. Charles Health Council, the court declined to extend Section 233(a) coverage in another employment-related dispute. No. 1:06CV00039,
The Second Circuit’s decision in Cuoco v. Moritsugu emphasized that Section 233(a)’s coverage is dependent upon the particular factual circumstances giving rise to a plaintiffs claim and that the denomination of a claim as “malpractice” is not the sine qua non determinant of coverage under Section 233(a).
Few cases exist where courts have specifically interpreted the “related functions” language of Section 233(a).
In Teresa T. v. Ragaglia, the court held that a physician’s duty to report suspected child abuse, as mandated by state statute, was “inextricably woven” into the performance of medical functions and therefore covered under § 233(a).
The district court in La Casa de Buena Salud v, United States adopted the reasoning of Teresa T., stating that “the purpose of the FSHCAA is to provide immunity to medical centers and medical personnel for performing duties ‘inextricably woven into [their] performance of medical functions.’ ” No. CIV 07-238 JB/RHS,
In light of these cases, the Court agrees with Plaintiff that his negligent hiring and retention claim is a “related function” to the provision of medical services under the facts as alleged, and therefore the claim is covered under Section 233(a). Family Health Centers is a deemed entity under the FSHCAA that selects physicians to provide medical services to its patients. The hiring and retention of its physicians is directly connected to its provision of medical care. For instance, to become a deemed entity in the first place, Family Health Centers is required to show that it has “reviewed and verified the professional credentials, references, claims history, fitness, professional review organization findings, and license status, of its physicians and other licensed or certified health care practitioners.” 42 U.S.C. § 233(h). Section 233(h) can be viewed as “add[ing] a required element” to the provision of medical care by Family Health Centers. Teresa T.,
• Furthermore, all of the “events giving rise to [this] action” were related to Jackson’s provision of medical treatment to Plaintiff at Family Health Centers. La Casa,
Even if Section 233(a) was more narrowly construed to only cover claims arising out of medical malpractice, Plaintiffs claim would likely still be covered under Section 233(a). Under Georgia law, an action for medical malpractice is defined as:
[A]ny claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, presсription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
O.C.G.A. § 9-3-70 (emphasis added). The “arising out of’ language in this statute supports the proposition that negligent hiring and retention claims can constitute a form of medical malpractice. Indeed, Georgia courts have interpreted the statute accordingly. See Ray v. Scottish Rite Children’s Medical Center, Inc.
Because the Court finds that Plaintiffs claim for negligent hiring and retention is a “related function” under Section 233(a), this provision is not a proper basis for dismissing Count 1.
C. Intentional Tort Exception to the FTCA
Alternatively, Defendant argues that Plaintiffs negligent hiring and retention claim is barred by the intentional tort exception to the FTCA. 28 U.S.C. § 2680(h).
Defendant fails to recognize the effect of 42 U.S.C. § 233(e). Section 233(e) states that for deemed entities receiving FTCA coverage through the FSHCAA, “the provisions of section 2680(h) of Title 28 shall not apply to assault or battery arising out of negligence in the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations.”
Although the Eleventh Circuit has not yet weighed in on the interpretation of Section 233(e), persuasive related decisions have clarified its meaning. In Levin v. United States, the Supreme Court evaluated a statute similar to Section 233(e) and found that it abrogated the intentional tort еxception of the FTCA. The plaintiff in Levin, a military veteran, sued the United States under the FTCA for injuries he sustained as a result of cataract surgery performed at a U.S. Naval Hospital.
The Seventh Circuit in Lojuk v. Quandt also discussed Section 233(e) when determining the proper interpretation of another statute, 38 U.S.C. § 4116 (which is similar to the FSHCAA but applies to the Veterans Administration).
Finally, in Leab v. Chambersburg Hosp., the parents of a minor child brought an informed consent claim against a physician, arguing that the physician failed to obtain the mother’s informed consent prior to administering a particular drug to her.
In accordance with these decisions, the Court finds that Section 233(e) is intended to eliminate the intentional tort exception of the FTCA as it pertains to assaults and batteries arising out of negligence. Therefore, although Plaintiffs claim arises in connection with the Family Health Center’s hiring of Jackson and
D. Discretionary Function Exception
Last, Defendant argues that Plaintiffs negligent hiring and retention claim is barred by the discretionary function exception, (Def.’s Mot. Dismiss at 12.) The discretionary function exception prohibits claims under the FTCA for conduct based on “the exercise or performance or the failure to exercise or perform a discretionary function or duty.” 28 U.S.C. § 2680(a). Section 2680(a) provides:
The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a) . Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such stаtute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (emphasis added).
