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Eleventh Circuit Court of Appeals rules that because federal government had withdrawn certification that defendant health care providers were covered under the FTCA, jurisdiction did not exist for appellate review of district court’s remand of medical negligence case to state court

On August 25, 2020, in Thomas v. Albany Area Primary Healthcare, Inc., et al., No. 19-11187, the Eleventh Circuit Court of Appeals determined that it did not have jurisdiction to review a   plaintiffs’ appeal of the district court’s dismissal of her medical negligence lawsuit against several medical providers.  The plaintiffs had filed their lawsuit in Georgia state court, but pursuant to the Federally Supported Health Care Assistance Act of 1999 (“FSHCAA”), 42 U.S.C. § 233, the United States Attorney for the Middle District of Georgia removed the case to federal district court, certifying that a defendant doctor and her employer were “deemed” employees of the Public Health Service and were acting within the scope of that employment at the time of the alleged malpractice, qualifying this case as a Federal Tort Claims Act case.. However, the government subsequently stipulated that its initial conclusion was in error, and the district court remanded the case back to state court for lack of subject matter jurisdiction.  The doctor and her employer disagreed and lodged the instant appeal, maintaining that they are in fact entitled to federal liability protections.  The Eleventh Circuit noted that an FTCA suit against the United States is the exclusive remedy for medical malpractice by a Public Health Service employee acting within the scope of his or her employment. See 42 U.S.C. § 233(a); Hui v. Castaneda, 559 U.S. 799, 801-02, 130 S. Ct. 1845, 1848 (2010). Under the FSHCAA, health centers that receive federal grant funds and their employees may receive the same FTCA protection if they are “deemed to be an employee of the Public Health Service” by the Secretary of Health and Human Services (“HHS”). 42 U.S.C. § 233(g)(1)(A), (g)(4); see 42 U.S.C. § 201(c) (defining “Secretary” as Secretary of HHS). In this case, the doctor’s employer, Albany Area Primary Healthcare Inc. (“AAP Healthcare”), was deemed was deemed an employee of the Public Health Service because it is a community health center that receives federal grant funding to provide primary healthcare services at 15 locations in and around Albany. However, the government argued and the district court agreed that the doctor’s treatment of the plaintiff did not qualify for federal liability protections under the FTCA because the doctor’s work at Putney Hospital was not related to AAP Healthcare’s federal grant-supported activity and did not fit any exception extending FTCA coverage to non-patients.  The Eleventh Circuit concluded that under 28 U.S.C. § 1447(d) it had no jurisdiction to review the district court’s remand of the case because under that statute “[a]n order remanding a case [for lack of subject matter jurisdiction] to the State court from which it was removed is not reviewable on appeal or otherwise.”  See also Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229-30, 127 S. Ct. 2411, 2415-16 (2007). The Eleventh Circuit noted that there are some limited exceptions to this general rule, including a remand following the Attorney General’s certification of FTCA jurisdiction, but the Eleventh Circuit concluded that this exception did not apply because the government had withdrawn its initial certification.

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