The Court applies a two-prong test to determine if the discretionary function exception applies to the conduct in question. See U.S. Aviation Underwriters, Inc. v. United States,
Defendant argues that Count 1 is precluded by the discretionary function-exception because Plaintiff failed to show “any statute, regulation, or policy statement that mandated the manner in which Family Health Centers was required to undertake reference checks or make hiring decisions.” (Def.’s Mot. Dismiss at 8.) Second, Defendant argues that hiring and retention of employees “is grounded in discretion and considerations of public policy.” {Id. at 12.) Defendant cites a variety of cases in support of its argument that retention and hiring are consistently grounded in public policy. See, e.g., Lussier v. Dugger,
Although Plaintiff concedes that the discretionary function exception may “generally” apply to employment decisions, Plaintiff argues that the discretionary function exception is inapplicable here because it does not apply to situations in which the Government fails to act after notice of illegal behavior. (Pl.’s Resp. at 9-10.) (quot
The facts in Brons are nearly identical to those that Plaintiff alleges, in part because Brons involves claims arising out of Jackson’s sexual assault of another patient. Id. at *1. In Brons, the plaintiff was assaulted by Jackson when that plaintiff was an inmate at the USP, Id. The plaintiff brought a claim for negligent hiring and retention, arguing that- the United States had .knowledge, or reason to know, that Jackson had sexually assaulted an inmate in the D.C. Jail before the United States hired him. Id, at *4. While stating that “courts have consistently held that .., employment and termination are an exercise of policy judgment and fall within the discretionary function exception,” the court applied an exception to the general rule. Id. The court reasoned that the “failure to act after notice of illegal action does not represent a choice based on plausible policy considerations,” and therefore it held that the. discretionary function exception was inapplicable to the conduct in question. Id. (quoting Tonelli,
Plaintiff and Defendant both cite to Tonelli v. United States in support of their arguments.
The Court finds the reasoning in Brons and Tonelli to be persuasive in regard to Count 1. Although Defendant is correct in asserting that hiring and retention • decisions typically fall .under the discretionary function exception, Defendant has not addressed its alleged failure to act after notice of illegal behavior. The Court finds that the alleged facts plausibly indicate that Defendant knew or should have known that Jackson had sexually preyed upon patients—conduct involving illegal acts—before hiring and retaining him. In particular, Plaintiff alleges that Jackson •was terminated from the USP on July 11, 2012. for sexually assaulting three inmate patients, and subsequently, he bеgan working at Family Health Centers on July 23, 2012., (Compl. ¶¶ 16-17); (Pl.’s Sur-re-ply, Ex. A at 16.) Jackson was also indicted in the D.C. Superior Court in the District of Columbia on July 24, 2012—over a month before he met with and assaulted Plaintiff on August 29, 2012, United States v. Lewis Jackson, No. 2012 CF2 012893 (D.C. Sup. Ct.). Defendant allegedly would have known of Jackson’s past misconduct if it had not been negligent in performing its duties of hiring and retaining Jackson. And as a matter of law, Defendant could
For the reasons stated above, Count 1 is not dismissed.
E. Count 2: Defendant’s Negligent Failure to Report to Appropriate Licensing Authorities
Plaintiff alleges that USP negligently failed to report Jackson’s misconduct to the “state licensing authorities”— the Georgia Composite Medical Board and the NPDB.
An oral report shall be made immediately by telephone or otherwise and shall be followed by a report in writing, if requested, to the person in charge of the medical facility or his designated delegate. The person in charge of the medical facility or his designated delegate shall then notify the local law enforcement agency having primary jurisdiction in the area in which the medical facility is located of the contents of the report.,..
O.C.G.A. §, 31-7-9(c) (emphasis added).
Defendant argues that Plaintiffs reliance on O.C.G.A. § 31-7-9 is inapposite because O.C.G.A. § 31-7-9 “does not indicate that a medical facility must notify state licensing authorities, the Georgia Composite of Medical Examiners [sic] and the National Practitioner Data Bank.” (Def.’s Mot. Dismiss at 14.) Defendant also argues it did notify the proper authorities because Jackson was indicted in the U.S. District Court for the Northern District of Georgia. (Id)
When evaluating O.C.G.A. § 31-7-9, “the starting point is the language of the statute itself.” Harrison v. Benchmark Elecs. Huntsville, Inc.,
The Court agrees with Defendant. O.C.G.A. § 31-7-9 specifically describes a duty to “report to local law enforcement” and does not confer a duty on a medical facility or physician to make reports to the NPDB or the Georgia Composite Medical Board. Because Defendant did report to local law enforcement—as evidenced by
IY. CONCLUSION
For the reasons stated above, Defendant’s Motion to Dismiss [Doc. 6] is GRANTED IN PART and DENIED IN PART. Count 1 of Plaintiffs Complaint is NOT DISMISSED, and Count 2 is DISMISSED.
IT IS SO ORDERED this 9th day of March, 2017.
Notes
. Plaintiff and Defendant refer interchangeably to Family Health Centers as West End Medical Center. For convenience, the Court will refer to the health center as Family Health Centers.
. Plaintiff and Defendant refer to the Georgia Composite Medical Board as the "Georgia Board of Medical Examiners." However, under Georgia law, the state medical board is properly referred to as the Georgia Composite Medical Board. See O.C.G.A. § 43-34-2.
. The factual background set forth below is based on Plaintiff's allegations, which are construed as true and in the light most favorable to Plaintiff on a motion to dismiss.
. The Court may take judicial notice of matters of public record. See Fed. R. Evid. 201(b); Cash Inn of Dade, Inc. v. Metro. Dade Cty.,
. Plaintiff alleges Jackson sexually assaulted three inmates in September and October of 2011, but he was not terminated from the USP until July 11, 2012, at least eight months later. (Compl. ¶ 16.) Nevertheless, Plaintiff alleges the USP terminated Jackson because of these incidents. (Id.) Though the Complaint does not explain this gap in time, it is not necessarily fatal to Plaintiff's claims, since the USP may not have become aware of the incidents until July 2012 or in the preceding months. The Court notes this gap in the evidence solely as an issue the parties may want to address going forward, not for purposes of assessing pleading sufficiency.
. Defendant raises its second and third arguments in its Reply. Although the Court generally does not consider arguments raised for the first time in a reply brief, Jackson v. United States,
. Unlike in Lawrence, the merits of this case áre not “inextricably intertwined” with the jurisdiction of this case. Lawrence,
.’ The circuit Court therefore concluded that the Bureau of Prisons physician and principal medical official were entitled to personal immunity based on their decision not to authorize a medical treatment for a prisoner. Id. at 107-08.
. The Court also notes that a variety of other federal statutes contain provisions similar to this one in the FSÉCAA, but these statutes more narrowly define the "related functions” language, For example, the Gonzalez Act, 10 U.S.C. § 1089(a), grants FTCA coverage to armed forces medical personnel for the "performance of medical, dental, or related health pare functions.” 10 U.S.C. § 1089(a) (emphasis added); see also 51 U.S.C. § 20137(a); 22 U.S.C. § 2702(a); 38 U.S.C. § 7316(a).
. Specifically, the dentist in La Casa murdered a patient after seeing her for a dental examination over six months earlier. Id. at *1-2. There were no facts presented that he saw her again before the murder. Id. at *2. In short, the faсts made it clear that the dentist’s act of murdering the patient was unrelated to his treatment of her at the clinic.
. The Supreme Court has referred to Section 2680(h) as the “intentional tort exception.” See United States v. Shearer,
. Plaintiff’s arguments regarding "imputed knowledge” between the USP and Family Health Centers are without merit. (Pl.’s Sur-reply at 2.) Family Health Centers and the USP are two separate entities, and Plaintiff cannot argue that knowledge of Jackson’s misconduct can be imputed from the USP to Family Health Centers simply because the United States is serving as the defendant for both entities.
. In his Response, Plaintiff alleges that Defendant violated O.C.G.A. § 31-7-9(c) by failing to report Jackson’s misconduct "immediately." (Pl.’s Resp. 14.) However, Plaintiff did not raise this allegation in his Complaint. The Court will not consider this allegation because the Court is limited to the allegations raised in the Complaint on a motion to dismiss. See Wilchombe v. TeeVee Toons, Inc.,